UNITED STATES REPORTS VOLUME 447 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1979 June 9 Through June 23, 1980 HENRY C. LIND REPORTER OF DECISIONS UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON : 1982 For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 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. OFFICERS OF THE COURT BENJAMIN R. CIVILETTI, Attorney General. WADE H. McCREE, Jr., Solicitor General. MICHAEL RODAK, Jr., Clerk. HENRY C. LIND, 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 TABLE OF CASES REPORTED Note: All undesignated references herein to the United States Code are to the 1976 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. Page Acting Director, Dept, of Public Aid of Hl. v. Dilda............. 935 Adams Extract Co.; Westvaco Corp, v.............................. 919 Adderley v. Wainwright........................................... 925 Administrator, EPA v. Consolidation Coal Co...................... 903 Administrator, Ind. Dept, of Public Welfare v. Brown............. 918 Agins v. Tiburon................................................ 255 Agricultural Labor Relations Bd. of Cal.; Nagata Bros. Farms v.. 921 Air Transport Union; Williams v.................................. 909 Alabama; Ashworth v.............................................. 921 Alabama; Beck v.................................................. 625 Alaska; Gottschalk v............................................. 920 Alexander; Butler v.............................................. 910 Alexander v. Los Angeles County Civil Service Comm’n............. 924 Alexander Title Agency, Inc.; Murray v........................... 923 Alexis I. du Pont School Dist. v. Evans.......................... 916 Allen; Franzen v............................................... 917 All-State Dental Laboratory v. Illinois State Dental Society... 930 Alston v. New Jersey............................................. 908 American Airlines; Williams v.................................... 928 American Brands, Inc.; Carson v.................................. 920 American Broadcasting Cos. v. WNCN Listeners Guild............... 933 American Tobacco Co.; Carson v................................... 920 Amos, In re...................................................... 902 Anderson v. Charles.............................................. 404 Anderson; Jenkins v.............................................. 231 Andrulis v. United States........................................ 922 Andrus; Six Nations Confederacy v................................ 922 Anglin v. Indiana................................................ 906 Antonelli v. Tribune Newspaper................................... 926 Antonelli v. United States....................................... 908 Arizona; Edwards v............................................... 903 v VI TABLE OF CASES REPORTED Page Arkansas; Patterson v.......................................... 923 Arlen Realty & Development Corp.; White v...................... 923 Armstrong v. Illinois.......................................... 926 Artar; Artarian v.............................................. 907 Artarian v. Artar.............................................. 907 Ashworth v. Alabama............................................ 921 Association of National Advertisers, Inc. v. Federal Trade Comm’n.. 921 Attorney General; NAACP v................................. 922 Attorney General of N. C.; Hart Book Stores, Inc. v............ 929 Avis Rent-A-Car Systems, Inc. v. Vining........................ 917 Azzarelli Construction Co. v. United States.................... 920 Badgley v. New York City....................................... 906 Baldasar v. Illinois........................................... 930 Balkcom; Pulliam v............................................. 927 Ballard Co.; Supreme Equipment & Systems Corp, v............ 906 Baltimore Rebuilders, Inc. v. National Labor Relations Bd..... 922 Baptist; Seibert v............................................. 930 Battle v. Christensen.......................................... 919 Baumann v. United States..................................... 926 Beck v. Alabama................................................ 625 Beckert; Sappington v........................................ 930 Bella v. United States......................................... 907 Bell-Whitley Community Action Agency; Griffith v............... 928 Bergland; Committee to Protect First Amendment Rights v....... 921 Beverly Bank v. Illinois Savings & Loan Assn................... 906 Bexar Plumbing Co.; Plumbers & Pipefitters v................... 924 Bifulco v. United States....................................... 381 Blackbum v. Crum & Forster..................................... 906 Blake; Kline v................................................. 921 Board of Ed. of Memphis Schools v. Northcross.................. 911 Boerckel v. Illinois........................................... 911 Bohonus v. United States....................................... 928 Bowe v. First of Denver Mortgage Investors..................... 906 Briggs v. California ex rel. Dept, of Parks and Recreation.... 917 Briggs v. Connecticut.......................................... 912 Brown; Carey v................................................. 455 Brown v. Louisiana............................................. 323 Brown; Stanton v............................................... 918 Brown v. United States......................................... 927 Brummitt v. United States...................................... 907 Bryant v. Yellen............................................... 352 BT Investment Managers, Inc.; Lewis v.......................... 27 Burdine; Texas Dept, of Community Affairs v.................... 920 Burlington Northern, Inc. v. Missouri-Kansas-Texas R. Co...... 918 TABLE OF CASES REPORTED vn Burroughs Corp.; Kaplan v.......................................... 924 Butler v. Alexander................................................ 910 Butler v. United States............................................ 927 Butterworth; Kines v............................................... 92g Butterworth v. Lovett.............................................. 935 Buzzanca v. United States.......................................... 902 Bynum v. United States............................................. 931 California; Hall v................................................. 917 California; Mambretti v............................................ 926 California; Michael M. v........................................... 904 California v. Musante.............................................. 918 California v. Nevada............................................... 125 California; Taylor v............................................... 90g California; Thorson v.............................................. 911 California; United States v.......................................... 1 California v. Yellen............................................... 352 California ex rel. Dept, of Parks and Recreation; Briggs v....... 917 California Portland Cement Co.; Fletcher v......................... 923 Campbell v. United States.......................................... 910 Campos v. United States............................................ 929 Canfield v. New York City.......................................... 906 Cannon; Evans v.................................................... 910 Carcaise v. United States.......................................... 925 Carey v. Brown..................................................... 455 Carey; New York Gaslight Club, Inc. v.............................. 54 Carlson v. United States........................................... 905 Carnes v. United States............................................ 929 Carpenter v. United States......................................... 922 Carpenters; Sears, Roebuck & Co. v................................. 935 Carr v. Pennsylvania............................................... 926 Carr; Rosenthal v.................................................. 927 Carroll v. Duckworth............................................... 925 Carson v. American Brands, Inc..................................... 920 Carson v. American Tobacco Co...................................... 920 Carter v. Crown Hosiery Mills, Inc................................ 924 Carter; Johnson v.................................................. 909 Castaways Casino; Las Vegas Sun, Inc. v............................ 906 Cates v. United States............................................. 932 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm^ of N. Y. 557 Central Maine Power Co.; Maine Public Utilities Comm’n v.... 911 Chairman of Nev. Industrial Comm’n; Fisher v....................... 930 Chakrabarty; Diamond v............................................. 303 Chamber of Commerce of U. S. v. Legal Aid Soc. of Alameda Cty.. 921 Charles; Anderson v................................................ 404 VIII TABLE OF CASES REPORTED Page Christensen; Battle v.............................................. 919 Christensen v. Commissioner........................................ 931 City. See name of city. Civiletti; National Assn, for Advancement of Colored People v.... 922 Cobb v. Wainwright................................................. 907 Coffy v. Republic Steel Corp....................................... 191 Collins v. Louisiana............................................... 928 Comeaux v. United States........................................... 929 Commerce City; Cooper v...................................... 916 Commissioner; Christensen v........................................ 931 Commissioner of Internal Revenue. See Commissioner. Commissioner of Patents and Trademarks v. Chakrabarty......... 303 Commissioner of Patents and Trademarks v. Sherwood................. 934 Commissioner of Revenue of Tenn.; M. J. Kelley Co. v............... 905 Commissioners for Bucks County v. Halderman........................ 904 Committee to Protect First Amendment Rights v. Bergland....... 921 Commonwealth. See name of Commonwealth. Comptroller of Florida v. BT Investment Managers, Inc............... 27 Confederated Tribes of Colville Indian Reservation v. Washington.. 134 Confederated Tribes of Colville Indian Reservation; Washington v.. 134 Connecticut; Briggs v......................................... 912 Connecticut; Lane v........................................... 925 Connecticut; Rado v........................................... 920 Consolidated Edison Co. of N. Y. v. Public Service Comm’n of N. Y. 530 Consolidated Freightways Corp, of Del.; Terry Tuck, Inc. v.... 907 Consolidation Coal Co.; Costle v................................... 903 Consumer Product Safety Comm’n v. GTE Sylvania, Inc........... 102 Consumers Union of United States, Inc. v. Virginia State Bar.. 901 Cooper v. Commerce City............................................ 916 Corcoran; Smiley v................................................. 910 Cortez; United States v............................................ 904 Costle v. Consolidation Coal Co.................................... 903 Couch v. United States............................................. 910 Court of Appeals. See U. S. Court of Appeals. Coutu; Universities Research Assn, v........................... 934 Cox v. United States............................................... 908 Crisafi v. Wiethe.................................................. 927 Crooker v. Department of Justice................................. 908 Crown Hosiery Mills, Inc.; Carter v................................ 924 Crum & Forster; Blackbum v......................................... 906 Crum & Forster; Tiny Blackburn Agency v............................ 906 Darwin v. United States............................................ 921 Dave Streiffer Co. v. United States............................... 907 Delaware State Bd. of Ed. v. Evans................................. 916 TABLE OF CASES REPORTED rx Page Delong v. United States........................................ 933 DeMilia v. New York............................................ 922 Dennis v. Sparks............................................... 934 Department of Justice; Crooker v............................... 908 Department of Parks and Recreation; Briggs v................... 917 Department of Revenue of Wis.; Exxon Corp, v................... 207 Department of Transp. of Cal.; Desert Outdoor Advertising, Inc. v. 923 Deroche; El Fundi v............................................ 927 Desert Inn Hotel; Las Vegas Sun, Inc. v........................ 906 Desert Outdoor Advertising, Inc. v. Department of Transp. of Cal. 923 DeVingo v. New Jersey.......................................... 916 Diamond v. Chakrabarty......................................... 303 Diamond v. Sherwood............................................ 934 Dilda; Miller v................................................ 935 Director of penal or correctional institution. See name of director. Director of Workers’ Comp. Programs; Potomac Elec. Power Co. v. 903 District Court. See U. S. District Court. District Director of Internal Revenue; Seibert v............... 930 District Judge. See U. S. District Judge. Dixon v. United States......................................... 905 Dobbert v. Florida............................................. 912 Dobbs v. Hopper................................................ 930 Donn Products, Inc.; Furniture Workers v....................... 906 Downs v. United States......................................... 907 Duckworth; Carroll v........................................... 925 Duckworth; Rennert v........................................... 923 Duffin v. United States........................................ 927 Dunbar v. United States...................................... 926 Duncan; Ven-Fuel, Inc. v....................................... 905 Dunham; Gindi v................................................ 908 Edmisten; Hart Book Stores, Inc. v............................. 929 Edwards v. Arizona............................................. 903 Electri-Flex Co. v. National Labor Relations Bd................ 924 El Fundi v. Deroche............................................ 927 Elmore v. United States........................................ 910 Elorduy v. United States....................................... 910 Enomoto; Keyhea v.............................................. 901 Environmental Protection Agency v. National Crushed Stone Assn.. 903 Estelle; Rodriguez v........................................... 926 Estelle v. Smith............................................... 934 Estelle; Willeford v......................................... 931 Evans; Alexis I. du Pont School Dist. v........................ 916 Evans v. Cannon............................................... 910 Evans; Delaware State Bd. of Ed. v............................. 916 X TABLE OF CASES REPORTED Page Exxon Corp. v. Department of Revenue of Wis....................... 207 Exxon Corp. v. South Carolina Tax Comm’n.......................... 917 Ezzo; Zeccola v................................................... 924 Farese v. United States........................................... 925 Farias-Contreras v. Immigration and Naturalization Service...... 908 Farm Workers; Nagata Bros. Farms v................................ 921 Federal Communications Comm’n v. WNCN Listeners Guild........... 933 Federal Election Comm’n; Machinists Non-Partisan Polit. Lge. v. 918 Federal Energy Reg. Comm’n; Transcontinental Gas Pipe Line v. 922 Federal Trade Comm’n; Association of National Advertisers, Inc. v.. 921 Federal Trade Comm’n; Kellogg Co. v............................... 921 Federation for American Immigration Reform v. Klutznick......... 916 Feenstra; Kirchberg v............................................. 903 Feis v. United States............................................ 925 Firestone Tire & Rubber Co. v. Risjord............................ 934 First Bank of Oak Park v. United California Bank.................. 907 First Beverages, Inc. of Las Vegas v. Royal Crown Cola Co....... 924 First of Denver Mortgage Investors; Bowe- v....................... 906 Fisher v. Reiser.................................................. 930 Fletcher v. California Portland Cement Co......................... 923 Flores v. United States........................................... 911 Florida; Dobbert ................................................. 912 Florida; Mora v................................................... 930 Franklin v. Georgia............................................... 930 Franzen v. Allen.................................................. 917 Freedom Institute of America v. New Jersey........................ 934 Frontier Hotel; Las Vegas Sun, Inc. v............................. 906 Furniture Workers v. Donn Products, Inc........................... 906 Gallia County Children’s Services Bd.; Harrison v................. 909 Gallimore v. Garrison............................................. 909 Gardner Bender, Inc. v. Ideal Industries, Inc..................... 924 Garris v. United States........................................... 926 Garrison; Gallimore v............................................. 909 General Motors Corp.; Hamilton ................................... 907 Geomet Exploration, Ltd.; Lucky Me Uranium Corp, v................ 920 Georgia; Franklin v............................................... 930 Georgia; McShan v................................................. 901 Gindi v. Dunham................................................... 908 Ginsburg v. Tighe................................................. 910 Goldschmidt; Riley ............................................... 923 Gottschalk v. Alaska.............................................. 920 Governor of Fla.; Turner ......................................... 931 Governor of Utah; H. L. v....................................... 919 Graham; Turner ................................................... 931 TABLE OF CASES REPORTED XI Page Gray v. United States............................................ 929 Greco v. Workman................................................. 908 Greyhound Lines, Inc.; Spencer v................................. 931 Griffith v. Bell-Whitley Community Action Agency................. 928 Griggs; Herrington .............................................. 909 Gristeau v. United States........................................ 907 Gross v. United States........................................... 925 GTE Sylvania, Inc.; Consumer Product Safety Comm’n v........... 102 Halderman; Commissioners for Bucks County v...................... 904 Halderman; Mayor of Philadelphia v............................... 904 Halderman; Pennhurst Parents-Staff Assn, ........................ 904 Halderman; Pennhurst State School and Hospital v................. 904 Hall v. California............................................... 917 Hambrick; Harris v............................................... 919 Hamilton v. General Motors Corp.................................. 907 Hamilton v. Montana.............................................. 924 Hampel v. Motel Properties, Inc................................ 933 Hardy v. Illinois................................................ 927 Harris v. Hambrick............................................... 919 Harris; Liggett ................................................. 925 Harris v. Wright................................................. 911 Harrison v. Gallia County Children’s Services Bd................. 909 Hart Book Stores, Inc. v. Edmisten............................... 929 Hartford Textile Corp.; Shuffman v907 Hayes v. Rogers............................................... 922 Heilman v. United States......................................... 922 Henry; United States ............................................ 264 Herrington v. Griggs............................................ 909 Hicks v. Oklahoma................................................ 343 H. L. v. Matheson.............................................. 919 Hohensee v. Southard............................................. 916 Hopper; Dobbs ................................................... 930 Howell v. Wyrick................................................. 909 Howze v. Ohio.................................................... 910 Huff nagle v. Pennsylvania....................................... 906 Huguley v. United States......................................... 929 Hunter; Mahoning Women’s Center v................................ 918 Ideal Industries, Inc.; Gardner Bender, Inc. v................... 924 Igo v. United States............................................. 905 Illinois; Armstrong ............................................. 926 Illinois; Baldasar v......................ru..................... 930 Illinois; Boerckel .............................................. 911 Illinois; Hardy ................................................. 927 Illinois; Milwaukee ............................................. 983 XII TABLE OF CASES REPORTED Page Illinois; Roberts v.......................................... 927 Illinois; R. R., In re v.......................................... 928 Illinois; Schmoll v.......................................... 928 Illinois v. Vitale................................................ 410 Illinois Savings & Loan Assn.; Beverly Bank v..................... 906 Illinois State Dental Society; All-State Dental Laboratory v..... 930 Illinois State Dental Society; Sutker v.......................... 930 Immigration and Naturalization Service; Farias-Contreras v....... 908 Imperial Irrigation Dist. v. Yellen............................... 352 Indiana; Anglin v................................................. 906 Indiana & Michigan Electric Co. v. National Labor Relations Bd.. 923 In re. See name of party. Insilco Broadcasting Corp. v. WNCN Listeners Guild................ 933 International. For labor union, see name of trade. Jenkins v. Anderson............................................... 231 Jenkins v. New York............................................... 908 Jim Wallace Oil Co.; Kickasola v.................................. 916 Johnson v. Carter................................................. 909 Jones v. New York................................................. 927 Kaplan v. Burroughs Corp.......................................... 924 Kelley Co. v. Woods............................................... 905 Kellogg Co. v. Federal Trade Comm’n............................... 921 Kentucky; Wilson v................................................ 928 Keyhea v. Enomoto................................................. 901 Kickasola v. Jim Wallace Oil Co..................... 916 Kines v. Butterworth.............................................. 928 Kirchberg v. Feenstra............................................. 903 Kirk v. Illinois.................................................. 925 Klein v. United States............................................ 905 Kleve v. Kleve.................................................... 923 Kline v. Blake.................................................... 921 Klutznick; Federation for American Immigration Reform v.......... 916 Kondrat v. Mitrovich.............................................. 907 Korte v. United States.......................................... 927 L. v. Matheson................................................. 919 Labor Union. See name of trade. Lane v. Connecticut............................................... 925 Lane Processing, Inc. v. Marshall................................. 922 Las Vegas Sun, Inc. v. Castaways Casino........................... 906 Las Vegas Sun, Inc. v. Desert Inn Hotel........................... 906 Las Vegas Sun, Inc. v. Frontier Hotel............................ 906 Las Vegas Sun, Inc. v. Summa Corp................................ 906 Laughman v. United States........................................ 925 Laurel v. U. S. Court of Appeals.................................. 932 TABLE OF CASES REPORTED xm Page Lawson v. Pennsylvania.......................................... 926 Legal Aid Soc. of Alameda Cty.; Chamber of Commerce of U. S. v. 921 Lenz v. United States........................................... 929 Leonardi v. United States....................................... 928 Leonhardt v. United States..................................... 905 Levey v. United States......................................... 905 Lewis v. BT Investment Managers, Inc............................. 27 Liggett v. Harris...................................-.......... 925 Linden v. New York.............................................. 917 Local. For labor union, see name of trade. London Group (1974); Rudolf Wolff & Co. v..................... 933 Long Beach City Council; Walnut Properties, Inc. v.............. 902 Longshoremen; National Labor Relations Bd. v.................... 490 Los Angeles County Civil Service Comm’n; Alexander v............ 924 Los Angeles County Clerk; Smiley ............................... 910 Louisiana; Brown v.............................................. 323 Louisiana; Collins v............................................ 928 Louisiana; Maryland ............................................ 902 Louisiana; United States v...................................... 930 Louisiana; Williams ............................................ 909 Louisiana; Wymore .............................................. 935 Lovett; Butterworth ............................................ 935 Lovret; Seyfarth ............................................... 930 Lucky Me Uranium Corp. v. Geomet Exporation Ltd................. 920 M. v. California................................................ 904 M. v. Superior Court of Sonoma County......................... 904 Machinists Non-Partisan Political League v. FEC............ 918 Maddox v. Texas................................................ 909 Mahoney; McMillan ............................................. 927 Mahoning Women’s Center v. Hunter.............................. 918 Maine v. Thiboutot............................................. 934 Maine Public Utilities Comm’n v. Central Maine Power Co........ 911 Mambretti v. California........................................ 926 Markham v. Pitchess............................................ 904 Marshall; Lane Processing, Inc. v.............................. 922 Marshall; Sadlowski ........................................ 905 Maryland v. Louisiana.......................................... 902 Maryland; Stanley ............................................. 926 Maryland; Taylor .............................................. 928 Maskeny v. United States....................................... 921 Mason v. Wolfe................................................. 909 Matheson; H. L. ............................................... 919 Matsis v. Matsis............................................... 924 Mayor of Philadelphia v. Halderman............................. 904 XIV TABLE OF CASES REPORTED Page Mayor of Youngstown; Mahoning Women’s Center v................... 918 McAuliffe; Penthouse International, Ltd. v...................... 931 McMillan v. Mahoney.............................................. 927 McNamara; Moody v................................................ 929 McShan v. Georgia................................................ 901 Mearns; United States v.......................................... 934 Memphis v. Northcross............................................ 911 Metro Truck Body, Inc. v. National Labor Relations Bd......... 905 Meyer v. United States........................................... 932 Michael M. v. California......................................... 904 Michael M. v. Superior Court of Sonoma County.................... 904 Miller v. Dilda.................................................. 935 Miller v. United States...................................... 905,926 Milwaukee v. Illinois............................................ 933 Minick; Simpson v................................................ 909 Missouri-Kansas-Texas R. Co.; Burlington Northern, Inc. v..... 918 Mitchell, In re.................................................. 933 Mitchell v. United States........................................ 905 Mitrovich; Kondrat v............................................. 907 Mizell v. United States.......................................... 910 M. J. Kelley Co. v. Woods........................................ 905 Mohasco Corp. v. Silver.......................................... 807 Montana; Hamilton v.............................................. 924 Montana v. United States......................................... 903 Moody v. McNamara................................................ 929 Mora v. Florida.................................................. 930 Motel Properties, Inc.; Hampel v................................. 933 Murray v. Alexander Title Agency, Inc............................ 923 Musante; California v............................................ 918 Nagata Bros. Farms v. Agricultural Labor Relations Bd. of Cal... 921 Nagata Bros. Farms v. Farm Workers............................... 921 Nastu v. Texas................................................... 911 National Assn, for Advancement of Colored People v. Civiletti. 922 National Assn, of Broadcasters v. WNCN Listeners Guild........ 933 National Crushed Stone Assn.; EPA v.............................. 903 National Labor Relations Bd.; Baltimore Rebuilders, Inc. v.... 922 National Labor Relations Bd.; Electri-Flex Co. v................. 924 National Labor Relations Bd.; Indiana & Michigan Electric Co. v.. 923 National Labor Relations Bd. v. Longshoremen..................... 490 National Labor Relations Bd.; Metro Truck Body, Inc. v........ 905 National Labor Relations Bd. v. Retail Store Employees........... 607 National Railroad Passenger Corp.; Snell v....................... 928 Neff v. United States.......................................... 925 Neiman; Rudolf Wolff & Co. v..................................... 933 TABLE OF CASES REPORTED xv Page Nevada; California v.............................................. 125 New Jersey; Alston v.............................................. 908 New Jersey; DeVingo v............................................. 916 New Jersey; Freedom Institute of America v........................ 934 New York; DeMilia v........................................... 922 New York; Jenkins v............................................ 908 New York; Jones v.............................................. 927 New York; Linden v............................................. 917 New York City; Badgley v...................................... 906 New York City; Canfield v...................................... 906 New York Gaslight Club, Inc. v. Carey.......................... 54 Niagara Falls; Profit v........................................... 901 Noe v. United States.............................................. 902 North Carolina; Prevette v........................................ 906 Northcross; Board of Ed. of Memphis Schools v..................... 911 Northcross; Memphis v............................................. 911 Northwest Airlines v. Transport Workers........................... 920 O’Bannon v. Town Court Nursing Center............................. 773 Ohio; Howze ...................................................... 910 Oklahoma; Hicks v................................................. 343 Oklahoma; Sam v................................................... 931 Panza v. United States............................................ 925 Parratt; Robinson v............................................... 928 Patterson v. Arkansas............................................. 923 Paul v. U. S. District Court.................................... 903 Payner; United States v........................................... 727 Pearson v. Texas.................................................. 916 Pennhurst Parents-Staff Assn. v. Halderman........................ 904 Pennhurst State School & Hospital v. Halderman................... 904 Pennhurst State School & Hospital ; Pa. Assn, for Ret. Citizens v.. 904 Pennsylvania; Carr v.............................................. 926 Pennsylvania; Huffnagle v......................................... 906 Pennsylvania; Lawson ............................................. 926 Pennsylvania; Sun Ship, Inc. v.................................... 715 Pennsylvania Assn, for Retarded Citizens v. Pennhurst Sch. & Hosp. 904 Penthouse International, Ltd. v. McAuliffe........................ 931 Perez v. United States............................................ 929 Perez v. Wainwright............................................... 932 Petersen v. United States......................................... 905 Petrea v. Petrea.................................................. 901 Pfeifer v. U. S. Bureau of Prisons................................ 908 Piper; Roadway Express, Inc. v.................................... 752 Pitchess; Markham v............................................... 904 Pitts v. Redman................................................... 909 XVI TABLE OF CASES REPORTED Page Plumbers & Pipefitters v. Bexar Plumbing Co...................... 924 Potomac Elec. Power Co. v. Director of Workers’ Comp. Programs. 903 President of United States; Johnson v............................ 909 Prevette v. North Carolina...................................... 906 Proffitt v. United States........................................ 910 Profit v. Niagara Falls.......................................... 901 Prune Yard Shopping Center v. Robins.............................. 74 Public Service Comm’n of N. Y.; Central Hudson Gas & Elec. v.. 557 Public Service Comm’n of N. Y.; Consolidated Edison Co. of N. Y. v. 530 Pulliam v. Balkcom............................................... 927 R., In re v. Illinois............................................ 928 Raddatz; United States v......................................... 667 Rado v. Connecticut.............................................. 920 Redman; Pitts v.................................................. 909 Reeves, Inc. v. Stake............................................ 429 Reiser; Fisher v................................................. 930 Rennert v. Duckworth............................................. 923 Republic Steel Corp.; Coffy v................................... 191 Retail Store Employees; National Labor Relations Bd. v.......... 607 Rheuark v. Texas................................................ 903 Riggs v. United States........................................... 926 Riley v. Goldschmidt............................................. 923 Risjord; Firestone Tire & Rubber Co. v........................... 934 Roadway Express, Inc. v. Piper.................................. 752 Roberts v. Illinois............................................. 927 Robins; PruneYard Shopping Center v............................... 74 Robinson v. Parratt.............................................. 928 Rodriguez v. Estelle............................................. 926 Rogers; Hayes v.................................................. 922 Rome v. United States............................................ 916 Rosario v. United States......................................... 935 Rosenthal v. Carr................................................ 927 Royal Crown Cola Co.; First Beverages, Inc. of Las Vegas v...... 924 R. R., In re v. Illinois......................................... 928 Rucker v. St. Louis.............................................. 910 Rudolf Wolff & Co. v. London Group (1974)........................ 933 Rudolf Wolff & Co. v. Neiman..................................... 933 Sadlowski v. Marshall............................................ 905 St. Louis; Rucker v.............................................. 910 Sam v. Oklahoma.................................................. 931 Sanders v. United States......................................... 649 San Diego; San Diego Gas & Electric Co. v........................ 919 San Diego Gas & Electric Co. v. San Diego...............;........ 919 Sappington v. Beckert............................................ 930 TABLE OF CASES REPORTED XVII Page Scarborough v. United States....................................... 935 Schmoll v. Illinois................................................ 928 Sears, Roebuck & Co. v. Carpenters................................. 935 Secretary of Agriculture; Comm, to Protect First Arndt. Rights v. 921 Secretary of Army; Butler v........................................ 910 Secretary of Commerce; Federation for Am. Immig. Reform v.... 916 Secretary of Energy; Ven-Fuel, Inc. v.............................. 905 Secretary of Health and Human Services; Liggett v.................. 925 Secretary of Health and Human Services v. Wright................... 911 Secretary of Interior; Six Nations Confederacy v................... 922 Secretary of Labor; Lane Processing, Inc. v...................... 922 Secretary of Labor; Sadlowski v.................................... 905 Secretary of Public Welfare of Pa. v. Town Court Nursing Center.. 773 Secretary of Transportation; Riley v............................... 923 Seibert v. Baptist................................................. 930 Sellers v. United States........................................... 932 Sepulveda v. United States......................................... 932 1776 K Street Associates v. United States.......................... 905 Seyfarth v. Lovret............................................... 930 Sharp; Young v..................................................... 909 Shaufler v. United States.......................................... 922 Sherwood; Diamond v................................................ 934 Shuffman v. Hartford Textile Corp.................................. 907 Silber; Theriault v................................................ 919 Silver; Mohasco Corp, v............................................ 807 Simpson v. Minick.................................................. 909 Six Nations Confederacy v. Andrus.................................. 922 Smiley v. Corcoran................................................ 910 Smith; Estelle v................................................... 934 Snell v. National Railroad Passenger Corp.......................... 928 Solicitor General of Fulton County; Penthouse International, Ltd. v. 931 Southard; Hohensee v............................................... 916 South Carolina Tax Comm’n; Exxon Corp, v........................... 917 Sovereign News Co.; Warner v....................................... 923 Sparks; Dennis v................................................... 934 Sparks v. United States............................................ 916 Spencer v. Greyhound Lines, Inc.................................... 931 Stake; Reeves, Inc. v429 Standefer v. United States.......................................... 10 Stanley v. Maryland................................................ 926 Stanley v. Wainwright.............................................. 925 Stanton v. Brown................................................... 018 State. See name of State. State’s Attorney of Cook County v. Brown........................... 455 325-803 0 - 82 - 2 : QL 3 XVIII TABLE OF CASES REPORTED Page Stevens v. United States.......................................... 921 Strawberry Water Users Assn. v. United States..................... 935 Streiffer Co. v. United States.................................... 907 Summa Corp.; Las Vegas Sim, Inc. v................................ 906 Sun Ship, Inc. v. Pennsylvania.................................... 715 Superintendent of penal or correctional institution. See name or title of superintendent. Superior Court of Sonoma County; Michael M. v..................... 904 Supreme Equipment & Systems Corp. v. Walter M. Ballard Co... 906 Sutker v. Illinois State Dental Society........................... 930 Tatasciore v. United States....................................... 908 Tates v. United States............................................ 926 Taylor v. California.............................................. 908 Taylor v. Maryland................................................ 928 Terry Tuck, Inc. v. Consolidated Freightways Corp, of Del....... 907 Texas; Maddox v................................................... 909 Texas; Nastu v.................................................... 911 Texas; Pearson v.................................................. 916 Texas; Rheuark v.................................................. 903 Texas Dept, of Community Affairs v. Burdine....................... 920 Theriault v. Silber............................................... 919 Thiboutot; Maine v.............................................. 934 Thorson v, California............................................. 911 Tiburon; Agins v.................................................. 255 Tighe; Ginsburg v................................................. 910 Tiny Blackbum Agency v. Crum & Forster............................ 906 Toughill v. United States......................................... 905 Town Court Nursing Center; O’Bannon v............................. 773 Transcontinental Gas Pipe Line Corp. v. FERC...................... 922 Transport Workers; Northwest Airlines v........................ 920 Tribune Newspaper; Antonelli v................................. 926 Trolley v. United States.......................................... 908 Turner v. Graham.................................................. 931 Union. For labor union, see name of trade. United. For labor union, see name of trade. United California Bank; First Bank of Oak Park v.................. 907 United States; Andrulis v......................................... 922 United States; Antonelli v........................................ 908 United States; Azzarelli Construction Co. v....................... 920 United States; Baumann v...................................... 926 United States; Bella v............................................ 907 United States; Bifulco v.......................................... 381 United States; Bohonus v.......................................... 928 United States; Brown v............................................ 927 TABLE OF CASES REPORTED XIX Page United States; Brummitt v............................................. 907 United States; Butler v............................................... 927 United States; Buzzanca v............................................. 902 United States; Bynum v................................................ 931 United States v. California............................................. 1 United States; Campbell v............................................. 910 United States; Campos v............................................. 929 United States; Carcaise v............................................. 925 United States; Carlson v.............................................. 905 United States; Cames v. 929 United States; Carpenter v............................................ 922 United States; Cates v................................................ 932 United States; Comeaux v.............................................. 929 United States v. Cortez............................................... 904 United States; Couch v................................................ 910 United States; Cox v.................................................. 908 United States; Darwin v............................................... 921 United States; Dave Streiffer Co. v................................... 907 United States; Delong v............................................... 933 United States; Dixon v.............................................. 905 United States; Downs v.............................................. 907 United States; Duffin v............................................. 927 United States; Dunbar v............................................. 926 United States; Elmore v............................................. 910 United States; Elorduy v.............................................. 910 United States; Farese v............................................... 925 United States; Fels v................................................. 925 United States; Flores v.............................................. 911 United States; Garris v............................................... 926 United States; Gray v................................................. 929 United States; Gristeau v............................................. 907 United States; Gross v................................................ 925 United States; Heilman v.............................................. 922 United States v. Henry................................................ 264 United States; Huguley v.............................................. 929 United States; Igo v.................................................. 905 United States; Kirk v................................................. 925 United States; Klein v................................................ 905 United States; Korte v................................................ 927 United States; Laughman v............................................ 925 United States; Lenz v................................................. 929 United States; Leonardi v............................................. 928 United States; Leonhardt v............................................ 905 United States; Levey v................................................ 905 XX TABLE OF CASES REPORTED Page United States v. Louisiana.......................................... 930 United States; Maskeny v............................................ 921 United States v. Mearns............................................. 934 United States; Meyer v.............................................. 932 United States ; Miller v....................................... 905,926 United States; Mitchell v......................................... 905 United States; Mizell v........................................... 910 United States; Montana v........................................ 903 United States; Neff v............................................. 925 United States; Noe v.............................................. 902 United States; Panza v.............................................. 925 United States v. Payner............................................. 727 United States; Perez v.............................................. 929 United States; Petersen v........................................... 905 United States; Proffitt v........................................... 910 United States v. Raddatz............................................ 667 United States; Riggs v............................................ 926 United States; Rome v............................................. 916 United States; Rosario v.......................................... 935 United States; Sanders v.......................................... 649 United States; Scarborough v..................................... 935 United States; Seilers v.......................................... 932 United States; Sepulveda v........................................ 932 United States; 1776 K Street Associates v......................... 905 United States; Shaufler v........................................... 922 United States; Sparks v........................................... 916 United States; Standefer v......................................... 10 United States; Stevens v........................................... 921 United States; Strawberry Water Users Assn, v..................... 935 United States; Tatasciore v....................................... 908 United States; Tates v............................................ 926 United States; Toughill v......................................... 905 United States; Trolley v.......................................... 908 United States; Vasquez v.......................................... 907 United States; Vasquez-Santiago v................................. 911 United States; Waller v........................................... 916 United States; Walter v........................................... 649 United States; Washington v....................................... 134 United States; Weintraub v........................................ 905 United States; Westover v......................................... 929 United States v. Will............................................. 919 U. S. Bureau of Prisons; Pfeifer v.................................. 908 U. S. Court of Appeals; Laurel v.................................... 932 U. S. District Court; Paul v........................................ 903 TABLE OF CASES REPORTED XXI Page U. S. District Judge; Young .................................... 909 Universities Research Assn. v. Coutu............................ 934 Vasquez v. United States........................................ 907 Vasquez-Santiago v. United States............................... 911 Ven-Fuel, Inc. v. Duncan........................................ 905 Vining; Avis Rent-A-Car Systems, Inc. v......................... 917 Virginia; Willis v...........................•.................. 921 Virginia State Bar; Consumers Union of United States, Inc. v.... 901 Vitale; Illinois v.............................................. 410 Wachovia Bank & Trust Co.; Woodard v............................ 928 Wainwright; Adderley v.......................................... 925 Wainwright; Cobb ............................................... 907 Wainwright; Perez v............................................. 932 Wainwright; Stanley ............................................ 925 Walker, In re................................................... 923 Wallace Oil Co.; Kickasola v.................................... 916 Waller v. United States......................................... 916 Walnut Properties, Inc. v. Long Beach City Council.............. 902 Walter v. United States......................................... 649 Walter M. Ballard Co.; Supreme Equipment & Systems Corp. v.. 906 Warden. See name of warden. Warner v. Sovereign News Co..................................... 923 Washington v. Confederated Tribes of Colville Indian Reservation.. 134 Washington; Confederated Tribes of Colville Indian Reservation v.. 134 Washington v. United States..................................... 134 Weintraub v. United States...................................... 905 Westover v. United States....................................... 929 Westvaco Corp. v. Adams Extract Co............................ 919 White v. Arlen Realty & Development Corp........................ 923 Wiethe; Crisafi v............................................... 927 Wilkerson v. Wilkerson.......................................... 935 Will; United States v........................................... 919 Willeford v. Estelle............................................ 931 Williams v. Air Transport Union................................. 909 Williams v. American Airlines................................... 928 Williams v. Louisiana........................................... 909 Willis v. Virginia.............................................. 921 Wilson v. Kentucky............................................. 928 WNCN Listeners Guild; American Broadcasting Cos. v.............. 933 WNCN Listeners Guild; Federal Communications Comm’n v......... 933 WNCN Listeners Guild; Insilco Broadcasting Corp, v.............. 933 WNCN Listeners Guild; National Assn, of Broadcasters v........ 933 Wolfe; Mason ................................................... 909 Wolff & Co. v. London Group (1974).............................. 933 xxn TABLE OF CASES REPORTED Page Wolff & Co. v. Neiman....................................... 933 Woodard v. Wachovia Bank & Trust Co......................... 928 Woods; M. J. Kelley Co. v.................................. 905 Workman; Greco v............................................ 908 Wright; Harris v............................................ 911 Wymore v. Louisiana........................................ 935 Wyrick; Howell v........................................... 909 Yellen; Bryant v............................................ 352 Yellen; California v........................................ 352 Yellen; Imperial Irrigation Dist. v......................... 352 Young v. Sharp............................................. 909 Zeccola v. Ezzo............................................. 924 TABLE OF CASIS CITED Page Aaron v. SEC, 446 U. S. 680 401 Abney v. United States, 431 U. S. 651 426,427 Abood v. Detroit Board of Education, 431 U. S. 209 98-100, 543,552 Abrams v. United States, 250 U. S. 616 534,592,597 Accardi v. Pennsylvania R. Co., 383 U. S. 225 196,197,200 Adams v. Illinois, 405 U. S. 278 328,335,337 Adamson v. California, 332 U. S. 46 79 Adderley v. Florida, 385 U. S. 39 470,539 Administrator, FAA v. Robertson, 422 U. S. 255 122 Agosto v. INS, 436 U. S. 748 710 Akers v. General Motors Corp., 501 F. 2d 1042 194 Alabama v. King & Boozer, 314 U. S. 1 185,186 Alabama Power Co. v. Davis, 431 U. S. 581 194,197-199,203 Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341 710 Albemarle Paper Co. v. Moody, 422 U. S. 405 833 Albertson v. SACB, 382 U. S. 70 250 Aiderman v. United States, 394 U. S. 165 24,731,732,735,736 Alexander v. Gardner-Denver Co., 415 U. S. 36 64,65,67 Allen v. Labsap, 188 Mo. 692 437 Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240 759, 761, 762, 765, 766, 768 American Bread Co. v. NLRB, 411F. 2d 147 613,622 American Communications Assn. v. Douds, 339 U. S. 382 793 AFL v. Swing, 312 U. S. 321 466 Page American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1 308 American Radio Assn. v. Mo- bile S.S. Assn., 419 U. S. 215 616 American Trucking Assns. v. United States, 344 U. S. 298 710 American Yearbook Co. v. Askew, 339 F. Supp. 719 437, 438,450 Anderson v. Dunn, 6 Wheat. 204 707 Anderson v. Methodist Evangelical Hospital, Inc., 464 F. 2d 723 814 Andrus v. Shell Oil Co., 446 U. S. 657 118 Antoine v. Washington, 420 U. S. 194 166 Apodaca v. Oregon, 406 U. S. 404 331 Arcambel v. Wiseman, 3 Dall. 306 759 Arizona v. California, 373 U. S. 546 358,359, 363, 364, 369, 370, 373 Arkansas v. Sanders, 442 U. S. 753 654,659,662 Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 367 Armstrong v. Manzo, 380 U. S. 545 800 Armstrong v. United States, 364 U. S. 40 82,83 Arnett v. Kennedy, 416 U. S. 134 788,792,795,801 Arzberger, In re, 27 C. C. P. A. (Pat.) 1315 314 Ashcraft v. Tennessee, 322 U. S. 143 296 Ashe v. Swenson, 397 U. S. 436 22 Associated Press v. United States, 326 U. S. 1 596 XXIII XXIV TABLE OF CASES CITED Page Atkin v. Kansas, 191 U. S. 207 438,450 Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442 710 Avondale Marine Ways, Inc. v. Henderson, 346 U. S. 366 719 Bakery Drivers v. Wohl, 315 U. S. 769 619 Baldwin v. G. A. Seelig, Inc., 294 U. S. 511 36,42 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371 443 Ballew v. Georgia, 435 U. S. 223 331-333,338,339,342 Banzhaf v. FCC, 132 U. S. App. D. C. 14 571 Barr v. United States, 324 U. S. 83 315,321 Barrows v. Jackson, 346 U. S. 249 485,604 Bass, Ratcliff, & Gretton, Ltd. v. State Tax Comm’n, 266 U.S. 271 219,227 Bates v. Little Rock, 361 U. S. 516 540 Bates v. State Bar of Arizona, 433 U. S. 350 549,561, 562, 564, 565, 567, 574 Beauharnais v. Illinois, 343 U. S. 250 592 Bell v. Ohio, 438 U. S. 586 646 Belle Terre v. Boraas, 416 U. S. 1 261 Benton v. Maryland, 395 U. S. 784 415 Berger v. California, 393 U. S. 314 336 Bergy, In re, 563 F. 2d 1031 306, 307 Bernard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d 807 21 Bernheimer v. Converse, 206 U. S. 516 798 Berra v. United States, 351 U. S. 131 635 Best & Co. v. Maxwell, 311 U. S. 454 37 Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal. App. 2d 221 437,438 Page Bifulco v. United States, 447 U. S. 381 827,931,932 Bigelow v. Old Dominion Copper Co., 225 U. S. Ill 21 Bigelow v. Virginia, 421 U. S. 809 549,574 Bi-Metallic Investment Co. v. State Board, 239 U. S. 441 800 Bishop v. Wood, 426 U. S. 341 791, 795-797 Bithoney, In re, 486 F. 2d 319 766 Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 280 Blackwell v. State, 278 Md. 466 636 Blockburger v. United States, 284 U. S. 299 416,419,423-425 Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 21, 22,24 Board of Curators, Univ, of Mo. v. Horowitz, 435 U. S. 78 697 Board of Governors v. First Lincolnwood Corp., 439 U. S. 234 46 Board of Regents v. Roth, 408 U. S. 564 791,795,796 Bowles v. Willingham, 321 U. S. 503 800 Brady v. Maryland, 373 U. S. 83 267,268 Bram v. United States, 168 U.S. 532 671,689 Brandenburg v. Ohio, 395 U. S. 444 578,596 Braunfeld v. Brown, 366 U. S. 599 793 Breard v. Alexandria, 341 U. S. 622 584,597 Brede v. Director for Dept, of Health for Hawaii, 616 F. 2d 407 791,803 Breed v. Jones, 421 U. S. 519 415 Brennan v. Grisso, 91 U. S. App. D. C. 101 697 Brewer v. Williams, 430 U. S. 387 271,275- 277, 280, 284, 294, 296 Brinegar v. United States, 338 U. S. 160 679 TABLE OF CASES CITED XXV Page Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673 86 Broadrick v. Oklahoma, 413 U. S. 601 488,565 Browder v. United States, 312 U. S. 335 315 Brown v. Bathke, 588 F. 2d 634 62 Brown v. Glines, 444 U. S. 348 476,585 Brown v. Illinois, 422 U. S. 590 282,744 Brown v. Mississippi, 297 U. S. 278 296 Brown v. Ohio, 432 U. S. 161 416-422,424,425 Brown v. State, 28 Ga. 199 16 Brown v. United States, 356 U. S. 148 238 Brown v. United States, 411 U. S. 223 731 Browning Debenture Holder’s Comm. v. DASA Corp., 560 F. 2d 1078 766 Bryan v. Itasco County, 426 U. S. 373 140,142,143, 167, 169, 177, 179-181 Bryant v. Zimmerman, 278 U. S. 63 82,85 BT Investment Managers, Inc. v. Dickinson, 379 F. Supp. 792 33 Buck v. Kuykendall, 267 U. S. 307 44 Buckley v. Valeo, 424 U. S. 1 540, 552, 595 Burch v. Louisiana, 441 U. S. 130 324-326,330, 331, 333-337, 340, 342 Burdeau v. McDowell, 256 U. S. 465 656,659,660, 662 Burford v. Sun Oil Co., 319 U. S. 315 33 Burstyn, Inc. v. Wilson, 343 U. S. 495 534,546 Busic v. United States, 446 U. S. 398 401 Buster v. Wright, 135 F. 947 153 Butler Bros. v. McColgan, 315 U. S. 501 219,221-224,227 Butts v. State, 286 So. 2d 28 17 Calbeck v. Travelers Insurance Co., 370 U. S. 114 718-725 Page Califano v. Jobst, 434 U. S. 47 489 California v. United States, 438 U. S. 645 370,371 California Bankers Assn. v. Shultz, 416 U. S. 21 732 Callanan v. United States, 364 U. S. 587 402 Callins v. State, 500 P. 2d 1333 349 Campbell v. U. S. District Court for Northern District of California, 501 F. 2d 196 676, 692 Cantor v. Detroit Edison Co., 428 U. S. 579 586 Cantu v. United States, 598 F. 2d 471 386 Carey v. Brown, 447 U. S. 470 536, 617 Carey v. Piphus, 435 U. S. 247 697 Carey v. Population Services International, 431 U. S. 678 565, 566,574,577,578 Central Hardware Co. v. NLRB, 407 U. S. 539 98 Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S. 557 534, 538,549 Chaffin v. Stynchcombe, 412 U. S. 17 236,238 Chambers v. Mississippi, 410 U. S. 284 631 Chaplinsky v. New Hampshire, 315 U. S. 568 538,592 Chapman v. California, 386 U. S. 218 269 Chapman v. United States, 547 F. 2d 1240 915 Charron v. Meaux, 66 F. R. D. 64 763 Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. Supp. 234 763 Chicago B. & Q. R. Co. v. Chicago, 166 U. S. 226 84 Chimel v. California, 395 U. S. 752 659 Choctaw, O. & G. R. Co. v. Harrison, 235 U. S. 292 183 Christiansburg Garment Co. v. EEOC, 434 U. S. 412 63, 68, 762, 768, 769, 772 XXVI TABLE OF CASES CITED Page Christie v. State, 580 P. 2d 310 636 Chrysler Corp. v. Brown, 441 U. S. 281 118 Ciccone v. Textron, Inc., 616 F. 2d 1216 814 City. See name of city. Clark v. Uebersee Finanz- Korporation, 332 U. S. 480 676 Cohen v. California, 403 U. S. 15 534,541,542 Coleman v. Alabama, 399 U. S. 1 292 Colle v. State, 85 Nev. 289 636 Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254 437,439 Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 98 Combs v. United States, 408 U. S. 224 731 Commissioner v. Brown, 380 U. S. 563 763 Commissioner v. Sunnen, 333 U. S. 591 25 Commissioner of Internal Revenue. See Commissioner. Commonwealth. See also name of Commonwealth. Commonwealth v. Hicks, 118 Ky. 637 16 Commonwealth v. Santo, 375 Mass. 299 636 Commonwealth v. Terrell, 482 Pa. 303 636 Communist Party of Indiana v. Whitcomb, 414 U. S. 441 150 Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 186, 188,228 Confederated Salish & Kootenai Tribes v. Moe, 392 F.. Supp. 1325 163 Confederated Salish & Kootenai Tribes v. Montana, 393 F. Supp. 1297 160 Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530 462,464, 563, 564, 585, 592, 618 Page Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94 561,584 Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102 824 Cooke v. United States, 267 U. S. 517 764 Cooley v. Board of Wardens, 12 How. 299 35 Coolidge v. New Hampshire, 403 U. S. 443 656,660,661 Cooper v. California, 386 U. S. 58 81 Corbitt v. New Jersey, 439 U. S. 212 236 Cox v. Louisiana, 379 U. S. 536 463,470,537, 546 Cox v. Louisiana, 379 U. S. 559 470,484,485 Cox v. New Hampshire, 312 U. S. 569 470,535, 536,546 Craig v. Boren, 429 U. S. 190 488 Crampton v. Ohio, 402 U. S. 183 236,237 Crowell v. Benson, 285 U. S. 22 93,682,683,707-711 Cuyler v. Sullivan, 446 U. S. 335 932 Dale v. City of Mountain View, 55 Cal. App. 3d 101 259 Daniel v. Louisiana, 420 U. S. 31 335 Davies Warehouse Co. v. Bowles, 321 U. S. 144 121 Davis v. Department of Labor, 317 U. S. 249 718, 720,721,723,725 Day v. State, 532 S. W. 2d 302 637 Deepsouth Packing Co. v. Latrium Corp., 406 U. S. 518 319 DeGregory v. Giesing, 427 F. Supp. 910 458 Dellums v. Powell, 184 U. S. App. D. C. 339 763 Dent v. West Virginia, 129 U. S. 114 799 Denver v. Bossie, 83 Colo. 329 437 Department of Banking v. Pink, 317 U. S. 264 150 Department of Employment v. United States, 385 U. S. 355 149 TABLE OF CASES CITED XXVII Page Desist v. United States, 394 U. S. 244 328,335 DeStephano v. Woods, 392 U. S. 631 334,335,337,340 Detroit v. Murray Corp., 355 U. S. 489 188 Diamond v. Bland, 11 Cal. 3d 331 78,79,86,87 Diffenderfer v. Central Baptist Church, 404 U. S. 412 52 Dixon v. Love, 431 U. S. 105 801 Dixon-Paul Printing Co. v. Board of Public Contracts, 117 Miss. 83 437 Dorsynski v. United States, 418 U. S. 424 234 Doski v. M. Goldseker Co., 539 F. 2d 1326 816 Doyle v. Ohio, 426 U. S. 610 239-241, 244-248, 250, 407-409, 912 Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59 94 Dunaway v. New York, 442 U. S. 200 736,744 Duncan v. Louisiana, 391 U. S. 145 329,334-336 Dunn v. Blumstein, 405 U. S. 330 462 Dunn v. United States, 284 U S 390 22 Dyer v. MacDougall, 201 F. 2d 265 696 Eakin v. South Dakota State Cement Comm’n, 44 S. D. 268 430 East v. Oosting, 245 F. Supp. 51 9 Eastex, Inc. v. NLRB, 437 U. S. 556 98 Edwards v. South Carolina, 372 U. S. 229 467 Electrical Workers v. NLRB, 341 U. S. 694 616 Elkins v. United States, 364 U. S. 206 735,744 Erlenbaugh v. United States, 409 U. S. 239 760 Ernst & Ernst v. Hochfelder, 425 U. S. 185 376 Erwin v. Gage Canal Co., 226 Cal. App. 2d 189 371 Page Erznoznik v. Jacksonville, 422 U. S. 205 463,470,484,536,538 Estep v. United States, 327 U. S. 114 683 Euclid v. Ambler Realty Co., 272 U. S. 365 81,261,262 Evans v. Birtton, 472 F. Supp. 707 629 Ex parte. See name of party. Exxon Corp. v. Governor of Maryland, 437 U. S. 117 40-42, 85 Fare v. Michael C., 442 U. S. 707 296 Fassette v. United States, 444 F. Supp. 1245 387 FCC v. Pacifica Foundation, 438 U. S. 726 471,477,479, 484, 538, 545, 593, 596 FPC v. Hope Natural Gas Co., 320 U. S. 591 710 FPC v. Natural Gas Pipeline Co., 315 U. S. 575 710 FPC v. Texaco Inc., 417 U. S. 380 544 FTC v. Sperry & Hutchinson Co., 405 U. S. 233 544 Ferguson v. Skrupa, 372 U. S. 726 590 First National Bank of Boston v. Bellotti, 435 U. S. 765 464, 533-535, 540, 541, 544, 555, 563, 565, 570, 585-587 Fisher v. District Court, 424 U. S. 382 156,166,168,172 Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275 196 Fitzpatrick v. Bitzer, 427 U. S. 445 67 Flaska v. Little River Marine Constr. Co., 389 F. 2d 885 766 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714 759,761 Fleming v. State, 142 Miss. 872 16 Florida v. United States, 282 U. S. 194 67 Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 67 XXVIII TABLE OF CASES CITED Page Food Employees v. Logan Valley Plaza, 391 U. S. 308 80, 81,89-91,460 Foster v. Boorstin, 182 U. S. App. D. C. 342 62 Foster v. Dravo Corp., 420 U. S. 92 194,197,200 Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1 433,438,448 Fox v. Cincinnati, 104 U. S. 783 799 Freedman v. Maryland, 380 U. S. 51 571 Friedman v. Rogers, 400 U. S. 1 534,561,563,567,574 Fuentes v. Shevin, 407 IT. S. 67 797 Fulghum v. State, 291 Ala. 71 630 Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127 309,310 Furman v. Georgia, 408 U. S. 238 639,640, 646 Gagon v. Scarpelli, 411 U. S. 778 795 Gamble v. Pope & Talbot, Inc., 307 F. 2d 729 766 Gannett Co. v. DePasquale, 443 U. S. 368 701,803 Gardner v. Florida, 430 U. S. 349 638 Garland, Inc. v. St. Louis, 596 F. 2d 784 263 Garrison v. Louisiana, 379 U. S. 64 596 Gault, In re, 387 U. S. 1 794 Gavieres v. United States, 220 U. S. 338 416 Gemmill, In re, 20 Idaho 732 437 General Electric Co. v. Gilbert, 429 U. S. 125 825 Geromette v. General Motors Corp., 609 F. 2d 1200 814 Gertz v. Robert Welch, Inc., 418 U. S. 323 469,538,593 Gibbons v. Ogden, 9 Wheat. 1 447 Gideon v. Wainwright, 372 U. S. 335 295 Gilbert v. California, 388 U. S. 263 293 299 Gilbert v. United States, 370 U. S. 650 759 Page Gilbreath v. State, 555 P. 2d 69 636 Gillespie v. Oklahoma, 257 U. S. 501 183,184 Gillet v. Beth Israel Medical Center, 99 Mise. 2d 172 767 Ginsberg v. New York, 390 U. S. 629 489 Gitlow v. New York, 268 U. S. 652 546 Glidden Co. v. Zdanok, 370 U. S. 50 704,705 Gober v. Birmingham, 373 U. S. 374 21 Godfrey v. Georgia, 446 U. S. 420 646 Goldberg v. Kelly, 397 U. S. 254 787,795,798 Goldstein v. Cox, 396 U. S. 471 803 Goldwater v. Carter, 444 U. S. 996 260 Gompers v. Bucks Stove & Range Co., 221 U. S. 418 764 Goodrich v. Detroit, 184 U. S. 432 794,800 Goosby v. Osser, 409 U. S. 512 146-148 Gosa v. Mayden, 413 U. S. 665 328,329,335,340,341 Goss v. Lopez, 419 U. S. 565 795, 798,799,801,802 Gottschalk v. Benson, 409 U. S. 63 309 Gouled v. United States, 255 U. S. 298 678 Government of Virgin Islands v. Carmona, 422 F. 2d 95 636 Graham v. John Deere Co., 383 U. S. 1 309,316,319 Graham v. Mancusi, 457 F. 2d 463 698 Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 717 Gray v. United States, 104 U. S. App. D. C. 153 14 Grayned v. City of Rockford, 408 U. S. 104 470, 479, 482, 483, 485, 536 Great A&P Tea Co. v. Cot- trell, 424 U. S. 366 36,37,43,448 Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147 316 TABLE OF CASES CITED XXIX Page Green v. United States, 356 U. S. 165 765 Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1 346,795,796 Greer v. Spock, 424 U. S. 828 538, 539 545 Gregg v. Georgia, 428 U. S. 153 641,646,912,930 Gregory v. Chicago, 394 U. S. Ill 460,471 Griffin v. California, 380 U. S. 609 235,242,250-252,254 Griggs v. Duke Power Co., 401 U. S. 424 829 Grosso v. United States, 390 U. S. 62 250 Grunewald v. United States, 353 U. S. 391 236, 237,239,242,252 GTE Sylvania, Inc. v. Consumers Union, 445 U. S. 375 106, 107 Hackley v. Roudebush, 171 U. S. App. D. C. 376 690 Hague v. CIO, 307 U. S. 496 460, 539 Hall v. Cole, 412 U. S. 1 766 Hamilton v. Alabama, 368 U. S. 52 292 Hamling v. United States, 418 U. S. 87 25 Hammer v. United States, 271 U. S. 620 19 Hampton v. Mow Sun Wong, 426 U. S. 88 710 Hampton v. United States, 425 U. S. 484 735,737, 749,751 Hankerson v. North Carolina, 432 U. S. 233 328,337,338,407 Hannah v. Lärche, 363 U. S. 420 794 Hans Rees’ Sons v. North Carolina ex rel. Maxwell, 283 U. S. 123 219,220,227 Harary v. Blumenthal, 555 F. 2d 1113 23 Harris v. New York, 401 U. S. 222 237,238,251,253 Harris v. Oklahoma, 433 U. S. 682 420,426 Hartranft v. Wiegmann, 121 U. S. 609 310 Page Haynes v. United States, 390 U. S. 85 250 Heim v. McCall, 239 U. S. 175 438 Helvering v. Gerhardt, 304 U. S. 405 438 Helvering v. Hammel, 311 U. S. 504 763 Helvering v. Mountain Producers Corp., 303 U. S. 376 184 Henneford v. Silas Mason Co., 300 U. S. 577 182,185 Henry v. United States, 483 F. 2d 1401 267 Hersey v. Neilsen, 47 Mont. 132 437 Hibbs v. Neighborhood Organization to Rejuvenate Tenant Housing, 433 Pa. 578 480 Hicks v. Oklahoma, 447 U. S. 343 931 Hodgson v. Lodge 851, Int’l Assn, of Machinists & Aerospace Workers, 454 F. 2d 545 819 Hoffa v. United States, 385 U. S. 293 272,281,294,298 Hoffman v. Bethlehem Steel Corp., 477 F. 2d 860 194 Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 612,613 Holiday v. Johnston, 313 U. S. 342 696 Holland v. Bleigh Construction Co., 61 Ill. 2d 258 437 Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1 613 Howard v. State, 578 S. W. 2d 83 637 H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525 35, 36,44,437,439 Hudgens v. NLRB, 424 U. S. 507 81,90, 91, 95, 98, 460, 463, 472 Hughes v. Alexandria Scrap Corp., 426 U. S. 794 433-437, 439-448,450-453 Hughes v. Oklahoma, 441 U. S. 322 35,37,433,443,448,449 Hulbert v. Chicago, 202 U. S. 275 647 XXX TABLE OF CASES CITED Page Humphrey v. International Longshoremen’s Assn., 548 F. 2d 494 493 Hunt v. Washington Apple Advertising Comm’n, 432 U. 8. 333 37,43 Huron Portland Cement Co. v. Detroit, 362 U. S. 440 37 Hutto v. Finney, 437 U. S. 678 67,771 lannelli v. United States, 420 U. S. 770 399,416 Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173 600 Indiana v. Kentucky, 136 U. S. 479 131 Indian Territory Illuminating Co. v. Oklahoma, 240 U. S. 522 183 Industrial Comm’n y. Mc- Cartin, 330 U. S. 622 723,724 Ingraham v. Wright, 430 U. S. 651 94 In re. See name of party. Intercontinental Container Transport Corp. v. New York Shipping Assn., 426 F. 2d 884 502 International Longshoremen’s Assn. v. NLRB, 537 F. 2d 706 493 International Longshoremen’s Assn., Local 1575 v. NLRB, 560 F. 2d 439 493 International Shoe Co. v. Washington, 326 U. S. 310 44 Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 153 Ivanhoe Irrig. Dist. v. All Interested Parties and Persons, 47 Cal. 2d 597 371,372 Ivanhoe Irrig. Dist. v. Mc- Cracken, 357 U. S. 275 368, 371,373 Ivan V. v. City of New York, 407 U. S. 203 328 Jackson, Ex parte, 96 U. S. 727 654,655 Jackson v. Denno, 378 U. S. 368 678,735 Jackson v. Metropolitan Edison Co., 419 U. S. 345 553 Page Jackson v. State, 337 So. 2d 1242 635,636 Jacobs v. State, 361 So. 2d 640 629,632,640, 642,645 Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 228, 229,438 Jenkins v. Anderson, 447 U. S. 231 408,918 Johnson v. Louisiana, 406 U. S. 356 339,340 Johnson v. New Jersey, 384 U. S. 719 327-329,334 Johnson v. Traynor, 243 F. Supp. 184 9 Johnson v. United States, 318 U. S. 189 240,241 Johnson v. United States, 554 F. 2d 632 62 Johnson v. Zerbst, 304 U. S. 458 273 Johnson Co. v. Wharton, 152 U. S. 252 23 Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123 697,801 Jones v. State, 580 P. 2d 1150 637 Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 534, 546 Kahn v. Stamp, 52 App. Div. 2d 748 767 Kaiser Aetna v. United States, 444 U. S. 164 82-84,261,262 Kake Village v. Egan, 369 U. S. 60 166 Kansas Indians, The, 5 Wall. 737 178 Kaufman v. United States, 394 U. S. 217 734 Keeble v. United States, 412 U. S. 205 634,635 Kelly v. United States, 258 F. 392 18 Keokuk & Western R. Co. v. Missouri, 152 U. S. 301 21 Kersh Lake Dist. v. Johnson, 309 U. S. 485 798 Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470 307 Kiefel v. Las Vegas Hacienda, Inc., 404 F. 2d 1163 757 TABLE OF CASES CITED XXXI Page King v. Secretary of State for Home Affairs ex parte O’Brien, 2 K. B. 361 582 King v. Taylor and Shaw, 168 Eng. Rep. 283 16 Kirk v. Maumee Valley Co., 279 U. S. 797 799 Kirk v. Providence Mill Co., 279 U. S. 807 799 K & K Construction Co. v. NLRB, 592 F. 2d 1228 613 Klein v. Califano, 586 F. 2d 250 779-781,805 Knickerbocker Ice Co. v. Stewart, 253 U. S. 149 717 Knuz v. New York, 340 U. S. 290 565 Kovacs v. Cooper, 336 U. S. 77 470,477,489,535,542,547 K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm’n, 75 N. Y. 272 438,445 Ladner v. United States, 358 U. S. 169 387 Lafayette v. Louisiana Power & Light Co., 435 U. S. 389 439 Lakeside v. Oregon, 435 U. S. 333 243 Lamont v. Postmaster General, 381 U. S. 301 541 Lanza v. New York, 370 U. S. 139 285 LaRocca v. United States, 446 U. S. 398 401 Leach v. State, 83 Wis. 2d 199 637 Leake v. Cox, 432 F. 2d 982 915 Lefkowitz v. Cunningham, 431 U. S. 801 243 Legal Tender Cases, 12 Wall. 457 789 Lego v. Twomney, 404 U. S. 477 678 Lehman v. Shaker Heights, 418 U. S. 298 538, 539,542,545 Le Roy v. Tatham, 14 How. 156 309 Lewis v. BT Investment Man- agers, Inc., 447 U. S. 27 448 Lewis v. United States, 445 U. S. 55 387 Link v. Wabash R. Co., 370 U. S. 626 765,766 Page Linkletter v. Walker, 381 U. S. 618 327,334,337 Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 535, 536, 541, 562, 565, 574, 576-578, 583 Litchfield v. Goodnow, 123 U. S. 549 21 Lloyd Corp. v. Tanner, 407 U. S. 551 80-82,86,90,91,95,98 Lochner v. New York, 198 U. S. 45 93,589,591 Lockett v. Ohio, 438 U. S. 586 638,646 Long Island Lighting Co. v. New York State Public Service Comm’n, No. 77 C 972 (EDNY) 554,556 Lopez v. Arkansas County Independent School Dist., 570 F. 2d 541 758 Lopez v. United States, 373 U. S. 427 745,746 Lorillard v. Pons, 434 U. S. 575 19 Louisiana Boundary Case, 394 U. S. 11 5,7-9 Loury v. State, 147 Ga. App. 152 636 Love v. Pullman Co., 404 U. S. 522 64,816,817,823,827,832 Luboil Heat & Power Corp. v. Pleydell, 178 Mise. 562 437 Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 466 Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167 463 Malinski v. New York, 324 U. S. 401 737 Mallory v. United States, 354 U. S. 449 744 Malloy v. Hogan, 378 U. S. 1 671, 689 Mancusi v. DeForte, 392 U. S. 364 731 Mapp v. Ohio, 367 U. S. 643 296, 736,744 Marbury v. Madison, 1 Cranch 137 315 XXXII TABLE OF CASES CITED Page Marchetti v. United States, 390 U. S. 39 250 Marron v. United States, 275 U. S. 192 656 Marsh v. Alabama, 326 U. S. 501 80 Marshall v. Jerrico, Inc., 446 U. S. 238 697,801 Martin v. City of Struthers, 319 U. S. 141 542 Martin v. Commonwealth, 571 S. W. 2d 613 636 Martinez v. California, 444 U. S. 277 92,789,793 Martinez v. Socoma Cos., 11 Cal. 3d 394 259 Massiah v. United States, 377 U S. 201 269-280,282,284,286-290, 294, 296, 297, 300 Mathews v. Eldridge, 424 U. S. 319 93,677, 686, 699, 700, 778, 806 Mathews v. Weber, 423 U. S. 261 676,682,683 Matthews v. State, 310 A. 2d 645 636 McCaughey v. Lyall, 224 U. S. 558 798 McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 138, 142, 147, 148, 155, 156, 160, 162, 163, 166, 168, 175-184, 186, 187 McCray v. Illinois, 386 U. S. 300 679 McGautha v. California, 402 U. S. 183 236,347 McNabb v. United States, 318 U. S. 332 735,744 Meachum v. Fano, 427 U. S. 215 93,795,796 Mempa v. Rhay, 389 U. S. 128 292,347 Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1 780,788,792,795,796 Menominee Tribe v. United States, 391 U. S. 404 169 Mesarosh v. United States, 352 U. S. 1 744 Page Mescalero Apache Tribe v. Jones, 411 U. S. 145 138, 147, 148, 162, 163, 166, 168, 170, 172, 177, 179, 180, 185-187 Mever v. Richmond, 172 U. S. 82 794 Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 88,98 Michelin Tire Corp. v. Wages, 423 U. S. 276 181 Michigan v. Payne, 412 U. S. 47 282,328-330 Michigan v. Tucker, 417 U. S. 433 ... 734 Michigan Mutual Liability Co. v. Arrien, 344 F. 2d 640 9 Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F. 2d 34 758 Miller v. California, 413 U. S. 15 538 Mills v. Alabama, 384 U. S. 214 535 Mine Workers v. Illinois Bar Assn., 389 U. S. 217 543 Miranda v. Arizona, 384 U. S. 436 237, 239, 240, 244, 245, 247, 273, 274, 280, 282, 286, 287, 294, 405, 407, 408, 670, 700, 912-914 Mississippi v. Louisiana, 346 U. S. 862 683 Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U. S. 313 86 Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425 219,220,222-224,228 Moe v. Salish & Kootenai Tribes, 425 U. S. 463 138, 140, 143, 147, 150-152, 155, 157-160, 162, 163, 166, 168, 169, 171, 173, 174, 177, 180, 182, 184, 187-189 Monongahela Navigation Co. v. United States, 148 U. S. 312 83 Montanye v. Haymes, 427 U. S. 236 795 Moore v. Illinois, 434 U. S. 220 292 TABLE OF CASES CITED xxxni Page Moore v. Sunbeam Corp., 459 F. 2d 811 814,821,829 Moorman Mfg. Co. v. Bair, 437 U. S. 267 219-221,223,227 Moose Lodge No. 107 v. Irvis, 407 U. S. 163 472 Moran v. Rynar, 39 App. Div. 2d 718 767 Morgan v. United States, 298 U. S. 468 677, 680,696,698 Morris v. Hitchcock, 194 U. S. 384 153 Morrissey v. Brewer, 408 U. S. 471 346,795,797,806 Morton v. Mancari, 417 U. S. 535 172 Morton v. Ruiz, 415 U. S. 199 187 Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 677 Munn v. Illinois, 94 U. S. 113 92,93 Murphy v. Waterfront Comm’n, 378 U. S. 52 242 Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 795 Nacirema Co. v. Johnson, 396 U. S. 212 9,719 Nardone v. United States, 308 U. S. 338 735 NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 793 National Bellas Hess, Inc. v. Department of Revenue, 386 U. S. 753 220 National Geographic Society v. California Bd. of Equalization, 430 U. S. 551 171,182,185 National Hockey League v. Metropolitan Hockey Club, 427 U. S. 639 763,764 NLRB v. Babcock & Wilcox, 351 U. S. 105 98 NLRB v. Cement Masons Local 337,468 F. 2d 1187 612, 613 NLRB v. Denver Building Council, 341 U. S. 675 614 NLRB v. Fruit Packers, 377 U. S. 58 610-624 NLRB v. Mackay Radio & Tel. Co., 304 U. S. 333 680 NLRB v. Operating Engineers, 400 U. S. 297 614 Page NLRB V. Pipefitters, 429 U. S. 507 504,505, 507-510, 523, 524, 529 NLRB v. Retail Store Em- ployees, 447 U. S. 607 545 National League of Cities v. Usery, 426 U. S. 833 438, 439,449,452 National Woodwork Manufac- turers Assn. v. NLRB, 386 U. S. 612 504-508, 510,511,523 Nations v. Morris, 483 F. 2d 577 719 Nebbia v. New York, 291 U. S. 502 84,85,589,591 Nebraska v. Iowa, 379 U. S. 996 683 Nectow v. Cambridge, 277 U. S. 183 260 New Hampshire v. Maine, 426 U. S. 363 132 Newman v. Piggie Park Enterprises, 390 U. S. 400 61, 63,68,762 New Orleans v. Dukes, 427 U. S. 297 540 New Orleans Debenture Redemption Co. v. Louisiana, 180 U. S. 320 798 New State Ice Co. v. Liebmann, 285 U. S. 262 441 New York v. United States, 326 U. S. 572 186,439,443,450 New York Central R. Co. v. White, 243 U. S. 188 94 New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 82,85 New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 918 New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852 58 New York Times Co. v. Sullivan, 376 U. S. 254 90,548 Ng Fung Ho v. White, 259 U. S. 276 682,709-711 Nielsen, In re, 131 U. S. 176 421 Niemotko v. Maryland, 340 U. S. 268 536 Norfolk & Western R. Co. v. North Carolina ex rel. Max-well, 297 U. S. 682 222 325-803 0 - 82 - 3 : QL 3 XXXIV TABLE OF CASES CITED Page Norfolk & Western R. Co. v. State Tax Comm’n, 390 U. S. 317 220,227 North Carolina v. Pearce, 395 U. S. 711 415 Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249 524, 723-726 Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 219 O’Callahan v. Parker, 395 U. S. 258 707 Occidental Life Ins. Co. v. EEOC, 432 U. S. 355 811,816 O’Donoghue v. United States, 289 U. S. 516 704 Offutt v. United States, 348 U. S. 11 25 Ohio v. Helvering, 292 U. S. 360 450 Ohio v. Kentucky, 410 U. S. 641 131,132 Ohralik v. Ohio State Bar Assn., 436 U. S. 447 545, 562, 563, 574, 579, 588, 591 Oklahoma Tax Comm’n v. United States, 319 U. S. 598 180 Old Dearborne Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183 591 Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 153, 154,166,167 Olmstead v. United States, 277 U. S. 438 734,745 Olson v. Rembrandt Printing Co., 511 F. 2d 1228 814,816 Oregon v. Haas, 420 U. S. 714 238 O’Reilly v. Morse, 15 How. 62 309 Oscar Mayer & Co. v. Evans, 441 U. S. 750 63,823,826,829 Owen v. City of Independence, 445 U. S. 622 768 Pacific Gas & Electric Co. v. City of Berkeley, 60 Cal. App. 3d 123 534 Painter v. Commonwealth, 210 Va. 360 637 Palmore v. United States, 411 U. S. 389 681,705 Page Papish v. University of Missouri Curators, 410 U. S. 667 536 Parham v. J. R., 442 U. S. 584 794,803 Paris Adult Theatre I v. Slaton, 413 U. S. 49 483,548,596,710 Parker v. Califano, 182 U. S. App. D. C. 322 60,62 Parker v. Flook, 437 U. S. 584 309, 314,315,320 Parker v. Levy, 417 U. S. 733 585, 606 Parklane Hosiery Co. v. Shore, 439 U. S. 322 21,22,24 Patterson v. Colorado ex rel. Attorney General, 205 U. S. 454 260 Payton v. New York, 445 U. S. 573 471,656 P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 524,725,726 Pell v. Procunier, 417 U. S. 817 482 Penn Central Transportation Co. v. New York, 438 U. S. 104 83,260,261,263 Pennsylvania v. West Virginia, 262 U. S. 553 443,448,449 Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 83 People v. Bearss, 10 Cal. 68 16 People v. Charles, 58 Mich. App. 371 406,409 People v. DeFore, 242 N. Y. 13 275,746 People v. Henderson, 41 N. Y. 2d 233 636 People v. Jones, 395 Mich. 379 636 People v. Kief, 126 N. Y. 661 17 People v. Preston, 9 Cal. 3d 308 636 People v. Simpson, 57 Ill. App. 3d 442 636 People v. Smith, 271 Mich. 553 17 People v. White, 191 Colo. 353 636 People Acting Through Com- munity Effort v. Doorley, 468 F. 2d 1143 458 People ex rel. Holland v. Bleigh Constr. Co., 61 Ill. 2d 258 437 TABLE OF CASES CITED XXXV Page People ex rel. Treat v. Coler, 166 N. Y. 144 437 Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 189 Perkins v. Lukens Steel Co., 310 U. S. 113 450 Perkins v. United States, 315 F. 2d 120 14 Perrin v. United States, 444 U. S. 37 308 Perry v. Sindermann, 408 U. S. 593 788,798,799,806 Pfeiffer Co. v. Ford, 444 U. S. 69 524,725,726 Philadelphia v. New Jersey, 437 U. S. 617 35,36, 38, 39, 42, 433, 442, 443 Phillips v. United States, 312 U. S. 246 148 Phoenix v. Superior Court, 109 Ariz. 533 437 Pierce v. State, 130 Tenn. 24 17 Pierce & Stevens Chemical Corp. v. U. S. Consumer Product Safety Comm’n, 585 F. 2d 1382 104 Pignatello v. Attorney General, 350 F. 2d 719 691 Pike v. Bruce Church, Inc., 397 U. S. 137 36-38,435,445,448,449 Pittsburgh Press Co. v. Human Relations Comm’n, 413 U. S. 376 564 Police Department of Chicago v. Mosley, 408 U. S. 92 458-465, 470, 471, 474, 481, 536-538, 545, 617 Poulos v. New Hampshire, 345 U. S. 395 470 Powell v. Alabama, 287 U. S. 45 290-292,294 Primus, In re, 436 U. S. 512 565 Prudential Insurance Co. v. Benjamin, 328 U. S. 408 44 Pruitt v. State, 269 N. W. 2d 53 636 PruneYard Shopping Center v. Robins, 447 U. S. 74 552, 556,697 Public Media Center v. FCC, 190 U. S. App. D. C. 425 534 Page Puerto Rico v. Shell Co., 302 U. S. 253 315 Queen v. Bertrand, 4 Moo. P. C. N. S. 460 679 Queen v. Burton, 13 Cox C. C. 71 16 Queen v. Hughes, Bell 242 16 Queen v. Humphreys and Turner, [1965] 3 All E. R. 689 16 Queen v. Wallace, 1 Salk. 334 16 Query v. United States, 316 U. S. 486 149 Radio Officers v. NLRB, 347 U. S. 17 614 Raffel v. United States, 271 U. S. 494 235-237, 241, 242, 245, 246, 252 Railroad Comm’n v. Pullman Co., 312 U. S. 496 33 Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 51, 79,85 Rakas v. Illinois, 439 U. S. 128 24,731,734,735 Raley v. Ohio, 360 U. S. 423 240 Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429 36 Rea v. United States, 350 U. S. 214 735,744 Red Lion Broadcasting Co. v. FCC, 395 U. S. 397 118, 376,541-543,546 Rees’ Sons v. North Carolina ex rel. Maxwell, 283 U. S. 123 219,220,227 Reeves, Inc. v. Kelley, 586 F. 2d 1230 433 Reid v. Covert, 354 U. S. 1 707 Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 690 Reservation Eleven Associates v. District of Columbia, 136 U. S. App. D. C. 311 263 Reynolds v. Coomey, 567 F. 2d 1166 70 Rhode Island v. Innis, 446 U. S. 291 271,277, 280-282, 284, 286, 287 Ritter v. State, 375 So. 2d 270 628 XXXVI TABLE OF CASES CITED Page Roaden v. Kentucky, 413 U. S. 496 656 Roberts v. Louisiana, 428 U. S. 325 630, 632, 640 Roberts v. People, 103 Colo. 250 17 Roberts v. Russell, 392 U. S. 293 329 Roberts v. United States, 445 U. S. 552 243-245,251,254 Rochin v. California, 342 U. S. 165 737 Rodriguez v. Southern Pacific Transp. Co., 587 F. 2d 980 814 Rogers v. Richmond, 365 U. S. 534 678 Rogers v. United States, 325 F. 2d 485 299 Rooney v. United States, 203 F. 428 18 Roth v. United States, 354 U. S. 476 25,592 Rouse v. United States, 123 U. S. App. D. C. 348 678 Roviaro v. United States, 353 U. S. 53 679 Rowan v. United States Post Office Dept., 397 U. S. 728 471, 477,479,542 Rummel v. Estelle, 445 U. S. 263 234 St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 683, 710 San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1 462 Santa Clara Pueblo v. Martinez, 436 U. S. 49 168 Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 465,477 Schenck v. United States, 249 U. S. 47 465,545,595 Schneider v. State, 308 U. S. 147 468 Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282 437 Schwarz v. United States, 384 F. 2d 833 767 Second Employer’s Liability Cases, 223 U. S. 1 93 Page SEC v. CheHery Corp., 318 U. S. 80 544 SEC v. Sloan, 436 U. S. 103 314 Senn v. Tile Layers, 301 U. S. 468 480 Shaw v. Gibson-Zahniser Oil Corp., 276 U. S. 575 179 Sheldon v. Sill, 8 How. 441 705 Shell Development Co. v. Watson, 149 F. Supp. 279 308 Shelley v. Kraemer, 334 U. S. 1 90 Sherbert v. Verner, 374 U. S. 398 793 Shuttlesworth v. Birmingham, 394 U. S. 147 20,21,460 Silver v. Silver, 280 U. S. 117 92 Simmons v. United States, 390 U. S. 377 731 Simpson v. United States, 435 U. S. 6 387 Sims v. Georgia, 389 U. S. 404 749 Skidmore v. Swift & Co., 323 U. S. 134 120 Smith v. Organization of Foster Families, 431 U. S. 816 795 Smith v. United States, 431 U. S. 291 579 Snepp v. United States, 444 U. S. 507 585 Socialist Labor Party v. Gilli- gan, 406 U. S. 583 260 Societe Internationale v. Rogers, 357 U. S. 197 767 South Carolina v. United States, 199 U. S. 437 450 Southeastern Community Col- lege v. Davis, 442 U. S. 397 308 Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 541 Southern Bell Tel. & Tel. Co. v. Louisiana Pub. Serv. Comm’n, 239 La. 175 550 Southern Pacific Co. v. Gallagher, 306 U. S. 167 488 Southern Pacific Co. v. Jensen, 244 U. S. 205 717,719-722, 725 South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579 37i TABLE OF CASES CITED XXXVII Page Spano v. New York, 360 U. S. 315 279,205,296 Specht v. Patterson, 386 U. S. 605 347 Speiser v. Randall, 357 U. S. 513 702,711 Spence v. Washington, 418 U. S. 405 541,542 Stanford v. Texas, 379 U. S. 476 656 Stanley v. Georgia, 394 U. S. 557 94,100,471,653,659 Stanziale v. First National City Bank, 74 F. R. D. 557 763 State. See also name of State. State v. Anonymous, 6 Conn. Cir. 372 458 State v. Aubrey, 91 N. M. 1 636 State v. Beason, 95 Idaho 267 636 State v. Bogue, 52 Kan. 79 16 State v. Boone, 119 N. H. 594 636 State v. Brown, 173 Conn. 254 636 State v. Carmichael, 405 A. 2d 732 636 State v. Drumgold, 297 N. C. 267 636 State v. Funchess, 267 S. C. 427 637 State v. Gifford, 19 Wash. 464 17 State v. Gillian, 23 Utah 2d 372 637 State v. Grimes, 90 S. D. 43 637 State v. Hegwood, 202 Neb. 379 636 State v. Jackson, 370 So. 2d 570 326 State v. Jones, 101 N. C. 719 17 State v. Kilby, 50 Ohio St. 2d 21 636 State v. Lee, 91 Iowa 499 16 State v. Massey, 229 S. E. 2d 332 17 State v. McAllister, 366 So. 2d 1340 17 State v. Merrill, 274 N. W. 2d 99 636 State v. Millspaugh, 257 N. W. 2d 513 636 State v. Oklahoma Gas & Elec- tric Co., 536 P. 2d 887 572 State v. Ostwald, 180 Mont. 530 636 Page State v. Piper, 261 N. W. 2d 650 636 State v. Rice, 188 Neb. 728 17 State v. Saulnier, 63 N. J. 199 636 State v. Schuller, 280 Md. 305 458, 459 State v. Stone, 571 S. W. 2d 486 636 State v. Terry, 336 So. 2d 65 636 State v. Thayer, 32 Ore. App. 193 636 State v. Travis, 45 Haw. 435 636 State v. Valencia, 121 Ariz. 191 636 State v. Ward, 284 Md. 189 17 State v. Wayne, 245 S. E. 2d 838 637 State v. White, 225 Kan. 87 636 State v. Whitt, 113 N. C. 716 16 State v. Workman, 90 Wash. 2d 443 637 State v. Zeko, 177 Conn. 545 915 State Comm’n for Human Rights v. Speer, 35 App. Div. 2d 107 67 State Division of Human Rights v. Gorton, 32 App. Div. 2d 933 67 State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254 437, 439 State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 720 Steckler v. United States, 7 F. 2d 59 22 Stevenson v. United States, 162 U. S. 313 635 Stewart v. United States, 366 U. S. 1 237,239,242 Stone v. Farmers Bank of Kentucky, 174 U. S. 409 21 Stone v. Powell, 428 U. S. 465 296, 734,736 Stovall v. Denno, 388 U. S. 293 328,329,335 Street v. New York, 394 U. S. 576 648 Stromberg v. California, 283 U. S. 359 467 Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 591 xxxvin TABLE OF CASES CITED Page Supreme Court of Virginia v. Consumers Union, 446 U. S. 719 901,918 Surplus Trading Co. v. Cook, 281 U. S. 647 182 Swift & Co. v. Wickham, 328 U. S. Ill 146 Swisher v. Brady, 438 U. S. 204 691 Teamsters v. Vogt, Inc., 354 U. S. 284 470,616,619 Tehan v. United States ex rel. Shott, 382 U. S. 406 329, 334,335,337 TVA v. HiU, 437 U. S. 153 314, 318,401 Territory. See name of Territory. Texas v. Louisiana, 426 U. S. 465 5 Thigpen v. State, 571 P. 2d 467 345,350 Thomas v. Gay, 169 U. S. 264 174, 182-184 Thomas W. Garland, Inc. v. St. Louis, 596 F. 2d 784 263 Thornhill v. Alabama, 310 U. S. 88 460,466, 534 Tigner v. Texas, 310 U. S. 141 482 Tinker v. Des Moines School District, 393 U. S. 503 538,539 Toomer v. Witsell, 334 U. S. 385 44 438 Torcaso v. Watkins, 367 U. S. 488 79 Torres v. Sachs, 538 F. 2d 10 70 Toth v. Quarles, 350 U. S. 11 706, 707 Toussie v. United States, 397 U. S. 112 819 Townsend v. Sain, 372 U. S. 293 710 Townsend v. Yeomans, 301 U. S. 441 594 Travelers Insurance Co. v. Shea, 382 F. 2d 344 9 Treat v. Coler, 166 N. Y. 144 437 Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591 437, 439 Tully v. Griffin, Inc., 429 U. S. 68 185 Page Turner v. Fouche, 396 U. S. 346 149 Tyson & Brother v. Banton, 273 U. S. 418 591 Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 219, 223,227 United States v. Agee, 597 F. 2d 350 408 United States v. American Trucking Assns., 310 U. S. 534 818 United States v. Antelope, 430 U. S. 641 161 United States v. Ash, 413 U. S. 300 269,279,292,293,299 United States v. Azadian, 436 F. 2d 81 14 United States v. Ball, 163 U. S. 662 22 United States v. Barfield, 461 F. 2d 661 302 United States v. Batchelder, 442 U. S. 114 387 United States v. Brown, 333 U. S. 18 391 United States v. Burman, 584 F. 2d 1354 386 United States v. Burr, 25 F. Cas. 38 250 United States v. Caceres, 440 U. S. 741 735 United States v. Calandra, 414 U. S. 338 734,736 United States v. California, 297 U. S. 175 439,450 United States v. California, 332 U. S. 19; 332 U. S. 804 3 United States v. California, 381 U. S. 139 5,6,9 United States v. California, 382 U. S. 448 7 United States v. California, 432 U. S. 40 6 United States v. Carolene Products Co., 304 U. S. 144 800 United States v. Causby, 328 U. S. 256 262 United States v. Ceccolini, 435 U. S. 268 734 United States v. Chadwick, 433 U. S. 1 655,662 TABLE OF CASES CITED XXXIX Page United States v. Clarke, 445 U. S. 253 258 United States v. Colgate & Co., 250 U. S. 300 439,450 United States v. County of Fresno, 429 U. S. 452 185,186 United States v. Cruchfield, 547 F. 2d 496 636 United States v. Dankert, 507 F. 2d 190 386 United States v. Detroit, 355 U. S. 466 185 United States v. Dotterweich, 320 U. S. 277 15 United States v. Dubilier Condenser Corp., 289 U. S. 178 308 United States v. First City Na- tional Bank, 386 U. S. 361 690 United States v. Fisher, 2 Cranch 358 118 United States v. General Motors Corp., 323 U. S. 373 82 United States v. Goldman, 563 F. 2d 501 408 United States v. Haes, 551 F. 2d 767 664 United States v. Hale, 422 U. S. 171 237,239,240,247-249 United States v. Hartwell, 26 F. Cas. 196 15 United States v. Hearst, 563 F. 2d 1331 271,276,300,301 United States v. Hudson, 7 Cranch 32 764 United States v. Jacobs, 547 F. 2d 772 751 United States v. Jacobson, 578 F. 2d 863 386,388 United States v. Jacquinto, 464 F. Supp. 728 . 387,388 United States v. Janis, 428 U. S. 433 678 United States v. Klass, 166 F. 2d 373 18 United States v. Kubrick, 444 U. S. Ill 818 United States v. Louisiana, 389 U. S. 155 5 United States v. Massiah, 397 F. 2d 62 276 United States v. Matlock, 415 U. S. 164 679 Page United States v. Mazurie, 419 U. S. 544 156,167,173 United States v. Mearns, 599 F. 2d 1296 386,387 United States v. Mendenhall, 446 U. S. 544 902 United States v. Miller, 425 U. S. 435 732 United States v. Mireles, 570 F. 2d 1287 408 United States v. Musgrave, 483 F. 2d 327 14 United States v. Niederberger, 580 F. 2d 63 13 United States v. Nugent, 100 F. 2d 215 698 United States v. O’Brien, 391 U. S. 367 462,540 United States v. Oregon Medical Society, 343 U. S. 326 696, 697 United States v. Peltier, 422 U. S. 531 678 United States v. Philadelphia National Bank, 374 U. S. 321 118 United States v. Price, 361 U. S. 304 118,314 United States v. Prince, 430 F. 2d 1324 14 United States v. Rabinowitz, 176 F. 2d 732 659 United States v. Rands, 389 U. S. 121 83 United States v. Ross, 535 F. 2d 346 757 United States v. Russell, 411 U. S. 423 298,751 United States v. Scharf, 558 F. 2d 498 636 United States v. Seilers, 603 F. 2d 53 386 United States v. Sheffield Board of Comm’rs, 435 U. S. 110 833 United States v. Shuford, 454 F. 2d 772 14 United States v. Timmreck, 441 U. S. 780 386 United States v. U. S. Coin & Currency, 401 U. S. 715 329 United States v. Wade, 388 U. S. 218 269,292 XL TABLE OF CASES CITED Page United States v. Washington, 431 U. S. 181 281 United States v. Wells, 470 F. Supp. 216 387 United States v. Wheeler, 435 U. S. 313 152, 154, 166, 168, 178, 179 United States v. White, 401 U. S. 745 272,298 United States ex rel. Graham v. Mancusi, 457 F. 2d 463 698 United States ex rel. Toth v. Quarles, 350 U. S. 11 706,707 Universal Camera Corp. v. NLRB, 340 U. S. 474 680 Universal Oil Co. v. Globe Co., 322 U. S. 471 307 Upshaw v. United States, 335 U. S. 410 744 Utah & Northern R. Co. v. Fisher, 116 U. S. 28 182 Utica Mutual Ins. Co. v. Vin- cent, 375 F. 2d 129 680, 699 V. v. City of New York, 407 U. S. 203 328 Vachon v. New Hampshire, 414 U. S. 478 631 Valentine v. Chrestensen, 316 U. S. 52 584,597 Vigil v. American Tel. & Tel. Co, 455 F. 2d 1222 814,823,824 Village. See name of village. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 534, 535, 541, 549, 561-567, 571, 574-576, 578, 579, 584, 590, 593, 598, 599 Virgin Islands v. Carmona, 422 F. 2d 95 636 Virgin Islands v. 50.50 Acres of Land, 185 F. Supp. 495 263 Vitale, In re, 44 Ill. App. 3d 1030 414 Vitek v. Jones, 445 U. S. 480 93, 346, 697, 705, 791, 792, 794-796, 802-804, 806 Voeller v. Neilston Warehouse Co, 311 U. S. 531 798 Von Patzoll v. United States, 163 F. 2d 216 18 Page Wainwright v. Sykes, 433 U. S. 72 234,235 Walder v. United States, 347 U. S. 62 238,253 Walinsky v. Kennedy, 94 Mise. 2d 121 479,480 Walnut Creek v. Leadership Housing Systems, Inc, 73 Cal. App. 3d 611 263 Ward v. Race Horse, 163 U. S. 504 179 Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U. S. 685 155,167 Washington v. W. C. Dawson & Co, 264 U. S. 219 717 Washington v. Yakima Indian Nation, 439 U. S. 463 164,165 Washington Revenue Dept. v. Association of Wash. Stevedoring Cos, 435 U. S. 734 228 Wauwatosa v. King, 49 Wis. 2d 398 458,478 Weahkee v. Perry, 190 U. S. App. D. C. 359 690 Weatherford v. Bursey, 429 U.S. 545 281,298 Weeks v. United States, 232 U. S. 383 296 Weinstein v. Bradford, 423 U. S. 147 434 West v. Kansas Natural Gas Co, 221 U. S. 229 443 Westbrook v. State, 265 Ark. 736 636 Western Fuel Co. v. Garcia, 257 U. S. 233 717 West Ohio Gas Co. v. Public Utilities Comm’n, 294 U. S. 63 567,568 West Virginia State Bd. of Education v. Barnette, 319 U. S. 624 86,87,97 Whalen v. United States, 445 U. S. 684 387,426 White v. Maryland, 373 U. S. 59 292 Whitney v. California, 274 U. S. 357 534,577,582,594,595 Whitney Nat. Bank v. Bank of New Orleans, 379 U. S. 411 32 TABLE OF CASES CITED XLI Page Wickard v. Filburn, 317 U. S. Ill 591 Williams v. Florida, 399 U. S. 78 330,332,335,336 Williams v. Lee, 358 U. S. 217 156, 166-169, 171, 175, 187 Williams v. Rhodes, 393 U. S. 23 462 Williams v. United States, 401 U. S. 646 328,329,338 Wilson v. Henderson, 584 F. 2d 1185 281,282 Wingo v. Wedding, 418 U. S. 461 674,692,696 Wisconsin v. J. C. Penney Co., 311 U. S. 435 182,220 Page Witherspoon v. Illinois, 391 U. S. 510 334 Wolff v. McDonnell, 418 U. S. 539 346,795,801 Woodson v. North Carolina, 428 U. S. 280 630,638,639 Wooley v. Maynard, 430 Û. S. 705 86,87,97-99,552 Worcester v. Georgia, 6 Pet. 515 165 Young v. American Mini Theatres, Inc., 427 U. S. 50 81, 465, 484, 488, 489, 538, 545, 546, 583 Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 189 CASES ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES AT OCTOBER TERM, 1979 UNITED STATES v. CALIFORNIA ON EXCEPTION TO REPORT OF SPECIAL MASTER No. 5, Orig. Argued March 17, 1980—Decided June 9, 1980 The issue presented at this stage of this original action is whether—for purposes of determining California’s ownership under the Submerged Lands Act of submerged lands and natural resources lying within three geographical miles seaward of the California coastline—the coastline follows the mean lower low-water line along the natural shore, or whether it follows the seaward edge of 15 piers and the Rincon Island complex projecting into the Sea from the shore. Rincon Island, a privately owned artificial “island” used to service offshore oil facilities, is erected upon foundations resting on the ocean floor, has a dock on the seaward side, and is connected to the mainland by a causeway structure under which water flows freely. Neither the causeway nor the island have had any noticeable effect on the shoreline, and the complex is not a coast protective work. The piers in question, some of which are privately owned and some of which are operated by the State as docking facilities or for recreational purposes, are all attached to the mainland; water flows freely underneath each; they have no effect on the shoreline and are not coast protective works. The Special Master concluded that the piers and the Rincon Island complex do not constitute extensions of the coast and that the coastline follows the natural coast in the vicinity of these structures. California filed an exception to the Master’s report. Held: The Special Master’s conclusion is proper. Under the Convention on the Territorial Sea and the Contiguous Zone, which is used for guidance 1 2 OCTOBER TERM, 1979 Syllabus 447 U. S. in defining “coastline” for purposes of the Submerged Lands Act, the general rule expressed in Art. 3 therein is that the “normal baseline for measuring the breadth of the territorial sea is the low-water fine along the coast as marked on large-scale charts officially recognized by the coastal State.” Although the type of construction of the open piers involved here, being elevated above the ocean’s surface on pilings, does not, without more, require a determination adverse to California, the absence of a “lower low-water line” deprives them of a “normal baseline,” and precludes them from falling within the ambit of Art. 3. Moreover, Art. 8 of the Convention, whereby “the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast,” does not encompass all structures erected on the shore. The structures in this case are not harbors and are not a part of outermost “harbour works,” since they neither “protect,” “enclose,” nor “shelter,” Louisiana Boundary Case, 394 U. S. 11,37, n. 42, and thus they cannot constitute an integral part of a harbor system. Nor does the Longshoremen’s and Harbor Workers’ Compensation Act and decisions thereunder indicate that Congress has withdrawn from the courts the authority to define “coastline” for purposes of the Submerged Lands Act. Pp. 5-9. Exception to Special Master’s report overruled. Burger, C. J., delivered the opinion of the Court, in which all other Members joined, except Marshall, J., who took no part in the consideration or decision of the case. John Briscoe, Deputy Attorney General of California, argued the cause for defendant. With him on the briefs were George Deukmejian, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Nancy A. Saggese, Deputy Attorney General. Stephen M. Shapiro argued the cause for the United States. On the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Allan A. Ryan, Jr., Bruce C. Rashkow, and Michael W. Reed* *Avrum M. Gross, Attorney General, and G. Thomas Koester, Assistant Attorney General, filed an amicus curiae brief for the State of Alaska. UNITED STATES v. CALIFORNIA 3 1 Opinion of the Court Mr. Chief Justice Burger delivered the opinion of the Court. I The United States began this original action against the State of California under Art. Ill, § 2, of the Constitution in 1945 to determine whether the right to exploit natural resources under the submerged lands off the California coast belongs to the United States or to California. In 1947, this Court decreed that the United States owned all submerged lands extending seaward of the ordinary low-water mark on the California coast. United States v. California, 332 U. S. 804, 805. See also United States v. California, 332 U. S. 19 (1947). When Congress enacted the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. § 1301 et seq„ the United States, in effect, quitclaimed to California whatever interest the Federal Government may have had in, and to, all lands and natural resources lying within three geographical miles seaward of the California coastline. §3 (b)(1), 43 U. S. C. § 1311 (b)(1). Congress subsequently enacted the Outer Continental Shelf Lands Act of 1953, 67 Stat. 462, 43 U. S. C. § 1331 et seq., which declared that the United States owned all submerged lands seaward of those granted to California by the Submerged Lands Act. §§ 1332, 1333. In 1978, the parties filed cross-motions for entry of a supplemental decree. Although those motions proposed three issues for resolution, only one is presently before the Court.1 That issue is whether the coastline follows the mean lower low-water line along the natural shore, or whether it follows the seaward edge of 15 piers and the Rincon Island complex projecting into the sea from the shore. 1The other issues involve the location of the seaward limit, of inland waters at the Port of San Pedro and at the mouth of San Diego Bay. The parties acquiesce in the Master’s conclusion as to these issues and anticipate their resolution by agreement. 4 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. This Court appointed a Special Master who received evidence and submitted recommendations. The Master made the following findings of fact: Rincon Island is a privately owned artificial “island” off the shore near Punta Gorda, Ventura County, which is used to service offshore oil facilities. It is built upon large concrete tetrapods2 which rest on the ocean floor, and it has a surface consisting of rock and dirt fill. There are buildings and other structures on the island, all of which are related to an active oil well. On the seaward side of the island is a large dock equipped with hardware for the berthing of vessels. The island is connected to the mainland by a structure commonly known and identified on maps as the Punta Gorda Causeway. Oil is pumped to shore by a pipeline running beneath and alongside the causeway structure. The wooden causeway deck surface rests on a steel frame supported by pilings filled with gravel and capped with concrete. Water flows freely underneath. Neither the structure nor the island has had any noticeable effect on the shoreline, and the complex is not a coast protective work.8 The 15 piers have asphalt, wood, or concrete deck surfaces mounted on precast concrete, steel, or wood pilings. They vary in length from 500 feet (at the Santa Barbara Biltmore Hotel) to 3,500 feet (at Ocean Beach). All are attached to the mainland, and water flows freely underneath each. The piers have no effect on the shoreline; they are not coast protective works. One pier is privately owned by a hotel; 3 others are privately owned and used to supply offshore oil rigs; the remaining 11 are operated by the California State 2 These blocks resemble giant versions of a child’s “jacks.” 3 As the Master correctly noted, “Rincon Island could not qualify as an ‘island’ for purposes of delimiting the territorial sea under the Geneva Convention because it is an artificial island.” See Art. 10, Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1606, T. I. A. S. No. 5369. For all intents and purposes, then, the island complex is treated the same as the piers at issue. UNITED STATES v. CALIFORNIA 5 1 Opinion of the Court Department of Parks and Recreation as docking facilities or for recreational purposes.4 The Special Master concluded that neither the Rincon Island complex nor the piers constitute extensions of the coast.5 The California coastline, he determined, follows the natural coast in the vicinity of these structures for purposes of measuring to the federal-state boundary under the Submerged Lands Act. California filed an exception to the Master’s conclusion. II Since passage of the Submerged Lands Act granting California and other States ownership of submerged lands within three miles of their respective coasts, this Court has adverted to the Convention on the Territorial Sea and the Contiguous Zone, Apr. 29, 1958, [1964] 15 U. S. T. 1606, T. I. A. S. No. 5369, for guidance in the definition of the term “coastline.” See Louisiana Boundary Case, 394 U. S. 11 (1969); United States v. California, 381 U. S. 139, 165 (1965). The definitional contexts tend to be highly fact bound,6 and the Convention provides no rule for automatic application. The Submerged Lands Act does not indicate whether the word “coast” was intended by Congress to encompass only the natural shore, or to include structures extending seaward from shore. Although we have recognized in earlier proceedings of this case that some kinds of structures may modify the 4 The piers are not unlike fishing piers found in many coastal areas. 5 The Master noted that though some shipping is handled at some of the piers, it is insufficient to justify defining them as “ports.” For exam-ple, one of them is fitted with a coin-operated davit for lowering small boats into the water. We agree with this conclusion. The island, as an island, was disqualified from serving as a base point for measuring the territorial sea because of its artificiality. See n. 3, supra. 6 For other discussions on the significance of factual distinctions and their attendant implications among jetties, groins, breakwaters, and spoil banks, see Texas v. Louisiana, 426 U. S. 465, 469, and h. 3 (1976); United States v. Louisiana, 38Q U. S. 155,158 (1967). 6 OCTOBER TERM, 1979 Opinion of the Court 447U.S. California coastline, see the 1977 decree, 432 U. S. 40, this Court has never adopted a view that all structures erected on the coast may be considered extensions of the coast. Open piers, such as those at issue here, are elevated above the surface of the ocean on pilings. Accordingly, they do not conform to the general rule for establishing a baseline from which to measure the extent of a coastal state’s jurisdiction. That rule, contained in Art. 3 of the Convention, states: “[T]he normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.” The type of construction of the piers does not, without more, require a determination adverse to California. See, e. g., United States v. California, 381 U. S., at 176-177. But the absence of a “lower low-water line” deprives the piers of a “normal baseline,” and precludes them from falling within the ambit of Art. 3. The ultimate conclusion of the Special Master implicitly recognizes this proposition. He did not view the discontinuity of the waterline as dispositive, correctly noting that some breakwaters, for example, also have discontinuous waterlines, and have been held to be part of the coastline. But by considering and disposing of California’s claim under Art. 8 of the Convention, in effect on exception to the general rule embodied in Art. 3, see discussion infra, he necessarily found the criteria of Art. 3 were not satisfied. The fact that every National Ocean Survey chart of the California coast “officially recognized” by the United States displays a black line connoting the coastal low-water mark following the configuration of the seaward edge of the 16 structures, as it does groins, breakwaters, and other structures that extend seaward, is likewise not dispositive. We agree with the Master’s finding that the charts contain an aggregate of errors and in many places depict the territorial sea without UNITED STATES v. CALIFORNIA 7 1 Opinion of the Court regard to the coastline. And each chart, as the Master found, includes a disclaimer to that effect. California suggests that Art. 8 of the Convention also affords support for its position. Article 8 provides: “For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system shall be regarded as forming part of the coast.” Although in an earlier stage of this litigation we incorporated this text into the decree, 382 U. S. 448, 449 (1966), we did not construe the language as encompassing all structures erected on the shore. The piers and the island complex involved in this case are not a part of outermost harbor works; nor do they form an integral part of a harbor system. We held in the Louisiana Boundary Case, supra, that the term “harbour works” refers to “ ‘[structures erected along the seacoast at inlets or rivers for protective purposes, or for enclosing sea areas adjacent to the coast to provide anchorage and shelter.’ ” 394 U. S., at 37, n. 42.7 These structures neither “protect,” “enclose,” nor “shelter”;8 they do not constitute harbor works within the meaning of Art. 8. A “harbor” under Art. 8 is a body of water providing a haven for safe anchorage and shelter for vessels. See Louisiana Boundary Case, supra, at 37, n. 42, citing 1 A. Shalo- 7 In ruling in the Boundary Case that Louisiana’s dredged channels were not “harbour works,” we said: “. . . Article 8 applies only to raised structures. The discussions of the Article by the 1958 Geneva Conference and the International Law Commission reveal that the term 'harbour works’ connoted ‘structures’ and ‘installations’ which were ‘part of the land’ and which in some sense enclosed and sheltered the waters within.” 394 U. S., at 36-37 (emphasis added). 8 California’s coastal engineering expert testified that these piers are designed to have no effect on the movement of the sea. By contrast, groins and jetties are intended to affect wave action. 325-803 0 - 82 - 4 : QL 3 8 OCTOBER TERM, 1979 Opinion of the Court 447U.S. witz, Shore and Sea Boundaries 60, n. 65 (1962). That the piers and the Rincon Island complex provide no protection has been noted; that they are not bodies of water states the obvious. It follows that since the structures are neither harbor works nor harbors, they cannot constitute an integral part of a harbor system. The State seeks to import language from the International Law Commission’s Commentary to the final draft of Art. 8, primarily Comment 2, Report of the International Law Commission to the General Assembly, U. N. Gen. Ass. Off. Rec., 11th Sess., Supp. No. 9, U. N. Doc. A/3159, p. 16 (1956), as support for its position that Art. 8 should be construed to cover these structures. Comment 2 states: “Permanent structures erected on the coast and jutting out to sea (such as jetties and coast protective works) are assimilated to harbour works.” Comment 2 has been held to envision erosion jetties, but we have highlighted the beach protection or harbor protection role they fulfill as well. Louisiana Boundary Case, supra, at 49-50, n. 64. A construction of the Comment as including these piers and the island complex which concededly do not fulfill such a role would unwarrantedly extend the most generous intimation of the Comment.9 Finally, the State relies upon decisions in which the Longshoremen’s and Harbor Workers’ Compensation Act, 44 Stat. 1424, 33 U. S. C. § 901 et seq., was applied to accidents which occurred on piers as evidence that Congress intended domestic rather than admiralty law to control judicial construction of 9 Even if we were to assume, as did the Master, that “jetties” means “piers,” we would also agree with his conclusion, as we have, that these piers do not fall within Art. 8 because they are not part of a harbor or harbor system. But in light of our disposition it is unnecessary, and we decline, to join the dispute between the parties over the precise definition of “jetties” as contained in the English and French versions of the Convention. UNITED STATES v. CALIFORNIA 9 1 Opinion of the Court the Submerged Lands Act. E. g., Nacirema Co. v. Johnson, 396 U. S. 212 (1969); Travelers Insurance Co. v. Shea, 382 F. 2d 344 (CA51967); Michigan Mutual Liability Co. v. Arrien, 344 F. 2d 640 (CA2 1965); East v. Oosting, 245 F. Supp. 51 (ED Va. 1965); Johnson v. Traynor, 243 F. Supp. 184 (Md. 1965). It suggests this is at least an implicit congressional declaration that piers are land, and are thus part of the coastline. However, in an earlier incarnation of this case, we held to the contrary. United States v. California, 381 U. S., at 150-154; see also, Louisiana Boundary Case, supra, at 19. Nothing that has occurred since that ruling indicates that Congress has withdrawn from the courts the authority to define “coastline.” We have looked to the Convention to give content to the Submerged Lands Act; no reason is advanced which persuades us to do otherwise today. The exception of the State of California to the report of the Special Master is overruled. The Special Master shall prepare a proposed form of decree consistent with this opinion and present it to this Court for entry in due course. It is so ordered. Mr. Justice Marshall took no part in the consideration or decision of this case. 10 OCTOBER TERM, 1979 Syllabus 447 U.S. STANDEFER v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 79-383. Argued April 14, 1980—Decided June 9, 1980 Petitioner was indicted for, inter alia, aiding and abetting a named Internal Revenue Service agent in accepting unlawful compensation, in violation of 26 U. S. C. § 7214 (a) (2) and 18 U. S. C. § 2, which provides that whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. Prior to the indictment, the 1RS agent was acquitted of certain of the § 7214 (a) (2) violations which petitioner was accused of aiding and abetting. Petitioner moved to dismiss his indictment as to aiding and abetting these violations on the ground that since the agent had been acquitted of such violations, petitioner could not be convicted of aiding and abetting them. The District Court denied the motion, and after trial petitioner was convicted. The Court of Appeals affirmed. Held: A defendant accused of aiding and abetting in the commission of a federal offense may properly be convicted despite the prior acquittal of the alleged actual perpetrator of the offense. Pp. 14r-26. (a) Read against its common-law background, 18 U. S. C. § 2 evinces a clear congressional intent to permit such a conviction. The section gives general effect to what had always been the common-law rule for second-degree principals (principals who were actually or constructively present at the scene of the crime and aided and abetted its commission) and for all misdemeanants. The legislative history of § 2 confirms this understanding. With the enactment of § 2, all participants in conduct violating a federal criminal statute are “principals,” and as such they are punishable for their criminal conduct, the fate of other participants being irrelevant. Pp. 15-20. (b) The Government is not barred, under the doctrine of nonmutual collateral estoppel, from relitigating the issue of whether the 1RS agent accepted unlawful compensation. Application of that doctrine is not appropriate here. In a criminal case, the Government is often without the kind of “full and fair opportunity to litigate” that is a prerequisite of estoppel. The application of collateral estoppel in criminal cases is also complicated by rules of evidence and exclusion unique to criminal law. Finally, in this case the important federal interest in the enforce- STANDEFER v. UNITED STATES 11 10 Opinion of the Court ment of the criminal law outweighs the economy concerns undergirding the collateral estoppel doctrine. Pp. 21-25. 610 F. 2d 1076, affirmed. Burger, C. J., delivered the opinion for a unanimous Court. Harold Gondelman argued the cause and filed briefs for petitioner. William Alsup argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, and Deputy Solicitor General Frey. Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari in this case to decide whether a defendant accused of aiding and abetting in the commission of a federal offense may be convicted after the named principal has been acquitted of that offense. I In June 1977, petitioner Standefer was indicted on four counts of making gifts to a public official, in violation of 18 U. S. C. § 201 (f), and on five counts of aiding and abetting a revenue official in accepting compensation in addition to that authorized by law, in violation of 26 U. S. C. § 7214 (a) (2) and 18 U. S. C. § 2? The indictment charged that 1 Title 18 U. S. C. § 201 (f) provides, in relevant part, as follows: “Whoever, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly gives, offers, or promises anything of value to any public official . . . for or because of any official act performed or to be performed by such public official ... [is guilty of an offense].” Title 26 U. S. C. § 7214 (a) (2) punishes: “Any officer or employee of the United States acting in connection with any revenue law of the United States . . . who knowingly demands other or greater sums than are authorized by law, or receives any fee, compen- 12 OCTOBER TERM, 1979 Opinion of the Court 447U.S. petitioner, as head of Gulf Oil Corp.’s tax department, had authorized payments for five vacation trips to Cyril Niederberger, who then was the Internal Revenue Service agent in charge of the audits of Gulf’s federal income tax returns.2 Specifically, the indictment alleged that Gulf, on petitioner’s authorization, had paid for vacations for Niederberger in Pompano Beach (July 1971), Miami (January 1973), Absecon (August-September 1973), Pebble Beach (April 1974), and Las Vegas (June 1974). The four counts under 18 U. S. C. § 201 (f) related to the Miami, Absecon, Pebble Beach, and Las Vegas vacations; the five counts under 26 U. S. C. § 7214 (a) (2) and 18 U. S. C. § 2 were one for each vacation.3 Prior to the filing of this indictment, Niederberger was separately charged in a 10-count indictment—two counts for each of the five vacations—with violating 18 U. S. C. §201 (g)4 and 26 U. S. C. §7214 (a)(2). In February 1977, Niederberger was tried on these charges. He was convicted on four counts of violating § 201 (g) in connection with the vacations in Miami, Absecon, Pebble Beach, and Las Vegas and of sation, or reward, except as by law prescribed, for the performance of any duty.” Title 18 U. S. C. §2 provides in relevant part: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 2 The indictment also named Gulf Oil Corp, and Joseph Fitzgerald, a manager in Gulf’s tax department, as defendants. Gulf pleaded guilty and Fitzgerald nolo contendere to all nine counts. 3 It appears that the statute of limitations had run on any violation of 18 U. S. C. § 201 (f) in connection with the Pompano Beach vacation. 4 Title 18 U. S. C. §201 (g) punishes: “Whoever, being a public official . . . , otherwise than as provided by law for the proper discharge of official duty, directly or indirectly asks, demands, exacts, solicits, seeks, accepts, receives, or agrees to receive anything of value for himself for or because of any official act performed or to be performed by him.” STANDEFER v. UNITED STATES 13 10 Opinion of the Court two counts of violating § 7214 (a) (2) for the Pebble Beach and Las Vegas trips. He was acquitted on the § 201 (g) count involving the Pompano Beach trip and on the three counts under § 7214 (a) (2) charging him with accepting payments from Gulf for trips to Pompano Beach, Miami, and Absecon.6 In July 1977, following Niederberger’s trial and before the trial in his own case commenced, petitioner moved to dismiss the counts under § 7214 (a) (2) and 18 U. S. C. § 2 which charged him with’ aiding and abetting Niederberger in connection with the Pompano Beach, Miami, and Absecon vacations. Petitioner argued that because Niederberger, the only named principal, had been acquitted of accepting unlawful compensation as to those vacations, he could not be convicted of aiding and abetting in the commission of those offenses. The District Court denied the motion. Petitioner’s case then proceeded to trial on all nine counts. At trial, petitioner admitted authorizing payment for all five vacation trips, but testified that the trips were purely social and not designed to influence Niederberger in the performance of his official duties. The jury returned guilty verdicts on all nine counts.6 Petitioner was sentenced to concurrent terms of six months’ imprisonment followed by two years’ probation ; he was fined a total of $18,000—$2,000 on each count. Petitioner appealed his convictions to the Court of Appeals for the Third Circuit claiming, inter alia, that he could not 5 Niederberger was sentenced to six months’ imprisonment followed by a five-year period of probation, and he was fined $5,000. His convictions were affirmed by the Court of Appeals. United States v. Niederberger, 580 F. 2d 63 (CA3 1978). 6 The jury was instructed that in order to render a guilty verdict on the § 7214 (a) counts it must determine (1) that Niederberger knowingly “received a fee, compensation or reward except as prescribed by law . . for the performance ... of any duty” and (2) that petitioner “willfully aided and abetted [him].” App. 53a-54a, 57a. 14 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. be convicted of aiding and abetting a principal, Niederberger, when that principal had been acquitted of the charged offense. By a divided vote, the Court of Appeals, sitting en banc, rejected that contention. 610 F. 2d 1076 (1979). It concluded that “the outcome of Niederberger’s prosecution has no effect on [petitioner’s] conviction.” Id., at 1078. Because the question presented is one of importance to the administration of criminal justice on which the Courts of Appeals are in conflict, we granted certiorari.7 444 U. S. 1011. We affirm. II Petitioner makes two main arguments: first, that Congress in enacting 18 U. S. C. § 2 did not intend to authorize prosecution of an aider and abettor after the principal has been acquitted of the offense charged; second, that, even if § 2 permits such a prosecution, the Government should be barred from relitigating the issue of whether Niederberger accepted unlawful compensation in connection with the Pompano Beach, Miami, and Absecon vacations.8 The first contention relies largely on the common law as it prevailed before the enactment of 18 U. S. C. § 2. The second rests on the contemporary doctrine of nonmutual collateral estoppel. 7 The Courts of Appeals for the Fifth Circuit, the Ninth Circuit, and the District of Columbia Circuit have reached the same conclusion as the Third Circuit. See United States v. Musgrave, 483 F. 2d 327,331-332 (CA5 1973); United States v. Azadian, 436 F. 2d 81 (CA9 1971); Perkins v. United States, 315 F. 2d 120, 122 (CA9 1963); Gray v. United States, 104 U. S. App. D. C. 153, 260 F. 2d 483 (1958). The Court of Appeals for the Fourth Circuit has taken the contrary view that “where the only potential principal has been acquitted, no crime has been established and the conviction of an aider and abettor cannot be sustained.” United States v. Shuford, 454 F. 2d 772, 779 (1971). Accord, United States v. Prince, 430 F. 2d 1324 (CA4 1970). See also n. 11, infra. 8 Petitioner also challenges the instructions to the jury on criminal intent. We agree with the Court of Appeals that the instructions were correct. STANDEFER v. UNITED STATES 15 10 Opinion of the Court A At common law, the subject of principals and accessories was riddled with “intricate” distinctions. 2 J. Stephen, A History of the Criminal Law of England 231 (1883). In felony cases, parties to a crime were divided into four distinct categories: (1) principals in the first degree who actually perpetrated the offense; (2) principals in the second degree who were actually or constructively present at the scene of the crime and aided or abetted its commission; (3) accessories before the fact who aided or abetted the crime, but were not present at its commission; and (4) accessories after the fact who rendered assistance after the crime was complete. See W. LaFave & A. Scott, Criminal Law §63 (1972); 4 W. Blackstone, Commentaries *33; Perkins, Parties to Crime, 89 U. Pa. L. Rev. 581 (1941). By contrast, misdemeanor cases “d[id] not admit of accessaries either before or after the fact,” United States v. Hartwell, 26 F. Cas. 196, 199 (No. 15,318) (CC Mass. 1869); instead, all parties to a misdemeanor, whatever their roles, were principals. United States v. Dotterweich, 320 U. S. 277, 281 (1943); 1 C. Torcia, Wharton’s Criminal Law § 33 (14th ed. 1978). Because at early common law all parties to a felony received the death penalty, certain procedural rules developed tending to shield accessories from punishment. See LaFave & Scott, supra, at 499. Among them was one of special relevance to this case: the rule that an accessory could not be convicted without the prior conviction of the principal offender. See 1 M. Hale, Pleas of the Crown *623-*624. Under this rule, the principal’s flight, death, or acquittal barred prosecution of the accessory. And if the principal were pardoned or his conviction reversed on appeal, the accessory’s conviction could not stand. In every way, “an accessory follow[ed], like a shadow, his principal.” 1 J. Bishop, Criminal Law § 666 (8th ed. 1892). This procedural bar applied only to the prosecution of ac 16 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. cessories in felony cases. In misdemeanor cases, where all participants were deemed principals, a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance. Queen v. Humphreys and Turner, [1965] 3 All E. R. 689; Queen v. Burton, 13 Cox C. C. 71, 75 (Crim. App. 1875). And in felony cases a principal in the second degree could be convicted notwithstanding the prior acquittal of the first-degree principal. King v. Taylor and Shaw, 168 Eng. Rep. 283 (1785); Queen v. Wallis, 1 Salk. 334, 91 Eng. Rep. 294 (K. B. 1703); Brown v. State, 28 Ga. 199 (1859); State v. Whitt, 113 N. C. 716, 18 S. E. 715 (1893). Not surprisingly, considerable effort was expended in defining the categories—in determining, for instance, when a person was “constructively present” so as to be a second-degree principal. 4 Blackstone, supra, at *34. In the process, justice all too frequently was defeated. To overcome these judge-made rules, statutes were enacted in England and in the United States. In 1848 the Parliament enacted a statute providing that an accessory before the fact could be “indicted, tried, convicted, and punished in all respects like the Principal” 11 & 12 Vic. ch. 46, § 1 (emphasis added). As interpreted, the statute permitted an accessory to be convicted “although the principal be acquitted.” Queen v. Hughes, Bell 242,248,169 Eng. Rep. 1245,1248 (1860). Several state legislatures followed suit.9 In 1899, 9 By 1909, when §2 was enacted, 13 States had enacted legislation providing that the acquittal of the actual perpetrator was not a bar to the conviction of one charged with giving him aid. See Cal. Stat., ch. 99, §§ 11, 12 (1850) (see People n. Bearss, 10 Cal. 68, 70 (1858)); Del. Rev. Stat., ch. 133, § 1 (1893); Iowa Rev. Code Ann. §4314 (1885) (see State v. Lee, 91 Iowa 499, 501-502, 60 N. W. 119, 120 (1894)); Kan. Gen. Stat. § 5180 (1889) (see State n. Bogue, 52 Kan. 79, 86-87, 34 P. 410, 412 (1893)); Ky. Stat. § 1128 (1903) (see Commonwealth n. Hicks, 118 Ky. 637, 642, 82 S. W. 265, 266 (1904)); Miss. Code §1026 (1906) (see Fleming v. State, 142 Miss. 872, 880-881, 108 So. 143, 144-145 (1926)); Mont. Penal Code Ann. § 1854 (1895); N. Y. Penal Code § 29 (1895) STANDEFER v. UNITED STATES 17 10 Opinion of the Court Congress joined this growing reform movement with the enactment of a general penal code for Alaska which abrogated the common-law distinctions and provided that “all persons (see People v. Kief, 126 N. Y. 661, 663-664, 27 N. E. 556, 557 (1891)); N. D. Rev. Code Crim. Proc. §8060 (1895); Okla. Stat. §5523 (1890); S. D. Stat. Ann. § 8520 (1899); Utah Comp. Laws § 4752 (1907); Wash. Code of Proc. § 1189 (1891) (see State v. Gifford, 19 Wash. 464, 467-468, 53 P. 709, 710 (1898)). Since then, at least 21 other States have enacted legislation with that effect. See 1977 Ala. Act No. 607, § 425; Ariz. Rev. Stat. Ann. § 13-304-1 (1978); Ark. Stat. Ann. §41-304 (1977); Colo. Rev. Stat. §18-1-605 (1973) (see Roberts v. People, 103 Colo. 250, 87 P. 2d 251 (1938)); Conn. Gen. Stat. §53a-9 (1979); Fla. Stat. §777.011 (1979) (see Butts v. State, 286 So. 2d 28 (1973)); Ga. Code § 26-802 (1978); Ill. Rev. Stat., ch. 38, §5-3 (1979); Ind. Code §35-41-2-4 (Supp. 1978); La. Rev. Stat. Ann. §1454 (West 1974) (see State v. McAllister, 366 So. 2d 1340 (1978)) ; Me. Rev. Stat. Ann., Tit. 17-A, § 57 (1979); Mich. Comp. Laws § 767.39 (1970) (People v. Smith, 271 Mich. 553, 260 N. W. 911 (1935)); Mo. Rev. Stat. § 562.046 (1978); Neb. Rev. Stat. § 28-206 (Supp. 1978) (State v. Rice, 188 Neb. 728, 199 N. W. 2d 480 (1972)); N. H. Rev. Stat. Ann. §626.8 (1974); N. J. Stat. Ann. §2C: 2-6 (West Spec. Pamph. 1979) ; N. M. Stat. Ann. §30-1-13 (1978); Pa. Cons. Stat., Tit. 18, §306 (Supp. 1979); S. C. Code § 16-1-50 (1976) (State v. Massey, 229 S. E. 2d 332 (1976)); Tex. Penal Code Ann. § 7.03 (Vernon 1974); Wis. Stat. § 939.05 (1977). Eleven other States have enacted statutes that modify the common-law rule; these statutes have not been authoritatively construed on whether an accessory can be prosecuted after his principal’s acquittal. See Haw. Rev. Stat. § 702-225 (1976); Idaho Code § 19-1431 (1979); Mass. Gen. Laws Ann., ch. 274, § 3 (West 1970); Minn. Stat. § 609.05 (1978); Nev. Rev. Stat. § 195.040 (1979); Ohio Rev. Code Ann. § 2923.03 (1979); Ore. Rev. Stat. § 161.160 (1979); Vt. Stat. Ann., Tit. 13, § 3 (1974); Va. Code § 18.2-21 (1975); W. Va. Code § 61-11-7 (1977); Wyo. Stat. § 6-1-114 (1977). Only four States—Maryland, North Carolina, Rhode Island, and Tennessee—clearly retain the common-law bar. See State v. Ward, 284 Md. 189, 396 A. 2d 1041 (1978); State n. Jones, 101 N. C. 719, 8 S. E. 147 (1888) (interpreting N. C. Gen. Stat. § 14-5 (1969)); R. I. Gen. Laws § 11-1-3 (1970); Pierce n. State, 130 Tenn. 24, 168 S. W. 851 (1914). The Model Penal Code provides that an accomplice may be convicted “though the person claimed to have committed the offense . . . has been 18 OCTOBER TERM, 1979 Opinion of the Court 447 IT. S. concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the crime or aid and abet in its commission, though not present, are principals, and to be tried and punished as such.” Act of Mar. 3, 1899, § 186, 30 Stat. 1282. In 1901, Congress enacted a similar provision for the District of Columbia.10 The enactment of 18 U. S. C. § 2 in 1909 was part and parcel of this same reform movement. The language of the statute, as enacted, unmistakably demonstrates the point: “Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.” Act of Mar. 4, 1909, § 332, 35 Stat. 1152 (emphasis added).11 acquitted.” §2.06(7) (Tent. Draft No. 3, 1955), and see comments 38-39 (Tent. Draft No. 1, 1953). 10 The provision is still in effect; it provides that all persons “aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanor only shall apply to all crimes. . . .” Act of Mar. 3, 1901, § 908, 31 Stat. 1337; D. C. Code §22-105 (1973) (emphasis added). 11 In 1951, the words “is a principal” were altered to read “is punishable as a principal.” That change was designed to eliminate all doubt that in the case of offenses whose prohibition is directed at members of specified classes (e. g., federal employees) a person who is not himself a member of that class may nonetheless be punished as a principal if he induces a person in that class to violate the prohibition. See S. Rep. No. 1020, 82d Cong., 1st Sess., 7-8 (1951). The change was fully consistent with congressional intent to treat accessories before the fact as principals and to abolish the common-law procedural bar. Indeed, by the time of the 1951 re-enactment, the Circuit Courts that had addressed the question had concluded that §2 authorizes conviction of an aider and abettor notwithstanding the prior acquittal of the perpetrator of the offense. See United States v. Klass, 166 F. 2d 373, 380 (CA3 1948); Von Patzoll v. United States, 163 F. 2d 216, 219 (CAIO 1947); Kelly v. United States, 258 F. 392, 402 (CA6 1919); Rooney n. United States, 203 F. 928, STANDEFER v. VETTED STATES 19 10 Opinion of the Court The statute “abolishe[d] the distinction between principals and accessories and [made] them all principals.” Hammer v. United States, 271 U. S. 620, 628 (1926). Read against its common-law background, the provision evinces a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense. It gives general effect to what had always been the rule for second-degree principals and for all misdemeanants. The legislative history of § 2 confirms this understanding. The provision was recommended by the Commission to Revise and Codify the Criminal and Penal Laws of the United States as “[i]n accordance with the policy of recent legislation” by which “those whose relations to a crime would be that of accessories before the fact according to the common law are made principals.” 1 Final Report of the Commission to Revise and Codify the Laws of the United States 118-119 (1906). The Commission’s recommendation was adopted without change. The House and Senate Committee Reports, in identical language, stated its intended effect: “The committee has deemed it wise to make those who are accessories before the fact at common law principal offenders, thereby permitting their indictment and conviction for a substantive offense. “At common law an accessory can not be tried without his consent before the conviction or outlawry of the principal except where the principal and accessory are tried together; if the principal could not be found or if he had been indicted and refused to plead, had been pardoned or died before conviction, the accessory could not be tried at all. This change of the existing law renders these obstacles to justice impossible.” S. Rep. No. 10, 60th 931-932 (CA9 1913). Congress manifested no intent to disturb this interpretation. See Lorillard v. Pons, 434 U. S. 575, 580 (1978). 20 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Cong., 1st Sess., pt. 1, p. 13 (1908); H. R. Rep. No. 2, 60th Cong., 1st Sess., pt. 1, p. 13 (1908).12 And on the floor of the House of Representatives, Representative Moon, the Chairman of the Joint Select Committee, put the point simply: “We . . . have abolished the existing arbitrary distinction between felonies and misdemeanors.” 42 Cong. Rec. 585 (1908). This history plainly rebuts petitioner’s contention that § 2 was not intended to authorize conviction of an aider and abettor after the principal had been acquitted of the offense charged.13 With the enactment of that section, all participants in conduct violating a federal criminal statute are “principals.” As such, they are punishable for their criminal conduct; the fate of other participants is irrelevant.14 12 Petitioner emphasizes the fact that the Committee Report fails to mention the common-law rule that the prior acquittal of a principal barred conviction of an accessory, and argues accordingly that Congress did not view that rule as an “obstacle to justice.” The Court of Appeals correctly rejected this argument, being unwilling to “apply the canon of statutory interpretation . . . expressio umus, exclusio alterius ... to the language employed in a committee report.” 610 F. 2d 1076, 1084 (CA3 1979) (emphasis added). We agree. Petitioner’s argument would permit an omission in the legislative history to nullify the plain meaning of a statute. The language of §2 abolishes the common-law categories and treats all parties as principals. It is not necessary for Congress in its committee reports to identify all of the “weeds” which are being excised from the garden. 13 It bears mention that even prior to 1909 petitioner would not have prevailed in his attempt to bar prosecution on the §7214 (a) (2) counts. As the Government notes, the version of 26 U. S. C. § 7214 then in effect defined the offense to be a misdemeanor. See Rev. Stat. §3169 (1878). Hence, the prior acquittal of his principal would not have barred petitioner’s prosecution. And because petitioner accompanied Niederberger on four of five trips and therefore was “present” at the scene of the crime, see Tr. 1018-1020, 1024-1027, 1034-1036, 1096, he could have been convicted at common law for those crimes even if the offense had been designated a felony. 14 Nothing in Shuttlesworth v. Birmingham, 373 U. S. 262 (1963), relied on by petitioner, is to the contrary. There, petitioner had been con STANDEFER v. UNITED STATES 21 10 Opinion of the Court B The doctrine of nonmutual collateral estoppel was unknown to the common law and to the Congress when it enacted § 2 in 1909.16 It emerged in a civil ease in 1942, Bernhard n. Bank of America Nat. Trust de Savings Assn., 19 Cat 2d 807, 122 P. 2d 892. This Court first applied the doctrine in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971). There, we held that a determination of patent invalidity in a prior infringement action was entitled to preclusive effect against the patentee in subsequent litigation against a different defendant. Just this past Term we again applied the doctrine—this time “offensively”—to hold that a defendant who had had a “full and fair” opportunity to litigate issues of fact in a civil proceeding initiated by the Securities and Exchange Commission could be estopped from relitigating those issues in a subsequent action brought by a private plaintiff. Parklane Hosiery Co. v. Shore, 439 U. S. 322 (1979). In both cases, application of nonmutual estoppel promoted judicial economy and conserved private resources without unfairness to the litigant against whom estoppel was invoked. Here, petitioner urges us to apply nonmutual estoppel against the Government; specifically he argues that the Gov victed of aiding and abetting others to violate a city trespass ordinance which subsequently was declared constitutionally invalid. See Gober v. Birmingham, 373 U. S. 374 (1963). Shuttlesworth’s case merely applied the rule that “there can be no conviction for aiding and abetting someone to do an innocent act.” 373 U. S., at 265. Here, by contrast, the Government proved in petitioner’s case that Niederberger had violated § 7214 (a) (2) in connection with each of the five trips. See n. 6, supra. 15 In 1912, in Bigelow v. Old Dominion Copper Co., 225 U. S. Ill, 127, this Court stated that it was “a principle of general elementary law that the estoppel of a judgment must be mutual.” See also Stone v. Farmers Bank of Kentucky, 174 U. S. 409 (1899); Keokuk & Western R. Co. v. Missouri, 152 U. S. 301, 317 (1894); Litchfield v. Goodnow, 123 U. S. 549 552 (1887). 22 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. ernment should be barred from relitigating Niederberger’s guilt under §7214 (a) (2) in connection with the vacation trips to Pompano Beach, Miami, and Absecon. That issue, he notes, was an element of his offense which was determined adversely to the Government at Niederberger’s trial.16 This, however, is a criminal case, presenting considerations different from those in B londer- Tongue or Parklane Hosiery. First, in a criminal case, the Government is often without the kind of “full and fair opportunity to litigate” that is a prerequisite of estoppel. Several aspects of our criminal law make this so: the prosecution’s discovery rights in criminal cases are limited, both by rules of court and constitutional privileges; it is prohibited from being granted a directed verdict or from obtaining a judgment notwithstanding the verdict no matter how clear the evidence in support of guilt, cf. Fed. Rule Civ. Proc. 50; it cannot secure a new trial on the ground that an acquittal was plainly contrary to the weight of the evidence, cf. Fed. Rule Civ. Proc. 59; and it cannot secure appellate review where a defendant has been acquitted. See United States v. Ball, 163 U. S. 662, 671 (1896). The absence of these remedial procedures in criminal cases permits juries to acquit out of compassion or compromise or because of “ ‘their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’” Dunn v. United States, 284 U. S. 390, 393 (1932), quoting Steckler v. United States, 7 F. 2d 59, 60 (CA2 1925). See generally H. Kalven & H. Zeisel, The American Jury 16 Petitioner does not contend that the Constitution prevents the Government from prosecuting him on the three § 7214 (a) (2) counts as to which Niederberger was acquitted. Nothing in the Double Jeopardy Clause or the Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury has determined that his principal was not guilty of the offenses charged. Cf. Ashe v. Swenson, 397 U. S. 436 (1970). STANDEFER v. UNITED STATES 23 10 Opinion of the Court 193-347 (ed. 1976).17 It is of course true that verdicts induced by passion and prejudice are not unknown in civil suits. But in civil cases, post-trial motions and appellate review provide an aggrieved litigant a remedy; in a criminal case the Government has no similar avenue to correct errors. Under contemporary principles of collateral estoppel, this factor strongly militates against giving an acquittal preclusive effect. See Restatement (Second) of Judgments § 68.1 (Tent. Draft No. 3, 1976) (denying preclusive effect to an unreviewable judgment).18 The application of nonmutual estoppel in criminal cases is also complicated by the existence of rules of evidence and exclusion unique to our criminal law. It is frequently true in criminal cases that evidence inadmissible against one defendant is admissible against another. The exclusionary rule, for example, may bar the Government from introducing evidence against one defendant because that evidence was obtained in violation of his constitutional rights. And the suppression of that evidence may result in an acquittal. 17 Niederberger’s case demonstrates the point. As to the Absecon and Miami vacations, the jury convicted Niederberger of receiving something of value “because of any official act performed ... by him,” 18 U. 8. C. §201 (g), but acquitted him of receiving “any fee, compensation, or reward ... for the performance of any duty,” 26 U. S. C. § 7214 (a) (2). No explanation has been offered for these seemingly irreconcilable determinations. This inconsistency is reason, in itself, for not giving preclusive effect to the acquittals on the Absecon and Miami counts. See Restatement (Second) of Judgments § 88 (4) (Tent. Draft No. 3, 1976). See also 610 F. 2d, at 1112 (Gibbons, J., concurring in part and dissenting in part); Harary v. Blumenthal, 555 F. 2d 1113,1116-1117 (CA2 1977). 18 This is not to suggest that the availability of appellate review is always an essential predicate of estoppel. See Johnson Co. v. Wharton, 152 U. S. 252 (1894); see generally IB J. Moore & T. Currier, Moore’s Federal Practice 10.416 [5] (2d ed. 1974). The estoppel doctrine, however, is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct. In the absence of appellate review, or of similar procedures, such confidence is often unwarranted. 24 OCTOBER TERM, 1979 Opinion of the Court 447U.S. The same evidence, however, may be admissible against other parties to the crime “whose rights were [not] violated.” Alderman v. United States, 394 U. S. 165, 171-172 (1969). Accord, Rakas v. Illinois, 439 U. S. 128, 134 (1978). In such circumstances, where evidentiary rules prevent the Government from presenting all its proof in the first case, application of nonmutual estoppel would be plainly unwarranted.19 It is argued that this concern could be met on a case-by-case basis by conducting a pretrial hearing to determine whether any such evidentiary ruling had deprived the Government of an opportunity to present its case fully the first time around. That process, however, could prove protracted and burdensome. Under such a scheme, the Government presumably would be entitled to seek review of any adverse evidentiary ruling rendered in the first proceeding and of any aspect of the jury charge in that case that worked to its detriment. Nothing short of that would insure that its opportunity to litigate had been “full and fair.” If so, the “pretrial hearing” would fast become a substitute for appellate review, and the very purpose of litigation economy that estoppel is designed to promote would be frustrated. Finally, this case involves an ingredient not present in either Blonder-Tongue or Parklane Hosiery: the important federal interest in the enforcement of the criminal law. Blonder-Tongue and Parklane Hosiery were disputes over private rights between private litigants. In such cases, no significant harm flows from enforcing a rule that affords a litigant only one full and fair opportunity to litigate an issue, and there is no sound reason for burdening the courts with repetitive litigation. 19 Indeed, as the Court of Appeals observed, to give the first case preclusive effect would undermine the Alderman rule by affording a defendant whose rights were not violated the benefits of suppression. See 610 F. 2d, at 1094, n. 51, STANDEFER v. UNITED STATES 25 10 Opinion of the Court That is not so here. The Court of Appeals opinion put the point well: “[T]he purpose of a criminal court is not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public interest in the enforcement of the criminal law while at the same time safeguarding the rights of the individual defendant. The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction. To plead crowded dockets as an excuse for not trying criminal defendants is in our view neither in the best interests of the courts, nor the public.” 610 F. 2d, at 1093. In short, this criminal case involves “competing policy considerations” that outweigh the economy concerns that undergird the estoppel doctrine. See Restatement (Second) of Judgments § 68.1 (e) and comments thereto (Tent. Draft No. 3, 1976); cf. Commissioner v. Sunnen, 333 U. S. 591 (1948). Ill In denying preclusive effect to Niederberger’s acquittal, we do not deviate from the sound teaching that “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U. S. 11, 14 (1954). This case does no more than manifest the simple, if discomforting, reality that “different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.” Roth v. United States, 354 U. S. 476, 492, n. 30 (1957). While symmetry of results may be intellectually satisfying, it is not required. See Hamling v. United States, 418 U. S. 87, 101 (1974). 26 OCTOBER TERM, 1979 447 U. S. Opinion of the Court Here, petitioner received a fair trial at which the Government bore the burden of proving beyond reasonable doubt that Niederberger violated 26 U. S. C. § 7214 (a) (2) and that petitioner aided and abetted him in that venture. He was entitled to no less—and to no more. The judgment of the Court of Appeals is Affirmed. LEWIS v. BT INVESTMENT MANAGERS, INC. 27 Syllabus LEWIS, COMPTROLLER OF FLORIDA v. BT INVESTMENT MANAGERS, INC., et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA No. 79-45. Argued January 15, 1980—Decided June 9, 1980 A Florida statute (§659.141 (1)) prohibits out-of-state banks, bank holding companies, and trust companies from owning or controlling a business within the State that sells investment advisory services. Another statute (§ 660.10) prohibits all corporations except state-chartered banks and trust companies and national banks located in Florida from performing certain trust and fiduciary functions. Appellee out-of-state bank holding company’s proposal to operate appellee investment management subsidiary in Florida was rejected by the Board of Governors of the Federal Reserve System on the ground that it was prohibited by §659.141 (1). Appellees then brought suit in Federal District Court for declaratory and injunctive relief, alleging, inter alia, that § 659.141 (1) violates the Commerce Clause and that the joint operation of that section with § 660.10 constitutes a similar violation since but for the existence of such statutes authority would be sought to establish a subsidiary trust company in Florida. The District Court held that the statutes violate the Commerce Clause, because in combination they discriminate against out-of-state bank holding companies and are “parochial legislation” that “must be deemed per se unconstitutional.” The court also held that the federal Bank Holding Company Act of 1956 does not foster or permit the types of discrimination against out-of-state bank holding companies reflected in the Florida statutes. The court granted declaratory relief against both statutes but enjoined only the enforcement of §659.141 (1). Held: 1. Section 659.141 (1) directly burdens interstate commerce in a manner that contravenes the Commerce Clause’s implicit limitation on state power. Pp. 37-49. (a) While banking and related financial activities are of profound local concern, it does not follow that these same activities lack important interstate attributes that establish Congress’ power to regulate commerce and that also support constitutional limitations on the powers of the States. Such limitations clearly apply in this case. Pp. 38-39. 28 OCTOBER TERM, 1979 Syllabus 447 U.S. (b) The District Court properly concluded that § 659.141 (1) is “parochial” in the sense that it overtly prevents foreign enterprises from competing in local markets. Under that section, discrimination against affected business organizations is not evenhanded because only banks, bank holding companies, and trust companies with principal operations outside Florida are prohibited from operating investment subsidiaries or giving investment advice within the State. It follows that § 659.141 (1) discriminates among affected business entities according to the extent of their contacts with the local economy. Exxon Corp. v. Governor of Maryland, 437 U. S. 117, distinguished. And the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns, such as discouraging economic concentration or protecting the citizenry against fraud, or by an asserted interest in promoting local control over financial institutions. Pp. 39-44. (c) Neither § 3 (d) of the Bank Holding Company Act—which prohibits bank holding companies from acquiring banking subsidiaries in other States without local authorization—nor § 7 of that Act—which reserves to the States a general power to enact regulations applicable to bank holding companies—authorizes a State to prohibit out-of-state holding companies from acquiring local investment subsidiaries. The only authority § 3 (d) grants to the States is the authority to permit expansion of banking across state lines where it would be otherwise federally prohibited. Moreover, the Act’s structure reveals that § 3 (d) applies only to holding company acquisitions of banks. Section 7 was intended to preserve existing state regulations of bank holding companies and to define the extent of the Act’s pre-emptive effect on state law, and there is nothing in § 7’s language or legislative history to indicate that it was also intended to extend to the States new powers to regulate banking that they would not have possessed absent federal legislation. Section 7 applies only to state legislation that operates within the boundaries marked by the Commerce Clause. Pp. 44-49. 2. Since the constitutionality of § 660.10 was neither fully placed in issue nor fully determined by the District Court’s decision, the validity of that section’s limitation on the types of corporations that may perform trust responsibilities is not properly before this Court at this stage of the proceedings; hence, the District Court’s judgment with respect to § 660.10 is vacated and the case is remanded for further proceedings. Moreover, the amendment, in the interim, of § 3 (d) of the Bank Holding Company Act so as apparently to prohibit appellee bank holding company from establishing a Florida trust subsidiary raises new jurisdic- LEWIS v. BT INVESTMENT MANAGERS, INC. 29 27 Opinion of the Court tional and substantive questions that should be addressed in the first instance by the District Court. Pp. 50-53. 461 F. Supp. 1187, affirmed in part, vacated in part, and remanded. Blackmun, J., delivered the opinion for a unanimous Court. Erwin N. Griswold argued the cause for appellant. On the brief were Eugene J. Celia and Franklyn J. Wollett. John L. Warden argued the cause for appellees. On the brief were John E. Mathews, Jr., Stephen E. Day, and Vincent J. Rio III* Mr. Justice Blackmun delivered the opinion of the Court. This case concerns the constitutionality of two Florida statutes regulating the conduct of* investment advisory and trust services within that State. A three-judge United States District Court, convened pursuant to 28 U. S. C. § 2281 (1970 ed.),1 held that the statutes violate the Commerce Clause, U. S. Const., Art. 1, § 8, cl. 3, because in combination they discriminate against bank holding companies that operate principally outside Florida. It also held that such discrimination is not authorized by federal legislation regulating the interstate operations of bank holding companies. The case was brought here on direct appeal, see 28 U. S. C. § 1253, and we noted probable jurisdiction to resolve the substantial constitutional and statutory issues presented. 444 U. S. 822 (1979). *Briefs of amici curiae urging reversal were filed by Erwin N. Griswold and James F. Bell for the Conference of State Bank Supervisors; and by J. Thomas Cardwell and Michael P. McMahon for the Florida Bankers Association. John L. Warden and Robert D. Owen filed a brief for the New York Clearing House Association as amicus curiae urging affirmance. 1 This action was filed on October 24, 1973, and is therefore unaffected by the subsequent repeal of 28 U. S. C. § 2281, which by its terms was made inapplicable to any action commenced on or before August 12, 1976. See Pub. L. 94k381, § 7, 90 Stat. 1120. 30 OCTOBER TERM, 1979 Opinion of the Court 447U.S. I Appellee Bankers Trust New York Corporation (Bankers Trust) is a corporation organized under the laws of the State of New York. It maintains its principal place of business in that State. It is a bank holding company within the meaning of § 2 (a) of the Bank Holding Company Act of 1956, 70 Stat. 133, as amended, 12 U. S. C. § 1841 (a) (1976 ed. and Supp. II) (Act). Accordingly, it is subject to federal restrictions on the kinds of subsidiaries it may own or control. Upon authorization from the Board of Governors of the Federal Reserve System, however, it is permitted to own or control shares of any company the business of which is “so closely related to banking or managing or controlling banks as to be a proper incident thereto.” § 4 (c) (8) of the Act, 12 U. S. C. § 1843 (c)(8). By regulation, the Board has designated both the provision of investment or financial advice and the performance of certain trust functions as “closely related” business within the meaning of this statute. See 12 CFR §§225.4 (a)(4) and (5) (1979). In 1972, the management of Bankers Trust decided to seek the Board’s approval for an investment management subsidiary to operate in Florida. On October 3 of that year, Bankers Trust filed a formal proposal for such a subsidiary, which it planned to operate from offices in Palm Beach. Appellee BT Investment Managers, Inc. (BTIM), was Bankers Trust’s intended vehicle for entry into the Florida market. It was incorporated under the laws of the State of Delaware as a wholly owned subsidiary on November 24, 1972. Three days later it qualified to do business in Florida. The application to the Board proposed that BTIM would provide “portfolio investment advice,” as well as “general economic information and advice, general economic statistical forecasting services and industry studies” to persons other than banks. See Complaint IT 7, App. 9-10, and appellant’s Answer f 7, App. 19. LEWIS v. BT INVESTMENT MANAGERS, INC. Opinion of the Court 31 When Bankers Trust filed its application with the Board, certain Florida statutes restricted the ability of out-of-state bank holding companies to compete in the State’s financial market. At that time Fla. Stat. § 659.141 (1), added by 1972 Fla. Laws, ch. 72-96, § 1, and effective March 28, 1972, prohibited Bankers Trust from owning or controlling a bank or trust company located within the State ; the same statute also prohibited it from owning businesses furnishing investment advisory services to local banks or trust companies. In addition, Fla. Stat. § 660.10 prohibited any corporation, other than a state-chartered bank and trust company or a national banking association located in Florida, from performing certain trust and fiduciary functions. Neither statute, however, directly prohibited an out-of-state bank holding company from owning or controlling a business furnishing investment advisory services to the general public. Thus, at the time Bankers Trust filed its application with the Board, it appeared that ownership of BTIM would not violate Florida law, although BTIM would be restricted in the types of financial services it could perform and the customers it could serve. The reaction of the Florida financial community to Bankers Trust’s proposed investment subsidiary was decidedly negative. The State Comptroller, the Florida Bankers Association, and the Palm Beach County Bankers Association, Inc., all filed comments with the Board objecting to the Bankers Trust proposal. More importantly for present purposes, the state legislature was persuaded to take action. On November 30, 1972, shortly after BTIM had qualified to do business in the State, a special session of the legislature amended Fla. Stat. § 659.141 (1). That statute, which had been on the books only since March 28 of that year, was expanded to prohibit an out-of-state bank holding company from owning or controlling a business within the State that sells investment advisory services to any customer, rather than just to “trust companies or banks” in Florida, as the statute theretofore had 32 OCTOBER TERM, 1979 Opinion of the Court 447U.S. read.2 This amendment took effect, without the Governor’s approval, on December 21, 1972. There is evidence that the amendment was a direct response to Bankers Trust’s pending application, and that it had the strong backing of the local financial community. On April 26, 1973, the Board rejected Bankers Trust’s proposal on the ground that it would conflict with state law. Bankers Trust New York Corp., 59 Fed. Res. Bull. 364. The Board observed that the proposal contemplated de novo entry into the Florida investment management market rather than acquisition of an existing concern, and it noted that de novo entry ordinarily has a desirable procompetitive impact. Absent evidence of a contrary effect in this case, the Board intimated that it would have been favorably inclined toward the proposal. But it found that the December amendment to Fla. Stat. § 659.141 (1) “was intended to, and does, prohibit the performance of investment advisory services in Florida by non-Florida bank holding companies.” 59 Fed. Res. Bull., at 365. In view of its obligation to respect the dictates of state law, the Board found itself constrained to reject the proposal. See 12 U. S. C. § 1846; Whitney Nat. Bank v. Bank of New Orleans, 379 U. S. 411, 424-425 (1965). Within six months of the Board’s decision, the two appellees 2 See 1972 Fla. Laws, ch. 72-726, §§ 1-7. As so amended, § 659.141 (1) reads in pertinent part: “[N]o bank, trust company, or holding company, the operations of which are principally conducted outside this state, shall acquire, [or] retain, or own, directly or indirectly, all, or substantially all the assets of, or control over, any bank or trust company having a place of business in this state where the business of banking or trust business or functions are conducted, or acquire, [or] retain, or own all, or substantially all, of the assets of, or control over, any business organization having a place of business in this state where or from which it furnishes investment advisory services [to trust companies or banks] in this state.” The italicized words were added, and the bracketed words were deleted, by the December 1972 amendment. LEWIS v. BT INVESTMENT MANAGERS, INC. Opinion of the Court 33 filed this action seeking declaratory and injunctive relief.3 Count I of their complaint alleged that Fla. Stat. § 659.141 (1) “is not designed to promote lawful regulatory objectives, but is intended to shelter those organizations presently conducting an investment advisory business in Florida from competition by [BTIM].” Complaint U 11, App. 11. The complaint alleged violations of the due process and equal protection guarantees of the Fourteenth Amendment, as well as violation of the Commerce Clause. Count II alleged similar constitutional defects as the result of the joint operation of §§ 659.141 (1) and 660.10. Appellees alleged that “[b]ut for the existence of the challenged statutes,” Bankers Trust would seek authority from the Board to establish “a subsidiary trust company having a national bank charter or a Florida state charter” that would engage exclusively in one or more of the functions regulated by § 660.10. Complaint fl 21, App. 14-15. A three-judge court was convened pursuant to 28 U. S. C. § 2281 (1970 ed.), and the case was submitted for summary judgment on a stipulated set of facts. The District Court, by a divided vote, initially dismissed the complaint without prejudice on the ground that it should abstain from decision under either Railroad Common v. Pullman Co., 312 U. S. 496 (1941), or Burford v. Sun Oil Co., 319 U. S. 315 (1943). BT Investment Managers, Inc. v. Dickins-Son, 379 F. Supp. 792 (ND Fla. 1974). The United States Court of Appeals for the Fifth Circuit, however, reversed and remanded for consideration of the merits. 559 F. 2d 950 (1977). On remand, the District Court held that the challenged portions of the two statutes violate the Commerce Clause. 461 F. Supp. 1187 (1978). Without reaching appellees’ due process and equal protection arguments, it found that the 3 Bankers Trust in November 1973 petitioned the United States Court of Appeals for the Second Circuit for review of the Board’s order denying the proposal. That petition has been withdrawn, with leave to reinstate, pending the outcome of this suit. 34 OCTOBER TERM, 1979 Opinion of the Court 447U.S. statutes under attack discriminate against interstate commerce. The court reasoned that § 659.141 (1) “erects an insuperable barrier to the entry of foreign-based bank holding companies, through their subsidiaries, into the Florida investment advisory market,” and that § 660.10 “similarly cordons off Florida trust companies from competition by out-of-state concerns.” 461 F. Supp., at 1196. It ruled that the statutes are “parochial legislation” that “must be deemed per se unconstitutional.” Ibid. Moreover, it held that the legislative purposes proffered by appellant, including a purported desire to curb anticompetitive abuses arising from agglomeration of financial power, failed to justify the discriminatory impact of the statutes. Finally, the District Court held that the federal Bank Holding Company Act does not foster or permit the types of discrimination against out-of-state bank holding companies reflected in the Florida statutes. The court eschewed the argument that either § 3 (d) of the Act, 12 U. S. C. § 1842 (d), or § 7 of the Act, 12 U. S. C. § 1846, authorized the statutes in question. It recognized that § 3 (d) prohibits bank holding companies from acquiring banking subsidiaries in other States without local authorization. But it rejected the contention that this prohibition implicitly extends as well to related businesses, such as the providing of investment advice. The court issued an order granting declaratory relief against both statutes but enjoining the enforcement of only § 659.141 (1) against appellees.4 4 Initially the court declared the entire first sentence of § 659.141 (1) unconstitutional. App. to Juris. Statement Al. It amended that order, however, to limit its declaration to that portion of the sentence dealing with investment advisory and trust services. See id., at D1-D2. The court rendered no decision on the constitutionality of those portions of the statute that govern acquisition of Florida banks by out-of-state banks, bank holding companies, or trust companies. The court refused to grant injunctive relief against § 660.10 because appellees had yet to attempt establishment of a trust company in Florida; the court accordingly determined that LEWIS v. BT INVESTMENT MANAGERS, INC. 35 27 Opinion of the Court II This appeal presents two distinct but related questions with respect to the validity of the challenged Florida statutes.8 The first is whether the statutes, viewed independently of federal legislation regulating the banking industry, burden interstate commerce in a manner contrary to the Commerce Clause. The second is whether Congress, by its own legislation in this area, has created an area in which the States may regulate free from Commerce Clause restraints. Since there is no contention that federal legislation pre-empts the state laws in question, federal law becomes important only if it appears that the Florida statutes cannot survive without federal authorization. Thus, the second question becomes pertinent only if we reach an affirmative answer to the first. These questions arise against a backdrop of familiar principles. The Commerce Clause grants to Congress the power “[t]o regulate Commerce . . . among the several States.” U. S. Const., Art. 1, § 8, cl. 3. Although the Clause thus speaks in terms of powers bestowed upon Congress, the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade. See, e. g., Hughes v. Oklahoma, 441 U. S. 322, 326 (1979); Philadelphia v. New Jersey, 437 U. S. 617, 623 (1978); H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 534-538 (1949); Cooley v. Board of injunctive relief against that statute would be premature. 461 F. Supp. 1187, 1201 (ND Fla. 1978). 5 Because the District Court granted injunctive relief with respect to §659.141 (1), we have jurisdiction, under 28 U. S. C. § 1253, over the appeal. See White v. Regester, 412 U. S. 755, 761 (1973). See, however, Part IV, infra. While this case was pending in the District Court, the Florida Division of Securities, acting pursuant to a “grandfather” clause, Fla. Stat. §659.141 (3), authorized Bankers Trust to conduct investment advisory services from a single Florida office. This authorization does not moot the controversy, because the District Court’s injunction leaves Bankers Trust free to establish additional offices that § 659.141 (1) would otherwise prohibit. 36 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Wardens, 12 How. 299 (1852). This limitation upon state power, of course, is by no means absolute. In the absence of conflicting federal legislation, the States retain authority under their general police powers to regulate matters of “legitimate local concern,” even though interstate commerce may be affected. See, e. g., Raymond Motor Transportation, Inc. v. Rice, 434 U. S. 429, 440 (1978); Great A&P Tea Co. v. Cottrell, 424 U. S. 366, 371 (1976). Where such legitimate local interests are implicated, defining the appropriate scope for state regulation is often a matter of “delicate adjustment.” Ibid., quoting H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 553 (Black, J., dissenting). Yet even in regulating to protect local interests, the States generally must act in a manner consistent with the “ultimate . . . principle that one state in its dealings with another may not place itself in a position of economic isolation.” Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 527 (1935). However important the state interest at hand, “it may not be accomplished by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently.” Philadelphia v. New Jersey, 437 U. S., at 626-627. Over the years, the Court has used a variety of formulations for the Commerce Clause limitation upon the States, but it consistently has distinguished between outright protectionism and more indirect burdens on the free flow of trade. The Court has observed that “where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.” Id., at 624. In contrast, legislation that visits its effects equally upon both interstate and local business may survive constitutional scrutiny if it is narrowly drawn. The Court stated in Pike v. Bruce Church, Inc., 397 U. S. 137 (1970): “Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld LEWIS v. BT INVESTMENT MANAGERS, INC. 37 27 Opinion of the Court unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. . . . If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Id., at 142. See also Hughes n. Oklahoma, 441 U. S., at 336; Hunt v. Washington Apple Advertising Common, 432 U. S. 333, 353 (1977); Great A&P Tea Co. v. Cottrell, 424 U. S., at 371-372; Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 443 (1960). The principal focus of inquiry must be the practical operation of the statute, since the validity of state laws must be judged chiefly in terms of their probable effects. See Hughes v. Oklahoma, 441 U. S., at 336; Best & Co. v. Maxwell, 311 U. S. 454, 455-456 (1940). Ill With these principles in mind, we first turn to § 659.141 (1). This statute has been the chief object of controversy, since it is the statute that prevents appellees from setting up their projected investment advisory business within Florida. The statute prohibits ownership of local investment or trust businesses by firms possessing two characteristics: a certain kind of business organization and purpose, whether it be as a bank, trust company, or a bank holding company; and location of principal operations outside Florida. Appellant and the amici supporting his position argue that the District Court’s analysis of § 659.141 (1) is flawed in three respects: First, the statute assertedly affects only matters of local character that have insufficient interstate attributes to bring federal constitutional limitations into play.6 Second, 6 Appellant advanced this argument in the District Court but has substantially departed from it on appeal. Supporting amici, however, con 38 447 U. S. OCTOBER TERM, 1979 Opinion of the Court the District Court erroneously labeled the statute protectionist legislation and thus incorrectly relied upon the “per se rule of invalidity” identified in Philadelphia v. New Jersey, 437 U. S., at 624. Appellant argues that the statute should be treated as neutral legislation subject to the less stringent standards of Pike v. Bruce Church, Inc., supra, and he argues that it meets this test. Third, the District Court failed to accord proper significance, in appellant’s view, to the Bank Holding Company Act of 1956. Appellant argues that the Act grants authority to the States to prohibit out-of-state bank holding companies from owning local subsidiaries that provide bank-related services. A The first of these arguments needs only brief mention. We readily accept the submission that, both as a matter of history and as a matter of present commercial reality, banking and related financial activities are of profound local concern. As appellees freely concede, Brief for Appellees 17, n. 10, sound financial institutions and honest financial practices are essential to the health of any State’s economy and to the well-being of its people. Thus, it is not surprising that ever since the early days of our Republic, the States have chartered banks and have actively regulated their activities. Nonetheless, it does not follow that these same activities lack important interstate attributes. An impressive array of federal statutes regulating not only the provision of banking services but also the formation of banking organizations, the rendering of investment advice, and the conduct of national investment markets, is substantial evidence to the contrary.7 tinue to press the contention. See, e. g., Brief for Conference of State Bank Supervisors as Amicus Curiae 8-12. 7 Some of the leading examples of federal regulation of banking, trust, and investment businesses include the National Bank Act, 12 U. S. C. § 21 et seq.; the Securities Act of 1933, 48 Stat. 74, as amended, 15 U. S. C. §77a et seq.; the Securities Exchange Act of 1934, 48 Stat. 881, as LEWIS v. BT INVESTMENT MANAGERS, INC. 39 27 Opinion of the Court We do not understand appellant to dispute the validity of these enactments, all of which rest primarily on Congress’ powers under the Commerce Clause. Indeed, appellant’s arguments under the Bank Holding Company Act assume the validity of federal regulation in this sphere. This Court has observed that the same interstate attributes that establish Congress’ power to regulate commerce also support constitutional limitations on the powers of the States. Philadelphia v. New Jersey, 437 U. S., at 622-623. For present purposes, it is clear that those limitations apply. B The contentions that the District Court erred by applying too stringent a standard in defining the limits of Florida’s regulatory authority, and that § 659.141 (1) is evenhanded local regulation, are more substantial. We nonetheless agree with the District Court’s conclusion that this statute is “parochial” in the sense that it overtly prevents foreign enterprises from competing in local markets. The statute makes the out-of-state location of a bank holding company’s principal operations an explicit barrier to the presence of an investment subsidiary within the State. As Bankers Trust’s application before the Board itself indicates, it thus prevents competition in local markets by out-of-state firms with the kinds of resources and business interests that make them likely to attempt de novo entry. Appellant virtually concedes this effect, Brief for Appellant 59, and the circumstances of enactment suggest that it was the legislature’s principal objective. Appellant argues, however, that the statute ought not to be amended, 15 U. S. C. § 78a et seq.; the Trust Indenture Act of 1939, 53 Stat. 1149, as amended, 15 U. S. C. § 77aaa et eeq.; and the Investment Company Act of 1940, 54 Stat. 789, as amended, 15 U. S. C. § 80ar-l et eeq. For an express finding on the effect of investment advisory activities on interstate comTnerce, see Investment Advisors Act of 1940, § 201, 54 Stat. 847, 15 U. S. C. §80b-l. 40 447 U.S. OCTOBER TERM, 1979 Opinion of the Court declared per se invalid because it does not prevent all out-of-state investment enterprises from entering local markets. Investment enterprises that are not bank holding companies, banks, or trust companies either may own investment subsidiaries in Florida or may enter the state investment market directly by obtaining a license to do business. Furthermore, locally incorporated bank holding companies are subject to the same restrictions as their foreign counterparts if they maintain their principal operations elsewhere. Appellant thus analogizes § 659.141 (1) to the Maryland statute prohibiting local retail operations by vertically integrated petroleum companies that the Court upheld in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978). The statute, it is said, discriminates against a particular kind of corporate organizational structure more than it does against the origin or citizenship of a particular business enterprise. The statute involved in Exxon flatly prohibited producers and refiners of petroleum products from opening or operating retail services within Maryland under a variety of corporate or contractual arrangements. Id., at 120, n. 1. It was enacted in response to perceived inequities in the allocation of petroleum products to retail outlets during the fuel shortage of 1973. Various oil companies, all of which engaged in production and refining as well as in sale of petroleum products, challenged the statute on a number of grounds. Among other arguments, they claimed that the statute violated the Commerce Clause because it discriminated against producers and refiners, all of which were interstate concerns, in favor of independent retailers, most of which were local businesses. The Court rejected this contention. After holding that the statute served the legitimate state purpose of “controlling the gasoline retail market,” id., at 125, the Court separately analyzed its effect on interstate commerce in the producingrefining and retailing ends of the petroleum industry. The Court concluded that the statute could not discriminate LEWIS v. BT INVESTMENT MANAGERS, INC. 41 27 Opinion of the Court against interstate petroleum producers and refiners in favor of locally based competitors because, as a matter of fact, there were no such local producers or refiners to be favored. Ibid. For the same reason, it concluded that the flow of petroleum products in interstate commerce would not be reduced. Id., at 127. It also rejected a claim of discrimination at the retail level because the statute placed “no barriers whatsoever” on competition in local markets by “interstate independent dealers” that did not own production or refining facilities. Id., at 126. Despite the fact that the number of stations operated by independent dealers was small relative to the number operated by producer-refiners, the Court concluded that neither the placing of a disparate burden on some interstate competitors nor the shifting of business from one part of the interstate market to another was enough, under the circumstances, to establish a Commerce Clause violation. Id., at 126-127. There are some points of similarity between Exxon and the present case. In the former, the statute in issue discriminated against vertical organization in the petroleum industry. Section 659.141 (1) similarly discriminates against a particular kind of conglomerate organization in the investment and financial industries. And the Maryland statute permitted some kinds of interstate competitors free entry into the local market, as does the Florida statute at issue here.8 8 Appellant also argues that the present statute, like the one in Exxon Corp. v. Governor of Maryland, 437 U. S., at 125, has no discernible impact on the flow of goods in interstate commerce. Locally owned investment businesses are as free to channel their cliehts’ investments into interstate markets as their interstate competitors. The validity of this argument cannot be determined on this record. In the Exxon case, as we have noted, all petroleum products sold in the State were produced and refined elsewhere. In contrast, investments may be directed into local as well as interstate markets. Since it is at least conceivable that an investment subsidiary owned by a locally operating bank holding company would be more likely to recommend investments in local busi- 42 OCTOBER TERM, 1979 Opinion of the Court 447U.S. We disagree, however, with the suggestion that Exxon should be treated as controlling precedent for this case. Section 659.141 (1) engages in an additional form of discrimination that is highly significant for purposes of Commerce Clause analysis. Under the Florida statute, discrimination against affected business organizations is not evenhanded because only banks, bank holding companies, and trust companies with principal operations outside Florida are prohibited from operating investment subsidiaries or giving investment advice within the State. It follows that § 659.141 (1) discriminates among affected business entities according to the extent of their contacts with the local economy. The absence of a similar discrimination between interstate and local producerrefiners was a most critical factor in Exxon. Both on its face and in actual effect, § 659.141 (1) thus displays a local favoritism or protectionism that significantly alters its Commerce Clause status. See Philadelphia v. New Jersey, 437 U. S., at 626-627; Baldwin v. G. A. F. Seelig, Inc., 294 U. S., at 527.9 We need not decide whether this difference is sufficient to render the Florida legislation per se invalid, for we are convinced that the disparate treatment of out-of-state bank holding companies cannot be justified as an incidental burden necessitated by legitimate local concerns. In the District Court and to some extent on this appeal, appellant and supporting amici have argued that the Florida legislation advances several important state policies. Among those that nesses, we decline to assign any weight to this argument in the absence of proof concerning the actual effect of the Florida statute. 9 Appellant’s argument that §659.141 (1) could also apply to locally organized bank holding companies, if they maintained their principal operations outside the State, is significantly weakened by federal restrictions on interstate expansion of a bank holding company’s banking activities discussed in Part III-C, infra. As a result of these statutes, it is unlikely that many local bank holding companies would have their principal operations elsewhere. In any event, discrimination based on the extent of local operations is itself enough to establish the kind of local protectionism we have identified. LEWIS v. BT INVESTMENT MANAGERS, INC. 43 27 Opinion of the Court have been specifically identified are an interest in discouraging undue economic concentration in the arena of high finance; an interest in regulating financial practices, presumably to protect local residents from fraud; and an interest in maximizing local control over locally based financial activities. We think that these alleged purposes fail to justify the extent of the burden placed upon out-of-state bank holding companies. Discouraging economic concentration and protecting the citizenry against fraud are undoubtedly legitimate state interests. But we are not persuaded that these interests justify the heavily disproportionate burden this statute places on bank holding companies that operate principally outside the State. Appellant has demonstrated no basis for an inference that all out-of-state bank holding companies are likely to possess the evils of monopoly power, that they are more likely to do so than their homegrown counterparts, or that they are any more inclined to engage in sharp practices than bank holding companies that are locally based.10 Nor is there any reason to conclude that outright prohibition of entry, rather than some intermediate form of regulation, is the only effective method of protecting against the presumed evils, particularly when other out-of-state businesses that may be just as large or far-flung are permitted to compete in the local market. We conclude that these asserted state interests simply do not suffice to eliminate § 659.141 (l)’s apparent constitutional defect. Cf. Hunt v. Washington Apple Advertising Comm’n, 432 U. S., at 353-354; Great A&P Tea Co. v. Cottrell, 424 U. S., at 375-376. With regard to the asserted interest in promoting local control over financial institutions, we doubt that the interest itself is entirely clear of any tinge of local parochialism. In almost any Commerce Clause case it would be possible for a State to argue that it has an interest in bolstering local ownership, or 10 Both in-state and out-of-state bank holding companies, of course, are subject to extensive regulation by the Federal Government designed to protect against these same evils. 44 OCTOBER TERM, 1979 Opinion of the Court 447U.S. wealth, or control of business enterprise. Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 538; Buck v. Kuykendall, 267 U. S. 307, 315-316 (1925); cf. Toomer v. Witsell, 334 U. S. 385, 403—404 (1948). In any event, the interest is not well served by the present legislation. The statute, for example, does not restrict out-of-state ownership of local bank holding companies. Nor, as appellant concedes, does it prevent entry by out-of-state entities other than those having the prohibited organizational forms. There is thus no reason to believe that the State’s interest in local control, to the extent it legitimately exists, has been significantly or evenhandedly advanced by the statutory means that have been employed. For these reasons, we conclude that the District Court did not err in holding that § 659.141 (1) directly burdens interstate commerce in a manner that contravenes the Commerce Clause’s implicit limitation on state power. C Ordinarily, at this point we would have reached the end of our inquiry. But in this instance appellant has another string to his bow: the contention that by Act of Congress the State has been given additional authority to regulate entry by bank holding companies into the local investment advisory market. Congress, of course, has power to regulate the flow of interstate commerce in ways that the States, acting independently, may not. And Congress, if it chooses, may exercise this power indirectly by conferring upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 542-543; Prudential Insurance Co. v. Benjamin, 328 U. S. 408, 423-424 (1946); International Shoe Co. v. Washington, 326 U. S. 310, 315 (1945). It is appellant’s view LEWIS v. BT INVESTMENT MANAGERS, INC. 45 27 Opinion of the Court that the Bank Holding Company Act of 1956, as amended, is enabling legislation of this very kind, and that it authorizes the restrictions on bank holding companies embodied in §659.141 (1). This argument rests on two provisions in the federal legislation. Section 3 (d) of the Act, 12 U. S. C. § 1842 (d), prohibits the Board from approving an application by a bank holding company to acquire “any additional bank” located outside the State in which the holding company has its principal operations, unless that acquisition is specifically authorized by the statutory law of the State in which the proposed acquisition is located.11 Section 7 of the Act, 12 U. S. C. § 1846, reserves to the States a continuing role in the regulation of bank holding companies.12 Appellant argues that 11 Appellant relies on that part of § 3 (d) of the Bank Holding Company Act of 1956, 70 Stat. 135, as amended, 80 Stat. 238, 12 U. S. C. § 1842 (d), which provides: “Notwithstanding any other provision of this section, no application shall be approved under this section which will permit any bank holding company or any subsidiary thereof to acquire, directly or indirectly, any voting shares of, interest in, or all or substantially all of the assets of any additional bank located outside of the State in which the operations of such bank holding company’s banking subsidiaries were principally conducted on the effective date of this amendment [July 1, 1966] or the date on which such company became a bank holding company, whichever is later, unless the acquisition of such shares or assets of a State bank by an out-of-State bank holding company is specifically authorized by the statute laws of the State in which such bank is located, by language to that effect and not merely by implication. For the purposes of this section, the State in which the operations of a bank holding company’s subsidiaries are principally conducted is that State in which total deposits of all such banking subsidiaries are largest.” A new subsection was added to this statute effective March 31, 1980. See Part IV, infra. 12 Section 7 provides: “The enactment by the Congress of the Bank Holding Company Act of 1956 shall not be construed as preventing any State from exercising such powers and jurisdiction which it now has or may hereafter have with 46 OCTOBER TERM, 1979 Opinion of the Court 447U.S. either or both of these provisions authorize the State to prohibit out-of-state bank holding companies from acquiring local investment subsidiaries. The Bank Holding Company Act of 1956 was enacted to accomplish two primary objectives. First, it was designed to prevent the concentration of banking resources in the hands of a few financial giants. Second, it was intended to implement a congressional policy against control of banking and nonbanking enterprises by a single business entity. See S. Rep. No. 1095, 84th Cong., 1st Sess., 2 (1955); Board of Governors v. First Lincolnwood Corp., 439 U. S. 234, 242-243 (1978). Underlying both objectives was a desire to prevent anticompetitive tendencies in national credit markets. See S. Rep. No. 91-1084, pp. 2-3 (1970). Congress sought to accomplish these twin goals through separate statutory provisions. Section 3 of the Act placed limitations on the creation of bank holding companies and their expansion within the banking field. Section 3 (a) required Board approval for such activities as formation of bank holding companies, acquisition of bank stock or assets by such holding companies or their subsidiaries, and merger of bank holding companies. Section 3 (c) specified criteria to be considered by the Board in determining whether to grant approval. Section 4 sharply curtailed acquisition of nonbanking enterprises. Section 4 (a) generally forbade future acquisition of nonbanking enterprises. What was then § 4 (c) (6), however, carved out an exception for companies “of a financial, fiduciary, or insurance nature” if the Board determined that they are “so closely related to the business of banking or of managing or controlling banks as to be a proper incident thereto.” 70 Stat. 137. When this legislation was first proposed to the Senate, neither § 3 nor § 4 contained explicit limitations on interstate respect to banks, bank holding companies, and subsidiaries thereof.” 70 Stat. 138, LEWIS v. BT INVESTMENT MANAGERS, INC. 47 27 Opinion of the Court expansion by bank holding companies. See S. 2577, 84th Cong., 1st Sess., §§ 3, 4 (1955). But Senator Douglas introduced an amendment to § 3 prohibiting bank holding companies from expanding into banking across state lines. He argued that such an amendment was desirable in order to ensure that national banks would not use bank holding companies as mechanisms to evade state-law restrictions on branching of banks recognized and made applicable to national banks by the McFadden Act, 12 U. S. C. § 36. See 102 Cong. Rec. 6860 (1956) (remarks of Sen. Douglas). The Senate agreed to the amendment. A similar provision had been included in the companion bill introduced in the House of Representatives. See H. R. Rep. No. 609, 84th Cong., 1st Sess., 2-5, 15, 24 (1955). The “Douglas Amendment” emerged as § 3 (d) of the Act, the first of the two provisions on which appellant relies. We conclude that § 3 (d) offers scant support for the portions of § 659.141 (1) subject to challenge in this proceeding. Preliminarily, it is doubtful that § 3 (d) authorizes state restrictions of any nature on bank holding company activities. The language of the statute establishes a general federal prohibition on the acquisition or expansion of banking subsidiaries across state lines. The only authority granted to the States is the authority to create exceptions to this general prohibition, that is, to permit expansion of banking across state lines where it otherwise would be federally prohibited. Furthermore, the structure of the Act reveals that § 3 (d) applies only to holding company acquisitions of banks. Nonbanking activities are regulated separately in § 4, which does not contain a parallel provision. Even if § 3 (d) could be interpreted to authorize additional state regulation, ordinary canons of interpretation thus would lead to the inference that restraints so authorized could apply only to a holding company’s banking activities.18 18 Appellant attempts to answer the latter of these observations by arguing that the restrictions of § 3 (d) implicitly placed geographical 48 OCTOBER TERM, 1979 Opinion of the Court 447U.S. In contrast to § 3 (d), §7 of the Act does reserve to the States a general power to enact regulations applicable to bank holding companies. This section was intended to preserve limitations on the expansion of nonbanking activities as well. Appellant asserts that the Board initially gave § 4 (c) a narrow interpretation that effectively prohibited holding companies from owning nonbanking subsidiaries unless they were closely related to an existing banking operation controlled by the parent company. See, e. g., Transamerica Corp., 43 Fed. Res. Bull. 1014, 1016-1017 (1957). Since such banking operations were geographically confined by virtue of §3 (d), the Board’s restrictive application of § 4 (c) assertedly applied the same limitation to nonbanking operations. We agree with appellees that this argument has been significantly undercut by 1970 amendments to the Act that revised the language of §4 (c). Although the principal purpose of those amendments was to extend the regulatory controls of the Act to one-bank holding companies that were formerly exempt, Congress also adopted changes designed to give the Board greater discretion in administering the Act. See S. Rep. No. 91-1084, pp. 12-13 (1970); H. R. Rep. No. 91-387, p. 14 (1969); see also Chase, The Emerging Financial Conglomerate: Liberalization of the Bank Holding Company Act, 60 Geo. L. J. 1225, 1236-1237 (1972). The Federal Reserve Board proposed several changes in § 4 (c) designed to liberalize the standards for expansion into “related” nonbanking enterprises. These proposals met with different receptions in the two Houses of Congress, and the final product was a compromise. A proposal to substitute the phrase “functionally related” for “closely related” was not adopted; but the phrase “financial, fiduciary, or insurance nature” was dropped from the statute, and “business of banking” was changed simply to “banking.” Bank Holding Company Act Amendments of 1970, Pub. L. 91-607, § 103, 84 Stat. 1763; see Note, 39 Geo. Wash. L. Rev. 1200, 1219-1223 (1971). There was substantial disagreement among House and Senate conferees over the exact import of these changes with respect to the breadth of nonbanking activities that the amendments would permit. Compare H. R. Conf. Rep. No. 91-1747, p. 21 (1970), and 116 Cong. Rec. 41950-41952 (1970) (remarks of Rep. Patman), with id., at 41953-41954 (remarks of Rep. Widnall); id., at 42424 (remarks of Sen. Sparkman); id., at 42435-42436 (remarks of Sen. Bennett). See also Note, 71 Mich. L. Rev. 1170, 1206-1207 (1973). We need not enter that debate at this juncture. For present purposes, it is sufficient to note that the change from “business of banking” to “banking” was explicitly proposed in order to free LEWIS v. BT INVESTMENT MANAGERS, INC. 49 27 Opinion of the Court existing state regulations of bank holding companies, even if they were more restrictive than federal law. See S. Rep. No. 1095, 84th Cong., 1st Sess., 22 (1955). But we find nothing in its language or legislative history to support the contention that it also was intended to extend to the States new powers to regulate banking that they would not have possessed absent the federal legislation. Rather, it appears that Congress’ concern was to define the extent of the federal legislation’s pre-emptive effect on state law. In response to criticisms of the provision on the ground that it might be interpreted to expand state authority, one Committee Report stated that it was intended “to preserve to the States those powers which they now have in our dual banking system,” yet “to make it clear that a State could not enact legislation inconsistent with the [Act] and therefore nullify its effect.” S. Rep. No. 1095, 84th Cong., 2d Sess., pt. 2, p. 5 (1956). Far from creating a new state power to discriminate between foreign and local bank holding companies, the legislative history evinces an intent to forestall such a broad interpretation. We therefore conclude that § 7 applies only to state legislation that operates within the boundaries marked by the Commerce Clause. Since neither of these provisions authorizes state legislation of the variety contained in the challenged portions of § 659.141 (1), we agree with the District Court that appellant’s reliance on the Bank Holding Company Act is misplaced. The effects of the Florida statute on interstate commerce have not been permitted by Congress, and its Commerce Clause defects have not been removed. Therefore, the District Court’s injunction against enforcement of the statute must be sustained. the Board from its prior requirement of relationship to a bank holding company’s existing banking enterprises. See S. Rep. No. 91-1084, p. 12 (1970); Letter dated November 23, 1970, from Arthur Burns, Federal Reserve Board Chairman, to Representative Patman, reprinted in 116 Cong. Rec. 41959 (1970); see also Note, 39 Geo. Wash. L. Rev., at 1220. Once that change was made, the implicit geographical limitation appellant infers from previous applications of the Act was removed along with the language from which it was derived. 50 OCTOBER TERM, 1979 Opinion of the Court 447U.S. IV This brings us, finally, to § 660.10. That statute prohibits all corporations except state-chartered banks and national banks having their operations in Florida from performing specified fiduciary functions. It does not purport to regulate the ownership of such institutions by bank holding companies. For the reasons stated below, we conclude that its constitutionality has been neither fully placed in issue nor fully determined by the District Court’s decision. We therefore vacate the judgment with respect to § 660.10 and remand for such further proceedings as may be necessary in light of this opinion. As we have already noted, appellees’ complaint challenged the constitutionality of § 660.10 only insofar as it operated in conjunction with § 659.141 (1). The District Court followed the same approach, and it granted declaratory relief against § 660.10 on that basis. Jointly, of course, the statutes not only limit the kinds of corporations that may perform fiduciary functions within Florida, but also prevent out-of-state bank holding companies from owning such corporations as their subsidiaries. It was this joint effect that led the District Court to find that § 660.10 “cordons off Florida trust companies from competition by out-of-state concerns.” 461 F. Supp., at 1196. Having so found, the District Court did not address the constitutionality of § 660.10 standing alone. It did not consider, for example, which of the many functions regulated by § 660.10 were in issue, or whether any of the exceptions created by that statute might apply. Indeed, it refused to grant injunctive relief against that statute and ruled that any challenge to its enforcement was premature. 461 F. Supp., at 1201. On this appeal the argument over the constitutionality of § 660.10 has focused not on the concatenation of the two statutes, but on the power of a State under the Commerce Clause to require local incorporation as a condition of doing busi- LKWiS v. BT INVESTMENT MANAGERS, INC. Opinion of the Court 51 27 ness in local markets. Of. Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931). Because of the approach taken in the District Court, however, there has been no definitive ruling on this issue. The court may have touched obliquely on the question when it declared, on a motion for clarification, that a State may not wholly exclude foreign corporations from doing business in the State. See App. to Juris. Statement E2. But it made no specific determination whether § 660.10 would have such an effect, and it refused to speculate about the impact that enforcement of the statute might have upon appellees. Nor is it clear that there is a present case or controversy with respect to the validity of the separate requirements im-posed by § 660.10. As we have noted, appellees’ complaint does not expressly join battle on this issue. The facts of the case show, moreover, that it was § 659.141 (1) that prevented BTIM’s entry into Florida. The application before the Board specified that BTIM would perform only investment advisory services that are outside the scope of § 660.10. Bankers Trust had not yet processed an application to the Board for permission to form a Florida trust subsidiary, and the Board had not yet determined whether such a subsidiary could be approved as a matter of federal law. The parties did stipulate that Bankers Trust would attempt to organize a Florida subsidiary having fiduciary powers were it not prohibited by state law from doing so. But we interpret this stipulation to mean that Bankers Trust was willing to comply with a local incorporation requirement, without contesting its validity, so long as it was not prohibited entirely from establishing a trust subsidiary in the State. Accordingly, the District Court may not have been in a position to decide the broad question the parties now ask us to resolve, even if that question had been clearly raised by the pleadings. One further consideration counsels against our attempting to evaluate the validity of § 660.10 at this juncture. Since we noted probable jurisdiction of this appeal, Congress has 52 OCTOBER TERM, 1979 Opinion of the Court 447U.S. amended § 3 (d) of the Bank Holding Company Act to extend its restrictions on interstate expansion to fiduciary organizations of the kind Bankers Trust has stipulated it would attempt to organize in Florida. Depository Institutions Deregulation and Monetary Control Act of 1980, § 712 (b), Pub. L. 96-221, 94 Stat. 189 (Mar. 31, 1980).14 It thus appears that Bankers Trust is presently prohibited by federal law from establishing a Florida trust subsidiary. This amendment is “repealed” by its own terms, § 712 (c), as of October 1, 1981, and there are indications in the legislative history that it was intended as a temporary moratorium on approval of trust company applications rather than as a prelude to more permanent restrictions. Nevertheless, we must review the judgment below in the light of both state and federal law as it now stands. See Diffenderjer v. Central Baptist Church, 404 U. S. 412, 414 (1972). This enactment raises new questions, 14This statute provides: “Section 3 (d) of the Bank Holding Company Act of 1956 (12 U. S. C. § 1842 (d)) is amended by inserting (1) after (d) and by adding at the end thereof the following: “(2) (A) Except as' provided in subparagraph (B), the restrictions contained in paragraph (1) regarding the acquisition of shares or assets of, or interests in, an additional bank shall apply to the acquisition of shares or assets of, or interests in, a trust company. “(B) Subparagraph (A) shall not apply with respect to the acquisition of shares or assets of, or interests in, a trust company if such acquisition was approved by the Board on or before March 5, 1980, and if such trust company opened for business and was operating on or before March 5, 1980. “(C) For the purpose of this paragraph, the term ‘trust company’ means any company whose powers are limited to the powers specified in subsection (a) of the first section of the Act entitled ‘An Act to place authority over the trust powers of national banks in the Comptroller of the Currency,’ approved September 28, 1962 (12 U. S. C. §92a), for a national bank located in the same State in which such trust company is located. “(c) The amendments made by this section are hereby repealed on October 1, 1981.” LEWIS v. BT INVESTMENT MANAGERS, INC. 53 27 Opinion of the Court both jurisdictional and substantive, that should be addressed in the first instance by the District Court. For these reasons, we determine that the constitutionality of § 660.10’s limitation on the types of corporations that may perform trust responsibilities is not properly before us at this stage in the proceedings. V In summary, we affirm the judgment of the District Court insofar as it declares unconstitutional the challenged portions of § 659.141 (1) and enjoins their enforcement. We vacate that portion of the judgment that relates to the constitutionality of § 660.10, and we remand the case for such further proceedings as are appropriate and consistent with this opinion.15 It is so ordered. 15 Florida’s Regulatory Reform Act of 1976, 1976 Fla. Laws, ch. 76-168, §3 (2)(t), repeals, as of July 1, 1980, chs. 659 and 660 of the Florida Statutes “relating to banking.” These chapters include §§ 659.141 (1) and 660.10. Section 2 of ch. 76-168 recites that it is “the intent of the Legislature . . . [t]o provide systematic legislative review of [licensing and regulation of businesses] ... by a periodic review and termination, modification, or reestablishment of such programs and functions.” We are advised that pending in the Florida Legislature at the present time are S. B. 347 and a House substitute for S. B. 347; that both bills leave the substance of §§ 659.141 (1) and 660.10 intact for the express purpose of not mooting out pending litigation; and that action on these bills will be taken before the legislature adjourns. As of the date this opinion is filed, §§ 659.141 (1) and 660.10 remain in effect so the case has not become moot, whatever the ultimate disposition of the pending bills. 54 OCTOBER TERM, 1979 Syllabus 447 U.S. NEW YORK GASLIGHT CLUB, INC., et al. v. CAREY CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 79-192. Argued February 19, 1980—Decided June 9, 1980 Section 706 (k) of Title VII of the Civil Rights Act of 1964 provides that in “any action or proceeding under this title” the court may allow attorney’s fees to “the prevailing party,” other than the Equal Employment Opportunity Commission (EEOC) or the United States. Alleging that petitioners had denied her employment because of her race, respondent filed an employment discrimination charge with the EEOC, which, as required by Title VII, forwarded the complaint to the appropriate New York administrative agency. Respondent was represented by counsel throughout administrative and judicial proceedings in the state system, which proceedings ultimately resulted in affirmance of the state agency’s order directing petitioners to offer respondent employment a,nd pay back wages but not awarding attorney’s fees. Meanwhile, the EEOC reassumed jurisdiction and, under § 706 (f) of Title VII, issued a right-to-sue letter to respondent, who filed suit in Federal District Court, alleging a claim under Title VII, inter alia, and seeking appropriate relief, including attorney’s fees. Petitioners having agreed to comply with the state agency’s order, the District Court dismissed the federal action, except for respondent’s request for attorney’s fees, including fees for her attorney’s services in the state proceedings. The court later denied the fee request, ruling that although the EEOC’s issuance of a right-to-sue letter had forced respondent to preserve her rights by filing a complaint in federal court, the mere filing of a federal suit did not entitle an aggrieved party to attorney’s fees, and that respondent had the option of pursuing her state administrative remedies without incurring any expenses for legal services, since state law provides that the case in support of the complaint is to be presented to the administrative hearing examiner by one of the state agency’s attorneys. The Court of Appeals reversed. Held: Sections 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney’s fees for work done by the prevailing complainant in state administrative and judicial proceedings to which the complainant was referred pursuant to the provisions of Title VII, and no special circumstances exist in this case that would justify denial of a fee award. Pp. 60-71. NEW YORK GASLIGHT CLUB, INC. v. CAREY 55 54 Syllabus (a) Congress’ use of the broadly inclusive disjunctive phrase “any action or proceeding” in § 706 (k) indicates an intent to subject the losing party to an award of attorney’s fees and costs that includes expenses incurred for administrative proceedings. Other provisions of the statute that interact with §706 (k), the purpose of § 706 (k) to facilitate the bringing of discrimination complaints, the humanitarian remedial policies of Title VII, and the statute’s structure of cooperation between federal and state enforcement authorities—calling for deferral to state proceedings, with proceedings before the EEOC and in federal courts being supplements to available state remedies—all point to the conclusion that fee awards are authorized for work done in state administrative or judicial proceedings as well as in federal proceedings. Since Congress intended to authorize fee awards for work done in administrative proceedings, §706(f)(l)’s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney’s fees for legal work done in state or local proceedings. Pp. 60-66. (b) Awarding fees for work done in state proceedings for which the State does not authorize fees does not infringe on the State’s powers under the Tenth Amendment, since Congress’ power under § 5 of the Fourteenth Amendment is broad and overrides any interest the State might, have in not authorizing awards for fees. Nor is there any merit in the argument that Congress’ intent to pre-empt the state law has not been clearly expressed. Section 706 (k) does not “pre-empt” state law, since § 706 (f) (1) merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums, and one aspect of complete relief is an award of attorney’s fees, which Congress considered necessary for the fulfillment of federal goals. And even if it can be said that § 706 (k) pre-empts the state rule, Congress’ intent to achieve this result is manifest. Furthermore, the availability under New York law of an agency attorney to present the case in support of the complaint at the public hearing is not a “special circumstance” depriving a prevailing complainant of a fee award, since a private attorney is needed to assist the complainant during administrative procedures before and after the public-hearing stage, and even if an agency attorney appears at the public hearing, he does not represent the complainant’s interests, but rather those of the State. Pp. 66-70. >98 F. 2d 1253, affirmed. Blackmun, J., delivered the opinion of the Court, in which Brennan, Stewart, Marshall, and Powell, JJ., joined, and in all but n. 6 of which Burger, C. J., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 71. White and Rehnquist, JJ., filed a dissenting statement, post, p. 71. 56 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Albert N. Proujansky argued the cause for petitioners. With him on the brief was Marvin Lubofl. James I. Meyerson argued the cause and filed a brief for respondent. Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager* Mr. Justice Blackmun delivered the opinion of the Court. This case presents the question whether, under Title VII of the Civil Rights Act of 1964, a federal court may allow the prevailing party attorney’s fees for legal services performed in prosecuting an employment discrimination claim in state administrative and judicial proceedings that Title VII requires federal claimants to invoke. I Respondent Cidni Carey, in August 1974, applied for work as a cocktail waitress with petitioner New York Gaslight Club, Inc. After an interview, she was advised that no position was available. The following January, respondent filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners, the Club and its manager, had denied her a position because of her race. App. to Brief for Respondent al-a3. As required by § 706 (c) of Title VII of the Civil *Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, Judith T. Kramer, Arnold Fleischer, and Barbara Levy, Assistant Attorneys General, and Ann Thacher Anderson for the New York State Attorney General et al.; by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, and Bill Lann Lee for the NAACP Legal Defense and Educational Fund, Inc.; and by Charles C. Parlin, Jr.,and Peter Bienstock for the Puerto Rican Legal Defense & Education Fund, Inc. NEW YORK GASLIGHT CLUB, INC. v. CAREY 57 54 Opinion of the Court Rights Act of 1964, 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. §2000e-5(c), respondent’s complaint was forwarded to the New York State Division of Human Rights (Division). In May 1975, after an investigation during which respondent was represented by counsel,1 the Division found probable cause to believe that petitioners had engaged in an unlawful discriminatory practice. Efforts at conciliation failed, and the Division, pursuant to N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979), recommended that a public hearing be held. Counsel for respondent wrote to the EEOC on May 20, advising the Commission that respondent was proceeding in the Division. He asked that the Commission “reassume” jurisdiction over the claim so that, if necessary, respondent could obtain a right-to-sue letter at an appropriate time. On May 22, the EEOC responded, stating that an investigator would be assigned to respondent’s matter as soon as possible. The state administrative hearing was held on two separate days in late 1975 and early 1976. Both respondent and petitioners were represented by counsel. App. 68. No attorney for the State appeared. On August 13, 1976, the hearing examiner found that petitioners had discriminated against respondent because she is black. Id., at 70. Petitioners were ordered to offer respondent employment as a cocktail waitress and to pay her back wages from August 1974. Id., at 70-72. No attorney’s fee was awarded. Petitioners appealed to the New York State Human Rights Appeal Board, an agency established to hear appeals from orders of the Division. N. Y. Exec. Law § 297—a (M^cKinney 1972 and Supp. 1979). The Board held a hearing in December 1976 at which counsel for petitioners, respondent, and the Division appeared. 1 Respondent was represented by counsel employed by the NAACP Special Contribution Fund. 58 447 U.S. OCTOBER TERM, 1979 Opinion of the Court Meanwhile, EEOC proceedings had begun. Giving due weight to the state finding of probable cause, see § 706 (b), 42 U. S. C. § 2000e-5 (b), the EEOC determined that there was reasonable cause to believe petitioners had violated Title VII. The EEOC’s attempts at conciliation also failed. The Commission’s General Counsel chose not to sue, and, as required by § 706 (f)(1), § 2000e-5 (f)(1), the EEOC issued respondent a right-to-sue letter. This was issued on July 13, 1977; respondent, under § 706 (f)(1), then had 90 days to file a Title VII action in federal district court. On August 26, the Appeal Board confirmed the Division’s order. Petitioners immediately appealed the Board’s decision to the New York Supreme Court. The Division cross-petitioned for enforcement of its order. On September 30, respondent filed suit in the United States District Court for the Southern District of New York, asserting claims under the Civil Rights Act of 1866, 42 U. S. C. § 1981, Title VII, and the Thirteenth Amendment. App. 29. Respondent alleged that petitioners did not hire her because she is black, and that petitioner Club had employed only four blacks as waitresses during its 20-year existence. The complaint sought a declaratory judgment that petitioners’ practices were unlawful under federal law, an order requiring petitioners to hire respondent, backpay with interest, retroactive employment-related benefits, attorney’s fees, and other appropriate relief. Petitioners’ answer denied virtually all the allegations in the complaint and cited the pendency of the state proceedings as an affirmative defense. The Appellate Division of the New York Supreme Court on November 3 unanimously affirmed the Appeal Board’s determination. New York Gaslight Club, Inc. v. New York State Human Rights Appeal Board, 59 App. Div. 2d 852, 399 N. Y. S. 2d 158 (1977). Petitioners unsuccessfully moved for reargument, and then filed a motion with the New York Court of Appeals for leave to appeal. NEW YORK GASLIGHT CLUB, INC. v. CAREY 59 54 Opinion of the Court On February 3, 1978, while that motion was pending, the Federal District Court held a pretrial conference, after which petitioners agreed that if the state court denied their motion for leave to appeal, they would comply with the Division’s order. App. 73. One week later the New York Court of Appeals denied petitioners’ motion. 43 N. Y. 2d 951 (1978). The parties thereafter apparently agreed that the federal action could be dismissed, except for respondent’s request for attorney’s fees. See App. 75—79. Respondent sought an award for 82 hours of attorney’s time. Of that total, 9 hours were spent in preparing and filing the EEOC charge and the federal suit, 22 hours were spent in preparing and presenting the case before the hearing examiner, 29 hours were spent in defending the Division’s order before the Appeal Board and the state courts, and 22 hours were spent seeking the fee award. App. to Pet. for Cert. A39-A40. In July 1978, the District Court dismissed respondent’s complaint, App. 35, but left pending the application for attorney’s fees. After further briefing, the court denied the fee request. 458 F. Supp. 79 (SDNY 1978). The District Court found the propriety of the EEOC’s issuance of a right-to-sue letter while state proceedings were pending “very doubtful.” Id., at 80. Although the EEOC’s action had given respondent no choice but to preserve her rights by filing a complaint in federal court, the District Court ruled that the mere filing of a federal suit does not entitle an aggrieved party to attorney’s fees. The court reasoned that the fortuity of a need to file a protective federal suit should not make the defendants responsible for the costs of representing the plaintiff in the state forums. Id., at 81. The District Court also relied on its conclusion that respondent “had the option of pursuing her state administrative remedies without incurring any expenses at all for legal services,” since state law, N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1978), provides that the case in support of the complaint is to be presented to the hearing examiner by one 60 447 U.S. OCTOBER TERM, 1979 Opinion of the Court of the attorneys for the Division. 458 F. Supp., at 81. The decision in Parker v. Califano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977), upholding an award of attorney’s fees for prosecution of a federal employee’s Title VII claim in mandatory preliminary proceedings within the employee’s agency, was distinguished on the ground that the agency did not provide an independent attorney to prosecute the complaint. 458 F. Supp., at 81. A divided panel of the United States Court of Appeals for the Second Circuit reversed. 598 F. 2d 1253 (1979). The court ruled: “A complaining party who is successful in state administrative proceedings after having her complaint under Title VII referred to a state agency in accordance with the statutory scheme of that Title is entitled to recover attorney’s fees in the same manner as a party who prevails in federal court.” Id., at 1260. The court relied on several factors in reaching its decision. Among them were the significant role of state human rights agencies in the Title VII enforcement scheme; the statute’s strong preference for administrative resolution of a discrimination complaint; the importance of providing an incentive for complete development of the administrative record; the language of the statute’s fee provision; and the desirability of encouraging a complainant to retain private counsel notwithstanding participation of a Division attorney at certain points during the state proceedings. We granted certiorari, 444 U. S. 897 (1979), to consider this question that is significant to the enforcement of the antidiscrimination provisions of Title VII. II Section 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k), provides: “In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs.” NEW YORK GASLIGHT CLUB, INC. v. CAREY 61 54 Opinion of the Court The question presented is whether, in the words of the statute, respondent was the “prevailing party” in an “action or proceeding under this title.” An examination of the language and history of the statute, the nature of the proceedings in which respondent participated, and the relationship of those proceedings to Title Vil’s enforcement mechanisms, together persuade us that Congress clearly intended to authorize awards of attorney’s fees to persons in respondent’s situation. The words of § 706 (k) leave little doubt that fee awards are authorized for legal work done in “proceedings” other than court actions. Congress’ use of the broadly inclusive disjunctive phrase “action or proceeding” indicates an intent to subject the losing party to an award of attorney’s fees and costs that includes expenses incurred for administrative proceedings. This conclusion is supported by a comparison of § 706 (k) with another fee provision in the same Act, namely, § 204 (b) of Title II, 78 Stat. 244, 42 U. S. C. § 2000a-3 (b). The pertinent language of § 204 (b) is identical to that of § 706 (k) except that § 204 (b) permits an award only with respect to “any action commenced pursuant to this title.” The two provisions were enacted contemporaneously as parts of the Civil Rights Act of 1964. The omission of the words “or proceeding” from § 204 (b) is understandable, since enforcement of Title II depends solely on court actions. See Newman y. Piggie Park Enterprises, 390 U. S. 400, 401 (1968). It is apparent, therefore, that the two fee provisions were carefully tailored to the enforcement scheme of each Title. It cannot be assumed that the words “or proceeding” in § 706 (k) are mere surplusage. It might be argued that the words “or proceeding” authorize fee awards only for work done in federal administrative proceedings,2 such as those before the EEOC, but not for 2 In cases involving federal employees, all the Courts of Appeals that have considered the question have upheld fee awards under § 706 (k) for work done in federal administrative proceedings that must be exhausted 62 447 U.S. OCTOBER TERM, 1979 Opinion of the Court state administrative or state judicial proceedings. This reading at least would not render the words “or proceeding” a complete nullity. We find nothing in the statute, however, to suggest that Congress intended to draw this particular line. Rather, other provisions of the statute that interact with § 706 (k); the purpose of § 706 (k); the humanitarian remedial policies of Title VII; and the statute’s structure of cooperation between federal and state enforcement authorities, all point to the opposite conclusion. Section 706 (k) authorizes a fee award to the prevailing party in “any . . . proceeding under this title.” (Emphasis added.) The same Title creates the system of deferral to state and local remedies. The statute uses the word “proceeding” to describe the state and local remedies to which complainants are required to resort. For example, § 706 (c), 86 Stat. 104, provides: “[N]o charge may be filed . . . before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated. ... If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent. . . .” (Emphasis added). Indeed, throughout Title VII the word “proceeding,” or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, as a condition to filing an action in federal court. E. g., Brown n. Bathke, 588 F. 2d 634, 638 (CA8 1978); Fischer n. Adams, 572 F. 2d 406 (CAI 1978); Parker v. Calijano, 182 U. S. App. D. C. 322, 561 F. 2d 320 (1977); Foster n. Boorstin, 182 U. S. App. D. C. 342, 561 F. 2d 340 (1977); Johnson v. United States, 554 F. 2d 632 (CA4 1977). NEW YORK GASLIGHT CLUB, INC. v. CAREY Opinion of the Court 63 54 administrative and judicial.8 The conclusion that fees are authorized for work done at the state and local levels is inescapable. This Court recently examined the legislative history and purpose of §706 (k). In Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), it was noted that, although the legislative history of § 706 (k) is “sparse,” 434 U. S., at 420, it is clear that one of Congress’ primary purposes in enacting the section was to “make it easier for a plaintiff of limited means to bring a meritorious suit.” Ibid., quoting 110 Cong. Rec. 12724 (1964) (remarks of Sen. Humphrey). Because Congress has cast the Title VII plaintiff in the role of “a private attorney general,” vindicating a policy “of the highest priority,” a prevailing plaintiff “ordinarily is to be awarded attorney’s fees in all but special circumstances.” 434 U. S., at 416, 417. See also Newman v. Piggie Park Enterprises, 390 U. S., at 402. It is clear that Congress intended to facilitate the bringing of discrimination complaints. Permitting an attorney’s fee award to one in respondent’s situation furthers this goal, while a contrary rule would force the complainant to bear the costs of mandatory state and local proceedings and thereby would inhibit the enforcement of a meritorious discrimination claim. Title VII establishes a comprehensive enforcement scheme in which state agencies are given “a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination.” Oscar Mayer & Co. v. Evans, 441 U. 8. 750, 755 (1979). Congress envisioned that Title Vil’s procedures and remedies would “mes[h] nicely, logically, and coherently with the State and city legislation,” and that remedying em 3 See, e. g., §706 (f)(1), 78 Stat. 260, as redesignated, 86 Stat. 105, 42 U. S. C. §2000e-5 (f)(1) (court may stay “further proceedings” pending the termination of “State or local proceedings”); § 706 (i), 78 Stat. 261, as amended, 86 Stat. 107, 42 U. S. C. § 2000e-5 (i) (Commission may commence “proceedings” to compel compliance with court order). 64 OCTOBER TERM, 1979 Opinion of the Court 447U.S. ploymen t discrimination would be an area in which “[t]he Federal Government and the State governments could cooperate effectively.” 110 (Jong. Rec. 7205 (1964) (remarks of Sen. Clark). Pursuant to this policy of cooperation, Title VII provides that where the unlawful employment practice is alleged to have occurred in a State or locality which has a law prohibiting the practice and in which an agency has been established to enforce that law, “no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated.” § 706(c). In practice, § 706 (c) has resulted in EEOC’s development of a referral and deferral system, which the Court approved in Love v. Pullman Co., 404 U. S. 522 (1972). When a charge is filed with the EEOC prior to exhaustion of state or local remedies, the Commission refers the complaint to the appropriate local agency. The EEOC then holds the complaint in “suspended animation.” Id., at 526. Upon termination of the state proceedings or expiration of the 60-day deferral period, whichever comes first, the EEOC automatically assumes concurrent jurisdiction of the complaint. Ibid.* Of course, the “ultimate authority” to secure compliance with Title VII resides in the federal courts. Alexander n. Gardner-Denver Co., 415 U. S. 36, 44-45 (1974). The statute 4 Other provisions of Title VII also evidence the policy of promoting federal-state cooperation in enforcement. Section 706 (b), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. §2000e-5(b), requires the EEOC to “accord substantial weight” to a state administrative determination, and §709 (b), 78 Stat. 262, as amended, 86 Stat. 108, 42 U.*S. C. §2000e-8(b), authorizes the EEOC to “cooperate with State and local agencies charged with the administration of State fair employment practices laws” in funding research and other mutually beneficial projects, and to enter into work-sharing agreements with those agencies to facilitate the processing of complaints. NEW YORK GASLIGHT CLUB, INC. v. CAREY 65 54 Opinion of the Court authorizes civil enforcement actions by both the EEOC and the private plaintiff. After the deferral period, the EEOC assumes jurisdiction, and, “as promptly as possible” it determines whether there is probable cause to believe that the charge is true. § 706 (b). After an additional 30 days, the EEOC is authorized to bring an action, in which the complainant has an absolute right to intervene. § 706(f). If the Commission does not file suit, or enter into a conciliation agreement to which the complainant is a party, within 180 days after it reassumes jurisdiction, it must issue a “right to sue” letter notifying the complainant of his right to bring an action within 90 days. Ibid.5 It is clear from this scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination. Initial resort to state and local remedies is mandated, and recourse to the federal forums is appropriate only when the State does not provide prompt or complete relief. See Alexander v. Gardner-Denver Co., 415 U. S., at 48-50. The construction of § 706 (k) that petitioners advocate clashes with this congressional design. Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. See n. 6, infra. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme. The District Court felt that granting a fee award to respondent would be a “windfall” based on the unforeseeable fortuity that filing a protective federal suit became necessary. 458 F. Supp., at 81. We agree with the District Court that the 5 We thus disagree with the District Court that the propriety of EEOC’s issuance of the right-to-sue letter in this case is “very doubtful.” 458 F. Supp. 79, 80 (SDNY 1978). As we read the statute, the Commission was required to issue the letter after 180 days, regardless of the posture of any state proceedings. 66 OCTOBER TERM, 1979 Opinion of the Court 447U.S. availability of a federal fee award for work done in state proceedings following EEOC referral and deferral should not depend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney’s fees. But our agreement with the District Court compels us to reject its conclusion. It would be anomalous to award fees to the complainant who is unsuccessful or only partially successful in obtaining state or local remedies, but to deny an award to the complainant who is successful in fulfilling Congress’ plan that federal policies be vindicated at the state or local level. Since it is clear that Congress intended to authorize fee awards for work done in administrative proceedings, we must conclude that § 706 (f)(l)’s authorization of a civil suit in federal court encompasses a suit solely to obtain an award of attorney’s fees for legal work done in state and local proceedings.6 Ill Against the strong considerations favoring an award of fees, petitioners make three arguments. First, they contend that awarding fees for work done in state proceedings for 6 We note that if fees were authorized only when the complainant found an independent reason for suing in federal court under Title VII, such a ground almost always could be found. Section 706 (f)(1) requires the EEOC to give the complainant a “right to sue” letter if, after it assumes concurrent jurisdiction over the complaint, it does not sue within 180 days. Thus, after waiting 240 days (60 days deferral to the state or local agency and 180 days for the EEOC to act after deferral), the complainant appears to have an absolute right to resort to an action in federal court. The federal court may stay the action for a maximum of 60 more days, to permit completion of state proceedings. §706 (f)(1). It took three years for the New York proceedings in this case finally to provide respondent all the relief she desired other than attorney’s fees. It is doubtful that the systems of many States could provide complete relief within 240 days. The existence of an incentive to get into federal court, such as the availability of a fee award, would ensure that almost all Title VII complainants would abandon state proceedings as soon as possible. This, however, would undermine Congress’ intent to encourage full use of state remedies. NEW YORK GASLIGHT CLUB, INC. v. CAREY 67 54 Opinion of the Court which the State does not authorize fees7 infringes on the State’s powers under the Tenth Amendment. Second, they argue that Congress’ intent to pre-empt the state law has not been clearly expressed. Third, they contend that even if § 706 (k) authorizes fees for work done in state proceedings in some instances, denial of an award here was within the District Court’s discretion. We must reject petitioners’ Tenth Amendment argument. Congress’ power under § 5 of the Fourteenth Amendment is broad, and overrides any interest the State might have in not authorizing awards for fees in connection with state proceedings. See Hutto v. Finney, 437 U. S. 678 (1978); Fitzpatrick v. Bitzer, 427 U. S. 445 (1976). Petitioners cite Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132 (1963), Schwartz v. Texas, 344 U. S. 199 (1952), and Florida v. United States, 282 U. S. 194 (1931), in support of their argument that Congress’ intent to pre-empt state regulation of the administration of state proceedings is not clearly expressed in § 706 (k) and should not be inferred. We find these cases inapposite. Section 706 (k) does not “preempt” state law. “Title VII was designed to supplement, rather than supplant, existing laws and institutions relating to employment discrimination.” Alexander v. Gardner-Denver Co., 415 U. S., at 48-49. Title VII explicitly leaves the States free, and indeed encourages them, to exercise their regulatory power over discriminatory employment practices. Title VII merely provides a supplemental right to sue in federal court if satisfactory relief is not obtained in state forums. §706 (f)(1). One aspect of complete relief is an 7 The Human Rights Law of the State of New York does not authorize an award of counsel fees for work done in either state administrative or judicial proceedings. See State Commission for Human Rights v. Speer, 35 App. Div. 2d 107, 111-112, 313 N. Y. S. 2d 28, 33 (1970), rev’d on other grounds, 29 N. Y. 2d 555, 272 N. E. 2d 884 (1971); State Division of Human Rights v. Gorton, 32 App. Div. 2d 933, 934, 302 N. Y. S. 2d 966, 968 (1969). 68 OCTOBER TERM, 1979 Opinion of the Court 447U.S. award of attorney’s fees, which Congress considered necessary for the fulfillment of federal goals. Provision of a federal award of attorney’s fees is not different from any other aspect of the ultimate authority of federal courts to enforce Title VII. For example, if state proceedings result in an injunction in favor of the complainant, but no award for backpay because state law does not authorize it, the complainant may proceed in federal court to “supplement” the state remedy. The state law which fails to authorize backpay has not been pre-empted. In any event, if it can be said that § 706 (k) pre-empts the state rule, we believe that Congress’ intent to achieve this result is manifest. We also find no merit in petitioners’ suggestion that denial of a fee award was within the District Court’s discretion. As noted earlier, the court’s discretion to deny a fee award to a prevailing plaintiff is narrow. Absent “special circumstances,” see Newman v. Piggie Park Enterprises, 390 U. S., at 402; Christiansburg Garment Co. v. EEOC, 434 U. S., at 416-417, fees should be awarded. Petitioners argue that the availability of a Division attorney to present the “case in support of the complaint” is a “special circumstance” which should deprive a prevailing complainant of a fee award. Clearly, however, an attorney is needed to assist the complainant during the state proceedings, and the Division employee does not take the place of private counsel. The New York state procedure, to which respondent’s charge was referred, provides for adversary quasi-judicial hearings leading to findings of fact, administrative appeals, and judicial review. The first stage of the state administrative action is the investigation; this results in either a finding of probable cause or a dismissal of the complaint. N. Y. Exec. Law § 297 (2) (McKinney Supp. 1979). A finding of probable cause after investigation is a necessary prelude to the public hearing. § 297 (4)(a). State law makes no provision for the participation of a Division attorney in the investigation, and a complainant is not represented by a Division attor- NEW YORK GASLIGHT CLUB, INC. v. CAREY 69 54 Opinion of the Court ney at this preliminary stage. See Brief for New York State Attorney General and New York State Division of Human Rights as Amid Curiae A-5. Following the investigation, the Division attempts to conciliate the complainant’s grievance with the employer. N. Y. Exec. Law §§297 (3)(a), (b), and (c) (McKinney 1972). No Division attorney participates in the conciliation efforts on behalf of the complainant, and the Division staff is even empowered to execute a settlement agreement with the employer over the complainant’s objections. §297 (3)(c). If efforts at conciliation fail and a hearing is scheduled, state law provides: “The case in support of the complaint shall be presented by one of the attorneys or agents of the division and, at the option of the complainant, by his attorney. With the consent of the division, the case in support of the complainant may be presented solely by his attorney.” § 297 (4) (a) (McKinney Supp. 1979). At the time of the hearing on respondent’s complaint, however, the practice of the Division was to involve one of its attorneys only if the complainant was not represented by private counsel. Brief for New York State Attorney General and New York State Division of Human Rights as Amici Curiae 5.8 Complainants were “encouraged” to obtain private counsel due to a growing caseload and staff limitations. App. to Pet. for Cert. A58-A59. At the appellate level, the Division attorney appears only to support and seek enforcement of orders issued by the Division and the Appeal Board. N. Y. Exec. Law § 298 (McKinney Supp. 1979). The Division attorney does not 8 On October 18, 1977, Division regulations were amended to provide for the presentation of the case in support of the complaint solely by the attorney for the complainant, upon consent of the Division. The regula-requires the Division attorney to submit a statement to the hearing examiner in lieu of appearance. 9 N. Y. C. R. R. §465.11 (d)(2). 70 OCTOBER TERM, 1979 Opinion of the Court 447U.S. represent the complainant on an appeal from an order adverse to the claimant. In addition, the Division cannot appeal from an order of the Human Rights Appeal Board reversing a Division order. See Brief for New York State Attorney General and New York Division of Human Rights as Amici Curiae 5-6. It is thus obvious that the assistance provided a complainant by the Division attorney is not fully adequate, and that the attorney has no obligation to the complainant as a client. In fact, at times the position of the Division may be detrimental to the interests of the complainant and to enforcement of federal rights. Representation by a private attorney thus assures development of a complete factual record at the investigative stage and at the administrative hearing. At both, settlement is possible and is encouraged. A Division employee cannot act as the complainant’s attorney for purposes of advising him whether to accept a settlement. Retention of private counsel will help assure that federal rights are not compromised in the conciliation process. If a Division attorney appears at the public hearing, he does not represent the interests of the complainant, but rather those of the State. Id., at 5; App. to Pet. for Cert. A59-A60. He presents the “case in support of the complaint,” not in support of the complainant. N. Y. Exec. Law § 297 (4) (a) (McKinney Supp. 1979). Upon appeal, the Division attorney is authorized only to support the order entered by the Division or the Appeal Board. Without doubt, the private attorney has an important role to play in preserving and protecting federal rights and interests during the state proceedings.9 9 We also reject petitioners’ argument, not suggested in the petition for certiorari, that respondent’s representation by a public interest group is a “special circumstance” that should result in denial of counsel fees. Federal Courts of Appeals’ decisions are to the contrary. See, e. g., Reynolds v. Coomey, 567 F. 2d 1166 (CAI 1978); Torres n. Sachs, 538 F. 2d 10, 13 NEW YORK GASLIGHT CLUB, INC. v. CAREY Stevens, J., concurring in judgment 71 54 In sum, we conclude that §§ 706 (f) and 706 (k) of Title VII authorize a federal-court action to recover an award of attorney’s fees for work done by the prevailing complainant in state proceedings to which the complainant was referred pursuant to the provisions of Title VII. We also conclude that no special circumstances exist in this case that would justify denial of a fee award. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. The Chief Justice joins the Court’s opinion except footnote 6 thereof; in his view, resolution of the issue dealt with in that footnote is not necessary. Mr. Justice White and Mr. Justice Rehnquist would reverse the judgment essentially for the reasons given by Judge Mulligan in dissenting from the judgment of the Court of Appeals. Mr. Justice Stevens, concurring in the judgment. While I agree with most of what is said in the Court’s opinion, it is useful to emphasize that this federal litigation was commenced in order to obtain relief for respondent on the merits of her basic dispute with petitioners, and not simply to recover attorney’s fees. Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney’s fees, incurred in obtaining admin-istrative relief in either a deferral or a nondeferral State is not only doubtful but is a question that is plainly not presented by this record. (CA2 1976). Congress endorsed such decisions allowing fees to public interest groups when it was considering, and passed, the Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, 42 U. S. C. § 1988, which is legislation similar in purpose and design to Title Vil’s fee provision. See H. R. Rep. No. 94-1558, pp. 5 and 8, n. 16 (1976). 72 OCTOBER TERM, 1979 Stevens, J., concurring in judgment 447U.S. On July 13, 1977, when the EEOC issued respondent a letter notifying her that she had a right to file an action in federal court, and on September 30, 1977, when she commenced her federal-court action, state judicial review of the state administrative proceedings had not yet been completed. It was not until sometime in February 1978, after the federal judicial proceeding had been pending for several months, that all questions other than the fee issue were finally removed from the federal case. It is clear, therefore, that under the plain language of § 706 (k) of the Civil Rights Act of 1964, 78 Stat. 261, 42 U. S. C. § 2000e-5 (k),* the Federal District Court then had jurisdiction to allow the prevailing party to recover attorney’s fees as a part of her costs. A quite different question would be presented if, before any federal litigation were commenced, an aggrieved party had obtained complete relief in the administrative proceedings. It is by no means clear that the statute, which merely empowers a “court” to award fees, would authorize a fee allowance when there is no need for litigation in the federal court to resolve the merits of the underlying dispute. Indeed, it is not even clear that the EEOC has the authority to issue a “right to sue” letter, empowering the complainant to bring suit in federal court, after the complainant has obtained complete relief on the merits of his claim in administrative proceedings. See §706 (f)(1) of the Civil Rights Act of 1964 as amended, 42 U. S. C. § 2000e-5 (f)(1). In any event, the facts of this case present no occasion for the Court’s resolution of the issue, ante, at 66. All that needs to be decided is whether an allowance of fees may properly cover the work *That section provides in part: “In any action or proceeding under this title the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs. . . .” NEW YORK GASLIGHT CLUB, INC. v. CAREY 73 54 Stevens, J., concurring in judgment performed in the administrative proceedings that were a prerequisite to the court action. I agree with the Court’s disposition of that issue, and would also observe that the same analysis would apply to work performed in appearing before the federal agency in a nondeferral State. Accordingly, I concur in the judgment. 74 OCTOBER TERM, 1979 Syllabus 447 U. S. PRUNEYARD SHOPPING CENTER et al. v, ROBINS ET AL. APPEAL FROM THE SUPREME COURT OF CALIFORNIA No. 79-289. Argued March 18, 1980—Decided June 9, 1980 Soon after appellees had begun soliciting in appellant privately owned shopping center’s central courtyard for signatures from passersby for petitions in opposition to a United Nations resolution, a security guard informed appellees that they would have to leave because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center’s commercial purposes. Appellees immediately left the premises and later filed suit in a California state court to enjoin the shopping center and its owner (also an appellant) from denying appellees access to the center for the purpose of circulating their petitions. The trial court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property, and the California Court of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers even when the center is privately owned, and that such result does not infringe appellants’ property rights protected by the Federal Constitution. Held: 1. This case is properly before this Court as an appeal under 28 U. S. C. § 1257 (2). A state constitutional provision is a “statute” within the meaning of § 1257 (2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants’ property, the California Supreme Court rejected appellants’ claim that recognition of such a right violated their “right to exclude others,” a fundamental component of their federally protected property rights. Pp. 79-80. 2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner’s property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 80-88. (a) The reasoning in Lloyd Corp. n. Tanner, 4Q7 U. S. 551—which PRUNEYARD SHOPPING CENTER v. ROBINS 75 74 Syllabus held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center’s operations—does not ex proprio vigore limit a State’s authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Fédéral Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. Pp. 80-81. (b) The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.” Kaiser Aetna v. United States, 444 U. S. 164, distinguished. And there is no merit to appellants’ argument that they have been denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by the State’s asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. Pp. 82-85. (c) Nor have appellants’ First Amendment rights been infringed by the California Supreme Court’s decision. The shopping center by choice of its owner is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants’ property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers. Wooley v. Maynard, 430 U. S. 705; West Virginia State Board of Education v. Barnette, 319 U. S. 624; and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, distinguished. Pp. 85-88. 23 Cal. 3d 899, 592 P. 2d 341, affirmed. Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, and Stevens, JJ., joined; in Parts I, II, III, and IV of which White and Powell, JJ., joined; and 76 447 U.S. OCTOBER TERM, 1979 Opinion of the Court in all but one sentence of which Blackmun, J., joined. Marshall, J., filed a concurring opinion, post, p. 89. White, J., filed an opinion concurring in part and in the judgment, post, p. 95. Powell, J., filed an opinion concurring in part and in the judgment, in which White, J., joined, post, p. 96. Blackmun, J., filed a statement concurring in part, post, p. 88. Max L. Gillam argued the cause for appellants. With him on the briefs were James W. Daniels, William C. Kelly, Jr., and Thomas P. O’Donnell. Philip L. Hammer argued the cause and filed a brief for appellees. Elinor Hadley Stillman argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Solicitor General McCree and Deputy Solicitor General Wallace* Mr. Justice Rehnquist delivered the opinion of the Court. We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner’s property rights under the Fifth *Briefs of amici curiae urging reversal were filed by Laurence M. Cohen and Charles H. May II for Homart Development Co.; by Dean L. Overman and Peter N. Kyros, Jr., for the International Council of Shopping Centers; and by Joseph H. Moless, Jr., and Philip B. Kurland for Taubman Co., Inc., et al. Briefs of amici curiae urging affirmance were filed by Susan L. Paulus, Amitai Schwartz, and Burt Neubome for the American Civil Liberties Union of Northern California et al.; by J. Albert Woll, Laurence Gold, and George Kaujmann for the American Federation of Labor and Congress of Industrial Organizations; by Nathan Z. Dershowitz for the American Jewish Congress et al.; and by Roger Jon Diamond for People’s Lobby, Inc. PRUNEYARD SHOPPING CENTER v. ROBINS 77 74 Opinion of the Court and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. I Appellant Prune Yard is a privately owned shopping center in the city of Campbell, Cal. It covers approximately 21 acres—5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi. Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against “Zionism.” On a Saturday afternoon they set up a card table in a corner of PruneYard’s central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly and so far as the record indicates was not objected to by PruneYard’s patrons. Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard’s perimeter. Appellees immediatelv left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions. The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise 78 447 U.S. OCTOBER TERM, 1979 Opinion of the Court their asserted rights on the shopping center property. App. to Juris. Statement A—2. It concluded that there were ^adequate, effective channels of communication for [appellees] other than soliciting on the private property of the [Prune-Yard]. Id., at A-3. The California Côurt of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” 23 Cal. 3d 899, 910, 592 P. 2d 341, 347 (1979). It concluded that appellees were entitled to conduct their, activity on PruneYard property. In rejecting appellants contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed: It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to’assure that these activities do not interfere with normal business operations (see Diamond [v. Bland, 3 Cal. 3d 653, 665, 477 P. 2d 733, 741 (1970)]) would not markedly dilute defendant’s property rights.’ ([Diamond v. Bland, 11 Cal. 3d 331, 345, 521 P. 2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)” Id., at 910-911, 592 P. 2d, at 347-348. The California Supreme Court thus expressly overruled its earlier decision in Diamond v. Bland, 11 Cal. 3d 331, 521 P. 2d 460 (Diamond II), cert, denied, 419 U. S. 885 (1974), which had reached an opposite conclusion. 23 Cal. 3d, at PRUNEYARD SHOPPING CENTER v. ROBINS 79 74 Opinion of the Court 910 , 592 P. 2d, at 347.1 Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants’ private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State’s laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U. S. 949. We now affirm. II We initially conclude that this case is properly before us as an appeal under 28 U. S. C. § 1257 (2). It has long been established that a state constitutional provision is a “statute” within the meaning of § 1257 (2). See, e. g., Torcaso v. Watkins, 367 IT. S. 488, 489 (1961); Adamson v. California, 332 IT. S. 46, 48, n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 IT. S. 440 (1931). Here the California Supreme Court decided that Art. 1, §§ 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants’ property in exercising their state rights of free expression and petition.2 In so doing, the California Supreme Court 1 The California Supreme Court in Diamond II had reasoned: ‘Tn this case, as in Lloyd [Corp. v. Tanner, U. S. 551 (1972)], plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside. Unlike the situation in Marsh [v. Alabama, 326 U. S. 501 (1946)] and [Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968)], no reason appears why such alternative means of communication would be ineffective, and plaintiffs concede that, unlike Logan, their initiative petition bears no particular relation to the shopping center, its individual stores or patrons.” 11 Cal. 3d, at 335, 521 P. 2d, at 463. Diamond II thus held that the shopping center owner’s property rights outweighed the rights of free expression and petition asserted by the plaintiffs. Ibid. 2 Article 1, §2, of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments 80 OCTOBER TERM, 1979 Opinion of the Court 447U.S. rejected appellants’ claim that recognition of such a right violated appellants’ “right to exclude others,” which is a fundamental component of their federally protected property rights. Appeal is thus the proper method of review. Ill Appellants first contend that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether under the Federal Constitution a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center’s operations. Id., at 552. The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id., at 555.3 Respondents in Lloyd argued that because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id., at 564.4 on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article 1, § 3, of the California Constitution provides: “[P]eople have the right to . . . petition government for redress of grievances.” 8 The center had banned handbilling because it “was considered likely to annoy customers, to create litter, potentially to create disorders, and generally to be incompatible with the purpose of the Center and the atmosphere sought to be preserved.” 407 U. S., at 555-556. 4 Respondents relied on Marsh v. Alabama, 326 U. S. 501 (1946), and Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), in support of their claim that the shopping center’s permission to the public to enter its property for the purpose of shopping caused its property to lose its private character, thereby permitting members of the public to exercise PRUNEYARD SHOPPING CENTER v. ROBINS 81 74 Opinion of the Court In rejecting this claim we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), which was later overruled in Hudgens v. NLRB, A2A U. S. 507 (1976). We stated that property does not “lose its private character merely because the public is generally invited to use it for designated purposes,” and that “[t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modem shopping center.” 407 U. S., at 569. Our reasoning in Lloyd, however, does not ex proprio vigore limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U. S. 58, 62 (1967). See also 407 U. S., at 569-570. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State in the exercise of its police power may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. See, e. g., Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). Lloyd held that when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens v. NLRB, supra, at 517-521. the same free speech rights as they would have on similar public facilities or the streets of a city or town. Both of those cases, however, involved no state law authorizing the conduct of the solicitors or handhillers. 82 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. IV Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law.5 It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna n. United States, 444 U. S. 164, 179-180 (1979). And here there has literally been a “taking” of that right to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property.6 But it is well established that “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.” Armstrong v. United States, 364 U. S. 40, 48 (1960). Rather, the determination whether a state law unlawfully infringes a landowner’s property in 5 Appellants do not maintain that this is a condemnation case. Reply Brief for Appellants 2. Rather, they argue that “[t]he rights of a property owner . . . are rooted in the Fifth Amendment guarantee against the taking of property without just compensation and are incorporated in the Fourteenth Amendment guarantee against the deprivation of property without due process of law.” Brief for Appellants 10. Here, of course, if the law required the conclusion that there was a “taking,” there was concededly no compensation, just or otherwise, paid to appellants. This argument falls within appellants’ contention that Lloyd is controlling, see 407 U. S., at 567, and was adequately presented below. See New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 67 (1928). 6 The term “property” as used in the Taking Clause includes the entire “group of rights inhering in the citizen’s [ownership].” United States v. General Motors Corp., 323 U. S. 373 (1945). It is not used in the “vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess.” Id., at 377-378. PRUNEYARD SHOPPING CENTER v. ROBINS 83 74 Opinion of the Court violation of the Taking Clause requires an examination of whether the restriction on private property “forcfes] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Id., at 49/ This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 175. When “regulation goes too far it will be recognized as a taking,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the 7 Thus, as this Court stated in Monongahela Navigation Co. v. United States, 148 U. S. 312, 325 (1893), a case which has since been characterized as resting primarily on “estoppel,” see, e. g., United States v. Rands, 389 U. S. 121, 126 (1967), the Fifth Amendment “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.” See also Penn Central Transportation Co. v. New York City, 438 U. S. 104, 123-125 (1978); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 416 (1922). 84 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. common areas of the shopping center. In these circumstances, the fact that they may have “physically invaded” appellants’ property cannot be viewed as determinative. This case is quite different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a private pond had invested substantial amounts of money in dredging the pond, developing it into an exclusive marina, and building a surrounding marina community. The marina was open only to fee-paying members, and the fees were paid in part to “maintain the privacy and security of the pond.” Id., at 168. The Federal Government sought to compel free public use of the private marina on the ground that the marina became subject to the federal navigational servitude because the owners had dredged a channel connecting it to “navigable water.” The Government’s attempt to create a public right of access to the improved pond interfered with Kaiser Aetna’s “reasonable investment backed expectations.” We held that it went “so far beyond ordinary regulation or improvement for navigation as to amount to a taking. . . .” Id., at 178. Nor as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define “property” in the first instance. A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 233, 236-237 (1897), but here appellants have failed to demonstrate that the “right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.” There is also little merit to appellants’ argument that they have been denied their property without due process of law. In Nebbia n. New York, 291 U. S. 502 (1934), this Court stated: “[N]either property rights nor contract rights are absolute. . . . Equally fundamental with the private right PRUNEYARD SHOPPING CENTER v. ROBINS 85 74 Opinion of the Court is that of the public to regulate it in the common interest. . . . “• . . [T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained.” Id., at 523, 525. See also Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949); Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 124-125 (1978). Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by the State’s asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution.8 V Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.9 They 8 Although appellants contend there are adequate alternative avenues of communication available for appellees, it does not violate the United States Constitution for the State Supreme Court to conclude that access to appellants’ property in the manner required here is necessary to the promotion of state-protected rights of free speech and petition. 9 Appellees contend that this issue is not properly before us because appellants have not met their burden of showing that it was raised in the state courts. It is well settled that in challenging the validity of a state law on the ground that it is repugnant to the Constitution of the United States, “[n]o particular form of words or phrases is essential, but only that the claim of invalidity on the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented.” New York ex rel. Bryant v. Zimmerman, 278 U. S., at 67. Before the Supreme Court of California, appellants argued: “The constitutional right to exclude potential communicants from private property is inextricably intertwined with the right of the property owner 86 OCTOBER TERM, 1979 Opinion of the Court 447U.S. state that in Wooley v. Maynard, 430 U. S. 705 (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideologi- to select the way he wishes to use his property. . . . The right, which has been recognized as deriving from the owner’s status as owner, also derives from the owner’s status as himself a potential communicant. Defendant urges that his constitutional right to free speech would be infringed if he were required to make his property available to others for the purpose of their expressive activity.” Brief in Response to Amici Curiae Briefs in No. S. F. 23812, p. 39 (Sup. Ct. Cal.). In making this argument appellants explicitly relied on Wooley v. Maynard, 430 U. S. 705 (1977), and West Virginia State Board of Education n. Barnette, 319 U. S. 624 (1943). Brief in Response to Amici Curiae Briefs, supra, at 40-42. Before this Court appellants contend that “[t]he constitutional rights of private property owners also have their origins in the First Amendment right of the property owner not to be forced by the state to use his property as a forum for the speech of others.” Brief for Appellants 12. See also Juris. Statement 12. And appellants throughout this litigation have been asserting their federal constitutional right to prohibit public expressive activity on their property that is not directly related to PruneYard’s commercial purposes. In addition, this Court has held federal claims to have been adequately presented even though not raised in lower state courts when the highest state court renders an unexpected interpretation of state law or reverses its prior interpretation. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673, 677-678 (1930); Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U. S. 313, 320 (1930); Saunders n. Shaw, 244 U. S. 317, 320 (1917). Here prior to its decision below, the California Supreme Court had expressly decided to follow Lloyd Corp. v. Tanner, 4W1 U. S. 551 (1972), in defining the scope of state constitutional rights of free speech and petition. Diamond II, 11 Cal. 3d, at 335, 521 P. 2d, at 463. It was not until the instant case that the California Supreme Court overruled Diamond II, supra, and held that the California Constitution can and does require shopping center owners to grant access to individuals exercising their state rights of free expression and petition. Prior to reaching the California Supreme Court, appellants argued that the Diamond II decision bound the California Superior Court and Court of Appeal to rule in appellants’ favor. Appellants prevailed in these courts, and Diamond II was held to be controlling. Once before the California Supreme Court, as noted above, appellants explicitly presented PRUNEYARD SHOPPING CENTER v. ROBINS 87 74 Opinion of the Court cal message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all. Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee’s personal property that was used “as part of his daily life,” and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law. Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of their federal constitutional right to prohibit public expression on their property in terms of Wooley and Barnette. It was not until that time that they could have reasonably expected that the validity of the earlier Diamond II decision would be questioned. In these circumstances we conclude that appellants have adequately raised the federal question. 88 OCTOBER TERM, 1979 Blackmun, J., concurring in part 447 U. S. Education v. Barnette, 319 U. S. 624 (1943), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Barnette is inapposite because it involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it “require [d] the individual to communicate by word and sign his acceptance” of government-dictated political ideas, whether or not he subscribed to them. 319 U. S., at 633. Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers. Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate’s reply to criticism previously published in that newspaper. It rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it “exact [ed] a penalty on the basis of the content of a newspaper.” 418 U. S., at 256. There also was a danger in Tornillo that the statute would “dampefn] the vigor and limi[t] the variety of public debate” by deterring editors from publishing controversial political statements that might trigger the application of the statute. Id., at 257. Thus, the statute was found to be an “intrusion into the function of editors.” Id., at 258. These concerns obviously are not present here. We conclude that neither appellants’ federally recognized property rights nor their First Amendment rights have been infringed by the California Supreme Court’s decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants’ property. The judgment of the Supreme Court of California is therefore Affirmed. Mr. Justice Blackmun joins the opinion of the Court except that sentence thereof, ante, at 84, which reads: “Nor PRUNEYARD SHOPPING CENTER v. ROBINS 89 74 Marshall, J., concurring as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define ‘property’ in the first instance.” Mr. Justice Marshall, concurring. I join the opinion of the Court, but write separately to make a few additional points. I In Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that because the shopping center “serves as the community business block” and is open to the general public, “the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises.” Id., at 319. The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public and that reasonable restrictions on the exercise of communicative activity would be permitted. “[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue.” Id., at 324. The Court in Logan Valley emphasized that if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because “[t]he large-scale movement of this country’s population from the cities to the suburbs has been accompanied 90 OCTOBER TERM, 1979 Marshall, J., concurring 447U.S. by the advent of the suburban shopping center,” a contrary decision would have “substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies.” Ibid. In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed. In Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey in form a-tion with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute “an unwarranted infringement of property rights.” 407 U. S., at 567. And in Hudgens v. NLRB, 424 U. S. 507 (1976), the Court concluded that Lloyd had in fact overruled Logan Valley. I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had in turn made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises.1 1In this respect the cases resembled Shelley n. Kraemer, 334 U. S. 1 (1948), and New York Times Co. n. Sullivan, 376 U. S. 254 (1964), ih which the common-law rules of contract and tort were held to constitute state action for Fourteenth Amendment purposes. PRUNEYARD SHOPPING CENTER v. ROBINS 91 74 Marshall, J., concurring Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that “the Court’s rejection of any role for the First Amendment in the privately owned shopping center complex stems . . . from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment’s guarantee of freedom of speech.” Hudgens v. NLRB, supra, at 542 (dissenting opinion). II In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State “[ Constitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights.” 23 Cal. 3d 899, 910, 592 P. 2d 341, 347 (1979). Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court’s decision, which is a part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977). Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional “taking” or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan 92 OCTOBER TERM, 1979 Marshall, J., concurring 447U.S. Valley’s First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the pre-existing state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common-law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants’ claim has no merit. Earlier this Term, in Martinez v. California, 444 U. S. 277 (1980), the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of “property.” We responded that even if a pre-existing state-law remedy “is a species of ‘property’ protected by the Due Process Clause .. ., it would remain true that the State’s interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.” Id., at 281-282. Similarly, in the context of a claim that a guest statute impermissibly abrogated common-law rights of tort, the Court observed that the Due Process Clause does not forbid the “creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.” Silver v. Silver, 280 U. S. 117, 122 (1929). And in Munn v. Illinois, 94 U. S. 113 (1877), the Court upheld a statute limiting the permissible rate for the warehousing of grain. “A person has no property, no vested interest, in any rule of the common law. . . . Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will ... of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the PRUNEYARD SHOPPING CENTER v. ROBINS 93 74 Marshall, J., concurring common law as they are developed, and to adapt it to the changes of time and circumstances.” Id., at 134. See also Second Employers’ Liability Cases, 223 U. S. 1, 50 (1912); Crowell v. Benson, 285 U. S. 22,41 (1932). Appellants’ claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court’s finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U. S. 45 (1905), when commonlaw rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result. On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common-law rights by Congress or a state government. The constitutional terms “life, liberty, and property” do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect.2 Quite serious constitutional questions might be raised if a legislature attempted to abolish certain 2 Thia understanding is embodied in cases in the procedural due process area holding that at least some “grievous losses” amount to deprivation of “liberty” or “property” within the meaning of the Due Process Clause, even if those losses are not protected by statutory or common law. See Vitek v. Jones, 445 U. S. 480, 488-489 (1980), and cases cited; Mathews n. Eldridge, 424 U. S. 319, 333 (1976). See also Meachum n. Fano, 421 U. S. 215,229 (1976) (Stevens, J., dissenting). 94 447 U.S. OCTOBER TERM, 1979 Marshall, J., concurring categories of common-law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish “core” common-law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy.3 That “core” has not been approached in this case. The California Supreme Court’s decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants’ normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. Stanley v. Georgia, 394 U. S. 557 (1969). No rights of privacy are implicated. In these circumstances 8 For example, in Ingraham v. Wright, 430 U. S. 651 (1977), the Court found a constitutional liberty interest in freedom from corporal punish-ment, in large part on the ground that that interest was protected at common law. The Court stated that the “Due Process Clause . . . was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right ‘generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”’ Id., at 672-673 (citation omitted). In Duke Power Co v. Carolina Environmental Study Group, 438 U. S. 59, 88 (1978), the Court reserved the question whether in creating a compensation scheme for victims of nuclear accidents, Congress was constitutionally obliged to “provide a reasonable substitute remedy” for the abrogation of common-law rights of tort. Similarly, in New York Central R. Co. v. White, 243 U. S. 188, 201 (1917), the Court expressed uncertainty as to whether “a State might,’ without violence to the constitutional guaranty of ‘due process of law,’ suddenly set aside all common-law rules respecting liability as between employer and employee, without providing a reasonably just substitute,” and “doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead.” PRUNEYARD SHOPPING CENTER v. ROBINS 95 74 Opinion of White, J. there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court. I join the opinion of the Court. Mr. Justice White, concurring in part and concurring in the judgment. I join Mr. Justice Powell’s concurring opinion but with these additional remarks. The question here is whether the Federal Constitution forbids a State to implement its own free-speech guarantee by requiring owners of shopping centers to permit entry on their property for the purpose of communicating with the public about subjects having no connection with the shopping centers’ business. The Supreme Court of California held that in the circumstances of this case the federally protected property rights of appellants were not infringed. The state court recognized, however, that reasonable time and place limitations could be imposed and that it was dealing with the public or common areas in a large shopping center and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner. On the facts before it, “[a] handful of additional orderly persons soliciting signatures and distributing handbills... would not markedly dilute defendant’s property rights.” 23 Cal. 3d 899, 911, 592 P. 2d 341, 347-348 (1979). I agree that on the record before us there was not an unconstitutional infringement of appellants’ property rights. But it bears pointing out that the Federal Constitution does not require that a shopping center permit distributions or solicitations on its property. Indeed, Hudgens v. NLRB, 424 U. S. 507 (1976), and Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), hold that the First and Fourteenth Amendments do not prevent the property owner from excluding those who would demonstrate or communicate on his property. Insofar as the Federal Constitution is concerned, therefore, a State may 96 447 U.S. OCTOBER TERM, 1979 Opinion of Powell, J. decline to construe its own constitution so as to limit the property rights of the shopping center owner. The Court also affirms the California Supreme Court’s implicit holding that appellants’ own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with Mr. Justice Powell that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social-action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with Part V of the Court’s opinion. Mr. Justice Powell, with whom Mr. Justice White joins, concurring in part and in the judgment. Although I join the judgment, I do not agree with all of the reasoning in Part V of the Court’s opinion. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all “shopping centers.” This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that “do not amount to a taking without PRUNEYARD SHOPPING CENTER v. ROBINS 97 74 Opinion of Powell, J. just compensation or contravene any other federal constitutional provision.” Ante, at 81. I Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by* the First and Fourteenth Amendments. In Part V of today’s opinion, the Court rejects appellants’ contention that “a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Ante, at 85. I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court’s opinion is unnecessarily and perhaps confusingly broad. In my view, state action that transforms privately owned property into a forum for the expression of the public’s views could raise serious First Amendment questions. The State may not compel a person to affirm a belief he does not hold. See Wooley v. Maynard, 430 U. S. 705 (1977); West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943). Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have changed had the State of New Hampshire directed its citizens to place the slogan “Live Free or Die” in their shop windows rather than on their automobiles. In that case, we said that “[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts.” 430 U. S., at 714. This principle on its face protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is “not limited to [his] personal use. . . Ante, at 87. A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline “to be 98 OCTOBER TERM, 1979 Opinion of Powell, J. 447 U. S. an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” Wooley v. Maynard, supra, at 715.1 As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante, at 87, 87-88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper’s First Amendment right to select material for publication. Miami Herald Publishing Co. n. Tornillo, 418 U. S. 241 (1974). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94, 117 (1973) (plurality opinion). Such a right of access burdens the newspaper’s “fundamental right to decide what to print or omit.” Wooley v. Maynard, supra, at 714; see Miami Herald Publishing Co. n. Tornillo, supra, at 257. As such, it is tantamount to compelled affirmation and, thus, presumptively unconstitutional.2 xCf. Lloyd Corp. n. Tanner, 407 U. S. 551, 569 (1972) (“property [does not] lose its private character merely because the public is generally invited to use it for designated purposes”). 2 Even if a person’s own speech is not affected by a right of access to his property, a requirement that he lend support to the expression of a third party’s views may burden impermissibly the freedoms of association and belief protected by the First and Fourteenth Amendments. In Abood v. Detroit Board of Education, 431 U. S. 209, 235 (1977), we held that a State may not require a person “to contribute to the support of an ideological cause he may oppose. . . .” To require a landowner to supply a forum for causes he finds objectionable also might be an unacceptable “compelled subsidization” in some circumstances. Id., at 237; cf. Central Hardware Co. n. NLRB, 407 U. S. 539, 543-545 (1972) (“property rights” may permit exclusion of union organizers); NLRB v. Babcock & Wilcox Co., 351 U. S. 105, 112 (1956) (same). See generally East ex, Inc. n. NLRB, 437 U. S. 556, 571-576 (1978); Hudgens v. NLRB, PRUNEYARD SHOPPING CENTER v. ROBINS 99 74 Opinion of Powell, J. The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else’s belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante, at 87, cannot restore his “right to refrain from speaking at all.” Wooley v. Maynard, supra, at 714. A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributers from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech 424 U. S. 507, 521-522 (1976). The appellants do not argue, however, that Abood supports the claimed right to exclude speakers from their property. Nor have they alleged that they disagree with the messages at issue in this case. See infra, at 101. 100 OCTOBER TERM, 1979 Opinion of Powell, J. 447 U. S. in such situations may virtually compel the proprietor to respond. The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an Owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities “of any sort” that are not related to the purposes for which he has invited the public onto his property. See Abood v. Detroit Board of Education, 431 U. S. 209, 213, 241 (1977). To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his “freedom to maintain his own beliefs without public disclosure.” Ibid.3 Thus, the right to control one’s own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner.4 II One easily can identify other circumstances in which a right of access to commercial property would burden the owner’s First and Fourteenth Amendment right to refrain from 3 The problem is compounded where, as in shopping centers or in the lobby areas of hotels and office buildings, stores are leased to different proprietors with divergent views. 4 In a proper case, the property owner also may be protected by the principle that “a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.” Stanley v. Georgia, 394 U.. S. 557, 565 (1969). Observing that a State has no interest in controlling the moral content of a person’s thoughts, ibid., the Court in Stanley invalidated a law imposing criminal penalties for the private possession of obscenity. Stanley prevents a State from removing from the home expressive materials that a person may wish to peruse privately. The same principle may extend to state action that forces individual exposure to third-party messages. Thus, a law that required homeowners to permit speakers to congregate on their front lawns would be a massive and possibly unconstitutional intrusion into personal privacy and freedom of belief. No such problem arises in this case. PRUNEYARD SHOPPING CENTER v. ROBINS 101 74 Opinion of Powell, J. speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above. On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees’ limited speech activity expressed the views of the PruneYard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante, at 77, 83. Appellees are high school students who set up their card table in one corner of a central courtyard known as the “Grand Plaza.” App. to Juris. Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood. Appellants have not alleged that they object to the ideas contained in the appellees’ petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them. Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case. 102 OCTOBER TERM, 1979 Syllabus 447 U. S. CONSUMER PRODUCT SAFETY COMMISSION et al. v. GTE SYLVANIA, INC., et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 79-521. Argued April 14, 1980—Decided June 9, 1980 Section 6 (b) (1) of the Consumer Product Safety Act (CPSA) requires that, at least 30 days prior to the “public disclosure of any information” pertaining to a consumer product obtained by the Consumer Product Safety Commission (Commission) pursuant to its information-gathering authority, the Commission must notify the manufacturer and provide it with a summary of the information to be disclosed, if the product is to be designated or described in such a way as to permit the public to ascertain readily the manufacturer’s identity; that the manufacturer be given a reasonable opportunity to submit comments regarding the information; and that the Commission “take reasonable steps to assure” that such information is “accurate” and that disclosure is “fair in the circumstances and reasonably related to effectuating the purposes” of the CPSA. In the instant case, the Commission, upon receiving Freedom of Information Act (FOIA) requests and without complying with §6 (b)(1), decided to release certain accident reports that it had obtained from respondent manufacturers and that were accompanied, for the most part, by claims of confidentiality. The District Court permanently enjoined the Commission from disclosing the materials, rejecting its contention that §6 (b)(1) applies only when the Commission affirmatively undertakes to disclose information to the public but not when it merely complies with a request for information under the FOIA. The Court of Appeals affirmed. Held: Section 6 (b)(1) governs the disclosure of records by the Commission pursuant to a request under the FOIA. Pp. 108-124. (a) Nothing in §6 (b)(1)’s language, or in any other provision of the CPSA, supports the claim that §6 (b)(1) is limited to disclosures initiated by the Commission, a disclosure pursuant to the FOIA being accurately characterized as a “public disclosure” within the plain meaning of § 6 (b) (1). Moreover, § 6 (b) (2), which contains specific exceptions to §6 (b)(1)’s requirements, does not include the disclosure of information in response to an FOIA request. And § 25 (c) of the CPSA—designating certain reports as “public information” notwithstanding that they might be exempted from disclosure under the FOIA CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 103 102 Syllabus and thus within the scope of §6 (a)(1), which incorporates by reference the exemptions of the FOIA—specifically makes the disclosure of the information subject to the limitations of § 6 (b) whether it be “affirmatively” released by the Commission or released pursuant to an FOIA request. Pp. 108-110. (b) Neither the legislative history of the CPSA prior to its enactment nor subsequent legislative and administrative interpretations of §6 (b)(1) warrant construing §6 (b)(1) as being limited to the Commission’s “affirmative” disclosures. Pp. 110-120. (c) Applicability of §6 (b)(1) to FOIA requests is not precluded on the alleged ground that the Commission would be unable to comply with FOIA time requirements for handling disclosure requests and administrative appeals from refusals to disclose. Such an argument assumes that the Commission must comply with FOIA time limitations, but its Exemption 3 states that the FOIA does not apply to matters that are specifically exempted from disclosure by another statute which requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or which establishes particular criteria for withholding or refers to particular types of matters to be withheld. Here, § 6 (b) (1) sets forth sufficiently definite standards to fall within the scope of Exemption 3. Pp. 121-123. (d) The argument that requiring the Commission to comply with §6 (b)(1) in meeting FOIA requests will impose insurmountable burdens on the agency is entirely speculative. Moreover, any increased burdens imposed on the Commission were intended by Congress in striking an appropriate balance between the interests of consumers and the need for fairness and accuracy with respect to information disclosed by the Commission and thus the claim of undue burdens is properly addressed to Congress, not this Court. Pp. 123-124. 598 F. 2d 790, affirmed. Rehnquist, J., delivered the opinion for a unanimous Court. Peter Buscemi argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, As-sistant Attorney General Daniel, Deputy Solicitor General Geller, Leonard Schaitman, Mark N. Mutterperl, and Andrew S. Krulwich. Bernard G. Segal argued the cause for respondents. With him on the brief were Charles C. Hileman III, Ira P. Tiger, 104 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Deena Jo Schneider, Robert W. Steele, Alan M. Grimaldi, Harry L. Shniderman, H. James Conaway, Jr., Januar D. Bove, Jr., Stephen B. Clarkson, Charles S. Crompton, Jr., Ira M. Millstein, Peter Gartland, David Fleischer, Burton Y. Weitzenfeld, Michael A. Stiegel, William F. Patten, and H. Woodruff Turner* Mr. Justice Rehnquist delivered the opinion of the Court. The question presented is whether § 6 (b)(1) of the Consumer Product Safety Act, 15 U. S. C. § 2055 (b)(1), governs the disclosure of records by the Consumer Product Safety Commission pursuant to a request under the Freedom of Information Act. We granted certiorari to review a judgment of the Court of Appeals for the Third Circuit because of the importance of the question and because of a conflict in the Circuits.1 444 U. S. 979. I In 1972, Congress enacted the Consumer Product Safety Act (CPSA), 86 Stat. 1207, 15 U. S. C. § 2051 et seq., in order, inter alia, “to protect the public against unreasonable risks of injury associated with consumer products” and “to assist consumers in evaluating the comparative safety of consumer products.” 15 U. S. C. §§ 2051 (b)(1) and (2). The CPSA created the Consumer Product Safety Commission (Commission) to carry out the statutory purposes. 15 U. S. C. § 2053. The Commission’s powers include the authority to collect and disseminate product safety information, 15 U. S. C. §2054 (a)(1), to conduct research and tests on consumer products, 15 U. S. C. §§2054 (b)(1) and (2), to promulgate safety standards, 15 U. S. C. § 2056, and to ban hazardous products 15 U. S. C. § 2057. *Richard A. Lowe filed a brief for the Consumer Federation of America as amicus curiae urging reversal. "The decision below, 598 F. 2d 790 (1979), is in direct conflict’ with Pierce & Stevens Chemical Corp. y. U. S. Consumer Product Safety Comm’n, 585 F. 2d 1382 (CA2 1978). CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 105 102 Opinion of the Court Section 6 of the CPSA, 86 Stat. 1212, 15 U. S. C. § 2055, regulates the “public disclosure” of information by the Commission. Section 6 (b)(1), with which we deal here, requires the Commission, at least 30 days before the public disclosure of information pertaining to a consumer product, to notify the manufacturer and to provide it with a summary of the information to bé disclosed, if the product is to be designated or described in such a way as to permit the public to ascertain readily the manufacturer’s identity. The manufacturer must be given a reasonable opportunity to submit comments regarding the information. And the Commission must take reasonable steps to assure that such information is accurate and that disclosure is “fair in the circumstances and reasonably related to effectuating the purposes” of the CPSA. If the Commission subsequently finds that it has made public disclosure of inaccurate or misleading information that adversely reflects on a manufacturer’s products or practices, the Commission must “publish a retraction” in a manner “similar to that in which such disclosure was made. ...”2 2 In its entirety, § 6 states: “(a)(1) Nothing contained in this Act shall be deemed to require the release of any information described by subsection (b) of section 552, title 5, United States Code, or which is otherwise protected by law from disclosure to the public. “(2) All information reported to or otherwise obtained by the Commission or its representative under this Act which information contains or relates to a trade secret or other matter referred to in section 1905 of title 18, United States Code, shall be considered confidential and shall not be disclosed, except that such information may be disclosed to other officers or employees concerned with carrying out this Act or when relevant in any proceeding under this Act. Nothing in this Act shall authorize the withholding of information by the Commission or any officer or employee under its control from the duly authorized committees of the Congress. “(b)(1) Except as provided by paragraph (2) of this subsection, not less than 30 days prior to its public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith (unless the Commission finds out that the public health and safety requires a lesser period of notice), the Commission shall, to the extent practicable, 106 447 U. S. OCTOBER TERM, 1979 Opinion of the Court The relevant facts are set forth in a case decided by this Court earlier this Term, GTE Sylvania, Inc. v. Consumers Union, 445 U. S. 375 (1980), and need not be restated in detail. Briefly, the Commission obtained from respondents various accident reports, most of which were accompanied by claims of confidentiality. The Commission subsequently decided, after receiving Freedom of Information Act (FOIA) requests from the Consumers Union of the United States, Inc., and the Public Citizen’s Health Research Group (the requesters), to release even those accident reports that were claimed to be confidential. Not surprisingly, lawsuits were soon filed in several Federal District Courts. See GTE Sylvania, Inc. v. Consumers Union, supra, at 378, n. 1. notify, and provide a summary of the information to, each manufacturer or private labeler of any consumer product to which such information pertains, if the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer or private labeler, and shall provide such manufacturer or private labeler with a reasonable opportunity to submit comments to the Commission in regard to such information. The Commission shall take reasonable steps to assure, prior to its public disclosure thereof, that information from which the identity of such manufacturer or private labeler may be readily ascertained is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act. If the Commission finds that, in the administration of this Act, it has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer product, or the practices of any manufacturer, private labeler, distributor, or retailer of consumer products, it shall, in a manner similar to that in which such disclosure was made, publish a retraction of such inaccurate or misleading information. “(2) Paragraph (1) (except for the last sentence thereof) shall not apply to the public disclosure of (A) information about any consumer product with respect to which product the Commission has filed an action under section 12 (relating to imminently hazardous products), or which the Commission has reasonable cause to believe is in violation of section 19 (relating to prohibited acts), or (B) information in the course of or concerning any administrative or judicial proceeding under this Act.” 86 Stat 1212, 15 U. S. C. § 2055. CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 107 102 Opinion of the Court The District Court for the District of Delaware ultimately granted respondents’ motion for summary judgment and permanently enjoined the Commission from disclosing the submitted accident reports, as well as data compiled on a computer printout from those reports. 443 F. Supp. 1152 (1977).8 The District Court rejected the Commission’s contention that §6 (b)(1) applies only when the Commission affirmatively undertakes to disclose information to the public, but not when it merely complies with a request for information under the FOIA, It held that § 6 (b)(1) is applicable to disclosures in response to FOIA requests and that it establishes particular criteria for withholding information, thereby falling within the scope of Exemption 3of the FOIA, 5 U. S. C. § 552 (b)(3). It also found that the Commission failed to comply with §6 (b)(1) procedures in this case. Thus, it concluded that the release of the accident reports would be contrary to the CPS A. 443 F. Supp., at 1162. The Court of Appeals for the Third Circuit affirmed. 598 F. 2d 790 (1979). After thoroughly examining the language and legislative history of § 6 (b)(1), it concluded that “Congress did not intend that provision to apply only to Commission press releases, news conferences, publication of reports and other forms of ‘affirmative disclosure’ of information obtained under the Act.” 598 F. 2d, at 811. Rather, “the information disclosure requirements of the CPSA were meant to protect manufacturers from the harmful effects of inaccurate or misleading public disclosure by the Commission, through any means, of material obtained pursuant to its broad information-gathering powers. The policies designed to be served by section 6 (b)(1) would be severely undermined, if not eviscerated, were the Commission’s interpretation to prevail.” Id., at 811-812. 3 Earlier decisions of the District Court are reported at 438 F. Supp. 208 (1977) and 404 F. Supp. 352 (1975). These decisions are discussed in GTE Sylvania, Inc. v. Consumers Union, 445 U. S., at 377-378, and n. 1. 108 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Petitioners repeat their contention here that § 6(b)(1) was intended to provide safeguards for the release of information by the Commission only when the Commission makes public disclosures of information on its own initiative in carrying out its responsibilities under the CPSA. When information is released in this fashion, they argue, the Commission explicitly or implicitly represents that it believes the disclosed information to be true and that the public should rely on it. Brief for Petitioners 10. When the Commis-sion merely releases information in response to an FOIA request, by contrast, they claim the Commission is obliged to release whatever materials it possesses and need not comply with §6 (b)(1), because it has not made any express or implied statement regarding the documents released or the extent to which those documents reflect agency policy. Brief for Petitioners 11. Although there is some support for petitioners’ interpretation of §6 (b)(1) in legislative history contained in a Conference Report four years after the enactment of that section, see Part IV, infra, we agree with the Court of Appeals’ determination that “legislative history” of this sort cannot be viewed as controlling. II We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive. Section 6(b)(1) by its terms applies to the “public disclosure of any information” obtained by the Commission pursuant to its authority under the CPSA, and to any information “to be disclosed to the public in connection therewith.” (Emphasis added.) Nothing in the language of that section, or in any other provision of the CPSA, supports petitioners’ claim that § 6 (b) (1) is limited to disclosures initiated by the Commission, And as a matter of common usage the term CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 109 102 Opinion of the Court “public” is properly understood as including persons who are FOIA requesters. A disclosure pursuant to the FOIA would thus seem to be most accurately characterized as a “public disclosure” within the plain meaning of § 6 (b)(1).4 Section 6 (b)(2) of the CPSA, 15 U. S. C. § 2055 (b)(2), contains specific exceptions to the requirements of § 6 (b)(1).6 But the list of exceptions does not include the disclosure of information in response to an FOIA request. If Congress had intended to exclude FOIA disclosures from § 6 (b)(1) it could easily have done so explicitly in this section as it did with respect to the other listed exceptions. That Congress was aware of the relationship between § 6 and the FOIA when it enacted the CPSA is exhibited by the fact that Congress in §6 (a)(1) specifically incorporated' by reference the nine exemptions of the FOIA, 5 U. S. C. § 552 (b). We are consequently reluctant to conclude that Congress’ failure to include FOIA requests within the exceptions to §6 (b)(1) listed in § 6 (b) (2) was unintentional. Finally, § 25 (c) of the CPSA, 15 U. S. C. § 2074 (c), further supports the conclusion that § 6 (b) (1) was not intended to distinguish between information disclosed to the public 4 Petitioners argue that the exception to the 30-day notice requirement where “the Commission finds out that the public health and safety requires a lesser period of notice” suggests that the term “public disclosure” in § 6 (b) (1) should be read to encompass only affirmative disclosures by the Commission The exception, they claim, makes little sense as applied to FOIA disclosures in that such disclosures are the result of the Commission’s statutory obligation to comply with an FOIA request rather than a Commission-initiated decision to assist the public. The language of § 6 (b) (1), however, does not limit the scope of that section to disclosures of information intended “to assist the public.” Rather, it refers broadly to any “public disclosure.” And, as discussed in Part III, infra, the legislative history indicates that the concerns underlying §6 (b)(1) were not limited to information affirmatively disclosed by the Commission. 8 These exceptions, for example, include the disclosure of information concerning an imminently hazardous product and disclosures in the course of an administrative or judicial proceeding under the CPSA. 110 447 U. S. OCTOBER TERM, 1979 Opinion of the Court pursuant to FOIA requests and information disclosed at the initiative of the Commission.6 Section 25 (c) designates accident and investigation reports that do not identify injured parties and their physicians, and reports on research and demonstration projects as “public information” notwithstanding the fact that they might be exempted from disclosure under the FOIA and thus within the scope of §6 (a)(1). Section 25 (c), however, specifically makes the disclosure of this information subject to the limitations of §§ 6 (a)(2) and 6 (b), whether it be “affirmatively” released by the Commission or released pursuant to an FOIA request. The language of the CPSA thus provides little basis for accepting petitioners’ claim that § 6 (b)(1) does not apply to information released by the Commission in response to FOIA requests. Ill Petitioners next argue that the legislative history of the CPSA requires the conclusion that § 6 (b)(1) is inapplicable to FOIA requests despite the language of the statute. In making their argument, petitioners concede that “the preenactment history of this legislation does not directly address the precise issue of statutory construction involved in this case.” Brief for Petitioners 33. They nonetheless maintain that the principal concern underlying the adoption of the section was the danger that the Commission might on its own initiative disseminate findings, reports, and other product information harmful to manufacturers without first assuring 6 Section 25 (c), as set forth in 15 U. S .C. § 2074 (c), states: “Subject to sections 2055 (a) (2) and 2055 (b) of this title but notwithstanding section 2055 (a) (1) of this title, (1) any accident or investigation report made under this chapter by an officer or employee of the Commission shall be made available to the public in a manner which will not identify any injured person or any person treating him, without the consent of the person so identified, and (2) all reports on research projects, demonstration projects, and other related activities shall be public information.” CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 111 102 Opinion of the Court the fairness and accuracy of the disclosure. We agree with petitioners that industry representatives were concerned about the harms resulting from information affirmatively disclosed by an agency. But petitioners have failed to establish that industry concerns were limited to information disclosed in this fashion.7 More importantly, a full examination of the legislative history of the CPSA prior to its enactment indicates that for purposes of §6 (b)(1) no distinction was made between information affirmatively disclosed by the Commission and information released pursuant to the FOIA. The CPSA gave the Commission broad powers to gather, analyze, and disseminate vast amounts of private information. In granting the Commission such authority, Congress adopted safeguards specifically designed to protect manufacturers’ reputations from damage arising from improper disclosure of 7 Thus, although as petitioners point out, a vice president of General Electric Co., James F. Young, cautioned against the dangers of information “[i]ssued under the dignity and with the apparent imprimatur of the U. S. Government,” Consumer Product Safety Act: Hearings before the Subcommittee on Commerce and Finance of the House Committee on Interstate and Foreign Commerce, 92d Cong., 1st and 2d Sess., pt. 3, p. 1065 (1971-1972) (hereinafter Subcommittee Hearings), other statements by industry representatives expressed more general concerns about the disclosure by the Commission of information relating to product safety. For example, Bernard H. Falk, president of the National Electrical Manufacturers Association, stated that “[n]o information should be disclosed which is inaccurate, misleading or incomplete.” Id., at 1197. And in a prepared statement George P. Lamb, general counsel of the Association of Home Appliance Manufacturers, voiced the following concern: “Authority to collect and disseminate information carries with it a responsibility not to disclose data that may injure a company or reveal confidential information. A statute establishing a standards-setting agency should state explicitly, as do many other federal statutes, that confidential data are not to be disseminated. A statute should also assure that any information to be made public is accurate, and that if it is derogatory the company it identifies has had an opportunity to refute it. H. R. 8110 contains provisions in § 4 (c) that would accomplish this.” Id., at 1237 (emphasis added). 112 447 U. S. OCTOBER TERM, 1979 Opinion of the Court information gathered and received by the Commission. The House Report on the CPSA states: “If the Commission is to act responsibly and with adequate basis, it must have complete and full access to information relevant to its statutory responsibilities. Accordingly, the committee has built into this bill broad information-gathering powers. It recognizes that in so doing it has recommended giving the Commission the means of gaining access to a great deal of information which would not otherwise be available to the public or to Government. Much of this relates to trade secrets or other sensitive cost and competitive information. Accordingly, the committee has written into section 6 of the bill detailed requirements and limitations relating to the Commission’s authority to disclose information which it acquires in the conduct of its responsibilities under this act.” H. R. Rep. No. 92-1153, p. 31 (1972).8 8 The provisions of § 6 of the CPSA, as finally enacted, can be traced to H. R. 8110, 92d Cong., 1st Sess. (1971), a bill introduced in the House on behalf of the administration. Section 4 (c) of this bill, which was also introduced in the Senate, contained information disclosure limitations that were virtually identical to those ultimately enacted in §6 (b)(1) of the CPSA. It provided : “(1) Nothing contained in this Act shall be deemed to require the release of any information described by subsection (b) of section 552, title 5, United States Code, or which is otherwise protected by law from disclosure to the public. The Secretary shall not make public information obtained by him under this Act which would disclose trade secrets, formulas, processes, costs, methods of doing business, or other competitive information not otherwise available to the general public; or the names or other means of identification of ill or injured persons without their express written consent. “(2) (A) Except as provided by subparagraph (B) of this paragraph, not less than thirty days prior to his public disclosure of any information obtained under this Act, or to be disclosed to the public in connection therewith, the Secretary shall provide such information to each manufacturer of any consumer product to which such information pertains, if CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 113 102 Opinion of the Court The House Report does not provide any indication that the safeguards for the release of CPSA information are inapplicable when the Commission discloses information in response to an FOIA request. And in its explanatory comments on §6 (b)(1) the Report makes no distinction whatsoever between information released at the initiative of the Commission the manner in which such consumer product is to be designated or described in such information will permit the public to ascertain readily the identity of such manufacturer, and shall provide such manufacturer with a reasonable opportunity to submit comments to the Secretary in regard to such information. Upon the request of such manufacturer, the Secretary shall publish such comments or a fair summary thereof, or a statement of the manufacturer of reasonable length in lieu thereof, concurrently and in association with the disclosure of the information to which such comments or statement appertain. The Secretary shall take reasonable steps to assure, prior to his public disclosure thereof, that information from which the identity of such manufacturer may be readily ascertained is accurate, and that such disclosure is fair in the circumstances and reasonably related to effectuating the purposes of this Act. If the Secretary finds that, in the administration of this Act, he has made public disclosure of inaccurate or misleading information which reflects adversely upon the safety of any consumer product, or the practices of any manufacturer of, distributor of, importer of, or dealer in consumer products, he shall, in a manner similar to that in which such disclosure was made, pub-fish a retraction of such inaccurate or misleading information. “(B) Subparagraph (A) (except for the last sentence thereof) shall not apply to the public disclosure of (i) information about any consumer product with respect to which product the Attorney General has filed an action (or an action against a manufacturer thereof with respect to such product) under section 12, or which the Secretary has reasonable cause to believe is in violation of section 15, or (ii) information about any administrative or judicial proceeding under this Act.” Although the bill passed by the Senate omitted these safeguards, see S. Rep. No. 92-749, pp. 49, 51 (1972), the bill passed by the House, H. R. 1503, incorporated the administration’s proposal in this regard. See H. R. Rep. No. 92-1153, pp. 5, 24 (1972). The information disclosure limitations contained in H. R. 15003 were accepted by the Conference Committee and ultimately became law. See H. R. Conf. Rep. No. 92-1593, p. 7 (1972). 114 OCTOBER TERM, 1979 Opinion of the Court 447U.S. and information disclosed pursuant to an FOIA request. Rather, it states: “Before disseminating any information which identifies the manufacturer or private labeler of a product, the Commission is directed to give the manufacturer or private labeler 30 days in which to comment on the proposed disclosure of information. This procedure is intended to permit the manufacturer or private labeler an opportunity to come forward with explanatory data or other relevant information for the Commission’s consideration.” H. R. Rep. No. 92-1153, supra, at 32 (emphasis added). Nor does the Conference Report contain any suggestion that § 6 (b) (1) does not apply to FOIA requests. As observed by the Court of Appeals, the “conferees’ description of section 6 (b)(1) is instructive in that the accuracy and fairness requirements for 'publicly disclosed information’ are mentioned in almost the same breath as the description of section 6 (a) (1), stating that no information need be 'publicly disclosed’ by the Commission if it is exempt from disclosure under the FOIA.” 598 F. 2d, at 809.9 Further support for this construction of § 6 (b)(1) can be found in examining comments made with respect to earlier versions of the House bill.10 In commenting on the disclosure 9 The Conference Report stated : “The Commission was directed to take steps to assure that publicly dis-closed information from which specific manufacturers or distributors could be identified was accurate and that the disclosure was fair in the circumstances and reasonably related to carrying out its duties. No information would be required to be publicly disclosed if it is information described in section 552 (b), title 5, United States Code (relating to information which is entitled to be protected from public access under the Freedom of Information Act), or which is otherwise protected by law from disclosure to the public.” Id., at 41. 10 The conclusion that § 6 (b)(1) applies to FOIA requests is also supported by a statement of Representative James Broyhill, a member of the CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 115 102 Opinion of the Court provisions of the administration bill, H. R. 8110, Representative Moss, chairman of the Subcommittee on Commerce and Finance, which was considering the House bills, stated: “I am sure the subcommittee will want to examine carefully this proposed change in the Freedom of Information Act.” Subcommittee Hearings, pt. 2, p. 300.11 The operative information-disclosure requirements contained in § 4 (c) of H. R. 8110, absent a requirement that the Commission publish manufacturers’ comments, were nonetheless enacted into law in § 6 (b). See n. 8, supra. Section 4 (c) and the provision that was finally enacted as § 6 (b) by their terms include both affirmative disclosures by the Commission and information released pursuant to the FOIA. And the Department of Health, Education, and Welfare, the agency that drafted H. R. 8110, stated in its section-by-section analysis of the bill : “Section 4 (c) would protect the Secretary’s refusal to disclose information not required to be released by the [FOIA], and would expressly prohibit his disclosure of commercial secrets, or of illness or injury data revealing [the] identity of the victim. “It would also require the provision of thirty days notice to the manufacturer of any consumer product prior to the Secretary’s public disclosure of information respecting that product, if such information would reveal the manufacturer’s identity.” Subcommittee Hearings, pt. 1, p. 188. Conference Committee on the CPSA. In the House debates on the CPSA, Representative Broyhill stated that the proposed legislation, H. R. 15003, “requires the Commission to notify each manufacturer of its intent to release any information at least 30 days prior to disclosure and offer an opportunity for comment. This provision is not found in any other safety legislation.” 118 Cong. Rec. 31381 (1972) (emphasis added). 11 The statement was made following his observation that the administration bill, H. R. 8110, contained more restrictive disclosure provisions than his own bill, H. R. 8157. Subcommittee Hearings, pt. 2, p. 300. 116 OCTOBER TERM, 1979 Opinion of the Court 447U.S. These comments clearly do not support petitioners’ reading of the present disclosure requirements of the CPSA. And the General Counsel of the Department of Commerce, in opposing the Senate’s less restrictive proposal for the disclosure of information by the Commission, wrote: “[W]e believe that in the interest of fairness the disclosure of any information should be attendant with safeguards. These include prior notice to manufacturers, the right of the manufacturer to rebut false information, and a requirement that the information be fair and accurate.” S. Rep. No. 92-749, p. 100 (1972) (emphasis added). The legislative history of §6 (b)(1) thus fails to establish that petitioners’ proposed distinction should be read into the section. Petitioners also contend that legislative interpretations of § 6 (b)(1) made after the section was enacted and the Commission’s administrative interpretation of that section support their proposed construction. Petitioners first rely on a statement by Representative Moss, one of the sponsors of the House bill. In testimony before a congressional Oversight Subcommittee, then Commission Chairman Richard 0. Simpson explained that the Commission interpreted §6 (b)(1) to be inapplicable to FOIA requests. Representative Moss then remarked : “As the primary author of both acts, I am inclined to agree with you.” Regulatory Reform: Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 94th Cong., 2d Sess., Vol. IV, pp. 7-8 (1976). Petitioners also note that when Congress added § 29 (e), 15 U. S. C. § 2078 (e), to the CPSA in the Consumer Product Safety Commission Improvements Act of 1976, the Conference Committee explained the joint operation of the new section and § 6 (b) as follows: “The requirement that the Commission comply with section 6 (b) prior to another Federal agency’s public CONSUMER PRODUCT SAFETY COMMENT v. GTE SYLVANIA 117 102 Opinion of the Court disclosure of information obtained under the Act is not intended by the conferees to supersede or conflict with the requirements of the Freedom of Information Act (5 U. S. C. § 552 (a)(3) and (a)(6)). The former relates to public disclosure initiated by the Federal agency while the latter relates to disclosure initiated by a specific request from a member of the public under the Freedom of Information Act” H. R. Conf. Rep. No. 94-1022, p. 27 (1976) (emphasis added).12 In evaluating the weight to be attached to these statements, we begin with the oft-repeated warning that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.” United States v. Price, 361 U. S. 12 Section 29 (e) was added to the CPSA to “prescrib[e] conditions under which the Commission may provide accident and investigation reports to other Federal agencies or State or local authorities engaged in activities relating to health, safety, or consumer protection.” H. R. Conf. Rep. No. 94-1022, at 26. Section 29 (e), 90 Stat. 510, provides: “The Commission may provide to another Federal agency or a State or local agency or authority engaged in activities relating to health, safety, or consumer protection, copies of any accident or investigation report made under this Act by any officer, employee, or agent of the Commission only if (1) information which under section 6 (a) (2) is to be considered confidential is not included in any copy of such report which is provided under this subsection; and (2) each Federal agency and State and local agency and authority which is to receive under this subsection a copy of such report provides assurances satisfactory to the Commission that the identity of any injured person and any person who treated an injured person will not, without the consent of the person identified, be included in— “ (A) any copy of any such report, or “(B) any information contained in any such report, “which the agency or authority makes available to any member of the public. No Federal agency or State or local agency or authority may disclose to the public any information contained in a report received by the agency or authority under this subsection unless with respect to such information the Commission has complied with the applicable requirements of section 6 (b)” 118 OCTOBER TERM, 1979 Opinion of the Court 447U.S. 304, 313 (1960), quoted in United States v. Philadelphia National Bank, 374 U. S. 321, 348-349 (1963).13 And ordinarily even the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history. Chrysler Corp. n. Brown, 441 U. S. 281, 311 (1979). We do not think that either Representative Moss’ isolated remark or the post hoc statement of the Conference Committee with respect to § 6 (b) is entitled to much weight here. While Representative Moss claimed sponsorship of the CPSA generally, he was not a sponsor of the original bill that ultimately provided that legislation with its provisions governing information disclosure. Rather he authored another bill, H. R. 8157, that contained much less restrictive disclosure requirements than those ultimately adopted.14 His state- 13 Petitioners invoke the maxim that states: “Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 (1969) (footnote omitted). With respect to subsequent legislation, however, Congress has proceeded formally through the legislative process. A mere statement in a conference report of such legislation as to what the Committee believes an earlier statute meant is obviously less weighty. The less formal types of subsequent legislative history provide an extremely hazardous basis for inferring the meaning of a congressional enactment. While such history is sometimes considered relevant, this is because, as Mr. Chief Justice Marshall stated in United States v. Fisher, 2 Cranch 358, 386 (1805): “Where the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.” See Andrus v. Shell Oil Co., 446 U. S. 657, 666, n. 8 (1980). Such history does not bear strong indicia of reliability, however, because as time passes memories fade and a person’s perception of his earlier intention may change. Thus, even when it would otherwise be useful, subsequent legislative history will rarely override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment. 14 Section 19 (d) of H. R. 8175, 92d Cong., 1st Sess. (1971), provided: “When the Commission finds that publication of any information obtained by it is in the public interest and would not give an unfair competitive advantage to any person, it is authorized to publish such informa CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 119 102 Opinion of the Court ment is thus not one that provides a reliable indication as to congressional intention.15 An examination of the statement of the Conference Committee, as the Court of Appeals concluded, reveals that it also is not persuasive authority in support of petitioners’ position. Section 29 (e) by its terms does not purport to interpret the scope of § 6 (b). Rather, it deals solely with the release of accident and investigation reports by the Commission to other agencies. See n. 12, supra. And as the Court of Appeals stated: “[T]he conference committee statement was made in the context of approving legislation that contained numerous and extensive amendments to the Consumer Product Safety Act; yet the problem before us here was not otherwise addressed by Congress in enacting the Improvements Act. The interpretation of section 6 (b) espoused by the conferees was not mentioned by the House committee that drafted the Improvements Act. See H. R. Rep. No. 94-325, 94th Cong., 1st Sess. 18 (1975). The Senate version of the Improvements Act did not contain a provision amending section 29. [H. R. Conf. Rep. No. 94-1022, p. 26.] In the debates in the House the amendment to section 29, and the relationship between section 6 (b) and the FOIA, were not tion in the form and manner deemed best adapted for public use, except that data and information which relates to a trade secret, shall be held confidential and shall not be disclosed, unless the Commission determines that it is necessary to carry out the purposes of this Act.” Subcommittee Hearings, pt. 1, p. 68-69. 15 In addition, Chairman Simpson submitted to the Oversight Subcommittee a proposed amendment to § 6 (b) (2) that would have added the release of information by the Commission under the FOIA to the list of exceptions from the requirements of §6 (b)(1). Regulatory Reform: Hearings before the Subcommittee on Oversight and Investigations of the House Committee on Interstate and Foreign Commerce, 94th Cong., 2d Sess., Vol. IV, p. 8 (1976). That proposed amendment was never reported out of Committee. 120 OCTOBER TERM, 1979 Opinion of the Court 447U.S. mentioned. Nor was the conferees’ interpretation of section 6 (b) mentioned in either House when the conference report was debated. See 122 Cong. Rec. 10,811 (House approval of the conference report); id., 11,585 (Senate approval) (1976).” 598 F. 2d, at 810-811. In light of this background, the statement of the Conference Committee is far from authoritative as an expression of congressional will under the oft-quoted factors enunciated in Skidmore v. Swift de Co., 323 U. S. 134, 140 (1944) .16 For the same reasons, we reject petitioners’ contention that the Commission’s 1977 administrative interpretation should be afforded the degree of deference necessary for it to prevail here. See 42 Fed. Reg. 54304 et seq. (1977). This case presents a narrow legal issue that is readily susceptible of judicial resolution. Nor are we presented here with a situation in which there has been a longstanding contemporaneous administrative construction upon which those subject to the jurisdiction of the agency would have been likely to rely.17 16 Petitioners also assert that under § 29 (e) agencies that receive accident and investigation reports from the Commission would not have to comply with § 6 (b) (1) when FOIA requests are made for information in such reports, and thus there would be an inconsistency in the statutory scheme if the Commission were required to comply with § 6 (b) (1) before releasing such information. Although the other agencies themselves may not be required to comply with § 6 (b) (1), the inconsistency is nonetheless not readily apparent in that § 29 (e) states that “[n]o Federal agency or State or local agency or authority may disclose to the public any information contained in a report received by the agency or authority under this subsection unless with respect to such information the Commission has complied with the applicable requirements of section 6 (b).” In any event, we need not address the scope of § 29 (e) here. 17 The Commission did not reach its present interpretation of the statute until it met in executive session on October 6, 1975, 443 F. Supp. 1152, 1155, n. 6 (1977)—over six months after it had decided to release the information involved in this case and more than two months after the manufacturers’ motions for preliminary injunction had been fully briefed and argued before the District Court. And it was not until October 5, 1977—two days before the Commission filed its brief opposing the manu- CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 121 102 Opinion of the Court V Petitioners next argue that the interpretation of § 6 (b)(1) by the Court of Appeals is inconsistent with the FOIA time requirements for the release of information. The FOIA requires an agency to “determine within ten days . . . whether to comply with [an FOIA] request” and to notify the requester “immediately” of the agency’s determination. 5 U. S. C. §552 (a)(6)(A)(i). The FOIA also requires an agency to resolve any administrative appeal of a refusal to disclose within 20 days after the filing of the appeal. § 552 (a)(6)(A)(ii). Petitioners claim that if §6 (b)(1) applies to FOIA requests the Commission will be unable to comply with FOIA time requirements. Petitioners’ argument assumes that despite the specific procedural safeguards set forth in § 6 (b)(1) the Commission must comply with FOIA time limitations. Federal agencies, however, are granted discretion to refuse FOIA requests when the requested material falls within one of the nine statutory exemptions set forth in 5 U. S. C. § 552 (b). Exemption 3 of the FOIA, 5 U. S. C. § 552 (b)(3), states that the FOIA does not apply to matters that are “specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.”18 facturers’ motions for summary judgment (App. 7) and two years after the District Court concluded that the Commission must comply with §6 (b)(1) in responding to FOIA requests, 404 F. Supp., at 370—that the Commission’s proposed rules were published. See 42 Fed. Reg. 54, 304 (1977). It is thus arguable that the Commission’s interpretation here is primarily litigation inspired. Cf. Davies Warehouse Co. v. Bowles, 321 U. S. 144,156 (1944). 18 This exemption was amended in 1976 by § 5 (b) of the Government in the Sunshine Act, Pub. L. 94r-409, 90 Stat. 1247. The amendment 122 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Here § 6 (b)(1) sets forth sufficiently definite standards to fall within the scope of Exemption 3. It does not grant the Commission broad discretion to refuse to comply with FOIA requests. Rather, it requires that the Commission “take reasonable steps to assure” (1) that the information is “accurate,” (2) that disclosure will be “fair in the circumstances,” and (3) that disclosure will be “reasonably related to effectuating the purposes of [the CPSA].”19 We therefore do not was to further define those statutes that "specifically exempt” material from disclosure. The Conference Report to the Sunshine Act states that the amendment was designed “to overrule the decision of the Supreme Court in Administrator, FAA v. Robertson, 422 U. S. 255 (1975), which dealt with section 1104 of the Federal Aviation Act of 1958 (49 U. S. C. 1504).” H. R. Conf. Rep. No. 94-1441, p. 25 (1976). Robertson held that § 1104, which vested broad discretion in the Federal Aviation Administration to withhold information from the public, fell within the scope of Exemption 3. The amendment was designed to eliminate from Exemption 3 those statutes that granted administrative agencies such discretion with respect to the disclosure or nondisclosure of material within their possession. As stated in the Report of the House Committee on Government Operations on the Sunshine Act, which recommended the amendment: “Believing that the decision misconceives the intent of exemption (3), the committee recommends that the exemption be amended to exempt only material required to be withheld from the public by any statute establishing particular criteria or referring to particular types of information. The committee is of the opinion that this change would eliminate the gap created in the Freedom of Information Act by the Robertson case without in any way endangering statutes such as the Atomic Energy Act of 1954, 42 U. S. C. §§ 2161-2166, which provides explicitly for the protection of certain nuclear data. “Under the amendment, the provision of the Federal Aviation Act of 1958 that was the subject of Robertson, and which affords the FAA Administrator cart blanche [sic] to withhold any information he pleases, would not come within exemption 3. . . .” H. R. Rep. No. 94—880, pt. 1, p. 23 (1976). 19 The statute in Robertson, by contrast, provided: “Any person may make written objection to the public disclosure of information contained in any application, report, or document filed pursuant to the provisions of this Act or of information obtained by the Board or the Administrator, pursuant to the provisions of this Act, CONSUMER PRODUCT SAFETY COMM’N v. GTE SYLVANIA 123 102 Opinion of the Court believe there is any insoluble conflict between § 6 (b)(1) and the FOIA.20 VI Finally, petitioners argue that requiring the Commission to comply with §6 (b)(1) in meeting FOIA requests will impose insurmountable burdens on the agency. In making this claim, petitioners state that the Commission receives nearly 8,000 FOIA requests annually. The extent to which these requests will present problems of fairness and accuracy with respect to the information released by the Commission is entirely speculative. And in light of the fact that Exemption 3 is applicable to the disclosure of information controlled by § 6 (b) (1), we do not think these burdens will prove to be unbearable. Most importantly, our interpretation of the language and legislative history of § 6 (b)(1) reveals that any increased burdens imposed on the Commission as a result of its compliance with § 6 (b)(1) were intended by Congress in striking an appropriate balance between the interests of stating the grounds for such objection. Whenever such objection is made, the Board or Administrator shall order such information withheld from public disclosure when, in their judgment, a disclosure of such information would adversely affect the interests of such person and is not required in the interest of the public. The Board or Administrator shall be responsible for classified information in accordance with appropriate law: Provided, That nothing in this section shall authorize the withholding of information by the Board or Administrator from the duly authorized committees of the Congress.” § 1104, 72 Stat. 797, 49 U. S. C. §1504. 20 In addition, when Congress enacted the CPSA in 1972, the FOIA required only that an agency make records “promptly available” to any person requesting them. Pub. L. 90-23, 81 Stat. 55. It was not until 1974, when Congress amended the FOIA, that the time requirements that petitioners argue conflict with §6 (b)(1) were adopted. Pub. L. 93-502, §1 (c), 88 Stat. 1562, 5 U. S. C. §552 (a) (6). Because §6 (b)(1) has not been amended since 1972, these requirements also do not provide a sound basis for inferring a congressional intent to limit the application of §6 (b)(1) to disclosures initiated by the Commission. 124 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. consumers and the need for fairness and accuracy with respect to information disclosed by the Commission. Thus, petitioners’ claim that the Commission’s compliance with the requirements of § 6 (b)(1) will impose undue burdens on the Commission is properly addressed to Congress, not to this Court. For the foregoing reasons, the judgment of the Court of Appeals for the Third Circuit is Affirmed. CALIFORNIA v. NEVADA 125 Syllabus CALIFORNIA v. NEVADA ON EXCEPTIONS TO REPORT OF SPECIAL MASTER No. 73, Orig. Argued April 14, 1980—Decided June 10, 1980 Held: 1. The Special Master was fully justified in invoking the doctrine of acquiescence in concluding that the true boundary between California and Nevada is that located by two surveys, funded by congressional appropriations in 1872 and 1892, since both States have acquiesced in those boundary lines from the time they were drawn. The issue of whether Congress had power to determine the lines even though an 1863 joint survey had been commissioned by the States, which both adopted the results thereof by statute, need not be decided, since it is not necessary that there be a particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. Longstanding acquiescence by the States can give the boundary lines the force of law whether or not federal authorities had the power to draw them. Pp. 130-132. 2. However, the Special Master’s reference will not be expanded to authorize him to determine whether the United States should be made a party , to the case and to make recommendations as to the quieting of title on various disputed borderlands. The ownership and title questions that remain typically will involve only one or the other State and the United States, or perhaps various citizens of those States, not disputes between the States. Thus, even if some of those questions do fall within this Court’s original jurisdiction, they will not fall within its exclusive jurisdiction, and litigation in other forums is an appropriate means of resolving those questions. Pp. 132-133. Exceptions to Special Master’s report overruled, and report adopted in part. Brennan, J., delivered the opinion for a unanimous Court. James H. Thompson, Special Deputy Attorney General of Nevada, argued the cause for defendant. With him on the brief were Richard H. Bryan, Attorney General, Larry D. Struve, Chief Deputy Attorney General, and Harry W. Swain-ston, Deputy Attorney General. 126 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Jan S. Stevens, Assistant Attorney General of California, argued the cause for plaintiff. With him on the briefs were George Deukmejian, Attorney General, and N. Gregory Taylor, Assistant Attorney General.* Mr. Justice Brennan delivered the opinion of the Court. The report of the Special Master tenders for the Court’s approval his determination of the true boundary between the States of California and Nevada. That boundary was the subject of numerous surveys in the latter half of the 19th century, and the central question presented in this original action is which, if any, of the lines which resulted properly marks the rugged border between the two States.1 The Special Master combed the voluminous record and concluded that in combination the two most recent surveys had fixed a boundary to which both States have acquiesced for the better part of a century. Applying the doctrine of prescription and acquiescence, he concluded that the boundary so fixed was the proper one. Nevada takes exception to that determination on several grounds. We overrule those exceptions and, with the qualifications hereinafter noted, approve and adopt the Special Master’s report. *S olicitor General McCree and Deputy Solicitor General Claiborne filed a memorandum for the United States as amicus curiae. 1 California instituted this original action on April 22, 1977, when it filed its motion for leave to file complaint and complaint. On June 29, 1977, we granted that motion and appointed the Special Master. Basically, California sought a declaration that the currently recognized line dividing the two States was in fact the lawful boundary. As counsel for the State characterized it at oral argument, the suit was in the nature of a quiet title action and was precipitated by growing doubts about the geographic accuracy of the existing line as well as concerns regarding the validity of certain titles which depended upon the location of the border. The Special Master’s report was filed in this Court on October 29, 1979, 444 U. S. 922, and we set Nevada’s exceptions and related matters for oral argument. 444 U. S. 1065 (1980). CALIFORNIA v. NEVADA 127 125 Opinion of the Court I The two straight-line segments that make up the boundary between California and Nevada were initially defined in California’s Constitution of 1849. The first, the “north-south” segment, commences on the Oregon border at the intersection of the 42d parallel and the 120th meridian and runs south along that meridian to the 39th parallel. And the second, the “oblique” segment, begins at that parallel and runs in a southeasterly direction to the point where the Colorado River crosses the 35th parallel. Cal. Const., Art. XII (1849). In 1850, when California was admitted to the Union, Congress approved the 1849 Constitution, and with it California’s eastern boundary. Act of Sept. 9, 1850, 9 Stat. 452. On the same day that it admitted California, Congress established a territorial government in the area immediately to the east. The organic Act for that new Territory—which was then called Utah—stated that it was to be “bounded on the west by the State of California.” Act of Sept. 9, 1850, 9 Stat. 453. Eleven years later, the Territory of Nevada was created out of Utah. Congress indicated in the organic Act that Nevada might include portions of what was then California, but with the proviso that “so much of the Territory within the present limits of the State of California shall not be included within this Territory until the State of California shall assent to the same by an act irrevocable without the consent of the United States. . . .” Act of Mar. 2, 1861, 12 Stat. 210. No assent was ever given by California. Accordingly, when Nevada was admitted as a State in 1864 its western boundary and California’s eastern one remained congruent.2 2 Nevada’s Constitution stated that its boundary would proceed “in a North Westerly direction along [the oblique section of the] Eastern boundary line of the State of California to the forty third degree of Longitude West from Washington [and then] North along said forty third degree of West Longitude, and said Eastern boundary line of the State of California 128 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Notwithstanding brief and incomplete surveying efforts in the decade after California was admitted, the actual location on the ground of that State’s eastern boundary remained highly uncertain—so much so that fighting broke out over the precise whereabouts of a small valley on the north-south line above Lake Tahoe, and a border town along the oblique line found itself claimed as the seat of both a Nevada and a California county.3 These difficulties led California and Nevada to commission a joint survey of their border. Conducted in 1863, that survey located what is known as the Houghton-Ives line from the Oregon border south along the 120th meridian to a point in Lake Tahoe and then southeast for about 103 miles along the oblique line in the direction of the relevant point on the Colorado River. The remaining 300-plus miles of the oblique border were not surveyed.4 Both California and Nevada adopted the Houghton-Ives line by statute, but its significance was to be short-lived. In 1867-1868 Daniel G. Major surveyed the Oregon-California boundary for the General Land Office. One step in his work was to locate the intersection of that boundary and the 120th meridian. This he did, at a point more than two miles west to the forty second degree of North Latitude. . . .” Nev. Const., Art. XIV, § 1 (1864). Although it turns out that the 43d degree of longitude west from Washington does not exactly coincide with the 120th meridian west of Greenwich—which was the north-south reference in the California Constitution—the Special Master concluded that the Congress that approved Nevada’s Constitution was of the view that the two lines were identical. Certainly the language of the Nevada Constitution supports this conclusion by seeming to equate the 43d degree of longitude west of Washington with the eastern boundary of California. In any event, we need not explore the matter further since it would be relevant only were we to require a new survey of one or the other longitudinal line, and we do not find such a new survey necessary. 3 Indeed, the town—Aurora—elected representatives to both the California and Nevada Legislatures in 1862, and those representatives apparently became speakers of their respective legislatures. 4 Two years later one James S. Lawson extended the oblique portion of the Houghton-Ives line another 73 miles. CALIFORNIA v. NEVADA 129 125 Opinion of the Court of that meridian as marked by Houghton-Ives. This discrepancy5 eventually led the Commissioner of the General Land Office to recommend that Congress appropriate money for a full survey of the eastern boundary of California. His recommendation was followed in 1872. The new survey was conducted by Allexey W. Von Schmidt. While originally instructed to commence his north-south line at the point located by Daniel G. Major, Von Schmidt concluded that the actual 120th meridian lay not only east of “Major’s comer,” but six-tenths of a mile east of the Houghton-Ives line as well. Accordingly, Von Schmidt marked a new north-south line starting at this location. His survey of the oblique boundary also had its surprises. From the intersection of his north-south segment and the 39th parallel he set off in what he thought was the direction of the intersection of the Colorado River and the 35th parallel. Unfortunately, the Colorado River had shifted since the point for which he was aiming had been marked, and rather than end at the wrong place he attempted to correct the line he was marking. It later turned out that his corrections were not complete and his line not entirely straight. But linear or not, his work did generate a boundary. And, although neither State adopted it by statute, the Von Schmidt survey won gradual acceptance in both California and Nevada. In the 1880’s, however, substantial doubts about the accuracy of the oblique segment of the Von Schmidt line were voiced in Washington. As a result, Congress appropriated funds in 1892 for a new survey of that segment. The survey was undertaken by personnel of the United States Coast and Geodetic Survey and conducted over a period of several years. It yielded a new oblique line and determined that the one charted by Von Schmidt had been neither straight nor accu 6 A third survey, conducted in the summer of 1872 near the Oregon border, contributed to the confusion by concluding that the 120th meridian lay to the east of the locations pinpointed by both Major and Houghton-Ives. 130 OCTOBER TERM, 1979 Opinion of the Court 447U.S. rate. Both States adopted the United States Coast and Geodetic Survey line by statute—California in 1901 and Nevada in 1903.6 The Special Master concluded that the Von Schmidt survey of the north-south line and the United States Coast and Geodetic Survey one of the oblique line were the most recent and accurate surveys available. While noting that Von Schmidt had not been entirely accurate, the Master found that the north-south line that resulted from his survey had been consistently and routinely recognized and accepted by agencies and departments of the State of Nevada for more than a century. That the Houghton-Ives line was the first north-south boundary marked and the only one approved by statute was, he found, beside the point because as a practical matter that boundary had been superseded a decade after it was established and neither State had objected.7 As for the oblique boundary, the Master found that the United States Coast and Geodetic Survey line had not only been adopted by statute, but also been accepted and used by the two States for nearly 80 years. Since both States had treated these lines as the boundary from the time they were drawn, the Master invoked the doctrine of acquiescence to determine that together they in fact constitute the true and correct interstate boundary. II The State of Nevada’s primary contention is that the Special Master’s reliance upon the doctrine of acquiescence was 6 Nevada’s statute was in effect when the present litigation was commenced, although it has subsequently been repealed. 7 California notes that Nevada welcomed the Von Schmidt survey at the time it was conducted. Indeed, the Surveyor General of that State remarked that “within a year the State will be inclosed by an actual surveyed line and monuments, and the troubles heretofore existing, to State and county officials, in dealing with an imaginary line, will be entirely and forever obviated.” Report of the Surveyor General and State Land Register of the State of Nevada for the years 1871 and 1872, p. 8. CALIFORNIA v. NEVADA 131 125 Opinion of the Court in error. Basically, the argument is that once Nevada and California had conducted the 1863 joint survey which produced the Houghton-Ives line the Federal Government had no constitutional authority to mark a different line which had the effect of removing territory from one State and granting it to the other. Since the Congress was without power to determine the Von Schmidt and United States Coast and Geodetic Survey lines, the argument continues, they are without legal effect. And because States may not confer upon the Federal Government a power which the Constitution does not vest in it, acquiescence in those lines cannot make them lawful. Thus, Nevada concludes, either (1) Congress is constitutionally empowered to redraw the boundaries of the several States, in which case the Von Schmidt and Geodetic Survey lines may be upheld regardless of acquiescence, or (2) Congress is constitutionally powerless to alter those boundaries, in which case no mere century of acquiescence can convert a usurpation into law. The flaw in this argument is that it assumes that there must be a particular relationship between the origins of a boundary and the legal consequences of acquiescence in that boundary. In fact, however, no such relationship need exist. Longstanding acquiescence by California and Nevada can give the Von Schmidt and Geodetic Survey lines the force of law whether or not federal authorities had the power to draw them. And the determination that the two States’ conduct has had precisely this effect, therefore, does not place any sort of constitutional imprimatur upon the federal actions involved. See Ohio v. Kentucky, 410 U. S. 641, 648—651 (1973); Indiana v. Kentucky, 136 U. S. 479, 509-510 (1890). Accordingly, we need not address the issue of federal power to which Nevada adverts. It is enough that California claims and has always claimed all territory up to a specifically described boundary—the 120th meridan and the oblique line with which it connects—and that both States have long ac 132 OCTOBER TERM, 1979 Opinion of the Court 447U.S. quiesced in particular lines marking that boundary.8 If Nevada felt that those lines were inaccurate and operated to deprive it of territory lawfully within its jurisdiction the time to object was when the surveys were conducted, not a century later. Ohio v. Kentucky, supra, at 649. In consequence, we hold that in these circumstances the Special Master was fully justified in invoking the doctrine of acquiescence.9 Ill Having determined that the Special Master’s resolution of the boundary dispute was proper, we turn to his recommendations regarding the quite separate issue of ownership of various 8 Nor is Nevada’s position saved by the contention that California could not profit by the doctrine of acquiescence because its claim to the lands up to the Von Schmidt and United States Coast and Geodetic Survey lands was not made under color of title or claim of right. The fact is that California’s claim has always been for all lands on its side of the boundary described rather specifically in its Constitution. So long as its claims were made under a survey that purported to reflect that boundary, it had colorable title and a claim of right. 9 Several subsidiary issues relating to the California-Nevada border are considered in the Special Master’s recommendations. First, it turns out that Von Schmidt’s north-south line and the United States Coast and Geodetic Survey oblique line do not intersect at precisely the 39th parallel, as in theory they should. The Special Master suggests that the two States be given the opportunity to determine by agreement the point in Lake Tahoe where the two lines meet. Failing such an accord, he indicates that he would recommend a solution; but this probably will not be necessary since the parties are apparently in agreement that if the balance of the Master’s report is accepted the best course is to extend the oblique line in a northwesterly direction to the point where it crosses the northsouth line. This solution to the problem is entirely permissible. Cf. New Hampshire v. Maine, 426 U. S. 363 (1976). Second, the Master recommends that he be authorized to arrange for surveys, at the parties’ expense, if necessary to resolve disputes over the precise location of portions of either of the lines we approve today. That, too, seems appropriate. And third, he states that we should reserve the taxing of costs until after a further report—a suggestion which we will follow since the possibility of partial surveys would make an assessment at this time premature. CALIFORNIA v. NEVADA 133 125 Opinion of the Court disputed borderlands. This matter is here on California’s motion to file a second amended complaint and bifurcate issues, which seeks further proceedings before the Special Master after the boundary questions are determined. Specifically, the United States has apparently confirmed or “clear-listed” to California and Nevada certain parcels that turn out to be on the “wrong” side of the boundary between those States. The Special Master was of the view that California’s motion should be allowed and that he should be authorized (1) to determine whether the United States should be made a party to this case and (2) to make recommendations as to the quieting of title on various borderlands. We decline at this point to expand the Special Master’s reference. The ownership and title questions that remain typically will involve only one or the other State and the United States, or perhaps various citizens of those States. Disputes between California and Nevada are not in the offing.10 In consequence, even if some of the ownership questions to come do fall within our original jurisdiction, they will not fall within our exclusive jurisdiction. 28 U. S. C. § 1251 (1976 ed., Supp. II). Under these circumstances we see no reason to refer the matter to the Special Master. On the contrary, litigation in other forums seems an entirely appropriate means of resolving whatever questions remain. In sum, we overrule Nevada’s exceptions and approve and adopt the Special Master’s report and recommendations except insofar as those recommendations would allow California’s second amended complaint and permit proceedings relating to the ownership of disputed lands on the California-Nevada boundary. So ordered. 10 At oral argument, counsel for the State of California conceded, that he knew of no instance in which both States claimed the same parcel. 134 OCTOBER TERM, 1979 Syllabus 447 U.S. WASHINGTON et al. v. CONFEDERATED TRIBES OF THE COLVILLE INDIAN RESERVATION et al. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON No. 78-630. Argued October 9, 1979—Decided June 10, 1980* These cases concern challenges of several Indian Tribes to efforts by the State of Washington to apply various state taxes and other laws to transactions and activities occurring on Indian reservations. Washing-ton imposes a cigarette excise tax on the “sale, use, consumption, handling, possession or distribution” of cigarettes within the State. It also imposes a general retail sales tax on sales of personal property, including cigarettes. The State sought to compel Indian retailers to collect both taxes with respect to sales of cigarettes to non-Indians and the latter tax with respect to sales of other goods as well. In addition, the State sought to apply its motor vehicle excise tax and mobile home, camper, and trailer taxes—which are imposed for the privilege of using the covered vehicles in the State—to vehicles owned by the Tribes or their members and used both on and off the reservation. Finally, the State took steps to assume civil and criminal jurisdiction over the affected reservations. The Indian Tribes involved in this litigation have each adopted ordinances imposing their own taxes upon on-reservation sales of cigarettes. In actions brought in Federal District Court, they sought declaratory and injunctive relief against enforcement of the state sales and cigarette taxes, and in particular against the State’s seizure of untaxed cigarettes destined for delivery to the reservations, contending that those taxes could not lawfully be applied to tribal cigarette sales. In addition, the Tribes challenged the State’s efforts to apply its vehicle excise taxes to Indian-owned vehicles and asserted that the State’s assumption of jurisdiction was invalid. The complaints alleged, inter alia, that the challenged taxes were contrary to the Indian Commerce Clause. Because injunctive relief against enforcement of state statutes was sought, a three-judge District Court was convened pursuant to the then applicable requirement of 28 U. S. C. §2281 (1970 ed.) that an injunction restraining the enforcement of any state statute shall not be granted *Together with Washington v. United States et al., also on appeal from the same court, and No. 78-60, Confederated Tribes of the Colville Indian Reservation et al. v. Washington, also on appeal from the same court but not argued. See n. 32, infra. WASHINGTON v. CONFEDERATED TRIBES 135 134 Syllabus by any district court upon the ground of the statute’s unconstitutionality unless the application therefor is heard and determined by a three-judge court. After a consolidated proceeding, the District Court held that (1) it had jurisdiction as a three-judge court; (2) the cigarette tax could not be applied to on-reservation transactions because it was preempted by the tribal taxing ordinance and constituted an impermissible interference with tribal self-government; (3) the retail sales tax could not be applied to tribal cigarette sales; (4) the State could not impose certain recordkeeping requirements on the Tribes in connection with various tax-exempt sales; (5) the vehicle excise taxes could not be imposed on vehicles owned by the Tribes and their members; and (6) the State’s assumption of civil and criminal jurisdiction over certain of the Tribes was unconstitutional. The court enjoined enforcement of the statutes it had invalidated, and the State moved unsuccessfully for a new trial. Held: 1. The Tribes’ Commerce Clause claims are not “insubstantial” and are not rendered inescapably frivolous by the decisions in Mescalero Apache Tribe v. Jones, 411 U. S. 145, and McClanahan n. Arizona State Tax Comm’n, 411 U. S. 164, so as to defeat application of §2281. In addition, the Tribes’ attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of §2281. Accordingly, this Court has jurisdiction over the appeals under 28 U. S. C. § 1253, which authorizes a direct appeal to this Court from an order granting an injunction in a suit “required by any Act of Congress to be heard and determined by a district court of three judges ” Pp 145-149. 2. The State’s motion for a new trial on issues other than the motorvehicle-tax and assumption-of-jurisdiction issues rendered nonfinal the disposition of all issues between the parties, and thus the State’s appeal from the District Court’s resolution of those two issues was timely under 28 U. S. C. § 2101 (b), where it was filed within 60 days of the denial of the motion for a partial new trial but more than 60 days after the District Court’s decision on those two issues. Accordingly, the appeal from such decision is properly before this Court. Pp. 149-150. 3. The imposition of Washington’s cigarette and sales taxes on on-reservation purchases by nonmembers of the Tribes is valid Pp 150-162. (a) The Tribes have the power to impose their cigarette taxes on nontribal purchases, since the power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested 136 OCTOBER TERM, 1979 Syllabus 447 U.S. of it by federal law or necessary implication of their dependent status. Here, there is no federal statute showing any congressional departure from the view that tribes have such power, and tribal powers are not implicitly divested by virtue of the tribes’ dependent status. Pp. 152-154. (b) But the Tribes’ involvement in the operation and taxation of cigarette marketing on the reservation does not oust the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. Principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, do not authorize Indian tribes to market an exemption from state taxation to persons who would normally do their business elsewhere. Federal statutes, such as the Indian Reorganization Act of 1934, the Indian Financing Act of 1974, and the Indian Self-Determination and Education Assistance Act of 1975, while evidencing a congressional concern with fostering tribal self-government and economic development, do not go so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. Washington does not infringe the right of reservation Indians to make their own laws and be ruled by them, merely because the result of imposing taxes will be to deprive the Tribes of revenues which they currently are receiving. Pp. 154—157. (c) The Indian Commerce Clause does not, of its own force, automatically bar all state taxation of matters significantly touching the political and economic interests of the Tribes. That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce, but Washington’s taxes are applied in a nondiscriminatory manner to all transactions within the State and do not burden commerce that would exist on the reservations without respect to the tax exemption. Although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption for these very taxes. Such taxes do not burden commerce that would exist on the reservations without respect to the tax exemption. P. 157. (d) The Tribes failed to show that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit. Pp. 157-158. (e) There is no direct conflict between the state taxes and the Tribes’ cigarette ordinances so as to warrant invalidation of the state taxes on grounds of pre-emption or violation of the principle of tribal self-government. Pp. 158-159. (f) The State may validly require, as a minimal burden, the tribal smokeshops to affix tax stamps purchased from the State to individual WASHINGTON v. CONFEDERATED TRIBES 137 134 Syllabus packages of cigarettes prior to the time of sale to nonmembers of the Tribe. Cf. Moe v. Satish & Kootenai Tribes, 425 U. S. 463. P. 159. (g) The State’s recordkeeping requirements are valid in toto. The Tribes failed to demonstrate that such requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions. Pp. 159-160. (h) The Stated interest in taxing nontribal purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes. Pp. 160-161. (i) The State’s interest in enforcing its taxes is sufficient to justify its seizure of unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the taxes. Pp. 161-162. 4. The motor vehicle and mobile home, camper, and trailer taxes cannot properly be imposed upon vehicles owned by the Tribes or their members and used both on and off the reservations. Moe, supra. Pp 162-164. 5. The District Court erred in holding that the State’s assumption of civil and criminal jurisdiction over the Makah and Lummi Reservations was unlawful. Washington v. Yakima Indian Nation, 439 U. S. 463, controlling. P. 164. 446 F. Supp. 1339, affirmed in part and reversed in part. White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Stevens, JJ., joined; in Parts I, II, III, IV-B (1), IV-D, V, and VI of which Brennan and Marshall, J J., joined; in Parts I, II, III, IV (except IV-B (2)), and VI of which Stewart, J., joined; and in Parts I, II, III, IV—C, IV—E, and VI of which Rehnquist, J., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 164. Stewart, J., filed an opinion concurring in part and dissenting in part, post, p. 174. Rehnquist, J., filed an opinion concurring in part, concurring in the result in part, and dissenting in part, post, p. 176. Slade Gorton, Attorney General of Washington, argued the cause for appellants. With him on the briefs were Philip H. Austin, Deputy Attorney General, Richard H. Holmquist, Senior Assistant Attorney General, and Timothy R. Malone, Larry R. Schreiter, and Matthew J. Coyle, Assistant Attorneys General. Steven S. Anderson argued the cause for appellees Confederated Tribes of the Colville Indian Reservation et al. With 138 447 U. S. OCTOBER TERM, 1979 Opinion of the Court him on the brief were Robert L. Pirtle and Alvin J. Ziontz. James B. Hovis argued the cause and filed a brief for appellee Confederated Tribes and Bands of the Yakima Indian Nation. Deputy Solicitor General Claiborne argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Edward J. Shawaker, and Anne S. AlmyA Mr. Justice White delivered the opinion of the Court. In recent Terms we have more than once addressed the intricate problem of state taxation of matters involving Indian tribes and their members. Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976); McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973); Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973). We return to that vexing area in the present cases. Although a variety of questions are presented, perhaps the most significant is whether an Indian tribe ousts a State from any power to tax on-reservation purchases by nonmembers of the tribe by imposing its own tax on the transaction or by otherwise earning revenues from the tribal business. A three-judge District Court held for the Tribes. We affirm in part and reverse in part. fBriefs of amici curiae urging reversal were filed by Helena S. Maclay, Deirdre Boggs, and Keith C. Rennie, Special Assistant Attorneys General, for the State of Montana; and by Frederick J. Martone for the Salt River Project Agricultural Improvement and Power District et al. Briefs of amici curiae urging affirmance were filed by L. Lamar Parrish for the All Indian Pueblo Council, Inc.; by Reid Peyton Chambers and Harry R. Sachse for the Assiniboine and Sioux Tribes of the Fort Peck Reservation et al.; and by Charles A. Hobbs, Stephen H. Whilden, and Bertram E. Hirsch for the National Congress of American Indians, Inc., et al. Michael Taylor, John H. Clinebell, Jeffrey S. Schuster, Russell W. Busch, and Robert D. Dellwo filed a brief for the Quinalt Indian Nation et al. as amici curiae. WASHINGTON v. CONFEDERATED TRIBES 139 134 Opinion of the Court I These cases are here on the State of Washington’s appeal from declaratory judgments and permanent injunctions entered by the District Court at the close of consolidated proceedings in two separate cases that raised related issues. 446 F. Supp. 1339 (ED Wash. 1978). The first case, Confederated Tribes of the Colville Indian Reservation v. State of Washington, Civ. No. 3868, was filed on May 17, 1973, by the Confederated Tribes of the Colville Reservation (Colville), Makah, and Lummi Tribes. The second, United States of America and Confederated Bands and Tribes of the Yakima Indian Nation v. State of Washington, Civ. No. 3909, was commenced on July 18, 1973, by the United States on behalf of the Confederated Bands and Tribes of the Yakima Indian Nation (Yakima Tribe).1 In each action, the complainants contended that the State’s cigarette and tobacco products taxes2 could not lawfully be applied to sales by on-reservation tobacco outlets. They sought declaratory judgments to that effect, as well as injunctions barring the State from taking any measures to enforce the challenged taxes. In particular, the plaintiffs sought to enjoin the State from seizing as contraband untaxed cigarettes destined for delivery to their reservations.3 In the Colville case, the Tribes also chal- 1 On April 24, 1974, the Yakima Tribe intervened as a plaintiff in the United States’ case. Its complaint appears at App. 149. 2 The state tobacco products tax, which is imposed on cigars and pipe tobacco pursuant to Wash. Rev. Code, ch. 82.26 (1976), is not before us. The District Court concluded that that tax fell upon the Indian sellers and not upon the non-Indian purchasers. 446 F. Supp. 1339, 1355, n. 15 (ED Wash. 1978). The State did not appeal from this holding, Brief for Appellants in No. 78—630, p. 55, n. 40, and all parties agree that in consequence the tobacco products tax may not be imposed on sales by tribal dealers. 3 The Tribes also sought damages for interference with their cigarette businesses. The damages issues in both cases were remanded by the three-judge court to a single District Judge. 446 F. Supp., at 1367, 1373. 140 447 U. S. OCTOBER TERM, 1979 Opinion of the Court lenged the State’s assumption of civil and criminal jurisdiction over their reservations and, by amended pleadings, attacked the application of the State’s vehicle excise taxes to Indian-owned vehicles. The Yakima case did not present these latter issues, but it did make a broad attack on the application of the State’s general retail sales tax to on-reservation transactions. From the time of filing, the two cases pursued closely parallel courses. On November 5, 1973, a temporary restraining order against the State’s enforcement of the taxing statutes was issued in each. App. 13, 147. Thereafter, because the complaints sought injunctive relief against the enforcement of state statutes, a three-judge District Court was convened pursuant to the then applicable requirement of 28 U. S. C. § 2281 (1970 ed.).4 On September 6, 1974, the three-judge court issued preliminary injunctions restraining the State from enforcing the challenged taxes against the Tribes. App. 15, 156. There followed extensive discovery,5 after which the parties to each case reached agreement on pretrial orders setting forth facts and clarifying the issues. Trial was held in both cases on March 28, 1977, and the three-judge court entered its consolidated decision on February 22, 1978. The court concluded (1) that it had jurisdiction as a three-judge court to consider the issues presented; (2) that the state cigarette tax could not be applied to on-reservation transactions because it was pre-empted by the tribal taxing ordinances and constituted an impermissible interference with tribal self-government; (3) that the state 4 Although § 2281 was subsequently repealed, Act of Aug. 12, 1976, § 1, 90 Stat. 1119, it was expressly left in place for cases which, like those before us, were pending on the date of repeal. § 7, 90 Stat. 1120. We consider issues concerning the applicability of the former § 2281 to these cases in Part III, infra. 5 Proceedings in both cases were stayed for several months, however, pending this Court’s decisions in Moe n. Salish & Kootenai Tribes, 425 U. S. 463 (1976), and Bryan v. Itasca County, 426 U. S. 373 (1976). WASHINGTON v. CONFEDERATED TRIBES 141 134 Opinion of the Court retail sales tax could not be applied to tribal cigarette sales, but could be applied to sales of other goods to non-Indians; (4) that the State could not impose certain recordkeeping requirements in connection with various tax-exempt sales; (5) that the State could not impose its vehicle excise taxes upon vehicles owned by the Tribes and their members; and (6) that the State’s assumption of civil and criminal jurisdiction over the Makah and Lummi Tribes was unconstitutional. The court enjoined enforcement of the statutes it had struck down, and the State moved unsuccessfully for a new trial. This appeal followed. We postponed consideration of certain jurisdictional questions to the merits. 440 U. S. 905 (1979). We begin by sketching the relevant factual background, which is not seriously in dispute.6 Thereafter, we explore the jurisdictional questions previously postponed and then turn to the merits. II The State of Washington levies a cigarette excise tax of $1.60 per carton,7 on the “sale, use, consumption, handling, possession or distribution” of cigarettes within the State. Wash. Rev. Code § 82.24.020 (1976). The tax is enforced with tax stamps; and dealers are required to sell only cigarettes to which such stamps have been affixed. § 82.24.030. Indian tribes are permitted to possess unstamped cigarettes for purposes of resale to members of the tribe, but are required by regulation to collect the tax with respect to sales to nonmembers. §82.24.260; Wash. Admin. Code §458-20-192 8 Our statement of the factual background is drawn in large measure from the opinion of the District Court, 446 F. Supp., at 1345-1349, 1368-1370. 7 The cigarette excise tax is imposed pursuant to Wash. Rev. Code §82.24.020 (1976). That provision authorizes a levy of 6.5 mills per cigarette. The tax is brought up to its full amount by Wash. Rev. Code §§28A.47.440 and 73.32.130 (1976), which add 0.5 mill and 1 mill respectively. 142 OCTOBER TERM, 1979 Opinion of the Court 447U.S. (1977) .8 The District Court found, on the basis of its examination of state authorities, that the legal incidence of the tax is on the purchaser in transactions between an Indian seller and a non-Indian buyer.® The State has sought to enforce its cigarette tax by seizing as contraband unstamped cigarettes bound for various tribal reservations. It claims that it is entitled to make such seizures whenever the cigarettes are destined to be sold to nonIndians without affixation of stamps or collection of the tax. Washington also imposes a sales tax on sales of personal property, including cigarettes. Wash. Rev. Code § 82.08.020 (1976). This tax, which was 5% during the relevant period, is collected from the purchaser by the retailer. § 82.08.050. It does not apply to on-reservation sales to reservation Indians. Wash. Admin. Code § 458-20-192 (1977). The state motor vehicle excise tax is imposed on “the privilege of using in the state any motor vehicle.” Wash. Rev. Code §82.44.020 (Supp. 1977). The tax is assessed annually, and during the relevant period the amount was 2% 8 Initially the State asserted that it could tax all tribal cigarette sales, regardless of whether the buyer was Indian or non-Indian. Its theory was that Pub. L. 280, 67 Stat. 588, granted it general authority to tax reservation Indians. After this theory was rejected in Bryan v. Itasca County, supra, the State abandoned any claim of authority to tax sales to tribal members. See 446 F. Supp., at 1346, n. 4. 9 Id., at 1352-1355. Essentially, the court accepted the State’s contention that the tax falls upon the first event which may constitutionally be subjected to it. In the case of sales by non-Indians to non-Indians, this means the incidence of the tax is on the seller, or perhaps on someone even further up the chain of distribution, because that person is the one who first sells, uses, consumes, handles, possesses, or distributes the products. But where the wholesaler or retailer is an Indian on whom the tax cannot be imposed under McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973), the first taxable event is the use, consumption, or possession by the non-Indian purchaser. Hence, the District Court concluded, the tax falls on that purchaser. We accept this conclusion. WASHINGTON v. CONFEDERATED TRIBES 143 134 Opinion of the Court of the fair market value of the vehicle in question. In addition, the State imposes an annual tax in the amount of 1% of fair market value on the privilege of using campers and trailers in the State. § 82.50.400 (1976) 3° Each of the Tribes involved in this litigation is recognized by the United States as a sovereign Indian tribe. Each is governed by a business or tribal council approved by the Secretary of the Interior.11 The Colville Tribe has some 5,800 members, of whom about 3,200 live on the Colville Indian Reservation.12 Enrolled members of the Tribe constitute just under half of the reservation’s population. The Lummi Tribe has approximately 2,000 members. Roughly 1,250 of them live on the reservation.13 The Makah Tribe has about 1,000 members. Some 900 live on the reservation.14 The Colville, Lummi, and Makah Reservations are isolated and underdeveloped. Many members reside in mobile homes. Most own at least one automobile which is used both on and off the reservation. 10 The same chapter provided for an excise tax on mobile homes. Initially, the State sought to apply this tax to Indians as well; but after Bryan v. Itasca County, 426 U. S. 373 (1976), and Moe n. Stilish & Kootenai Tribes, 425 U. S. 463 (1976), it no longer attempts to do so. 446 F. Supp., at 1365. 11 The Makah Tribe is organized under the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. §461 et seq. While the Lummi and Colville Tribes do have federally-approved constitutions, they voted in 1935 not to come under that Act. 446 F. Supp., at 1345, n. 2. 12 The Colville Reservation encompasses 1.3 million acres in the northeastern section of Washington. It was established by Executive Order on July 2, 1872. 1 C. Kappler, Indian Affairs, Laws and Treaties 916 (2d ed. 1904). 13 The Lummi Reservation encompasses 7,319 acres, most of them on a peninsula near Bellingham, Wash. It was established by the Treaty of Point Elliott in 1855. 12 Stat. 927. 14 The Makah Reservation encompasses 28,000 acres at the northwest tip of the Olympic Peninsula. It too was established by treaty in 1855. Treaty with the Makah Tribe, 12 Stat. 939. Roughly 63% of its inhabitants are enrolled members of the Tribe. 144 OCTOBER TERM, 1979 Opinion of the Court 447U.S. The Yakima Tribe has more than 6,000 members, of whom about 5,000 live on the reservation.15 Enrolled members, however, constitute less than one-fifth of the reservation’s population. The balance is made up of approximately 1,500 Indians who are not members of the Tribes and more than 20,000 non-Indians. The Colville, Lummi, and Makah Tribes have nearly identical cigarette sales and taxing schemes. Each Tribe has enacted ordinances pursuant to which it has authorized one or more on-reservation tobacco outlets.16 These ordinances have been approved by the Secretary of the Interior; and the dealer at each tobacco outlet is a federally licensed Indian trader. All three Tribes use federally restricted tribal funds17 to purchase cigarettes from out-of-state dealers.18 The Tribes distribute the cigarettes to the tobacco outlets and collect from the operators of those outlets both the wholesale distribution price and a tax of 40 to 50 cents per carton. The cigarettes remain the property of the Tribe until sale. The taxing ordinances specify that the tax is to be passed on to the ultimate consumer of the cigarettes. From 1972 through 1976, the Colville Tribe realized approximately $266,000 from its cigarette tax; the Lummi Tribe realized $54,000 and the Makah Tribe realized $13,000. While the Colville, Lummi, and Makah Tribes function as retailers, retaining possession of the cigarettes until their sale to consumers, the Yakima Tribe acts as a wholesaler. It pur- 15 The Yakima Indian Reservation was set aside for the Tribe by treaty ratified March 8, 1859. Treaty with the Yakimas, 12 Stat. 951. It encompasses about 1.4 million acres in south-central Washington. 16 The tribal ordinances regulating the sale, distribution, and taxing of cigarettes are set forth at App. 104, 118, and 111. 17 The funds are maintained in individual accounts in the Bureau of Indian Affairs agency serving the reservation pursuant to 25 CFR Part 104 (1978). App. 32-34. 18 These out-of-state wholesalers are also federally licensed Indian traders. WASHINGTON v. CONFEDERATED TRIBES 145 134 Opinion of the Court chases cigarettes from out-of-state dealers and then sells them to its licensed retailers. The Tribe receives a markup over the wholesale price from those retailers as well as a tax of 22.5 cents per carton. There is no requirement that this tax be added to the selling price. In 1975, the Yakima Tribe derived $278,000 from its cigarette business. Indian tobacco dealers make a large majority of their sales to non-Indians—residents of nearby communities who journey to the reservation especially to take advantage of the claimed tribal exemption from the state cigarette and sales taxes. The purchaser saves more than a dollar on each carton, and that makes the trip worthwhile. All parties agree that if the State were able to tax sales by Indian smokeshops and eliminate that $1 saving, the stream of non-Indian bargain hunters would dry up. In short, the Indian retailer’s business is to a substantial degree dependent upon his tax-exempt status, and if he loses that status his sales will fall off sharply. Ill We first address our jurisdiction to hear the State’s appeal. Two attacks are made upon that jurisdiction, one grounded in the intricacies of the now repealed statute governing three-judge district courts and the other having to do with the timing of the State’s appeal. Under 28 U. S. C. § 1253, a direct appeal lies to this Court from an order granting or denying an injunction in a suit “required by any Act of Congress to be heard and determined by a district court of three judges.” At the time the Yakima and Colville cases were filed, 28 U. S. C. §2281 (1970 ed.) provided that: “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . shall not be granted by any district court or judge thereof 146 OCTOBER TERM, 1979 Opinion of the Court 447U.S. upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges. . . 19 After the State filed its jurisdictional statement in this appeal, the United States moved to dismiss the Yakima case on the ground that it was not one required by § 2281 to be heard by a court of three judges and thus did not fall within the grant of appellate jurisdiction in § 1253. Although directed only to the Yakima case because that is the only one to which the Government is a party, this challenge is quite clearly germane to the Colville case as well. Section 2281 does not require a three-judge court where a constitutional challenge to a state statute is grounded only in the Supremacy Clause. Swift & Co. v. Wickham, 382 U. S. Ill, 128-129 (1965). In addition, § 2281 is not brought into play by constitutional claims that are “insubstantial,” Goosby v. Osser, 409 U. S. 512, 518 (1973). The United States argues that the substantive tax claims raised by these cases fall into one or the other category, and thus failed to trigger § 2281.20 Further, the Government continues, the attacks on the State’s seizure of cigarettes, while perhaps raising genuine Commerce Clause issues, are not properly characterized as challenges to the constitutionality of a state statute. Rather, the Government asserts, they go to the constitutionality of the result obtained by the use of the statute. We find neither contention persuasive. The original complaints in these actions contended that the state taxes were unconstitutional under the Indian Com- 19 The repeal of this provision in 1976 does not affect its application to these cases. See n. 4, supra. 20 As the Government recognizes, its position in this regard is somewhat anomalous since it was the United States which initially requested a three-judge court in the Yakima case. App. 145. At that time the Government seemed to have no doubt that it sought to enjoin the enforcement of a state statute on grounds of its unconstitutionality within the meaning of § 2281. WASHINGTON v. CONFEDERATED TRIBES 147 134 Opinion of the Court merce Clause as well as the Supremacy Clause. Relying primarily upon language in footnote 17 in Moe v. Salish <& Kootenai Tribes, 425 U. 8., at 481, the United States asserts that the Tribes’ Commerce Clause claims were insubstantial.21 But Moe was decided in 1976—long after a three-judge court was convened to hear these cases—and it is thus apparent that footnote 17 alone cannot be dispositive, whatever its precise thrust. There is language in that footnote, however, which suggests that the insubstantiality of Commerce Clause claims such as those before us flows from Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), and McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973)—both of which were decided before the present suits were filed.22 We think the United States reads too much into this language. Goosby v. Osser, supra, made it clear that constitutional claims will not lightly be found insubstantial for 21 The District Court seems to have found this contention persuasive, 446 F. Supp., at 1350, although it addressed it only briefly. Presumably it saw no need to explore the matter more fully since it was confident that the three-judge requirement had in any event been satisfied by the Tribes’ challenges to the State’s enforcement measures. Id., at 1350-1351. 22 Footnote 17 in its entirety reads as follows: “It is thus clear that the basis for the invalidity of these taxing meas- ures, which we have found to be inconsistent with existing federal statutes, is the Supremacy Clause, U. S. Const., Art. VI, cl. 2, and not any automatic exemptions ‘as a matter of constitutional law’ either under the Commerce Clause or the intergovernmental-immunity doctrine as laid down originally in M’Cvllochv. Maryland, 4 Wheat. 316 (1819). If so, then the basis for convening a three-judge court in this type of case has effectively disappeared, for this Court has expressly held that attacks on state statutes raising only Supremacy Clause invalidity do not fall within the scope of 28 U. S. C. § 2281. Swift & Co. v. Wickham, 382 U. S. Ill (1965). Here, however, the District Court properly convened a § 2281 court, because at the outset the Tribe’s attack asserted unconstitutionality of these statutes under the Commerce Clause, a not insubstantial claim since Mescalero and McClanahan had not yet been decided. See Goosby v. Osser, 409 U. S. 512 (1973).” 425 U. S., at 481. 148 OCTOBER TERM, 1979 Opinion of the Court 447U.S. purposes of § 2281. Indeed, Goosby explicitly states that prior decisions are not sufficient to support a conclusion that certain claims are insubstantial unless those prior decisions “inescapably render the claims frivolous.” 409 U. S., at 518. We cannot say here that the Goosby test has been met. Neither Mescalero nor McClanahan “inescapably render[s] the [Tribes’ Commerce Clause] claims frivolous” because neither holds that that Clause is wholly without force in situations like the present. And even footnote 17 merely rejects the stark and rather unhelpful notion that the Commerce Clause provides an “automatic exemptio[n] ‘as a matter of constitutional law’ ” in such cases. (Emphasis added.) It does not take that Clause entirely out of play in the field of state regulation of Indian affairs. In addition, it seems quite clear that the Tribes’ attack on the official seizure of cigarettes bound for the reservations also triggers the three-judge requirement of § 2281. The United States concedes that that attack raised Commerce Clause issues, but maintains that the Tribes’ target was not really the state enforcement statutes themselves, but rather the discretionary official conduct undertaken pursuant to those statutes. We have no quarrel with the proposition that the mere fact that executives seek shelter under various state statutes will not necessarily convert a suit to restrain their lawless behavior into a § 2281 case, Phillips v. United States, 312 U. S. 246, 248-253 (1941). But this is not a situation in which the only connection with state statutes arises when officials accused of taking various ultra vires actions seek to trace their conduct back to vague statutes granting them broad executive discretion. Here the state officials involved were attempting to enforce the state tax laws by using the tools authorized for such enforcement by the state legislature. They manifested an intention to continue to use those tools for that purpose. And it is those tools, as applied to cigarettes in Indian commerce, which the Tribes chai- WASHINGTON v. CONFEDERATED TRIBES 149 134 Opinion of the Court lenged.23 We hold that this suffices to bring these cases within § 2281. The other jurisdictional question postponed in 1979 is relevant only to the Colville case. It concerns the timeliness under 28 U. S. C. § 2101 (b) of the State’s appeal from the District Court’s resolution of the motor-vehicle-tax and as-sumption-of-jurisdiction issues. Basically, the problem is this: the notice of appeal on these two issues was filed more than 60 days after the District Court’s decision, but within 60 days of the denial of a state motion for partial new trial—a motion that was not addressed to the motor-vehicle-tax and assumption-of-jurisdiction issues. The question is whether a motion for partial new trial renders nonfinal the District Court’s holding on all issues between the parties, or merely renders nonfinal the disposition of those issues actually raised in the new trial motion. If the former, the State’s notice of appeal on the vehicle-taxes and assumption-of-jurisdiction issues was timely. If the latter, that notice was filed out of time and to that extent the appeal is jurisdictionally time-barred.24 23 See Turner v. Fouche, 396 IT. 8. 346, 354, n. 10 (1970). See also Department of Employment v. United States, 385 IT. S. 355 (1966); Query v. United States, 316 IT. S. 486, 490 (1942). 24The actual chronology was as follows: On May 10, 1978, the District Court entered its final order. On May 22, the State filed a motion for partial new trial on the cigarette and sales tax issues. On July 12, while that motion was pending, the State filed a notice of appeal raising the motor-vehicle-excise-tax and assumption-of-jurisdiction issues. On July 17, the motion for partial new trial was denied; and on August 14, the State filed a notice of appeal on the sales and cigarette tax issues. On September 8, the State filed an amended notice of appeal raising all relevant issues. The July 12 notice of appeal was filed more than 60 days after the original District Court order. Accordingly, under 28 IT. S. C. § 2101 (b), it was out of time. The notice of August 14 and the amended notice of September 8, however, were filed within 60 days of the District Court’s denial of the motion for partial new trial. It seems clear that the filing of that motion rendered nonfinal the disposition of all covered 150 OCTOBER TERM, 1979 Opinion of the Court 447U.S. We think that the filing of a motion for partial new trial in these circumstances must have rendered nonfinal the disposition of all issues between the parties. A contrary conclusion would serve no useful purpose. At best it would make little difference save to force future appellants to include in what might otherwise have been narrow motions for partial new trials a blanket request for reconsideration of all issues. And at worst it would be a procedural pitfall, devoid of any sound supporting rationale but capable of occasionally tripping those who failed to insert a line of boilerplate or file a redundant slip of paper. Accordingly, we hold that the appeal of the District Court’s vehicle-tax and assumption-of-jurisdiction holdings is properly before us, and we turn to the merits. IV A In Moe v. Salish & Kootenai Tribes, 425 U. S. 463 (1976), we considered a state taxing scheme remarkably similar to the cigarette and sales25 taxes at issue in the present cases. Montana there sought to impose a cigarette tax on sales by smokeshops operated by tribal members and located on leased trust lands within the reservation, and sought to require the smokeshop operators to collect the tax. We upheld the tax, insofar issues—if not, one seeking a partial new trial would have to jeopardize his right to appeal. Communist Party of Indiana v. Whitcomb, 414 U. S. 441, 445-446 (1974); Department of Banking v. Pink, 317 U. S. 264, 266 (1942). Thus, the only remaining question is whether the motion for partial new trial also suspended the finality of the District Court’s disposition of issues not covered by that motion. 26 We are here generally concerned only with the application of Washington’s retail sales tax to cigarette sales. The District Court upheld the sales tax as applied to sales of other goods to non-Indians, and the Tribes do not contest that holding. We do, however, consider the question of noncigarette sales when we discuss (1) whether Washington can tax purchases by Indians not members of the governing Tribe, and (2) whether Washington’s recordkeeping requirements are valid. WASHINGTON v. CONFEDERATED TRIBES 151 134 Opinion of the Court as sales to non-Indians were concerned,26 because its legal incidence fell on the non-Indian purchaser. Hence, “the competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent oh the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax.” Id., at 482 (emphasis in original). We upheld the collection requirement, as applied to purchases by non-Indians, on the ground that it was a “minimal burden” designed to aid the State in collecting an otherwise valid tax. Id., at 483. Moe establishes several principles relevant to the present cases. The State may sometimes impose a nondiscriminatory tax on non-Indian customers of Indian retailers doing business on the reservation. Such a tax may be valid even if it seriously disadvantages or eliminates the Indian retailer's business with non-Indians.2T And the State may impose at least “minimal” burdens on the Indian retailer to aid in enforcing and collecting the tax. There is no automatic bar, therefore, to Washington’s extending its tax and collection and recordkeeping requirements onto the reservation in the present cases. Although it narrows the issues in the present cases, Moe does not definitively resolve several important questions. First, unlike in Moe, each of the Tribes imposes its own tax on cigarette sales, and obtains further revenues by participating in the cigarette enterprise at the wholesale or retail level. Second, Washington requires the Indian retailer to keep detailed records of exempt and nonexempt sales in addition to simply precollecting the tax. Moe expressed no opinion 26 We struck down the tax as applied to sales to Indians. 425 U. S., at 475-481. 27 The United States reads Moe too parsimoniously in asserting its inapplicability to cases, such as the present ones, in which the economic impact on tribal retailers is particularly severe. Moe makes clear that the Tribes have no vested right to a certain volume of sales to non-Indians, or indeed to any such sales at all. 152 OCTOBER TERM, 1979 Opinion of the Court 447U.S. regarding the “complicated problems” of enforcement that distinctions between exempt and nonexempt purchasers might entail. Id., at 468, n. 6. Third, Moe left unresolved the question of whether a State can tax purchases by on-reservation Indians not members of the governing tribe, as Washington seeks to do in the present cases. Id., at 480-481, n. 16. Finally, unlike in Moe, Washington has seized, and threatens to continue seizing, shipments of unstamped cigarettes en route to the reservations from wholesalers outside the State. We address each of these questions. B (1) At the outset, the State argues that the Colville, Makah, and Lummi Tribes have no power to impose their cigarette taxes on non tribal purchasers.28 We disagree. The power to tax transactions occurring on trust lands and significantly involving a tribe or its members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication of their dependent status. Cf. United States n. Wheeler, 435 U. S. 313 (1978). The widely held understanding within the Federal Government has always been that federal law to date has not worked a divestiture of Indian taxing power. Executive Branch officials have consistently recognized that Indian tribes possess a broad measure of civil jurisdiction over the activities of nonIndians on Indian reservation lands in which the tribes have a significant interest, 17 Op. Atty. Gen. 134 (1881); 7 Op. 28 The incidence of the Colville, Lummi, and Makah taxes falls on the cigarette purchaser, since the tribal ordinances specify that the tax is to be passed on to the ultimate consumer. The Yakima ordinance, in contrast, does not require that the tax be added to the selling price, and the incidence of the Yakima tax therefore does not fall on the purchaser. The State’s challenge is directed only at the Cplville, Lummi, and Makah taxes. WASHINGTON v. CONFEDERATED TRIBES 153 134 Opinion of the Court Atty. Gen. 174 (1855), including jurisdiction to tax, 23 Op. Atty. Gen. 214 (1900); Powers of Indian Tribes, 55 I. D. 14, 46 (1934). According to the Solicitor of the Department of the Interior: “Chief among the powers of sovereignty recognized as pertaining to an Indian tribe is the power of taxation. Except where Congress has provided otherwise, this power may be exercised over members of the tribe and over nonmembers, so far as such nonmembers may accept privileges of trade, residence, etc., to which taxes may be attached as conditions.” Ibid, (emphasis added). Federal courts also have acknowledged tribal power to tax non-Indians entering the reservation to engage in economic activity. Buster v. Wright, 135 F. 947, 950 (CA8 1905), appeal dism’d, 203 U. S. 599 (1906); Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (CA8 1956); cf. Morris v. Hitchcock, 194 U. S. 384, 393 (1904). No federal statute cited to us shows any congressional departure from this view. To the contrary, authority to tax the activities or property of non-Indians taking place or situated on Indian lands, in cases where the tribe has a significant interest in the subject matter, was very probably one of the tribal powers under existing law” confirmed by § 16 of the Indian Reorganization Act of 1934, 48 Stat. 987, 25 U. S. C. § 476. In these respects the present cases differ sharply from Oliphant v. Suquamish Indian Tribe, 435 U. S. 191 (1978), in which we stressed the shared assumptions of the Executive, Judicial, and Legislative Departments that Indian tribes could not exercise criminal jurisdiction over non-Indians. Tribal powers are not implicitly divested by virtue of the tribes’ dependent status. This Court has found such a divestiture in cases where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal 154 OCTOBER TERM, 1979 Opinion of the Court 447U.S. consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights. See id., at 208-210; United States v. Wheeler, supra, at 326. In the present cases, we can see no overriding federal interest that would necessarily be frustrated by tribal taxation. And even if the State’s interests were implicated by the tribal taxes, a question we need not decide, it must be remembered that tribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States. (2) The Tribes contend that their involvement in the operation and taxation of cigarette marketing on the reservation ousts the State from any power to exact its sales and cigarette taxes from nonmembers purchasing cigarettes at tribal smokeshops. The primary argument is economic. It is asserted that smokeshop cigarette sales generate substantial revenues for the Tribes which they expend for essential governmental services, including programs to combat severe poverty and underdevelopment at the reservations. Most cigarette purchasers are outsiders attracted onto the reservations by the bargain prices the smokeshops charge by virtue of their claimed exemption from state taxation. If the State is permitted to impose its taxes, the Tribes will no longer enjoy any competitive advantage vis-à-vis businesses in surrounding areas. Indeed, because the Tribes themselves impose a tax on the transaction, if the state tax is also collected the price charged will necessarily be higher and the Tribes will be placed at a competitive disadvantage as compared to businesses elsewhere. Tribal smokeshops will lose a large percentage of their cigarette sales and the Tribes will forfeit substantial revenues. Because of this economic impact, it is argued, the state taxes are (1) pre-empted by federal statutes regulating Indian affairs; (2) inconsistent with the principle of tribal self-government; and (3) invalid under “negative implications” of the Indian Commerce Clause. WASHINGTON v. CONFEDERATED TRIBES 155 134 Opinion of the Court It is painfully apparent that the value marketed by the smokeshops to persons coming from outside is not generated on the reservations by activities in which the Tribes have a significant interest. Cf. Moe v. Sdlish & Kootenai Tribes, 425 U. S., at 475-481; McClanahan v. Arizona State Tax Common, 411 U. S. 164 (1973). What the smokeshops offer these customers, and what is not available elsewhere, is solely an exemption from state taxation. The Tribes assert the power to create such exemptions by imposing their own taxes or otherwise earning revenues by participating in the reservation enterprises. If this assertion were accepted, the Tribes could impose a nominal tax and open chains of discount stores at reservation borders, selling goods of all descriptions at deep discounts and drawing custom from surrounding areas. We do not believe that principles of federal Indian law, whether stated in terms of pre-emption, tribal self-government, or otherwise, authorize Indian tribes thus to market an exemption from state taxation to persons who would normally do their business elsewhere. The federal statutes cited to us, even when given the broadest reading to which they are fairly susceptible, cannot be said to pre-empt Washington’s sales and cigarette taxes. The Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et seq., the Indian Financing Act of 1974, 88 Stat. 77, 25 U. S. C. § 1451 et seq., and the Indian Self-Determination and Education Assistance Act of 1975, 88 Stat. 2203, 25 U. S. C. § 450 et seq., evidence to varying degrees a congressional concern with fostering tribal self-government and economic development, but none goes so far as to grant tribal enterprises selling goods to nonmembers an artificial competitive advantage over all other businesses in a State. The Indian traders statutes, 25 U. S. C. § 261 et seq., incorporate a congressional desire comprehensively to regulate businesses selling goods to reservation Indians for cash or exchange, see Warren Trading Post Co. v. Arizona Tax Common, 380 U. S. 685 (1965), but no similar intent is evident 156 OCTOBER TERM, 1979 Opinion of the Court 447U.S. with respect to sales by Indians to nonmembers of the Tribe. The Washington Enabling Act, 25 Stat. 676, reflects an intent that the State not tax reservation lands or income derived therefrom, but the present taxes are assessed against nonmembers of the Tribes and concern transactions in personalty with no substantial connection to reservation lands. The relevant treaties, Treaty of Point Elliott, 12 Stat. 927 (1855) (Lummi Tribe); Treaty with the Makah Tribe, 12 Stat. 939 (1855); Treaty with the Yakimas, 12 Stat. 951 (1855), can be read to recognize inherent tribal power to exclude non-Indians or impose conditions on those permitted to enter; but purchasers entering the reservation are not the State’s agents and any agreements which they might make cannot bind it. Finally, although the Tribes themselves could perhaps pre-empt state taxation through the exercise of properly delegated federal power to do so, cf. Fisher v. District Court, 424 U. S. 382, 390 (1976) (per curiam); United States v. Mazurie, 419 U. S. 544 (1975), we do not infer from the mere fact of federal approval of the Indian taxing ordinances, or from the fact that the Tribes exercise congressionally sanctioned powers of self-government, that Congress has delegated the far-reaching authority to pre-empt valid state sales and cigarette taxes otherwise collectible from nonmembers of the Tribe. Washington does not infringe the right of reservation Indians to “make their own laws and be ruled by them,” Williams v. Lee, 358 U. S. 217, 220 (1959), merely because the result of imposing its taxes will be to deprive the Tribes of revenues which they currently are receiving. The principle of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seeks an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other. McClanahan v. Arizona State Tax Comm’n, supra, at 179. While the Tribes do have an interest in raising revenues for essential governmental programs, that interest, is strongest when the revenues are derived from value gen- WASHINGTON v. CONFEDERATED TRIBES Opinion of the Court 157 134 erated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services. As we have already noted, Washington’s taxes are reasonably designed to prevent the Tribes from marketing their tax exemption to nonmembers who do not receive significant tribal services and who would otherwise purchase their cigarettes outside the reservations. It can no longer be seriously argued that the Indian Commerce Clause, of its own force, automatically bars all state taxation of matters significantly touching the political and economic interests of the Tribes. See Moe v. Salish & Kootenai Tribes, supra, at 481, n. 17. That Clause may have a more limited role to play in preventing undue discrimination against, or burdens on, Indian commerce. But Washington’s taxes are applied in a nondiscriminatory manner to all transactions within the State. And although the result of these taxes will be to lessen or eliminate tribal commerce with nonmembers, that market existed in the first place only because of a claimed exemption from these very taxes. The taxes under consideration do not burden commerce that would exist on the reservations without respect to the tax exemption. We cannot fault the State for not giving credit on the amount of tribal taxes paid. It is argued that if a credit is not given, the tribal retailers will actually be placed at a competitive disadvantage, as compared to retailers elsewhere, due to the overlapping impact of tribal and state taxation. While this argument is not without force, we find that the Tribes have failed to demonstrate that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit. With a credit, prices at the smokeshops would presumably be roughly the same as those off the reservation, assuming that the Indian enterprises are operated at an efficiency similar to that of businesses 158 447 U.S. OCTOBER TERM, 1979 Opinion of the Court elsewhere; without a credit, prices at smokeshops would exceed those off the reservation by the amount of the tribal taxes, about 40 to 50 cents per carton for the Lummi, Makah, and Colville Tribes, and 22.5 cents per carton for the Yakima Tribe. It is evident that even if credit were given, the bulk of the smokeshops’ present business would still be eliminated, since nonresidents of the reservation could purchase cigarettes at the same price and with greater convenience nearer their homes and would have no incentive to travel to the smokeshops for bargain purchases as they do now. Members of the Tribes, of course, would be indifferent to whether a credit were given because under Moe they are immune from any state tax, whether credited or not. Some nonmembers of the Tribes living on the reservations would possibly travel elsewhere to purchase cigarettes if a state credit were not given, and smokeshop business would to this extent be decreased as compared to the situation under a credited tax. But the Tribes have not shown whether or to what extent this would be the case, and we cannot infer on the present record that by failing to give a credit Washington impermissibly taxes reservation value by deterring sales that, if credit were given, would occur on the reservation because of its location and because of the efforts of the Tribes in importing and marketing the cigarettes. A second asserted ground for the invalidity of the state taxes is that they somehow conflict with the Tribes’ cigarette ordinances and thereby are subject to pre-emption or contravene the principle of tribal self-government. This argument need not detain us. There is no direct conflict between the state and tribal schemes, since each government is free to impose its taxes without ousting the other. Although taxes can be used for distributive or regulatory purposes, as well as for raising revenue, we see no nonrevenue purposes to the tribal taxes at issue in these cases, and, as already noted, we perceive no intent on the part of Congress to authorize’ the Tribes to pre-empt otherwise valid state taxes. Other provi- WASHINGTON v. CONFEDERATED TRIBES 159 134 Opinion of the Court sions of the tribal ordinances do comprehensively regulate the marketing of cigarettes by the tribal enterprises; but the State does not interfere with the Tribes’ power to regulate tribal enterprises when it simply imposes its tax on sales to nonmembers. Hence, we perceive no conflict between state and tribal law warranting invalidation of the State’s taxes. C We recognized in Moe that if a State’s tax is valid, the State may impose at least minimal burdens on Indian businesses to aid in collecting and enforcing that tax. The simple collection burden imposed by Washington’s cigarette tax on tribal smokeshops is legally indistinguishable from the collection burden upheld in Moe, and we therefore hold that the State may validly require the tribal smokeshops to affix tax stamps purchased from the State to individual packages of cigarettes prior to the time of sale to nonmembers of the Tribe. The state sales tax scheme requires smokeshop operators to keep detailed records of both taxable and nontaxable transactions. The operator must record the number and dollar volume of taxable sales to nonmembers of the Tribe. With respect to nontaxable sales, the operator must record and retain for state inspection the names of all Indian purchasers, their tribal affiliations, the Indian reservations within which sales are made, and the dollar amount and dates of sales. In addition, unless the Indian purchaser is personally known to the operator he must present a tribal identification card. The District Court struck down all recordkeeping requirements with respect to cigarette sales, because it found that no cigarette sales were taxable. With respect to sales of items other than cigarettes, the District Court found no record evidence “as to whether the record keeping requirements, as promulgated, are or are not reasonably necessary to ensure payment of lawful taxes.” 446 F. Supp., at 1373. The District Court upheld the requirements insofar as they pertained to taxable sales, but struck them down with respect to non- 160 OCTOBER TERM, 1979 447 U.S. Opinion of the Court taxable sales on the ground that the State had not met its burden of showing that the regulation was reasonably necessary to ensure payment of taxes which it had power to impose. Contrary to the District Court, we find the State’s recordkeeping requirements valid in toto. The Tribes, and not the State as the District Court supposed, bear the burden of showing that the recordkeeping requirements which they are challenging are invalid. The District Court made the factual finding, which we accept, that there was no evidence of record on this question. Applying the correct burden of proof to the District Court’s finding, we hold that the Tribes have failed to demonstrate that the State’s recordkeeping requirements for exempt sales are not reasonably necessary as a means of preventing fraudulent transactions. D The State asserts the power to apply its sales and cigarette taxes to Indians resident on the reservation but not enrolled in the governing Tribe. The issue arose in the Yakima case in the wake of the District Court’s determination that the state retail sales tax could be applied to the purchase by nonIndians of goods other than cigarettes. It was, of course, quite clear after Moe and McClanahan that the sales tax could not be applied to similar purchases by tribal members, but the State argued that this exemption should not extend to nonmembers of the Tribe. Relying in part on the lower court opinion in Moe, Confederated Sdlish & Kootenai Tribes v. Moe, 392 F. Supp. 1297, 1312 (Mont. 1975) (three-judge court), the District Court rejected the contention. 446 F. Supp., at 1371-1372. This Court did not reach the question in Moe because Montana failed to raise it on appeal. We do reach it now, and we reverse. Federal statutes, even given the broadest reading to which they are reasonably susceptible, cannot be said to pre-empt Washington’s power to impose its taxes on Indians not members of the Tribe. We do not so read the Major Crimes Act, WASHINGTON v. CONFEDERATED TRIBES 161 134 Opinion of the Court 18 U. S. C. § 1153, which at most provides for federal-court jurisdiction over crimes committed by Indians on another Tribe’s reservation. Cf. United States v. Antelope, 430 U. S. 641, 646-647, n. 7 (1977). Similarly, the mere fact that nonmembers resident on the reservation come within the definition of “Indian” for purposes of the Indian Reorganization Act of 1934, 48 Stat. 988, 25 U. S. C. § 479, does not demonstrate a congressional intent to exempt such Indians from state taxation. Nor would the imposition of Washington’s tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements. We find, therefore, that the State’s interest in taxing these purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes. E Finally, the State contends that it has the power to seize unstamped cigarettes as contraband if the Tribes do not cooperate in collecting the State’s taxes. The State in fact seized shipments traveling to the reservations from out-of-state wholesalers before being enjoined from doing so by the District Court, and it has declared its intention to continue such seizures if successful in this litigation. The Tribes contest this power, noting that because sales by wholesalers to the tribal businesses are concededly exempt from state taxation, no state tax is due while the cigarettes are in transit. We find that Washington’s interest in enforcing its valid taxes is sufficient to justify these seizures. Although the cigarettes in transit are as yet exempt from state taxation, they are not immune from seizure when the Tribes, as here, have refused to fulfill collection and remittance obligations which 162 OCTOBER TERM, 1979 Opinion of the Court 447U.S. the State has validly imposed. It is significant that these seizures take place outside the reservation, in locations where state power over Indian affairs is considerably more expansive than it is within reservation boundaries. Cf. Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973). By seizing cigarettes en route to the reservation, the State polices against wholesale evasion of its own valid taxes without unnecessarily intruding on core tribal interests. Washington further contends that it may enter onto the reservations, seize stocks of cigarettes which are intended for sale to nonmembers, and sell these stocks in order to obtain payment of the taxes due. However, this question, which obviously is considerably different from the preceding one, is not properly before us. The record does not disclose that the State has ever entered the reservations to seize cigarettes because of the Tribes’ failure to collect the taxes due on sales to nonmembers, or ever threatened to do so except in papers filed in this litigation. Indeed, the State itself concedes that “it may very well be that this Court will find it unnecessary to rule on this aspect of the appeal.” Brief for Appellants in No. 78-630, p. 110. We therefore express no opinion on the matter. V The next issue concerns the challenge in the Colville case to the Washington motor vehicle and mobile home, camper and travel trailer taxes. Although not identical, these taxes are quite similar. Each is denominated an excise tax for the “privilege” of using the covered vehicle in the State, each is assessed annually at a certain percentage of fair market value, and each is sought to be imposed upon vehicles owned by the Tribe or its members and used both on and off the reservation.29 29 In the wake of McClanahan v. Arizona State Tax Common and Moe, the State does not claim that it can impose these taxes upon vehicles used wholly within the reservation. Brief for Appellants in No. 78-630, p. Ill, and n. 77. WASHINGTON v. CONFEDERATED TRIBES 163 134 Opinion of the Court Once again, our departure point is Moe. There we held that Montana’s personal property tax could not validly be applied to motor vehicles owned by tribal members who resided on the reservation. 425 U. S., at 480-481. The vehicles Montana attempted to tax were apparently used both on and off the reservation,30 and the tax was assessed annually at a percentage of market value of the vehicles in question. Thus, the only difference between the taxes now before us and the one struck down in Moe is that these are called excise taxes and imposed for the privilege of using the vehicle in the State, while the Montana tax was labeled a personal property tax. The State asserts that this difference mandates a different result. In Moe, it argues, the District Court concluded that the taxable event was “the ownership of a motor vehicle as of January 1 of each year,”31 and that event took place on the reservation. Accordingly, under McClanahan v. Arizona State Tax Common, 411 U. S. 164 (1973), Montana was without authority to impose its tax. In the present case, the State continues, the taxable event is the use within the State of the vehicle in question. Thus, we are told, the McClanahan principle is inapplicable and the tax should be upheld under Mescalero Apache Tribe v. Jones, supra. We do not think Moe and McClanahan can be this easily circumvented. While Washington may well be free to levy a tax on the use outside the reservation of Indian-owned vehicles, it may not under that rubric accomplish what Moe held was prohibited. Had Washington tailored its tax to the amount of actual off-reservation use, or otherwise varied some 30 Moe did not focus upon vehicle use at all. The District Court opinion in that case, however, indicates that some of the vehicles to which Montana sought to apply its tax were used both on and off the reservation. Confederated Salish and Kootenai Tribes v. Montana, 392 F. Supp. 1325, 1328-1329 (Mont. 1975) (three-judge court) (Smith, J., concurring in part and dissenting in part). 31 Id., at 1327, citing the Montana statute, Mont. Rev. Codes Ann. §84-406 (2) (Supp. 1974). 164 OCTOBER TERM, 1979 Opinion of Brennan, J. 447U.S. thing more than mere nomenclature, this might be a different case. But it has not done so, and we decline to treat the case as if it had. VI Finally, we come to the challenge by the Colville, Lummi, and Makah Tribes to the State’s assumption of civil and criminal jurisdiction over them. The District Court found that assumption unlawful as regards the Makah and Lummi Reservations and lawful as regards the Colville Reservation. 446 F. Supp., at 1366-1367. The State challenges the former findings. All parties apparently recognize that this issue is controlled by the intervening decision in the State’s favor in Washington v. Yakima Indian Nation, 439 U. S. 463 (1979). There a pattern of jurisdiction identical to those created on the Makah and Lummi Reservations was upheld, and the holding of the Court of Appeals for the Ninth Circuit on which the District Court in the present case relied for its conclusion that such patterns are unconstitutional was reversed. We therefore uphold the State’s assumption of jurisdiction over the Makah and Lummi Reservations.32 Accordingly, the judgments of the District Court are Reversed in part and affirmed in part. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, concurring in part and dissenting in part. I agree with the Court’s analysis of the jurisdictional questions posed in these cases, as well as with its treatment of the 32 In No. 78-60, Confederated Tribes of the Colville Indian Reservation et al. v. Washington et al., which is pending on appeal, the Colville Tribe appeals from so much of the District Court’s judgment as reflects the holding that Washington’s assumption of total jurisdiction over that Tribe’s reservation was lawful. See 446 F. Supp., at 1366-1367. The Colville Tribe challenges that holding on grounds (1) that Washington could not assume jurisdiction without amending its Constitution and (2) that the assumption of total jurisdiction over only selected reservations violates the WASHINGTON v. CONFEDERATED TRIBES 165 134 Opinion of Brennan, J. Washington motor vehicle, mobile home, camper and travel trailer taxes and its disposition of the assumption-of-jurisdiction issue. Accordingly, I join in their entirety Parts I, II, III, V, and VI of the Court’s opinion. I also agree with Part IV insofar as it holds that the Colville, Makah, and Lummi Tribes have the power to impose their cigarette taxes on nontribal purchasers (Part IV-B (1)). As the Court points out, the power to tax on-reservation transactions that involve a tribe or its members is a “fundamental attribute of sovereignty which the tribes retain unless divested of it by federal law or necessary implication . . . .” Ante, at 152. Recognition of that fundamental attribute, however, leads me to disagree with much of the balance of the Court’s Part IV. In my view, the State of Washington’s cigarette taxing scheme should be invalidated both because it undermines the Tribes’ sovereign authority to regulate and tax the distribution of cigarettes on trust lands and because it conflicts with tribal activities and functions that have been expressly approved by the Federal Government. I I begin with a somewhat general overview. While they are sovereign for some purposes, it is now clear that Indian reservations do not partake of the full territorial sovereignty of States or foreign countries.1 The result has been to blur the Equal Protection Clause. Washington v. Yakima Indian Nation, 439 U. S. 463 (1979), disposes of the first contention, id., at 493, and makes clear that the second must fail if the assumption of jurisdiction is rationally-related to some valid state purpose, id., at 500-502. We find the pattern of jurisdiction in the present case rational: The Colville Tribe consented in 1965 to the State’s assumption of jurisdiction over it, and the State has assumed total jurisdiction only over tribes that have so consented. The presence or absence of tribal consent is a rational basis for distinguishing among reservations, and there is thus no constitutional infirmity. Accordingly, the judgment is in this respect affirmed. 1 The starkest territorial conception of Indian sovereignty was sketched by Mr. Chief Justice Marshall in Worcester v. Georgia, 6 Pet. 515, 166 447 U. S. OCTOBER TERM, 1979 Opinion of Brennan, J. boundary between state and tribal authority. A few guideposts do exist, however. First, in the absence of tribal con-"sent state law does not reach on-reservation conduct involving only Indians. Thus we have held that tribal courts have exclusive jurisdiction over adoption proceedings involving the on-reservation conduct of tribal members, Fisher v. District Court, 424 U. S. 382 (1976); that States cannot apply their income taxes to the receipts derived by reservation Indians from reservation sources, McClanahan v. Arizona State Tax Common, 411 IT. S. 164 (1973); and that States may not levy cigarette taxes on on-reservation sales to reservation Indians or impose personal property taxes on property owned by such Indians, Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 480-481 (1976). Second, there is a significant territorial component to tribal power. Thus state taxes on the off-reservation activities of Indians are permissible, Mescalero Apache Tribe v. Jones, 411 U. S. 145 (1973), and tribal laws will often govern the on-reservation conduct of non-Indians. Williams v. Lee, 358 557-561 (1832). An Indian reservation, he stated, was “a distinct community, occupying its own territory ... in which the laws of Georgia can have no force . . . .” See F. Cohen, Handbook of Federal Indian Law 122 (1942). Williams v. Lee, 358 U. S. 217, 219 (1959), noted that this view had been ‘'modified ... in cases where essential tribal relations were not involved.” Kake Village n. Egan, 369 U. S. 60, 71-75 (1962), noted a shift as well. And McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172 (1973), observed that “the trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction.” Rather, McClanahan concluded, sovereignty is better seen as a “backdrop against which the applicable treaties and federal statutes must be read.” Ibid. In a similar vein, Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 208 (1978), recognized that Indian tribes are “prohibited from exercising both those powers of autonomous States that are expressly terminated by Congress and those powers ‘inconsistent with their status.’ ” (Emphasis and citations omitted.) Still, United States v. Wheeler, 435 U. S. 313, 322-326 (1978), emphasized the sovereign nature of tribal authority over Indians. See also Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973); Antoine v. Washington, 420 U. S. 194, 201-203 (1975). WASHINGTON v. CONFEDERATED TRIBES 167 134 Opinion of Brennan, J. U. S. 217 (1959). See also United States v. Mazurie, 419 U. S. 544, 557-558 (1975).2 Third, where it is necessary to resolve a conflict between state and tribal authority over on-reservation conduct involving Indians and non-Indians, a relatively particularistic look at the interests of State and tribe and the federal policies that govern relations with Indian tribes is appropriate. We have concluded, for example, that a tribe lacks jurisdiction to try a non-Indian for a crime, Oliphant N. Suquamish Indian Tribe, 435 U. S. 191, 208 (1978), but that a State may not resolve a dispute arising out of on-reservation transactions between an Indian purchaser and a non-Indian seller, Williams v. Lee, supra, at 219, or tax the gross receipts of a federally licensed retail trading post that deals on the reservation with reservation Indians, Warren Trading Post Co. v. Arizona State Tax Comm’n, 380 U. S. 685 (1965). And fourth, the preceding results flow from an intricate web of sources including federal treaties and statutes, the broad policies that underlie those federal enactments, and a presumption of sovereignty or autonomy that has roots deep in aboriginal independence. The prevalent mode of analysis is one of pre-emption. It takes as its starting point the exclusive power of the Federal Government to regulate Indian tribes and proceeds to bound state power where necessary to give vitality to the federal concerns at stake. Bryan n. 2 This territorial component is also suggested by recent statutes like the Clean Air Act Amendments of 1977, 91 Stat. 685, 735, which provide that “[l]ands within the exterior boundaries of reservations of federally recognized Indian tribes” may be redesignated for air quality purposes “only by the appropriate Indian governing body.” A similar note is sounded in the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 523. In addition, a geographical or territorial source for Indian authority may be found in the Washington Enabling Act, 25 Stat. 676, § 4, by which the State was required to disclaim “all right and title” to lands “owned or held by any Indian or Indian tribes” and to agree that such lands “shall remain under the absolute jurisdiction and control of the Congress. . . .” 168 447 U. S. OCTOBER TERM, 1979 Opinion of Brennan, J. Itasca County, 426 U. S. 373, 376, n. 2 (1976). Only rarely does the talismanic invocation of constitutional language or rigid conceptions of state and tribal sovereignty shed light on difficult problems. Moe, supra, at 481, n. 17; McClanahan v. Arizona State Tax Comm’n, supra, at 172. For present purposes, two federal concerns seem especially important. One is the strong and oft-cited policy of encouraging tribal self-government. United States v. Wheeler, 435 U. S. 313, 322-326 (1978) ; Fisher v. District Court, supra, at 386-388 ; McClanahan v. Arizona State Tax Comm’n, supra, at 179; Williams v. Lee, supra, at 219-220. And the other is a complementary interest in stimulating Indian economic and commercial development. Both found expression in the Indian Reorganization Act of 1934, 25 U. S. C. § 461 et seq.,3 and are manifest in more recent statutes as well.4 They are, 3 See Mescalero Apache Tribe v. Jones, 411 U. S., at 151-152. There we noted that the “intent and purpose of the Reorganization Act was ‘to rehabilitate the Indian’s economic life and to give him a chance to develop the initiative destroyed by a century of oppression and paternalism.’ ” Id., at 152, quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). The Reorganization Act itself contains a number of provisions that demonstrate Congress’ concern with encouraging Indian economic development. See 25 U. S. C. §§ 469, 470, and 477. See also Santa Clara Pueblo v. Martinez, 436 U. S. 49, 59-60 (1978). 4 See the Indian Self-Determination and Education Assistance Act of 1975, 25 U. S. C. § 450 et seq., and the Indian Financing Act of 1974, 25 U. S. C. § 1451 et seq. Section 2 of the latter statute states as follows: “It is hereby declared to be the policy of Congress to provide capital ... to help develop and utilize Indian resources, both physical and human, to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources and where they will enjoy a standard of living from their own productive efforts comparable to that enjoyed by non-Indians in neighboring communities.” 88 Stat. 77. Adherence to the policies underlying the Reorganization Act has not been without some interruption. The Termination Acts of the 1950’s, see,' e. g., 25 U. S. C. §§ 564, 721—728, 741—760, and 891-901 (1958 ed.) seem to have signalled a congressional urge to pursue an assimilationist policy somewhat WASHINGTON v. CONFEDERATED TRIBES 169 134 Opinion of Brennan, J. I believe, of central importance in analyzing any conflict of state and tribal law. II With this as background, I turn to the particular problem at hand. Like the Court, I begin with Moe, supra, which considered a state cigarette tax similar to the one at issue here. There we started with the observation that the tax itself was “concededly lawful”—it neither fell upon tribal members nor impinged on tribal functions. 425 U. S., at 483. The key problem, as we saw it, was one of enforcement: Could the State of Montana require the Indian seller to collect a tax validly imposed on the non-Indian purchaser? We determined that the burden of collection was minimal and noted that it would in no sense “frustrat[e] tribal self-government.” 5 Accordingly, we held that it could be imposed to prevent wholesale tax avoidance by non-Indian purchasers. As the Court points out, Moe does suggest a number of limits upon Indian sovereignty in general and the federal interests in tribal self-government and economic growth in particular: It permits state law to come on the reservation in the form of a tax and collection requirement, and it upholds the imposition of a tax that will undoubtedly hurt Indian retailing activities by depriving tribal smokeshops of a competitive edge. But while in Moe the cigarette business was largely a private operation, the Tribes involved in these cases have adopted comprehensive ordinances regulating and taxing the distribution of cigarettes by on-reservation shops. Phrased differently, these Tribes are acting in federally sanctioned and akin to the approach that was dominant prior to the Reorganization Act. See generally Menominee Tribe v. United States, 391 U. S. 404 (1968). But present policy “appears to be returning to a focus upon strengthening tribal self-government.” Bryan v. Itasca County, 426 U. S. 373, 389, n. 14 (1976). 5 Moe, 425 U. S., at 483, citing Williams v. Lee, 358 U. S., at 219-220. 170 447 U.S. OCTOBER TERM, 1979 Opinion of Brennan, J. encouraged ways—they are raising governmental revenues, establishing commercial enterprises, and struggling to escape from “ ‘a century of oppression and paternalism.’ ” Mescalero Apache Tribe v. Jones, 411 U. 8., at 152, quoting H. R. Rep. No. 1804, 73d Cong., 2d Sess., 6 (1934). As I see it, that difference has three important consequences. First, it means that in this case the sharp drop in cigarette sales that would result from imposition of the state tax will reduce revenues not only of individual Indian retailers, but also of the Tribes themselves as governmental units. Second, it means that a decision permitting application of the state tax would place Indian goods at an actual competitive disadvantage as compared to non-Indian ones because the former would have to bear two tax burdens while the latter bore but one. And third, it leads to an actual conflict of jurisdiction and sovereignty because imposition of the Washington tax would inject state law into an on-reservation transaction which the Indians have chosen to subject to their own laws. The Court in effect concludes that these consequences are insignificant. The first, it suggests, is undercut by Moe, which made clear that Indian retailers have no absolute right to market their tax-exempt status. The second is too speculative—“the Tribes have failed to demonstrate that business at the smokeshops would be significantly reduced by a state tax without a credit as compared to a state tax with a credit.” Ante, at 157. And the third “need not detain us” because “[t]here is no direct conflict between the state and tribal schemes. . . .” Ante, at 158. I do not agree. Whatever their individual force, I think that in combination these three consequences bring the Washington taxes into sharp conflict with important federal policies. Perhaps most striking is the fact that a rule permitting imposition of the state taxes would have the curious effect of making the federal concerns with tribal self-government and commercial development inconsistent with one another. In essence, tribes are put to an unsatisfactory choice. They are WASHINGTON v. CONFEDERATED TRIBES 171 134 Opinion of Brennan, J. free to tax sales to non-Indians, but doing so will place a burden upon such sales which may well make it profitable for non-Indian buyers who are located on the reservation to journey to surrounding communities to purchase cigarettes.6 Or they can decide to remain competitive by not taxing such sales, and in the process forgo revenues urgently needed to fill governmental coffers. Commercial growth, in short, can be had only at the expense of tax dollars. And having to make that choice seriously intrudes on the Indians’ right “to make their own laws and be ruled by them,” Williams v. Lee, 358 U. S., at 219-220.7 6 This problem was entirely absent in Moe. Nothing in the result there disfavored the purchase of Indian goods. Rather, imposition of the state tax on non-Indians simply created a situation in which persons were encouraged to buy cigarettes on the basis of factors other than tax benefits and avoidance—factors like geographical location and convenience. In the present situation, the state tax actually tips the balance against the Indians. 7 It might be argued that the choice I describe is entirely commonplace—that in making its taxing decisions every governmental unit is required to balance its revenue needs against the economic impact of the taxes it considers. In one sense, this is quite true: If one State has a very low sales tax, a neighboring State’s ability to impose a higher one may as a practical matter be impaired. In some circumstances, it can cope with this situation by imposing a complementary tax on the in-state use of goods purchased elsewhere. National Geographic Society v. California Bd. of Equalization, 430 U. S. 551, 555 (1977). And in others there will exist no efficacious way of collecting such a tax. Whatever the case, however, the two States will face each other across their common border with equal arsenals. I think the present situation is readily distinguishable for the simple reason that Indian reservations are not States. This has two sorts of consequences. First, it means the equality noted in the preceding paragraph is absent. Moe holds that sellers on an Indian reservation may be required to collect state taxes on sales to non-Indians that occur entirely on the reservation. Yet it is highly unlikely that the Tribes in these cases could require sellers elsewhere in Washington to collect tribal taxes. And second, Indian Tribes, while less autonomous than States in important respects, are the special beneficiaries of certain federal concerns and policies. As a result, 172 OCTOBER TERM, 1979 Opinion of Brennan, J. 447U.S. The Court provides no satisfactory explanation of why the State is free to put the Tribes to such a choice. Rather, it characterizes the tribal business as an effort to market a tax exemption and proceeds to label that effort illegitimate and beyond the reasonable bounds of any federally protected tribal right. Yet that line of argument could at most justify a state tax which through some sort of credit mechanism ensures that the location of cigarette purchases is independent of state and tribal taxing schemes—it does not support a rule that the State may tax all on-reservation sales to non-Indians regardless of tribal taxes.8 Nor is the Court’s argument saved by the contention that the Tribes have failed to prove that the combination of these particular tribal and state taxes will cause Indian smokeshops to lose volume that would otherwise be theirs. The fact is that the Court today permits the State to enact a tax without risking any attendant loss of business for its retailers while the Tribes must court economic harms when they enact taxes of their own. That result erodes the Tribes’ sovereign authority and stands the special federal solicitude for Indian commerce and governmental autonomy on its head. The conflict with federal law is particularly evident on the present facts because the Secretary of the Interior—acting pursuant to lawful regulations—has approved the tribal taxing and regulatory schemes at issue here. That approval, and the federal policies which underlie it, both enhances tribal authority and ousts inconsistent state law. Cf. Fisher v. the tradeoffs and frictions that may be inevitable in the state-state context demand special scrutiny in the state-reservation context. Tribes may lack the tools needed to protect themselves, and protecting them is an important federal concern. Cf. Morton v. Mancavi, 417 U. S. 535, 551-555 (1974). 8 See Mescalero Apache Tribe v. Jones, 411 U. S., at 152 (quoting legislative history to the effect that Indians should be able to “enter the white world on a footing of equal competition”). WASHINGTON v. CONFEDERATED TRIBES 173 134 Opinion of Brennan, J. District Court, 424 U. S. 382 (1976); United States v. Mazurie, 419 U. S. 544 (1975). The Court draws support for its result from the suggestion that a decision invalidating these taxes would give the Tribes carte blanche to establish vast tax-exempt shopping centers dealing in every imaginable good. I think these fears are substantially overdrawn. Moe made clear that Indians do not have an absolute entitlement to achieve some particular sales volume by passing their tax-exempt status to non-Indian customers, and I do not question that conclusion today. I would simply hold that the State may not impose a tax that forces the Tribes to choose between federally sanctioned goals and places their goods at an actual competitive disadvantage. Nothing in such a holding would emasculate state taxing authority or bring the specter of enormous tribal tax havens closer to reality. On the contrary, I am confident that the State could devise a taxing scheme without the flaws which mar the present one. In sum, I would hold these taxes impermissible and save for another day the question of what sorts of less intrusive measures a State may take to protect its tax base and avoid the parade of horribles alluded to by the Court. Ill Because I would hold the state cigarette taxes invalid, I would not reach the bulk of the recordkeeping and enforcement issues addressed by the Court in Parts IV-C and IV-E of its opinion. Indeed, since the District Court failed to discuss most of those issues, I am startled that the majority proceeds to address and decide them rather than remanding for the views of that court. In my judgment, only one relatively narrow recordkeeping issue ought be addressed at this time, and that concerns the District Court’s holding that the State could not require the Tribes to keep records of exempt sales to facilitate collection of valid taxes on nonexempt sales. 446 F. Supp. 1339, 1358-1359, 1373. The District Court 174 OCTOBER TERM, 1979 Opinion of Stewart, J. 447U.S. found the record in this case inadequate to show any need for such documentation. The Court, however, sees this as no obstacle to upholding the requirement. I disagree. The State has no direct power over exempt sales, and I see no reason why it should be permitted to require Indians to keep records of such sales absent some showing of necessity or utility. In consequence, I would either affirm the District Court in this regard or remand so that the record may be supplemented. For the foregoing reason, I dissent as to Parts IV-B (2), IV-C, and IV-E. Mr. Justice Stewart, concurring in part and dissenting in part. I join all but Part IV-B (2) and Part V of the Court’s opinion. My disagreement with Part V is for the reasons stated in Part III of Mr. Justice Rehnquist’s separate opinion. My disagreement with Part IV-B (2) stems from the belief that the State of Washington cannot impose the full combined measure of its cigarette and sales taxes on purchases by nontribal members of cigarettes from tobacco outlets on the Colville, Lummi, and Makah Reservations. In Moe v. Salish & Kootenai Tribes, 425 U. S. 463, 481-483, the Court held that a State has the power to tax sales of cigarettes to non-Indians by Indian tobacco outlets, despite the exemptions from state taxes possessed by an Indian tribe and its members themselves. The State may exert this power, according to Moe, even if it thereby deprives the tribe or the enterprises the tribe operates of substantial revenues. Cf., Thomas v. Gay, 169 U. S. 264. The cigarette and sales tax aspects of this case would, therefore, be wholly controlled by the Moe decision, but for the fact that all of the appellee Tribes levy their own cigarette excise taxes on the on-reservation distribution of cigarettes to non-Indians. It seems clear to me that the appellee Tribes enjoy a power at least equal to that of the State to tax the on-reserva- WASHINGTON v. CONFEDERATED TRIBES 175 134 Opinion of Stewart, J. tion sales of cigarettes to nontribal members. Those sales are entered into and consummated in places and circumstances subject to the Tribes’ protection and control. Furthermore, the taxation of such transactions effectuates recognized federal policies by providing funds for the maintenance and operation of tribal self-government. See generally Indian Reorganization Act of 1934, 25 U. S. C. § 461 et seq; McClanahan v. Arizona State Tax Common, 411 U. S. 164, 179-181; Williams n. Lee, 358 U. S. 217. Consequently, when a State and an Indian tribe tax in a functionally identical manner the same on-reservation sales to nontribal members, it is my view that congressional policy conjoined with the Indian Commerce Clause requires the State to credit against its own tax the amount of the tribe’s tax. This solution fully effectuates the State’s goal of assuring that its citizens who are not tribal members do not cash in on the exemption from state taxation that the tribe and its members enjoy. On the other hand, it permits the tribe to share with the State in the tax revenues from cigarette sales, without at the same time placing the tribe’s federally encouraged enterprises at a competitive disadvantage compared to similarly situated off-reservation businesses. Turning to the case at hand, the approach I have outlined leads me to one conclusion with respect to sales on the Colville, Lummi, and Makah Reservations, and another with respect to sales on the Yakima Reservation. The Colville, Lummi, and Makah Tribes each collect from the operators of on-reser-vation tobacco outlets a tax of 40 to 50 cents per carton. Although in each case the tax is imposed at the time the cigarettes are distributed by the Tribe to the retail outlets, the pertinent taxing ordinance requires that the tax be passed on to the ultimate consumer. Thus, the actual event taxed, as with the State’s cigarette excise tax and general sales tax, is the sale to the nontribal purchaser. Since the Tribe’s cigarette tax operates in functionally the same way as do the State’s cigarette excise and general sales taxes, I would hold that the 176 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. State must credit the tribal tax against the combination of its cigarette excise tax and general sales tax. The tax imposed by the Yakima Tribe operates differently. The Tribe purchases cigarettes from out-of-state dealers and sells them to its licensed retailers. In connection with this transaction, the Tribe receives from its licensed retailers a tax of 22.5 cents per cigarette carton. Unlike the situation with the Colville, Lummi, and Makah taxes, however, there is no requirement that the tax then be added to the ultimate retail selling price. As a consequence, the event taxed is not the sale to the ultimate cigarette purchaser, and for this reason I believe that the State has no obligation to credit the Indian tax against the combination of its cigarette excise and general sales taxes. Accordingly, I would vacate the judgment of the District Court insofar as it invalidates in toto the imposition of the State’s cigarette excise and general sales taxes upon cigarette sales on the Colville, Lummi, and Makah Reservations, and remand the case for further proceedings. I would reverse the judgment of the District Court insofar as it bars the imposition of the State’s taxes upon sales of cigarettes on the Yakima Reservation. Mr. Justice Rehnquist, concurring in part, concurring in the result in part, and dissenting in part. Since early in the last century, this Court has been struggling to develop a coherent doctrine by which to measure with some predictability the scope of Indian immunity from state taxation.1 In recent years, it appeared such a doctrine was well on its way to being established. I write separately to underscore what I think the contours of that doctrine are because I am convinced that a well-defined body of principles is essential in order to end the need for case-by-case litigation which has plagued this area of the law for a number of years. 1 Much of that developmental history is recounted in McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 168-172 (1973). WASHINGTON v. CONFEDERATED TRIBES 177 134 Opinion of Rehnquist, J. That doctrine, I had thought, was at bottom a pre-emption analysis based on the principle that Indian immunities are dependent upon congressional intent, McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164 (1973); Mescalero Apache Tribe n. Jones, 411 U. S. 145 (1973); Moe v. Salish & Kootenai Tribes, 425 U. S 463 (1976); Bryan v. Itasca County, 426 U. S. 373 (1976), at least absent discriminatory state action prohibited by the Indian Commerce Clause. I see no need for this Court to balance the state and tribal interests in enacting particular forms of taxation in order to determine their validity. Ante, at 156—157. Absent discrimination, the question is only one of congressional intent. Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress. I concur in the Court’s conclusion, however, that the cigarette tax is valid because Congress has not pre-empted state authority to impose the tax. I The principles necessary for the resolution of this case are readily derived from our opinions in McClanahan and Mes-calero. McClanahan confirmed the trend which had been developing in recent decades towards a reliance on a federal pre-emption analysis. Congress has for many years legislated extensively in the field of Indian affairs. McClanahan therefore recognized that the answer to most claims of Indian immunity from state power could be resolved by looking “to the applicable treaties and statutes which define the limits of state power.” 411 U. S., at 172.2 The Court in McClanahan did not resolve to what extent residual Indian sovereignty in the total absence of federal treaty obligations or legislation still would be recognized. The Court found that “[t]he question is generally of little more than theoretical importance, . . . since in almost all cases federal treaties and statutes define the boundaries of federal and 178 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447 U. S. Despite the expanse of congressional statutes regulating Indian affairs over the years, McClanahan foresaw that congressional intent would not always be readily apparent. As a guide to ascertaining that intent in such cases, the Court invoked the tradition of Indian sovereignty as reflected by the earlier decisions of this Court: “The Indian sovereignty doctrine is relevant, . . . not because it provides a definitive resolution of the issues in this suit, but because it provides a backdrop against which the applicable treaties and federal statutes must be read.” Ibid. McClanahan readily illustrates application of the analysis. The question presented in that case was whether the State of Arizona had jurisdiction to impose a tax on a reservation Indian’s income derived solely from reservation sources. The Court first reviewed the “tradition of sovereignty” relevant to this “narrow question.” Id., at 168.3 Historically this Court had found Indians to be exempt from taxes on Indian ownership and activity confined to the reservation and not involving non-Indians.4 The Kansas Indians, 5 Wall. 737 (1867). With this tradition placing reservation-ownership beyond the jurisdiction of the States, the Court undertook a review of the relevant treaties and statutes to determine state jurisdiction.” 411 U. S., at 172, n. 8. I am convinced that this “residue” of sovereignty is no greater than the freedom from nondis-criminatory taxation held sufficient to protect sovereignty in other areas of constitutionally derived immunities. See n. 9, infra. Our opinions have recognized that Indian sovereignty is dependent upon congressional preservation, see United States v. Wheeler, 435 U. S. 313, 323 (1978), and I decline to use our adjudicatory powers to assume a role properly reserved to Congress. 3 The Court emphasized that its review of Indian sovereignty was relevant only to this narrow category, i. e., the reservation-derived income of a reservation Indian, and that the Court was expressly not reviewing any situation in which the State attempted to exert its sovereignty over nonIndians undertaking activity on Indian reservations. 411 U. S., at 168. 41 use “Indians” throughout this discussion of sovereign immunity to refer to members of a reservation tribe. See infra, at 186-187. WASHINGTON v. CONFEDERATED TRIBES 179 134 Opinion of Rehnquist, J. whether this tradition of immunity had been altered by Congress.5 Although no legislation directly provided that Indians were to be immune from state taxation under these circumstances, the enactments reviewed were certainly suggestive of that interpretation. See Arizona Enabling Act, § 20, 36 Stat. 569; the Buck Act, 4 U. S. C. § 105. The Court therefore declined to infer a congressional departure from the prior tradition of Indian immunity absent an express provision otherwise. Thus, as this Court’s opinion in Bryan v. Itasca County, supra, later characterized it, McClanahan established a rule against finding that “ambiguous statutes abolish by implication Indian tax immunities.” 426 U. S., at 392. The companion case to McClanahan, Mescalero Apache Tribe v. Jones, supra, established the corollary principle: When tradition did not recognize a sovereign immunity in favor of the Indians, this Court would recognize one only if Congress expressly conferred one. In Mescalero, the State of New Mexico asserted the right to impose a tax on the gross receipts of a ski resort owned and operated by an Indian tribe. The resort was located on federal land adjacent to the Indian reservation, was developed under the auspices of the Indian Reorganization Act of 1934, 25 U. S. C. § 461 et seq., and was funded with federal money. The Court in Mescalero applied precisely the analysis McClanahan adopted. First, the Court reviewed the tradition of sovereignty and found that no immunity for off-reservation activities had traditionally been recognized. See Shaw n. Gibson-Zahniser Oil Corp., 276 U. S. 575 (1928); Ward v. Race Horse, 163 U. S. 504 (1896). With that tradition as its backdrop, the Court reviewed the particular statutes relevant to the question of whether or not Congress intended 5 The Court has explicitly held that attributes of Indian sovereignty are subject to complete defeasance by Congress. Umted States v. Wheeler, supra, at 323. 180 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. to immunize the Indian enterprise from the state gross receipts tax. The principal Act relevant to the inquiry was the Indian Reorganization Act, since it was the Act under which the tribal enterprise was being conducted. Section 5 of that Act, 25 IT. S. C. § 465, provides that the lands acquired under authority of the Act are exempt from state and local taxation. The Court nevertheless refused to read § 5 as broadly conferring an immunity from income as well as property taxes. The Court invoked the well-established rule that“ ‘tax exemptions are not granted by implication/ ” that such exemptions may not rest on " ‘dubious inferences/ ” but that they must be provided in “‘plain words.’” 411 U. S., at 156, quoting Oklahoma Tax Common v. United States, 319 U. S. 598, 606-607 (1943). Despite the clear federal purpose of promoting this tribal economic enterprise, the Court found that no judicial immunities could appropriately be implied.6 The subsequent Indian tax immunity cases have been unanimously resolved through application of the corollary principles of construction established in McClanahan and Mescalero. In Moe n. Salish & Kootenai Tribes, the Court invalidated attempted state taxation of Indian conduct and property confined to the reservation. The Court found, however, that imposition of a state tax on its non-Indian residents’ purchases of cigarettes from Indian sellers on a reservation could not be found to “ru[n] afoul of any congressional enactment dealing with the affairs of reservation Indians.” 425 U. S., at 483. In Bryan v. Itasca County, supra, the question was whether the congressional grant of civil jurisdiction to the States conferred by 28 U. S. C. § 1360 was a general grant of power to tax reservation Indians. The tradition, of course, was otherwise and the statute did not specifically state that 6 In addition, the Court expressed the opinion that congressional policy was not at odds with state taxation since Congress intended that the Indians be prepared to “enter the white world on a footing of equal competition.” 411 U. S., at 157. WASHINGTON v. CONFEDERATED TRIBES 181 134 Opinion of Rehnquist, J. a repeal of those immunities was intended. Consistent with the principles enunciated in McClanahan, the Court reasoned that “[t]his omission has significance in the application of the canons of construction applicable to statutes affecting Indian immunities, as some mention would normally be expected if such a sweeping change in the status of tribal government and reservation Indians had been contemplated by Congress.” 426 U. S., at 381. Adherence to these principles of construction maximizes the ability of States and tribes to determine the scope of their respective authority without resort to adjudication, and maximizes judicial deference to the legislative forum. II Application of these principles readily resolves the validity of the cigarette tax levied by the State. The tax represents a permissible nondiscriminatory exercise of state sovereign authority which has not been pre-empted by Congress. These principles also dispose of the claim of nontribal Indians to an immunity. A At issue here is not only Indian sovereignty, but necessarily state sovereignty as well. As a general rule, of course, States are given wide latitude in the exercise of their sovereign powers to tax. In Michelin Tire Corp. v. Wages, 423 U. S. 276, 293 (1976), this Court cautioned against invalidating any state taxation absent “the clearest . . . mandate.” Here the State attempts to tax its citizens’ use of cigarettes purchased in a territory subject to the control of another sovereign.7 As a general matter, we have repeatedly held that such an exercise of state taxing power is permissible. Here there is no ques 7 Indian reservations are not of course subject to the exclusive control of the tribe. The Federal Government and the States also have jurisdiction for some purposes. 182 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447 U. S. tion that the State, by taxing its own non-Indian residents, has “exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred,” and “[t]he fact that a tax is contingent upon events brought to pass without a state does not destroy the nexus between such a tax and transactions within a state for which the tax is an exaction.” Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444-445 (1940). Use tax schemes applicable to purchases in other States, precisely comparable to that in issue here, have long been upheld as a permissible exercise of state taxing power. Hennef ord v. Silas Mason Co., 300 U. S. 577 (1937); National Geographic Society n. California Board of Equalization, 430 U. S. 551 (1977). Of course in order to collect the tax from the merchant located beyond the territorial jurisdiction of the taxing State, there must also be a relationship between the State and the burdened merchant sufficient to satisfy principles of due process. National Geographic Society, supra. After Moe, however, the retailers on the tribal reservation cannot gain invalidation of the tax on this basis. 425 U. S., at 482-483. Thus the State has exercised its taxing authority consistent with its sovereign powers and constitutional due process. An otherwise legitimate exercise of state taxing authority will be illegitimate, of course, if it is sought to be applied in contravention of a constitutional or federal statutory immunity. Indian sovereign immunity from nondiscriminatory taxation is a question of congressional pre-emption. As outlined, we must first identify the backdrop of sovereignty in order to interpret congressional intent in the field. As McClanahan implicitly recognized through its citation of authorities, the traditional cases clearly did not find that Indian sovereign immunity was contravened by subjecting tribes to the burdens inherent in state taxation of the reservation activities of non-Indians. Surplus Trading Co. v. Cook, 281 U. S. 647 (1930); Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); Thomas N. Gay, 169 U. S. 264 (1898). WASHINGTON v. CONFEDERATED TRIBES 183 134 Opinion of Rehnquist, J. Thomas v. Gay perhaps best illustrates the “backdrop” relevant to the State’s cigarette tax in issue. In Thomas, the State attempted to tax the cattle grazing on reservation lands leased, pursuant to congressional authorization, by Indians to non-Indians. The Court found that the Indians’ sovereign immunity did not operate to curtail state authority to impose this tax. The case is particularly significant because of the arguments which it expressly rejects. The tribe complained that the tax had to be invalidated because the revenues which it received as lessor would be directly reduced as a result of the state tax since lessees would be unwilling to pay the same price for tax-exempt grazing lands as for taxable grazing lands. The Court stated that it is urged that “the money contracted to be paid for the privilege of grazing is paid to the Indians as a tribe, and is used and expended by them for their own purposes, and that if, by reason of this taxation, the conditions existing at the time the leases were executed were changed, or could be changed by the legislature of Oklahoma at its pleasure, the value of the lands for such purposes would fluctuate or be destroyed altogether according to such conditions.” Id., at 273. Thomas n. Gay is a part of the “backdrop” which supports Washington’s power to impose the tax in issue.8 The ap 8 It should be noted that the principles in Thomas n. Gay were not always those used to determine Indian immunities. A series of decisions, as noted in McClanahan, treated Indian immunities as derivative from the Federal Government’s immunity from state taxation. During the reign of the treatment of Indian reservations as federal instrumentalities for purposes of state taxation, this Court did prohibit States from taxing the net income derived by the lessees of Indian lands. Gillespie n. Oklahoma, 257 U. S. 501 (1922). See also Choctaw, 0. & G. R. Co. v. Harrison, 235 U. S. 292 (1914); Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U. S. 522 (1916). While Thomas v. Gay was never explicitly overruled, these decisions were clearly inconsistent. Nevertheless, it was the line of 184 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. pellee Tribes maintain that the tax in issue is impermissible, though permissible in Moe, because here the Tribes are raising governmental revenues and establishing commercial enterprises. The effect of the state tax then would be to reduce the tribe’s governmental revenues and force the tribe to choose between losing those revenues by forgoing its tax or subjecting reservation retailers to a competitive disadvantage compared to those retailers outside the reservation not subject to the tribal tax. These may be the facts, but they are facts which Thomas v. Gay held to be irrelevant to the recognition of a sovereign tribal immunity. In Thomas, the tribe’s involvement was far more direct than that in issue here since it was a tribal leasing enterprise. There, the State’s exercise of jurisdiction clearly required the tribe, as lessor, to forgo some portion of rent which could have been charged, and used the same as tax revenues, had the State not asserted its taxing authority. The tribe could recover the full rent (part of which may readily be considered the equivalent of a tax and another part perhaps proprietary profit) only at the risk of discouraging the economic enterprise. It is apparent therefore that the backdrop relevant to this action is one of no sovereign immunity.9 analysis employed in Gillespie that was later overruled in Helvering n. Mountain Producers Corp., 303 U. S. 376 (1938). Thomas v. Gay stands as the traditional analysis of Indian sovereign immunity held to be relevant in McClanahan. 9 This conclusion derives support from not only Thomas v. Gay but also analogous applications of sovereign tax immunities. When two sovereigns have legitimate authority to tax the same transaction, exercise of that authority by one sovereign does not oust the jurisdiction of the other. If it were otherwise, we would not be obligated to pay federal as well as state taxes on our income or gasoline purchases. Economic burdens on the competing sovereign also do not alter the concurrent nature of the taxing authority. Decisions of this Court unequivocally recognize that a state tax comparable to that in issue, imposed on its residents’ transactions in another State, or on a federal enclave, will not be barred by force of the respective immunities of that State or the Federal Government. In WASHINGTON v. CONFEDERATED TRIBES 185 134 Opinion of Rehnquist, J. Congress could of course countermand this “tradition” of no immunity. But it has not done so. Under Mescalero, it is dispositive of this case that no express immunity has been granted by Congress since the tradition of sovereignty counsels against the immunity. Even going beyond the Mescalero rule against implying an immunity from taxation, I agree with the Court that a review of the statutes does not suggest, even remotely, that Congress intended either by its laws or the policies underlying them to prevent the States from taxing these transactions.10 In all areas of tax immunity, this Court has staunchly refused to consider the permissibility of a tax by Henneford v. Silas Mason Co., 300 U. S. 577 (1937), this Court upheld a state tax on one of its resident’s use of goods purchased in another State without regard to the fact that the other State’s competitive ability to tax the same transaction was obviously reduced. The Court observed that such a tax was permissible even if no credit for the other state tax were allowed. Id., at 581. See also National Geographic Society v. California Board of Equalization, 430 U. S. 551 (1977). Even the sovereign immunity of the Federal Government would not prevent the effects of a tax comparable to those in issue. In United States v. County of Fresno, 429 U. S. 452 (1977), the State sought to impose a possessory use tax on federal employees occupying federal housing located in federal enclaves within the State of California. This Court upheld the tax even though it accepted the Federal Government’s argument that in order to remain competitive as an employer or landlord, it would have to reimburse the employees for the payment of the added cost. Id., at 464, and n. 12. See also United States v. Detroit, 355 U. S. 466, 472 (1958); Alabama n. King & Boozer, 314 U. S. 1, 12 (1941). Thus the State, through its exercise of taxing authority, can effectively require the Federal Government to forgo revenues which would otherwise be available to it in order to remain competitive as an enterprise. 10 The total absence of any suggestion that Congress intended to confer the immunity sought in this action should not be surprising. As this Court has found, other statutes are premised on congressional “recognition of the imperative need of a State to administer its own fiscal operations,” free from federal interference. Tully n. Griffin, Inc., 429 U. S. 68, 73 (1976). In Tully, this congressional policy was not found to be diminished even though the State sought to assert its taxing authority over nonresidents. 186 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. reference to the economic burdens which it imposes if those burdens are nondiscriminatory and satisfy due process. See United States v. County of Fresno, 429 U. S. 452 (1977) (state taxation of the Federal Government); New York v. United States, 326 U. S. 572 (1946) (federal taxation of the state government); Michelin Tire Corp. v. Wages, 423 U. S. 276 (1976) (state taxation of imports and exports). If Indians are to function as quasi co-sovereigns with the States, they like the States, must adjust to the economic realities of that status as every other sovereign competing for tax revenues, absent express intervention by Congress.11 B Relying on the same pre-emption analysis, I also concur in the Court’s conclusion that Indians not members of the governing tribe are not immune from taxation. McClanahan/ Mescalero are once again dispositive. As McClanahan explained, the doctrine of sovereign immunity traditionally 11 These considerations, determinative in other areas of tax immunity law, are equally appropriate when one of the taxing jurisdictions is an Indian tribe. While Indian tribes are not States, the tribes are also not helpless hostages of the State absent judicial intervention. Two substantial sources of protection are available to them. First, the Indians could not be subjected to the burdens of discriminatory taxation, e. g., a state tax on only cigarette purchases on a reservation with no corresponding off-reservation tax. The prohibition of discriminatory taxation has been recognized by this Court as a substantial safeguard against the potential for any abusive taxation since only those taxes which the general population are willing to withstand can be imposed. See County of Fresno, supra, at 463, n. 11; Alabama v. King & Boozer, supra (federal immunity); Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977) (state taxation of interstate commerce). Second, Indian tribes are always subject to protection by Congress. This source of protection is more than adequate to preclude any unwarranted interference with tribal self-government. Congress, and not the judiciary, is the forum charged with the responsibility of extending the necessary level of protection beyond that inherent in prohibiting nondiscriminatory taxation. WASHINGTON v. CONFEDERATED TRIBES 187 134 Opinion of Rehnquist, J. recognized by this Court derived from the sovereign relationship between a tribe and its members, and a recognition that state jurisdiction should not be asserted in a manner which “frustrates tribal self-government.” 411 U. 8., at 170. See Williams v. Lee, 358 U. S. 217, 219-220 (1959); Moe, 425 U. 8., at 483. Immunities which have formed the back-drop for this Court’s pre-emption analysis have been those derived from these precepts. This form of immunity, and the principles which underlie it, are simply inapplicable to the recognition of a tax immunity for an individual who resides on a reservation, but is not a member of the tribe. The holding in Moe that non-Indians, even those resident on a reservation, could be subject to cigarette taxes for on-reservation purchases, was a reflection of this principle. The fact that the nonmember resident happens to be an Indian by race provides no basis for distinction. The traditional immunity is not based on race, but accouterments of self-government in which a nonmember does not share. Congress of course has gone beyond protection of merely Indian self-government, extending its regulatory authority to Indians not residing on the reservation of their own tribe, or, in fact, not residing on any reservation. See 25 U. S. C. § 13 (1970 ed.), as construed in Morton v. Ruiz, 415 U. S. 199 (1974). See also the definition of “Indian” in the Indian Reorganization Act, 25 U. S. C. § 479. Congress, however, has certainly provided no express immunity from the type of taxation in issue for Indians not members of the tribe, and under the Mescalero principles of construction, the backdrop of sovereignty makes it clear that it is not this Court’s province to imply such an immunity. These Indians residing on the reservation are citizens of the State, just the same as their non-Indian neighbors, and I am unwilling to conclude that their Indian status entitles them to an implied immunity from taxes which their non-Indian neighbors are required to pay. 188 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. Ill I cannot concur in the Court’s disposition of the challenge to the state vehicle excise tax. Wash. Rev. Code, chs. 82.44 and 82.50 (1976 and Supp. 1977). The lower court did not conduct a very extensive inquiry into the mechanics or state interpretation of this excise taxing scheme, believing that the tax was clearly invalid under our prior decision in Moe. In Moe, this Court refused to uphold a State’s authority to impose a property tax on motor vehicles owned by tribal members residing on the reservation. The lower court here found that Moe was controlling because in both cases the vehicles which the State seeks to tax are used both on and off the reservation, and the tax is assessed annually at a percentage of the market value of the vehicle. Thus the lower court, and this Court, have concluded that the only difference between the taxes is one of label, a difference insufficient to warrant a difference in outcome. Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977). The Court therefore looked no further to the operation of the taxing scheme in question. I do not find the issue clearly disposed of by Moe without a dispositive construction of the actual operation of this state taxing scheme. There is of course no question that this Court has discarded the controlling significance of the label a State attaches to its taxes. A tax instead must be judged by its “practical operation.” Detroit v. Murray Corp., 355 U. S. 489 (1958). But only if the practical operation of this excise taxing scheme is the same as the property taxing scheme addressed in Moe would the tax be invalid on the basis of that decision. In Moe, the tax was assessed on the basis of ownership, and, therefore, an Indian was required to pay the tax regardless of whether the vehicle was ever used off the reservation. If the state taxing scheme in question here, however, exacts a tax only in the event that the vehicle is used off the reservation, then the practical operation of WASHINGTON v. CONFEDERATED TRIBES 189 134 Opinion of Rehnquist, J. the taxes would be totally different. In Moe, the Indian purchaser could not avoid assessment of the tax once the vehicle was purchased. It is possible, however, that under an excise taxing scheme no tax would be assessed if the vehicle were used only on the reservation. What is dispositive for me then is whether Washington has structured or will construe its overall tax and exemption scheme so as to avoid exaction of the tax in the event the vehicle is never used off the reservation. No decision of this Court would preclude the State from taxing Indians for the use of off-reservation highways. The lower court did not appreciate the significance of this distinction and accordingly did not focus on the manner in which the state taxing scheme would be applied to Indians limiting their vehicle use to the reservation. Judge Kilkenny, in a dissenting opinion, found the record inadequate to resolve the question of validity. I agree with Judge Kilkenny that federal courts cannot invalidate state taxes without a thorough review of state law and precedents necessary to determine whether the scheme in fact contravenes federal law. It may well be that the excise tax is applicable without exception to even those Indians using their vehicles exclusively on the reservation, but I would remand the question to the lower court to clarify that this is the controlling question so that it might examine the state taxing scheme under a corrected view of what federal law requires. Cf. Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437 (1952); Zucchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 578-579 (1977). Assuming a construction which excludes reservation use, arguendo, I do not find it significant that Washington has not tailored this tax to the “amount of actual off-reservation use,” in which case the Court suggests this tax might be permissible. A non-Indian resident of the State of Washington pays the same tax on his use of the public highways whether he drives his car once a year or every day. We have certainly never held that a State is under an obligation to apportion 190 OCTOBER TERM, 1979 Opinion of Rehnquist, J. 447U.S. its use taxes in such a way that reflects actual use. I am aware of no principle for making a different rule to cover the case of Indians using the public highways. If they choose to avoid the use tax, they need only limit their driving to reservation boundaries. But once they venture onto highways off the reservation, nothing in the United States Constitution, or in the federal statutes, prevents them from being subject to use taxes in common with other state residents. I would therefore reverse the judgment of the District Court on the issue of the permissibility of the State’s assessment of its cigarette tax on purchases made by non-Indians, and by Indians not members of the governing tribe. I would remand the case to that court for a determination of the construction and effect of the state excise tax. COFFY v. REPUBLIC STEEL CORP. 191 Syllabus COFFY v. REPUBLIC STEEL CORP. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 79-81. Argued February 27, 1980—Decided June 10, 1980 The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (Act) provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for re-employ-ment within 90 days of being discharged from the military must be reinstated to the former job “without loss of seniority,” 38 U. S. C. § 2021 (b) (1). Upon being honorably discharged from military service, petitioner made timely application for reinstatement with respondent, his former employer. Because respondent was then in the process of laying off employees, petitioner was reinstated in layoff status. While laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the applicable steel industry collective-bargaining agreement. Under the plan, an employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to being laid off, and the amount of the weekly benefit is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which an employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off, with one-half credit being accrued for each week in which he worked “any” hours, or was paid for “any” hours not worked (such as for vacation or jury duty), or lost “any” hours because he was performing certain union duties or was on disability leave. The plan also provides that if an employee enters the Armed Services, only the credit units credited to him at the time of his entry into the service shall be credited to him upon reinstatement as an employee with unbroken continuous service, except as may otherwise be required by law. Petitioner received SUB payments for only 25 weeks, whereas if he had been employed by respondent during his period of military service, he would have been entitled to 52 weeks of payments. Alleging that respondent violated his statutory re-employ-ment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled, petitioner, represented by the Department of Justice pursuant to the Act, filed an action 192 OCTOBER TERM, 1979 Syllabus 447 U.S. in Federal District Court, which ultimately held that SUB payments were not a perquisite of seniority entitled to statutory protection. The Court of Appeals affirmed. Held: SUB payments provided pursuant to the steel industry collectivebargaining agreement are perquisites of seniority to which a returning veteran is entitled under the Act. Pp. 195-206. (a) Under the Act, which is to be liberally construed for the returning veteran’s benefit, the veteran steps back on the seniority escalator at the precise point he would have occupied had he kept his position with his employer continuously during the period of military service. Cf. Fishgold n. Sullivan Drydock & Repair Corp., 328 U. S. 275. In determining whether a particular benefit qualifies as a perquisite of seniority under the Act, first, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service, and, second, the “real nature” of the benefit must be “a reward for length of service,” rather than “a form of short-term compensation for services rendered.” Alabama Power Co. v. Davis, 431 U. S. 581, 589. Pp. 195-198. (b) The SUB plan satisfies the reasonable-certainty prong of the Alabama Power test, since if petitioner had remained continuously employed by respondent instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. The plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred shortterm compensation, but are a reward for length of service closely analogous to traditional forms of seniority. The purpose and function of SUB plans is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period, and the specific provisions of the steel industry SUB plan support this general purpose of SUB programs. Pp. 199-206. 590 F. 2d 334, reversed and remanded. Marshall, J., delivered the opinion for a unanimous Court. Alan I. Horowitz argued the cause pro hac vice for petitioner. With him on the brief were Solicitor General Mcdree, Beate Bloch, and William H. Berger. Michael A. Nims argued the cause for respondent. With him on the brief was Victor E. DeMarco. COFFY v. REPUBLIC STEEL CORP. 193 191 Opinion of the Court Mr. Justice Marshall delivered the opinion of the Court. The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U. S. C. § 2021 et seq., provides that any person who leaves a permanent job to enter the military, satisfactorily completes military service, and applies for re-employment within 90 days of being discharged from the military must be reinstated to the former job without loss of seniority. This case presents the question whether supplemental unemployment benefits provided pursuant to the steel industry collective-bargaining agreement are perquisites of seniority to which a returning veteran is entitled under the statute. I Petitioner Thomas Coffy was employed by respondent Republic Steel Corp. (Republic) from April 30, 1968, until September 17, 1968, and again from January 24, 1969, until September 9, 1969, when he entered military service. He served in the military until he was honorably discharged on August 16, 1971. He made timely application for reinstatement on September 14, 1971. Because Republic was then in the process of laying off employees and Coffy would already have been laid off if he had remained continuously employed during his period of military service, he was reinstated in layoff status. Coffy was recalled to work on July 1, 1972. While Coffy was laid off, he received weekly payments under the supplemental unemployment benefits (SUB) plan created by the collective-bargaining agreement between the major steel companies, including Republic, and the United Steelworkers of America (Steelworkers). Coffy received SUB payments for 25 weeks.1 If he had been employed by Republic during his period of military service, he would have been 1 Republic erroneously credited Coffy with approximately nine SUB credits for his 1968 employment. The plan provides that accumulated SUB credits are canceled if an employee quits work voluntarily, as petitioner did after his layoff in 1968. The overpayment was recovered through deductions from petitioner’s paycheck after he returned to work. 194 OCTOBER TERM, 1979 Opinion of the Court 447U.S. entitled to 52 weeks of SUB payments. Coffy, represented by the Department of Justice pursuant to 38 U. S. C. § 2022, filed this action in the United States District Court for the Northern District of Ohio, alleging that Republic violated his statutory re-employment rights by refusing to consider his military service time in computing the amount of SUB payments to which he was entitled.2 The District Court, relying on Foster v. Dravo Corp., 420 U. S. 92 (1975), entered judgment for respondent. The court held that the plan was “a bona fide effort to relate qualification for weekly benefits ... to work actually performed,” App. to Pet. for Cert. 24a, and therefore the benefits were not a perquisite of seniority. While the case was pending on petitioner’s appeal to the United States Court of Appeals for the Sixth Circuit, we held in Alabama Power Co. n. Davis, 431 U. S. 581 (1977), that pension benefits are perquisites of seniority protected under the statute. The Court of Appeals sua sponte vacated the District Court’s judgment and remanded for reconsideration in light of Alabama Power. On remand, the District Court adhered to its decision that SUB credits are not seniority rights entitled to statutory protection. 461 F. Supp. 344 (1978). The Court of Appeals affirmed on the opinion of the District Court. 590 F. 2d 334 (1978). We granted certiorari, 444 U. S. 924 (1979), to resolve a conflict among the Circuits concerning this important question in the interpretation of the statute.3 We now reverse. 2 The complaint alleged a violation of § 9 of the Military Selective Service Act of 1967, 50 U. S. C. App. § 459 (1970 ed.). The provisions of that statute relating to veterans’ re-employment rights were re-enacted without substantive change in Title IV of the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U. S. C. § 2021 et seq. 3 The Third and Seventh Circuits have held that SUB payments are perquisites of seniority to which a returning veteran is entitled under the Act. Hoffman v. Bethlehem Steel Corp., 477 F. 2d 860 (CA3 1973); Akers v. General Motors Corp., 501 F. 2d 1042 (CA7 1974). Approximately COFFY V. REPUBLIC STEEL CORP. 195 191 Opinion of the Court II The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (Act), 38 U. S. C. § 2021 et seq., requires that returning veterans be reinstated to the jobs they left for military service “or to a position of like seniority, status, and pay.” § 2021 (a) (B) (i).* The Act further provides that the veteran 1,947,400 workers are covered by collective-bargaining agreements that provide supplemental unemployment benefits. See U. S. Dept, of Labor, Bureau of Labor Statistics, Bull. No. 2065, Characteristics of Major Collective Bargaining Agreements 101 (1980). 4 Title 38 U. S. C. § 2021 provides in relevant part: “(a) In the case of any person who is inducted into the Armed Forces of the United States . . . and who leaves a position (other than a temporary position) in the employ of any employer in order to perform such training and service, and (1) receives a certificate described in section 9 (a) of the Military Selective Service Act (relating to the satisfactory completion of military service), and (2) makes application for reemployment within ninety days after such person is relieved from such training and service ... — “(B) if such position was in the employ of a . . . private employer, such person shall— “(i) if still qualified to perform the duties of such position, be restored by such employer ... to such position or to a position of like seniority, status, and pay[,] “unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so. . . . “(b)(1) Any person who is restored to or employed in a position in accordance with the provisions of . . . this section shall be considered as having been on furlough or leave of absence during such person’s period of training and service in the Armed Forces, shall be so restored or reemployed without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one year after such restoration or reemployment. “(2) It is hereby declared to be the sense of the Congress that any person who is restored to or employed in a position in accordance with . . . 196 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. be reinstated “without loss of seniority.” § 2021 (b)(1). We interpreted the predecessor of § 2021 5 to mean that the returning veteran “does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position continuously during the war.” Fishgold v. Sullivan Drydock de Repair Corp., 328 U. S. 275, 284-285 (1946). Congress incorporated this principle into the present statute by providing that any person reinstated under the Act should be given “such status in the person’s employment as the person would have enjoyed if such person had continued in such employment continuously” during the period of military service. § 2021 (b) (2). The statute is to be liberally construed for the benefit of the returning veteran. Fishgold v. Sullivan Drydock de Repair Corp-, supra, at 285. We have several times had occasion to consider whether a particular type of benefit is a perquisite of seniority. Accardi v. Pennsylvania R. Co., 383 U. S. 225 (1966), involved a claim for severance pay. The amount of the payment depended on the employee’s length of “compensated service.” Id., at 228. We rejected the employer’s argument that the payment was not based on seniority, but on total service to the company. Rather, we held, the “real nature” of the payments was compensation for the loss of the job. Id., at 230. Because “the cost to an employee of losing his job is not measured by how much work he did in the past. . . but by the rights and benefits he forfeits by giving up his job”—rights and benefits that this section should be so restored or reemployed in such manner as to give such person such status in the person’s employment as the person would have enjoyed if such person had continued in such employment continuously from the time of such person’s entering the Armed Forces until the time of such person’s restoration to such employment, or reemployment.” 5 The Selective Training and Service Act of 1940, ch. 720, § 8 (b), 54 Stat. 890, later re-enacted as the Military Selective Service Act of 1967, 50 U. S. C. App. §459 (1970 ed.), and subsequently re-enacted as 38 U. S. C. § 2021 et seq. See n. 2, supra. COFFY v. REPUBLIC STEEL CORP. 197 191 Opinion of the Court are largely determined by seniority—the severance payment was “just as much a perquisite of seniority as the more traditional benefits such as work preference and order of lay-off and recall.” Ibid. We reached a different result in evaluating a claim for vacation benefits in Foster v. Dravo Corp., 420 U. S. 92 (1975). The real nature of that benefit, we observed, was reflected in “the common conception of a vacation as a reward for and respite from a lengthy period of labor,” id., at 101. The contractual provisions for additional vacation credits and higher benefits for overtime work and for pro rata vacations for employees laid off before achieving the necessary number of weeks worked supported that conception. Accordingly, we held that vacation pay was intended as a form of deferred short-term compensation for work actually performed and was not, therefore, a seniority right protected by the statute. Most recently, in Alabama Power Co. v. Davis, 431 U. S. 581 (1977), we held that pension benefits were perquisites of seniority for purposes of the Act. Although the amount of the payment was directly dependent on the years of accredited service, the true nature of the benefits was “a reward for length of service,” id., at 593. The lengthy period required for vesting, the use of payment formulas based on earnings at the time of retirement, and “the function of pension plans in the employment system”—namely, to provide financial security to employees, assure a stable work force, and increase efficiency—all led to the conclusion that pension payments “are predominantly rewards for continuous employment with the same employer.” Id., at 594. In Alabama Power, we summarized the principles that have emerged from the cases and concluded that they establish a two-pronged test for determining whether a benefit is a perquisite of seniority under the Act. First, there must be a reasonable certainty that the benefit would have accrued if the employee had not gone into the military service. Id., at 589. Second, the nature of the benefit must be “a reward for length of service,” rather 198 OCTOBER TERM, 1979 Opinion of the Court 447U.S. than a form of “short-term compensation for services rendered.” Ibid. Our task, then, is to evaluate the SUB plan at issue in this case in light of these principles. Ill A The first SUB plan for the steel industry was established through collective bargaining in 1956. The revised plan which is the subject of this action became effective January 1, 1969. The plan provides three types of benefits: a “weekly benefit,” a “short week benefit,” 6 and a relocation allowance. Petitioner’s claim involves weekly benefits, which are provided to employees laid off from work as a supplement to unemployment compensation benefits provided under state law. The amount of an employee’s weekly SUB payment is determined by his hourly wage rate, the number of his dependents, the amount of state unemployment compensation he is receiving, and the level of funding remaining in the plan. The length of time during which the employee receives SUB payments is determined by the number of credit units he has accumulated before being laid off. Section 2.0 of the plan provides that an employee accrues one-half credit for each week in which he worked any hours, or was paid for any hours not worked (such as for vacation or jury duty), or lost any hours because he was performing certain union duties or was on disability leave.7 A maximum of 52 credit units may be accrued by an employee at any one time. An employee is entitled to receive SUB payments only if he has completed two years of continuous service prior to 6 An employee having two years of continuous service is eligible for a “short week benefit” for any week in which some, but fewer than 32, hours are worked. 7 Certain categories of employees accrue and exhaust credits at a slightly different rate, see §§ 2.1 and 4.10 of the plan, App. 20, 27, but that distinction is not significant for purposes of this analysis. COFFY v. REPUBLIC STEEL CORP. 199 191 Opinion of the Court being laid off. An employee who meets this threshold requirement may receive one week of supplemental unemployment benefits for each credit unit he has accumulated. The plan also provides, in § 7.2: “If an employee enters the armed services directly from the employment of the Company, he shall, while in service, be deemed for the purposes of the Plan to be on leave of absence and shall not be entitled to any Benefit. Only the credit units credited to him at the time of his entry into such service shall be credited to him upon his reinstatement as an employee of the Company with unbroken continuous service, except as may otherwise be required by law.” Under this provision Republic declined to credit petitioner for his military service time in calculating the number of SUB payments to which he was entitled.8 We must determine whether the provision is in conflict with the Act. B The SUB plan satisfies the reasonable-certainty prong of the Alabama Power test, since if Coffy had remained continuously employed by Republic instead of entering the military, he would have accumulated credits from the date he was hired until the date he was laid off. We conclude that the plan also satisfies the second prong of the test, because supplemental unemployment benefits are not a form of deferred short-term compensation, but are a reward for length of service closely analogous to traditional forms of seniority. 8 Coffy received credit for his time in the military in computing his period of continuous service to determine his eligibility to receive benefits. We find no inconsistency in the company’s action in counting his military service time toward eligibility to receive benefits, but not toward the number of credits he had accumulated. The plain intent of § 7.2 is that during their period of military service, employees shall neither receive benefits nor accrue credits, but that military service shall not be considered a break in continuous service. 200 OCTOBER TERM, 1979 Opinion of the Court 447U.S. The concept of supplemental unemployment benefits evolved from the demand by organized labor for a guaranteed annual wage. When it became evident that a guaranteed annual wage was impractical in their industries, unions such as the Steelworkers and the United Auto Workers transformed their guaranteed annual wage demands into proposals to supplement existing unemployment compensation programs. These proposals ultimately were adopted in several industries in the form of SUB plans. See J. Becker, Guaranteed Income for the Unemployed: The Story of SUB 9-20 (1968); A. Freedman, Security Bargains Reconsidered: SUB, Severance Pay, Guaranteed Work 4^5 (The Conference Board 1978). From the beginning, then, the purpose of SUB plans was to provide employment security regardless of the hours worked rather than to afford additional compensation for work actually performed. From the employer’s standpoint SUB’s, like pension benefits, help to assure a stable work force through periods of short-term layoffs and, like severance payments, may increase management flexibility in implementing technological advances. See Becker, supra, at 55-57, 248. The essential function of SUB plans is to provide economic security for regular employees in the event they are laid off. Protection against layoff is, of course, one of the traditional attributes of seniority. SUB payments provide a second-level protection against layoff. If an employee does not have sufficient seniority to avoid being laid off, he may still have achieved the minimum level of seniority necessary to receive SUB payments during his layoff. Unlike vacations, SUB’s cannot be compensation for work performed, a “reward for and respite from a lengthy period of labor,” Foster n. Dravo Corp., 420 U. S., at 101, for they are contingent on the employee’s being thrown out of work; unless the employee is laid off he will never receive SUB payments. In this sense, SUB’s are analogous to severance payments: they are “compensation for loss of jobs.” Accardi, 383 U. S., at 230. See Freedman, supra, at 2. COFFY v. REPUBLIC STEEL CORP. 201 191 Opinion of the Court We turn now to the specific provisions of the steel industry SUB plan to determine whether they support or contradict our understanding of the general purpose of SUB programs. The District Court held that the availability of SUB payments was so closely related to hours actually worked as to demonstrate that the plan was a “ ‘bona fide effort to compensate for work actually performed.’ ” 461 F. Supp., at 346. That conclusion is at odds with the literal terms of the plan, which provide that SUB credits are earned for all weeks in which an employee has any hours in one of the three categories specified in § 2.0. This provision was the result of a 1962 modification of the original 1956 plan, which had directly correlated hours worked with credits earned by providing that Xo credit would be earned for every eight hours worked, up to a maximum of % unit per week. The District Court recognized that the present plan did not expressly relate entitlement to benefits to hours worked, but found this fact to be of no significance because “ ‘[circumstances existing in the steel industry, as revealed by the uncontradicted evidence in this case, demonstrate that, in practice, the minimum workweek is 32 hours.... The plan must be construed in light of actual conditions in the steel industry. The possibility of an employee working only one hour during any week does not exist.’ ” Id., at 347.9 9 The District Court’s view that the benefits were intended to be correlated to work actually performed is supported by the testimony of James Carney, an attorney for United States Steel Corp. He stated that the reason for the 1962 change was that there was no need to keep track of the actual hours worked since it was rare for anyone to work fewer than 32 hours a week. This testimony was contradicted, to some extent, by that of Joseph Senturia, a consultant to the Steelworkers. He testified that the change was adopted to liberalize the accrual of credit units and as part of a general simplification of SUB plans in use in the steel industry. In fact, by 1962 SUB plans in all industries provided for accumulation of credit in any week in which any work was performed or any pay received. See J. Becker, Guaranteed Income for the Unemployed: The Story of SUB 125 (1968). 202 OCTOBER TERM, 1979 Opinion of the Court 447U.S. We of course accept the District Court’s factual findings concerning the practice in the industry. We do not agree, however, that a de facto 32-hour minimum workweek means that SUB’s are intended as deferred compensation for work performed. Credits are also earned for weeks in which the employee is paid for any hours not worked, as for jury duty, or in which any hours are lost because the employee is disabled or performing certain union duties. These hours, even if considered similar to hours worked because the employee receives “wage substitutes” for them, are not subject to the 32-hour industry custom. We observe also that the normal workweek in the industry, as provided by Art. 6, § 1, of the collective-bargaining agreement, is 40 hours, not 32. The SUB plan makes no provision for accrual of additional credits for hours worked over 32 per week, or for overtime work. This omission is not suggestive of a desire to compensate work actually performed. Further, a major reason that it is rare for an employee who works at all to work fewer than 32 hours in a week is the “short week benefit” provided under the SUB plan.10 Quali- 10 Employees having two years of continuous service are eligible for a “short week benefit” for any week in which they work some, but fewer than 32, hours. Roughly speaking, the employee is paid at his regular hourly rate for the difference between 32 hours and the number of hours worked. The amount of the benefit is computed by taking the amount by which 32 hours exceeds the sum of the hours worked, paid, not worked for reasons other than lack of work, lost because of labor problems involving the company or transportation or utility companies, or not worked because the employee quit or was suspended or discharged, and multiplying that number by the employee’s regular hourly wage rate. One-half credit unit is canceled for every week in which the employee receives short-week benefits. Since the employee also receives one-half credit because he worked some hours in the week, the net effect is that his accumulated credits remain the same. The other reasons for the 32-hour custom which were cited in the testimony included the nature of steel manufacturing operations, which must COFFY V. REPUBLIC STEEL CORP. 203 191 Opinion of the Court fied employees who work some hours, but fewer than 32, receive benefits under the short-week provisions of the plan; those who do not work at all receive weekly benefits. The union’s success in effectively achieving a guaranteed 32-hour week through the mechanism of the short-week benefit does not logically alter the nature of the weekly benefit negotiated as part of the same plan. Even if eligibility for SUB payments were closely related to hours worked, that fact would not, by itself, render them compensation rather than seniority rights. We emphasized in Alabama Power that it is the nature of the benefit, not the formula by which it is calculated, that is the crucial factor, for “[e]ven the most traditional kinds of seniority privileges could be as easily tied to a work requirement as to the more usual criterion of time as an employee.” 431 U. S., at 592. As we have explained, the specific provisions of the steel industry plan support, rather than contradict, our conclusion that SUB payments are in the nature of a reward for length of service. The District Court concluded that SUB payments could not be perquisites of seniority for the further reason that the benefits are not proportionate to the length of service. Under the plan, an employee must have a minimum of two years’ seniority to be eligible for SUB payments, no employee may accumulate more than 52 units of SUB credits, and the amount of the benefit does not increase with the length of service as would a pension benefit. Thus an employee who has worked continuously for two years will have met the threshold requirement and will also have accumulated 52 units be conducted on a 24-hour basis; Art. 6, §6, of the collective-bargaining agreement, which provides that any employee who reports for work must be given at least 4 hours’ work; and Art. 10, § 7, of the agreement, which requires management to consult with the union on the distribution of work if a decrease in the amount of work available results in an average workweek of 32 hours or fewer. 204 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. of credit;11 he is eligible for benefits for the same length of time, and computed according to the same formula, as an employee with 20 years’ seniority.12 According to the District Court, the facts that no benefits are available to employees whose seniority is less than two years and that after 52 credits have been accumulated additional seniority does not lead to increased benefits were evidence that the benefit is not a reward for longevity of service.13 11 The 2-year continuous service requirement and the 52-credit maximum accumulation are not coextensive. For example, an employee who is laid off before he has been with the company for two years continues to compute his period of continuous service from his original hire date, but does not accumulate credit units during the time he is laid off. Similarly, § 2.4 of the plan permits the employer to cancel the credit units of an employee who willfully falsifies or withholds information on which his weekly benefit is based; such cancellation would not affect the length of the employee’s continuous service. 12 Of course, since a more senior employee’s wage rate is likely to reflect his longer service with the company, a senior employee often will receive a higher SUB payment than will a junior employee. Modifications to the steel industry SUB program adopted in 1977 have increased the differentiation between less senior employees and those with greater seniority. Benefit payments for employees with 20 or more years of service will no longer be reduced because of the financial position of the fund, and the maximum number of credits that may be accumulated has been doubled, to 104. See A. Freedman, Security Bargains Reconsidered: SUB, Severance Pay, Guaranteed Work 22 (The Conference Board 1978). 13 Respondent argues that in fact the SUB plan provides benefits in an inverse relationship to seniority. Respondent observes that, because seniority protects against layoff, the most senior employees are the least likely to receive SUB’s, and by the time very senior employees are laid off their benefit payments may be reduced in amount pursuant to § 1.5 of the plan because the fund has been depleted by prior payments to less senior employees. This argument ignores that particular components of a seniority program need not invariably provide greater benefits to more senior workers. “Bumping” provisions, for example, may seldom be used by very senior employees, and yet they are unquestionably rights of seniority. In any event, the record contains no evidence of the funding history of the steel industry SUB program that would permit us to draw any conclusion as to the probability of benefit payments being reduced pursuant to § 1.5. COFFY V. REPUBLIC STEEL CORP. 205 191 Opinion of the Court A benefit need not be meticulously proportioned to longevity of service to constitute a perquisite of seniority, however, as long as it performs a function akin to traditional forms of seniority. In fact, the very factors the District Court cited to show that SUB’s are not forms of seniority benefits are equally relevant to demonstrate that they are not compensation for services rendered. An employee receives no benefits if he has worked for fewer than two years when he is laid off or if he voluntarily terminates his employment. Such a threshold requirement is more characteristic of seniority provisions than of compensation; in fact, other seniority benefits of the collective-bargaining agreement between Republic and the Steelworkers are also available only to employees with two years’ seniority.14 Similarly, an employee cannot accumulate more than 52 credits at a time; any work performed after that ceiling is reached goes “uncompensated.” Moreover, the amount of the benefit payment is determined by four factors, none of which appears designed to compensate for hours actually worked: the wage rate at the time of layoff (not at the time the credits were earned); the number of dependents of the employee; the amount of state unemployment compensation received; and the financial position of the benefit fund. IV We conclude that the purpose and function of the steel industry SUB plan is to provide economic security during periods of layoff to employees who have been in the service of the employer for a significant period. Thus the benefits are in the nature of a reward for length of service, and do not represent deferred short-term compensation for services actually rendered. Accordingly, SUB payments are perquisites 14 For example, an employee with two years’ seniority who is laid off may exercise “bumping” rights over less senior employees in the seniority pool, or may transfer to another plant with priority over other applicants, including recently hired employees of the other plant. 206 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. of seniority to which returning veterans are entitled under the Act. 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. EXXON CORP. V. WISCONSIN DEPT. OF REVENUE 207 Syllabus EXXON CORP. v. DEPARTMENT OF REVENUE OF WISCONSIN APPEAL FROM THE SUPREME COURT OF WISCONSIN No. 79-509. Argued March 18, 1980—Decided June 10, 1980 Appellant, a vertically integrated petroleum company doing business in several States, was organized, during the years in question in this case, into three levels of management, one of which was responsible for directing the operating activities of the company’s functional departments. Transfers of products and supplies among the three major functional departments—Exploration and Production, Refining, and Marketing— were theoretically based on competitive wholesale prices. Appellant had no exploration and production or refining operations in Wisconsin and carried out only marketing in that State. During the years in question, appellant filed income tax returns in Wisconsin using a separate geographical system of accounting which reflected only the Wisconsin marketing operations and showed a loss for each year, thus resulting in no taxes being due, but appellee Wisconsin Department of Revenue, upon auditing the returns, assessed taxes, based on appellant’s total income, pursuant to Wisconsin’s tax apportionment statute. Ultimately, after appellant’s application for abatement had proceeded through administrative and judicial review, the Wisconsin Supreme Court held that appellant’s Wisconsin marketing operations were an integral part of one unitary business and that therefore its total corporate income was subject to the statutory apportionment formula. The court further held that situs income derived from crude oil produced by appellant outside Wisconsin and transferred to its own refineries and thus part of the unitary stream of income was apportionable under the Wisconsin statute despite appellant’s separate functional accounting system, and that taxation of such situs income did not impermissibly burden interstate commerce. Held: 1. The Due Process Clause of the Fourteenth Amendment did not prevent Wisconsin from applying its statutory apportionment formula to appellant’s total income. Pp. 219-225. (a) The Due Process Clause imposes two requirements for state taxation of the income of a corporation operating in interstate commerce: a “minimal connection” or “nexus” between the corporation’s interstate activities and the taxing State, and “a rational relationship between the 208 OCTOBER TERM, 1979 Syllabus 447 U.S. income attributed to the State and the intrastate values of the enterprise.” Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 436-437. Such a nexus is established if the corporation “avails itself of the ‘substantial privilege of carrying on business’ within the State.” Id., at 437. Here, appellant concededly avails itself of that privilege through its marketing operations within Wisconsin. Pp. 219-220. (b) Appellant’s use of separate functional accounting by which it shows what portion of its income is derived from exploration and production and from refining—functions occurring outside Wisconsin—does not demonstrate that application of the Wisconsin apportionment statute violated the Due Process Clause. A company’s internal accounting techniques are not binding on a State for tax purposes and are not required to be accepted as a matter of constitutional law for such purposes. Pp. 220-223. (c) The “linchpin of apportionability” for state income taxation of an interstate enterprise is the “unitary-business principle.” Mobil Oil Corp. v. Commissioner of Taxes, supra, at 439. If a company is a uni-tary business, then a State may apply an apportionment formula to the taxpayer’s total income in order to obtain a “rough approximation” of the corporate income that is “reasonably related to the activities conducted within the taxing State.” Moorman Mfg. Co. v. Bair, 437 U. S. 267, 273. Here, the evidence fully supports the conclusion that appellant’s marketing operations in Wisconsin were an integral part of such a unitary business. And appellant’s use of separate functional accounting, and its decision for purposes of corporate accountability to assign wholesale market values to interdepartmental transfers of products and supplies, do not defeat the clear and sufficient nexus between appellant’s interstate activities and the taxing State. Pp. 223-225. 2. Similarly, the Due Process Clause did not preclude Wisconsin from subjecting to taxation under its statutory apportionment formula appellant’s income derived from extraction of oil and gas located outside the State which was used by the Refining Department, and the State was not required to allocate such income to the situs State. There was a unitary stream of income, of which the income derived from internal transfers of raw materials from exploration and production to refining was a part. This was a sufficient nexus to satisfy the Due Process Clause, and there was also the necessary “rational relationship” between the income attributed to the State by the apportionment formula and the intrastate value of the business. Pp. 225-227. 3. The Commerce Clause did not require Wisconsin to allocate all income derived from appellant’s exploration and production function to the situs State rather than include such income in the apportionment EXXON CORP. v. WISCONSIN DEPT. OF REVENUE 209 207 Syllabus formula. The Wisconsin taxing statute, as applied, did not subject interstate business to an unfair burden of multiple taxation. Mobil Oil Corp. v. Commissioner of Taxes, supra. The State sought to tax income, not property ownership, and it was the risk of multiple taxation that was being asserted, actual multiple taxation not having been shown. The Commerce Clause did not require that any income which appellant was able to separate through accounting methods and attribute to exploration and’ production of crude oil and gas be allocated to the States in which those production centers were located. The geographic location of such raw materials did not alter the fact that such income was part of the unitary business of appellant’s interstate enterprise and was subject to fair apportionment among all States to which there was a sufficient nexus with the interstate activities. Pp. 227-230. 90 Wis. 2d 700, 281 N. W. 2d 94, affirmed. Marshall, J., delivered the opinion of the Court, in which all other Members joined except Stewart, J., who took no part in the consideration or decision of the case. Thomas G. Rogatz argued the cause for appellant. With him on the briefs were Leonard S. Sosnowski, Lloyd M. McBride, and Paul D. Frenz. Gerald S. Wilcox, Assistant Attorney General of Wisconsin, argued the cause for appellee. With him on the brief was Bronson C. La Follette, Attorney General.* *Briefs of amici curiae urging affirmance were filed by William D. Dexter, Charles A. Groddick, Attorney General of Alabama, George Deukme-jian, Attorney General of California, J. D. MacFarlane, Attorney General of Colorado, Richard Gebelein, Attorney General of Delaware, David H. Leroy, Attorney General of Idaho, Theodore L. Sendak, Attorney General of Indiana, Steven Sachs, Attorney General of Maryland, Frank J. Kelly, Attorney General of Michigan, Warren R. Spannaus, Attorney General of Minnesota, Mike Greely, Attorney General of Montana, Paul L. Douglas, Attorney General of Nebraska, Thomas D. Roth, Attorney General of New Hampshire, Jeff Bingaman, Attorney General of New Mexico, Rufus L. Edmisten, Attorney General of North Carolina, Albert R. Hausauer, Special Assistant Attorney General of North Dakota, James Redden, Attorney General of Oregon, Robert B. Hanen, Attorney General of Utah, and James R. Eads for the Multistate Tax Commission et al.; and by William J. Scott, Attorney General of Illinois, and Fred H. Montgomery and John 210 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Mr. Justice Marshall delivered the opinion of the Court. This case raises three important questions regarding state taxation of the income of a vertically integrated corporation doing business in several States. The first issue is whether the Due Process Clause of the Fourteenth Amendment prevents a State from applying its statutory apportionment formula to the total corporate income of the taxpayer when the taxpayer’s functional accounting separates its income into the three distinct categories of marketing, exploration and production, and refining, and when the taxpayer performs only marketing operations within the State. The second issue is whether the Due Process Clause permits a State to subject to taxation under its statutory apportionment formula income derived from the extraction of oil and gas located outside the State which is used by the refining department of the taxpayer, or whether the State is required to allocate such income to the situs State. The third issue is whether the Commerce Clause requires such an allocation to the situs State. I A Appellant Exxon Corp.,1 a vertically integrated petroleum company, is organized under the laws of Delaware with its D. WhiteNack, Special Assistant Attorneys General, Carl R. Ajello, Attorney General of Connecticut, Francis X. Bellotti, Attorney General of Massachusetts, and Warren R. Spannaus, Attorney General of Minnesota, for the State of Illinois et al. Briefs of amici curiae were filed by Theodore J. Carlson, Davison W. Grant, Joseph J. Schumm, Jr., and Thomas C. Hutton for Associated Dry Goods Corp.; and by Frank M. Keesling, pro se. 1The original taxpayer during the years in question was Humble Oil and Refining Co., a wholly owned subsidiary of Standard Oil Co. of New Jersey. In 1956, Standard Oil Co. of New Jersey organized as a wholly owned subsidiary Pate Oil Co., a Delaware corporation. Pate acquired all of the assets and liabilities of Saxon Corp., a Wisconsin company which marketed petroleum products and accessory products in that State. Pate EXXON CORP. v. WISCONSIN DEPT. OF REVENUE 211 207 Opinion of the Court general offices located in Houston, Tex. During the years in question here, 1965 through 1968, appellant’s corporate organization structure consisted of three parts: Corporate Management, Coordination and Services Management, and Operations Management. Corporate Management, which was the highest order of management for the entire corporation, consisted of the board of directors, the executive committee, the chairman of the board (who was also the chief executive officer), the president, and various directors-in-charge who were members of the board of directors. Coordination and Services Management was composed of corporate staff departments which provided specialized corporate services. These services included long-range planning for the company, maximization of overall company operations, development of financial policy and procedures, financing of corporate activities, maintenance of the accounting system, legal advice, public relations, labor relations, purchase and sale of raw crude oil and raw materials, and coordination between the refining and other operating functions “so as to obtain an optimum short range operating program.” App. 189; id., at 187-192.2 The third level of management within the corporation was continued those marketing operations. In 1960, Pate was merged into Humble Oil and Refining Co., and the Wisconsin marketing operations were continued by that company under the brand name “Enco.” In early 1973, Humble was merged into Standard Oil Co. of New Jersey, and the corporate name was changed to Exxon Corp. Exxon is the legal successor to Humble Oil and Refining Co. The taxpayer will be referred to throughout this opinion by its present name, Exxon. 2 The corporate staff departments which were part of Coordination and Services Management, and which were not considered profit centers for accounting purposes by appellant, included: Corporate Planning Department, Secretary’s Department, Supply Department, Treasury Department, Comptroller’s Department, Tax Department, Law Department, Public Relations Department, Government Relations Department, Employee Relations Department, General Services Department, Medical Department, and Aviation Department. App. 189-192. 212 447 U. S. OCTOBER TERM, 1979 Opinion of the Court Operations Management, which was responsible for directing the operating activities of the functional departments of the company. These functional departments were Exploration and Production, Refining, Marketing, Marine, Coal and Shale Oil, Minerals, and Land Management. Each functional department was organized as a separate unit operating independently of the other operating segments, and each department had its own separate management responsible for the proper conduct of the operation. These departments were treated as separate investment centers by the company, and a profit was determined for each functional department. At all relevant times each operating department was independently responsible for its performance. This arrangement permitted centralized management to evaluate each operation separately. Each department was therefore required to compete with the other departments for available investment funds, and with other members of the industry performing the same function for the company’s raw materials and refined products. There was no requirement that appellant’s crude oil go to its own refineries or that the refined products sold through marketing be produced from appellant’s crude oil. Transfers of products and raw materials among the three major functional departments—Exploration and Production, Refining, and Marketing—were theoretically based on competitive wholesale market prices. For purposes of separate functional accounting, transfers of crude oil from Exploration and Production to Refining were treated as sales at posted industry prices; transfers of products from Refining to Marketing were also based on wholesale market prices. If no readily available wholesale market value existed for a product, then representatives of the two departments involved would negotiate as to the appropriate internal transfer value. Appellant had no exploration and production operations or refining operations in Wisconsin; the only activity carried out EXXON CORP. V. WISCONSIN DEPT. OF REVENUE 213 207 Opinion of the Court in that State was marketing. The Wisconsin marketing district reported administratively to the central region office in Chicago, which in turn was responsible to the Marketing Department headquarters in Houston. App. 217. The motor oils, greases, and other packaged materials sold by appellant in Wisconsin during this period were manufactured outside the State and then shipped into that State from central warehouse facilities in Chicago. Tires, batteries, and accessories were centrally purchased through the Houston office and then shipped into Wisconsin for resale. The gasoline sold in Wisconsin was not produced by Exxon but rather was obtained from Pure Oil Co. in Illinois under an exchange agreement, permitting Exxon to reduce the cost of transporting the gasoline from its source to the retail outlets. This exchange agreement was negotiated by the Supply and Refining Departments. Additives were put into the Pure Oil gasoline in order to make the final product conform to uniform Exxon standards. Exxon used a nationwide uniform credit card system, which was administered out of the national headquarters in Houston. Uniform packaging and brand names were used, and the overall plan for distribution of products was developed in Houston. Promotional display equipment was designed by the engineering staff at the marketing headquarters. B Because appellant marketed its products in Wisconsin during the calendar years 1965 through 1968, it was required to file corporate income and franchise tax returns in that State for those years. Exxon prepared the returns based on separate state accounting methods, reflecting only the Wisconsin marketing operation. The returns showed losses in the amounts of $821,320 for 1965, $1,159,830 for 1966, $1,026,224 for 1967, and $919,575 for 1968. Accordingly, no tax was shown as being due for any of those years. 214 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Appellee Wisconsin Department of Revenue audited Exxon for the years in question, and on June 25, 1971, the Department sent the taxpayer a notice of assessment of additional income and franchise tax. The Department concluded that pursuant to Wis. Stat. § 71.07 (2) (1967)3 the Wisconsin marketing operation was “an integral part of a unitary business,” and therefore Exxon’s taxable income in Wisconsin must be determined by application of the State’s apportionment formula to the taxpayer’s total income. The Department’s calculation revealed an additional taxable income of $4,532,155 for the period 1965 through 1968. Additional 3 Wisconsin Stat. § 71.07 (2) (1967) during this period provided in relevant part: “Persons engaged in business within and without the state shall be taxed only on such income as is derived from business transacted and property located within the state. The amount of such income attributable to Wisconsin may be determined by an allocation and separate accounting thereof, when the business of such person within the state is not an integral part of a unitary business, provided, however, that the department of taxation may permit an allocation and separate accounting in any case in which it is satisfied that the use of such method will properly reflect the income taxable by this state. In all cases in which allocation and separate accounting is not permissible, the determination shall be made in the following manner: There shall first be deducted from the total net income of the taxpayer such part thereof (less related expenses, if any) as follows the situs of the property. . . . The remaining net income shall be apportioned to Wisconsin on the basis of the ratio obtained by taking the arithmetical average of the following 3 ratios: “(a) The ratio of the tangible property, real, personal and mixed, owned and used by the taxpayer in Wisconsin in connection with his trade or business during the income year to the total of such property of the taxpayer owned and used by him in connection with his trade or business everywhere. . . . “(b) . . . the ratio of the total cost of manufacturing, collecting, assembling or processing within this state to the total cost of manufacturing, or assembling or processing everywhere. . . . “(c) . . . the ratio of the total sales made through or by offices, agencies or branches located in Wisconsin during the income year to the total net sales made everywhere during said income year.” EXXON CORP. V. WISCONSIN DEPT. OF REVENUE 215 207 Opinion of the Court taxes in the amount of $316,470.85 were assessed against appellant.4 Exxon filed an application for abatement in July 1971, which the Department denied on November 30, 1971. Appellant then filed a petition for review with the Wisconsin Tax Appeals Commission. The Commission agreed with the Department that Exxon’s separate geographical accounting did not accurately reflect its Wisconsin income for tax purposes. CCH Wis. Tax Rep. H 201-223, p. 10,410 (1976). However, the Commission concluded that appellant’s three main functional operating departments—Exploration and Production, Refining, and Marketing—were separate unitary businesses. Id., at 10,409. According to the Commission, Exxon’s marketing operation in Wisconsin was an integral part of its overall marketing function, but was not an integral part of its exploration and production function nor its refining function. Id., at 10,411. The Commission found that the statutory apportionment formula as applied by the Department “had the effect of imposing a tax on the [appellant’s] exploration and on its refining net income, all of which was derived solely from operations outside the State of Wisconsin and which had no integral relationship to the [appellant’s] marketing operations within Wisconsin.” Id., at 10,410. The Commission also found that taxation by Wisconsin of Exxon’s net income from its exploration and production function and its refining function would subject 4The additional net income was determined to be: 1965 ........................................................... $759,371 1966 ......................................................... $1,043,395 1967 ........................................................ $1,264,946 1968 ......................................................... $1,464,443 The additional taxes owed were determined to be: 1965 ......................................................... $52,960.97 1966 ........................................................ $72,842.65 1967 ..................................i..................... $88,351.22 1968 ......................................................... $102,316.01 216 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. appellant “to multiple-state taxation as to such income.” Ibid. The Commission therefore concluded that the Department had erred in its application of the apportionment formula since it had included “extraterritorial income,” but that “apportioning income earned by the [appellant] from its marketing function within and without the State of Wisconsin, would be proper. . . .” Id., at 10,411. The Circuit Court for Dane County set aside some of the factual findings and conclusions of law of the Tax Appeals Commission. CCH Wis. Tax Rep. fl 201-373, pp. 10,501-10,504 (1977). In particular, the Circuit Court held that the Commission’s finding that Exxon’s three main functional operating departments were separate unitary businesses was an erroneous conclusion of law. Id., at 10,502. Similarly, the court set aside the findings that there was no economic dependence between the Wisconsin marketing operations and Exxon’s exploration and production function or its refining function. Ibid. Instead the court held that “[t]he Wisconsin operation contributed sales to [Exxon’s] business of producing, refining and marketing petroleum products. This contribution was sufficient alone in the opinion of this Court to make [Exxon’s] business a unitary one.” Ibid. Accordingly, appellant’s business during the relevant years “considered as a whole both within and without Wisconsin constituted a unitary business” within the meaning of the apporti on m en t statute. Ibid. The Circuit Court concluded, however, that another statute, Wis. Stat. § 71.07 (1) (1967),5 excluded from income subject to the apportionment formula all situs income derived 6 Wisconsin Stat. §71.07 (1) (1967) during this period provided in relevant part: “For the purposes of taxation income or loss from business, not requiring apportionment under sub. (2), . . . shall follow the situs of the business from which derived. Income or loss derived from ... the operation of any . . . mine . . . shall follow the situs of the property from which derived.” EXXON CORP. V. WISCONSIN DEPT. OF REVENUE 217 207 Opinion of the Court from appellant’s oil and gas wells. CCH Wis. Tax Rep. H 201-373, at 10,502-10,504. The Department had used a so-called “barrel formula” to separate two sets of income figures: income derived from the sale of crude oil to third parties, and income derived from crude oil produced by Exxon and transferred to its own refineries. The former was allocated to the situs State and excluded from Wisconsin taxable income, and the latter was included in the apportionment formula. A similar division was made of the income derived from appellant’s gas production. The Circuit Court held that both sets of income were derived from the oil and gas wells and should be allocated to the situs State under the statute. The court noted that “there is no question but that the department’s inclusion of [Exxon’s] income derived from crude oil and gas produced and not sold to third parties by [Exxon’s] production department resulted in double taxation of such income.” 6 Id., at 10,503. The Wisconsin Supreme Court affirmed in part and reversed in part. 90 Wis. 2d 700, 281 N. W. 2d 94 (1979). That court concluded that the test for what constituted a unitary business was “ ‘whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship the business is unitary.’ ” Id., at 711, 281 N. W. 2d, at 100, quoting G. Altman 6 The Circuit Court also held that on remand the Tax Appeals Commission should determine whether the Department had properly weighted the apportionment formula. The apportionment formula uses three factors: sales, property, and manufacturing costs. See n. 3, supra. The Department adjusted the formula as to manufacturing costs because not all of the products sold through Exxon’s Marketing Department were manufactured by Exxon; the Department divided by 2.6 rather than the statutory 3. The Wisconsin Supreme Court agreed that it was an issue for the Tax Appeals Commission on remand. 90 Wis. 2d 700, 731-735, 281 N. W. 2d 94, 111-113 (1979). That particular question is not before this Court. 218 447 U. S. OCTOBER TERM, 1979 Opinion of the Court & F. Keesling, Allocation of Income in State Taxation 101 (2d ed. 1950). Reviewing the organizational structure and business operations of Exxon, the court reasoned that Exxon’s production and refining functions were dependent on its marketing operation to provide an outlet for its products, and Wisconsin was a part of that marketing system. In a high capital investment industry such as the petroleum industry, the court found, the existence of a stable marketing system was important for the full utilization of refining capacity. 90 Wis. 2d, at 718, 281 N. W. 2d, at 104. Accordingly, the court concluded that Exxon’s Wisconsin marketing operations were an integral part of one unitary business and therefore its total corporate income was subject to the statutory apportionment formula. Id., at 721-722, 281 N. W. 2d, at 105-106. The Wisconsin Supreme Court disagreed with the Circuit Court on the issue of situs income. While the extraction and production of oil and gas constituted “mining” within the meaning of Wis. Stat. § 71.07 (1) (1967), 90 Wis. 2d, at 723, 281 N. W. 2d, at 106, the court agreed with the Department that situs income which is part of the unitary stream of income is nonetheless apportionable under the statute, while situs income which does not enter the unitary stream of income is nonapportionable and must be excluded from the formula. Id., at 723-724, 281 N. W. 2d, at 106-107. The Wisconsin Supreme Court rejected appellant’s contention that its separate functional accounting proved that its exploration and production income was earned totally outside Wisconsin, noting that “the idea of separate functional accounting seems to be incompatible with the ‘very essence of formulary apportionment, namely, that where there are integrated, interdependent steps in the economic process carried on by a business enterprise, there is no logical or viable method for accurately separating out the profit attributable to one step in the economic process from other steps.’ ” Id., at 726, 281 N. W. 2d, at 109, quoting J. Hellerstein, State and Local Taxation 400 (3d ed. 1969). The court concluded that the EXXON CORP. v. WISCONSIN DEPT. OF REVENUE 219 207 Opinion of the Court State was acting within constitutional limitations despite appellant’s evidence based on separate functional accounting. The court also rejected Exxon’s argument that the sources of income derived from exploration and production were all outside of Wisconsin and therefore could not be taxed in that State without impermissibly burdening interstate commerce. According to the court, Wisconsin was taxing only its “fair share” of appellant’s income, there was a substantial nexus between appellant and the State, the tax was not claimed to discriminate between interstate and intrastate commerce, and the tax was fairly related to services provided by Wisconsin. 90 Wis. 2d, at 729-731, 281 N. W. 2d, at 110-111. Because of the importance of the issues raised, we noted probable jurisdiction, 444 U. S. 961 (1979). We now affirm. II We recently set forth at some length the basic principles for state taxation of the income of a business operating in interstate commerce, see Mobil Oil Corp. v. Commissioner of Taxes, 445 U. S. 425, 436-442 (1980), and need not repeat them here in great detail. It has long been settled that “the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the States for tax purposes by formulas utilizing in-state aspects of interstate affairs.” Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 460 (1959); Mobil Oil Corp. n. Commissioner of Taxes, supra, at 436. See generally Underwood Typewriter Co. v. Chamberlain, 254 U. S. 113 (1920); Hans Rees’ Sons v. North Carolina ex rel. Maxwell, 283 U. S. 123 (1931); Butler Bros. v. McColgan, 315 U. S. 501 (1942); Moorman Mfg. Co. v. Bair, 437 U. S. 267 (1978). See also Bass, Ratcliff & Gretton, Ltd. v. State Tax Comm’n, 266 U. S. 271 (1924). The Due Process Clause of the Fourteenth Amendment imposes two requirements for such state taxation: a “minimal connection” or “nexus” between the interstate activities and the taxing State, and “a 220 447 U. S. OCTOBER TERM, 1979 Opinion of the Court rational relationship between the income attributed to the State and the intrastate values of the enterprise.” Mobil Oil Corp. v. Commissioner of Taxes, supra, at 436, 437. See Moorman Mfg. Co. n. Bair, supra, at 272-273; National Bellas Hess, Inc. n. Department of Revenue, 386 U. S. 753, 756 (1967); Norfolk & Western R. Co. v. State Tax Comm’n, 390 U. S. 317, 325 (1968). The tax cannot be “out of all appropriate proportion to the business transacted by the appellant in that State.” Hans Rees’ Sons v. North Carolina ex rel. Maxwell, supra, at 135. The nexus is established if the corporation “avails itself of the ‘substantial privilege of carrying on business’ within the State.” Mobil Oil Corp. v. Commissioner of Taxes, supra, at 437, quoting Wisconsin v. J. C. Penney Co., 311 U. S. 435, 444-445 (1940). In the present case, Exxon does not dispute that it avails itself of that privilege through its marketing operations within Wisconsin. Appellant contends, however, that this nexus is insufficient to permit inclusion of all of Exxon’s corporate income within the apportionment formula. While appellant appears to concede that Wisconsin may properly apply its apportionment statute to Exxon’s Marketing Department income as established by its separate functional accounting, see Brief for Appellant 18, 29, 33; Reply Brief for Appellant 2-3, it argues that it has demonstrated ¿rough its accounting method what portion of its income is derived from exploration and production and from refining—functions which do not occur in Wisconsin and of which the marketing operation in that State is not an integral part. Appellant relies heavily on Moorman Mfg. Co. v. Bair, supra. The principal issue in that case was whether the single-factor sales formula used by Iowa to apportion for income tax purposes the income of an interstate business was prohibited by either the Due Process Clause or the Commerce Clause. In the course of that decision we noted that “[a]p-pellant does not suggest that it has shown that a significant portion of the income attributed to Iowa in fact was gen- EXXON CORP. v. WISCONSIN DEPT. OF REVENUE 221 207 Opinion of the Court erated by its Illinois operations; the record does not contain any separate accounting analysis showing what portion of appellant’s profits was attributable to sales, to manufacturing, or to any other phase of the company’s operations.” 437 U. S., at 272. See also id., at 275, n. 9. Exxon contends that Moorman sanctions the use of separate functional accounting in order to prove thé extraterritorial reach of a state tax statute, and that its accounting in this case demonstrates that the Wisconsin Supreme Court’s application of the state apportionment statute violates the Due Process Clause. We cannot agree. As this Court has on several occasions recognized, a company’s internal accounting techniques are not binding on a State for tax purposes. For example, in Butler Bros. v. McColgan, supra, an interstate business challenged the application of the California apportionment statute. The company was engaged in the wholesale dry goods and general merchandise business as a middleman, and it had distributing houses in seven States, including one in California. Each house maintained stocks of goods, had a cognizable territory, had its own sales force, did its own solicitation of sales, made its own credit and collection arrangements, and kept its own books. There was, however, a central buying division that was able to purchase goods for resale at a lower price. The company used “recognized accounting principles,” 315 U. S., at 505, to allocate all costs and charges to each house, with certain centralized expenses allocated among the houses. Based on that “separate accounting system,” id., at 507, the business asserted there was no net income in California. We concluded that California could constitutionally apply its apportionment formula to the company’s total net income to establish taxable income, rather than being limited to the income shown by the taxpayer’s accounting methods to be attributable to the one house in that State. The company had the “distinct burden of showing by ‘clear and cogent evidence’ that it results in extraterritorial values being taxed,” 222 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. ibid., quoting Norfolk 176b (1964 ed-)j and 26 U. 8. C §§7237 (a) and (b) (1964 ed.). 10 See S. 1895, 91st Cong, 1st Sess, §§701-708 (1969), and S 2637 91st Cong, 1st Sess, §§501-508 (1969), reprinted in Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong, 1st Sess, 69-77, 160-170 (1969). See also H. R 13743 and H R n \t1St ?ng” 1St SeSS” §§501-508 reprinted in Part i Drug Abuse Control Amendments-1970: Hearings on H. R. 11701 and i A' TT 3 the ®ubcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce, 91st Cong, 2d Sess, 17-20 (1970). 392 OCTOBER TERM, 1979 Opinion of the Court 447U.S. on October 20, 1969. See Narcotics Legislation: Hearings on S. 1895 et al. before the Subcommittee to Investigate Juvenile Delinquency of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 663, 676 (1969). The Attorney General earlier had sought Subcommittee approval for further input from the Justice Department on the penalty structures in the pending legislation, id., at 255, and Mr. Ingersoll presented several alternative penalty schemes for the Subcommittee’s consideration.11 His comments to the Subcommittee concerning the special parole provisions were, in their entirety, as follows: “Another requirement that has been included in the alternative penalty schemes is a special parole term that is a part of the illicit trafficking sentence structure. Just as incarceration is not always a meaningful answer to effective rehabilitation, certainly incarceration without an adequate supervisory followup after release is not in the best interest of society. “Therefore, we have required a special parole term so that persons sentenced for trafficking violations would be placed under supervision for a period of time regardless of whether they are incarcerated or their sentence probated or suspended. The intent here is to give the judges another tool for sentencing and another means of protecting society when dealing with the drug violator.” Id., at 676. 11A chart setting out the alternative penalty schemes proposed by the Justice Department is included in the record of hearings held before the Subcommittee on Public Health and Welfare of the House Committee on Interstate and Foreign Commerce. Id., at 90-92. This chart describes the penalty provisions favored by the Department for attempt and conspiracy as providing “that any person who attempts or conspires to commit any offense under the Act may be punished by imprisonment and/or fine, which may not exceed the maximum punishment proscribed for committing the offense.” Id., at 92. No mention is made of special parole terms in the conspiracy context. It seems, therefore, that the inexact draftsmanship that the Government would find in the legislative history of § 406 is not to be attributed solely to Congress. BIFULCO v. UNITED STATES 393 381 Opinion of the Court Mr. Ingersoll did not specify whether special parole terms were to be authorized for conspiracies to commit trafficking offenses, see n. 11, supra, and the bill that eventually was approved by the full Senate Committee on the Judiciary was no less ambiguous. See S. Rep. No. 91-613, pp. 116-118 (1969). That bill, S. 3246, 91st Cong., 2d Sess. (1970), in its §§ 501 (c)(1) and (2), mandated the imposition of a special parole term whenever a prison sentence was imposed under the forerunners to §§ 401 (b)(1)(A) and (B).12 But § 504 of the bill, the forerunner to § 406, included no reference to special parole.13 The Judiciary Committee’s section-by-section analysis of S. 3246 noted that special parole terms were to be imposed for certain substantive offenses, S. Rep. No. 91-613, at 25, but with respect to the “endeavor and conspiracy” provision stated only: “Section 504 provides that any person who endeavors or conspires to commit any offense defined in this title may be punished by imprisonment and/or a fine, which may not exceed the maximum punishment prescribed for the offense.” Id., at 26. The Government argues that the Subcommittee meant to include a specific reference to special parole in § 504 when it amended the substantive offense sections in response to Mr. Ingersoll’s testimony. For unexplained reasons, however, the Subcommittee neglected to make the conforming 12 The forerunner to §401 (b)(1)(B) was § 501 (c)(2) of S. 3246. It provided an identical penalty scheme for first offenders as does the cur- rent substantive offense—a term of imprisonment of not more than five years, a fine of not more than $15,000, or both, and a 2-year minimum special parole term in addition to any term of imprisonment. See S. Rep. No. 91-613, at 116. is Section 504 of S. 3246, which differed from § 406 only in its use of the term “endeavor” rather than “attempt,” provided: “Any person who endeavors or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the endeavor or conspiracy. S. Rep. No. 91-613, at 118. 394 OCTOBER TERM, 1979 Opinion of the Court 447U.S. change in the conspiracy section. Brief for United States 22. The wording of the Judiciary Committee’s section-by-section analysis, however, would seem to indicate its awareness that § 504, unlike the subsections of § 501 that had been amended to incorporate the concept of special parole, authorized punishments consisting only of “imprisonment and/or a fine.” Further support for the view that the Judiciary Committee knew what it was doing when it approved § 504 of S. 3246 may be found in those provisions of the bill that dealt with a second or subsequent offense. Under the Act, doubly enhanced penalties for second offenders are included within the provisions defining the sentences for individual substantive offenses. See, e. g., §401 (b)(1)(B), quoted supra, at 383-384. S. 3246, however, contained a separate provision, § 508 (a), that set out the penalties for repeat offenders. It stated: “Any person convicted of any offense under this Act is, if the offense is a second or subsequent offense, punishable by a term of imprisonment twice that authorized, by twice the fine otherwise authorized, or by both. If the conviction is for an offense punishable under subsection 501 (c)(1) or subsection 501 (c)(2) of this Act [the forerunners to §§401 (b)(1)(A) and (B)], and if it is the offender’s second or subsequent offense, the court shall impose, in addition to any terms of imprisonment and fine, twice the special parole term otherwise authorized.” S. Rep. No. 91-613, at 119-120.14 14 An identical provision was contained in H. R. 17463, 91st Cong., 2d Sess., §508 (a) (1970), a forerunner of the Act approved by one of the two House Committees to conduct hearings on the proposed narcotics legislation. See Controlled Dangerous Substances, Narcotics and Drug Control Laws: Hearings on H. R. 17463 before the House Committee on Ways and Means, 91st Cong., 2d Sess., 69 (1970) (hereinafter Ways and Means Hearings). The bill eventually passed by the House, H. R. 18583, 91st Cong., 2d Sess. (1970), incorporated enhanced penalties for repeat offenders within the individual substantive offenses. See 116 Cong. Rec. 33625 (1970). The House bills are discussed further below. BIFULCO v. UNITED STATES 395 381 Opinion of the Court We think this section of the Senate bill makes it fairly evident that the Committee recognized that it had provided for the imposition of special parole terms under various subsections of § 501, but that it had not done so generally.15 Thus, § 508 (a) of S. 3246, like § 405 of the Act, reveals that Congress’ failure explicitly to incorporate the concept of special parole into the Act’s conspiracy provision, alleged by the Government to have been inadvertent, in fact may have been intentional. The only reference made to the special parole provisions during the Senate debates on S. 3246 tends to confirm this conclusion. Senator Dodd, the Subcommittee chairman, summarized the sentencing provisions of §§501 (c)(1) and (2) as follows: “Those selling schedule I and II narcotics such as heroin and opium can draw a sentence of up to 12 years and a possible fine of $25,000. For schedules I, II, and III sales of non-narcotics such as marihuana, ‘pep pills’ and the like, the sentence is up to 5 years and a possible fine not exceeding $15,000. A [minimum] special parole term of from 2 to 3 years is required for each of the above offenses.” 116 Cong. Rec. 996 (1970). Senator Dodd did not mention the special parole concept in the context of any other sentencing provisions; § 504, the conspiracy provision of S. 3246, was not mentioned at all during the Senate debates. Given the scant support in the legislative history of the Senate bill for the Government’s position, it is not surprising that the Government must place greater reliance on events that transpired during the House’s consideration of proposed narcotics legislation similar to S. 3246. H. R. 17463, the subject of hearings before the House Committee on Ways and 15 The Government makes the same argument with respect to the repeat offender provisions of 8. 3246 and H. R. 17463 that it makes with respect to § 405, see n. 7, supra. The argument is no more persuasive here. 396 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Means in July 1970, contained penalty provisions that were substantially identical to those in S. 3246. See H. R. 17463, 91st Cong., 2d Sess., §§501 (c)(1), (c)(2), and 504 (1970), reprinted in Ways and Means Hearings 61, 66. Mr. Ingersoll appeared before the Committee on Ways and Means, testified as to the Department of Justice’s firm support for H. R. 17463, and submitted a section-by-section analysis of the bill which highlighted the differences between its provisions and existing federal narcotics legislation. Ways and Means Hearings 210-211. That analysis described the operation of the special parole terms applicable to § 501 (c), and noted: “This special parole term is a new program, and there are no comparable laws now in force for narcotic drug law convictions.” Id., at 222. With respect to the bill’s conspiracy provision, § 504, Mr. Ingersoll’s section-by-section analysis stated: “This section provides that a person may be punished for endeavoring or conspiring to commit an offense under this Act. Upon conviction, his sentence may not exceed the punishment prescribed for the offense which was the object of the attempt or the conspiracy.” Id., at 223. The Government would read the second sentence of this passage as explaining “that the sentencing scheme contemplated that conspiracy was to be punished to the same extent as object offenses, without exception.” Brief for United States 24. But the Ingersoll statement, like the language enacted in § 406, explains merely that the punishment imposed for conspiracy may not exceed the punishment authorized for the pertinent target offense. It does not define the punishment authorized under the conspiracy provision to include special parole, and it does not disavow petitioner’s theory that § 406 defines the types of punishment authorized for conspiracy, while the penalty provisions of the target offense set the maximum amounts of those types of punishment that properly may be imposed. Moreover, a chart sub BIFULCO v. UNITED STATES 397 381 Opinion of the Court mitted to the Committee by the Justice Department, and appended to Mr. Ingersoll’s section-by-section analysis, specifically noted that H. R. 17463 authorized the imposition of special parole terms for certain substantive offenses. Ways and Means Hearings 229. With respect to the conspiracy section of the bill, however, the chart contained a footnote that merely reads: “H. R. 17463 provides that any person who endeavors or conspires to commit any offense under the act may be punished 6?/ imprisonment and/or fine, which may not exceed the maximum punishment proscribed [sic] for committing the offense.” Id., at 230, n. 6. (Emphasis supplied.) In sum, we find no persuasive support for the Government’s argument in the report of the hearings before the House Committee on Ways and Means. The hearings before the Committee on Ways and Means followed earlier hearings conducted by the House Committee on Interstate and Foreign Commerce. The latter Committee issued the House Report on H. R. 18583, 91st Cong., 2d Sess. (1970), which contained additions and revisions to H. R. 17463 not pertinent to the sentencing provisions at issue here. H. R. Rep. No. 91-1444, pt. 1 (1970). Like the Senate Report, the House Report appears plainly to recognize the distinction between the penalties for specific substantive offenses, authorizing special parole terms, and the conspiracy offense, authorizing only terms of imprisonment and fines. Thus, with respect to § 406 of H. R. 18583, the direct ancestor of the present § 406, the House Report’s section-by-section analysis states: “Section 406 provides that any person who attempts or conspires to commit any offense defined in this title may be punished by imprisonment and/or fine which may not exceed the maximum amount set for the offense, the commission of which was the object of the attempt or conspiracy.” H. R. Rep. No. 91-1444, at 50. (Emphasis supplied.) 398 OCTOBER TERM, 1979 Opinion of the Court 447U.S. The grammatical structure of this sentence lends obvious support to petitioner’s theory that § 406 authorizes two types of sanctions—fines and imprisonment—and fixes the maximum amount of each that may be imposed by reference to the penalty provisions of the target offense. In conclusion, we believe that, rather than supporting the Government’s argument that Congress manifested an intention to authorize special parole terms for conspiracy convictions, the Act’s legislative history supports the opposite view. In hearings, debates, and legislative reports, to the extent that Congress’ attention was drawn to the matter, Members of both Houses explicitly recognized that the penalty provisions of some substantive offenses attached a mandatory minimum term of special parole to any term of imprisonment. On the other hand, every reference to one of the forerunners of § 406 stated that it authorized penalties consisting of imprisonment and/or fine, and failed to mention special parole. C Motivating policy. The Government strongly argues, finally, that Congress’ principal objective in enacting the penalty provisions of the Act—to deter professional criminals from engaging in drug trafficking for profit—“render [s] it unreasonable to ascribe to [Congress] the intent to authorize special parole for isolated substantive offenses while withholding this major sentencing tool for conspiracy offenses.” Brief for United States 28. This contention is unpersuasive for two reasons. First, as petitioner points out, Brief for Petitioner 14-23; Reply Brief for Petitioner 1-3, a comparison of those drug offenses for which Congress clearly authorized the imposition of special parole terms with those for which it clearly did not, does not reveal a coherent pattern based on the asserted justification for escalated sanctions. For some of the most serious offenses, as measured by the length of the term of imprisonment and severity of the fine they authorize, special BIFULCO v. UNITED STATES 399 381 Opinion of the Court parole is not included among the available sanctions. E. g., § 408 of the Act, 21 U. S. C. § 848 (continuing criminal enterprise) ; § 403 of the Act, 21 U. S. C. § 843 (registrants); and the new § 401 (d) of this Act, 21 U. S. C. § 841 (d) (1976 ed., Supp. II) (piperidine offenses). Thus, the Government’s argument based on Congress’ sentencing objectives would prove too much. Second, the thrust of the Government’s argument is that the conspiracy to engage in drug trafficking presents at least as great a threat, if not a greater one, to the community as does an isolated act of distribution. In other contexts, we have recognized the logic of that view. See, e. g., lannelli v. United States, 420 U. S. 770, 778 (1975). From this premise, the Government contends that Congress must have desired the harsh sanctions incorporated within the concept of special parole—the unlimited maximum length of its term and the grave consequences attending its revocation, see § 401 (c)— to be available to the judge sentencing a drug conspirator. What the Government does not mention, however, is that § 406 sets identical penalties for conspiracies and for attempts. Congress dealt with both these forms of inchoate crime in a single provision, and prescribed an identical range of punishment for a person convicted of participation in a major trafficking conspiracy, and for another person convicted of an unsuccessful attempt to manufacture or distribute a small amount of a controlled substance. When one focuses on the fact that § 406 penalizes attempts as well as conspiracies, it is not surprising that Congress would provide for less stringent sanctions to be imposed for violations of that provision than for a completed substantive offense. Indeed, as Mr. Ingersoll pointed out in his section-by-section analysis of H. R. 17463, prior to the passage of this Act an attempt to commit a substantive drug offense was not punishable at all under the federal narcotics laws. Ways and Means Hearings 223.16 16 The dissent takes us to task for failing to recognize that it is unlikely that Congress would intend that “the directors of a narcotics distribution 400 OCTOBER TERM, 1979 Opinion of the Court 447 TJ. S. IV This investigation into the meaning of § 406, as informed by an examination of its language and structure, its history, and relevant policy considerations, yields the likely conclusion that Congress’ failure specifically to authorize the imposition of special parole terms as punishment for those convicted of conspiracy was not a slip of the legislative pen, nor the result of inartful draftsmanship, but was a conscious and not irrational legislative choice. Our analysis reveals, at the least, a complete absence of an unambiguous legislative decision to authorize special parole terms as punishment for those convicted of drug conspiracies. Of course, to the extent that doubts remain, they must be resolved in accord with the rule of lenity.17 If our construction of Congress’ intent, as evi-business be punished less severely than their subordinates who merely peddle the poison.” Post, at 402. But even a cursory reading of the Act should make it clear that our opinion today will not result in the sentencing disparity the dissent fears. Section 406’s punishment provisions are not the sole sanctions Congress enacted for apprehended directors of organized drug trafficking operations. First, nothing prevents the Government from prosecuting the operators of a distribution network, either as principals or as aiders and abettors, for substantive manufacturing, distribution, and possession offenses, pursuant to §401 of the Act, 21 U. S. C. § 841. Second, and more significantly, Congress enacted two special provisions with the directors of large trafficking operations particularly in mind. The sanctions available under those provisions are especially severe. See § 408 of the Act, 21 U. S. C. § 848 (continuing criminal enterprise); §§409 (e)(2) and (3) of the Act, 21 U. S. C. §§ 849 (e) (2) and (3) (defining a special drug offender). 17 One might quarrel with our conclusion that Congress was aware of the distinction between the penalty provisions of § 401 (b) (1) (B) and § 406, and chose not to include special parole terms among the sanctions authorized for attempts and conspiracies. That it would be extremely difficult to accept the Government’s argument that Congress unambiguously intended a contrary result, however, perhaps is best evidenced by the fact that the rule of lenity is not mentioned, let alone applied, in any of the lower court opinions that have accepted the Government’s position. See cases cited in n. 4, supra, and accompanying text. The dissenting opinion would appear to fare little better on that score. BIFULCO v. UNITED STATES 401 381 Burger, C. J., concurring denced by the scant record it left behind, clashes with present legislative expectations, there is a simple remedy—the insertion of a brief appropriate phrase, by amendment, into the present language of § 406. But it is for Congress, and not this Court, to enact the words that will produce the result the Government seeks in this case. The judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to vacate the special parole term that was imposed upon petitioner. It is so ordered. Mr. Chief Justice Burger, concurring. If the question presented by this case were as simple and easy as the dissent formulates it—whether “the directors of a narcotics distribution business [should] be punished less severely than their subordinates who merely peddle the poison”—none of us would have any difficulty with the decision. But that is not really the issue. Rather, the question before the Court is substantially more limited: What do the words of the statute mean? Of course, we must try to discern the intent of Congress. But we perform that task by beginning with the ordinary meaning of the language of the statute. Our compass is not to read a statute to reach what we perceive—or even what we think a reasonable person should perceive—is a “sensible result”; Congress must be taken at its word unless we are to assume the role of statute revisers. Aaron v. SEC, 446 U. S. 680 (1980); TV A v. Hill, 437 U. S. 153, 173 (1978). Particularly in the administration of criminal justice, a badly drawn statute places strains on judges. See, e. g., Busic v. United States, 446 U. S. 398 (1980); LaRocca v. United States (decided with Busic). The temptation to exceed our limited judicial role and do what we regard as the more sensible thing is great, but it takes us on a slippery 402 OCTOBER TERM, 1979 Stevens, J., dissenting 447 U. S. slope. Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done. The Spirit of Liberty: Papers and Addresses of Learned Hand 306-307 (Dilliard ed. 1960). Not without the same reluctance that in my view underlies the Court’s opinion, I join the opinion. Mr. Justice Stevens, with whom Mr. Justice White and Mr. Justice Rehnquist join, dissenting. Should the directors of a narcotics distribution business be punished less severely than their subordinates who merely peddle the poison? It is unlikely that Congress so intended. See Callanan v. United States, 364 U. S. 587, 593-594. Since an ordinary reading of § 4061 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 implies that a conspirator may be punished just as severely as a substantive offender, I would so construe the statute. This construction is fortified by the total absence of any statement by any legislator suggesting any purpose to treat conspirators in the drug trade with any greater lenity than substantive offenders.2 This is particularly important in view of the fact that prior to the 1970 Act, Congress had authorized 1 “Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” 84 Stat. 1265, 21 U. S. C. § 846. 2 Surely the Court’s reference ante, at 399, to the offense of attempt cuts the other way, for it is common for legislation to authorize the same range of punishments for attempts as for substantive offenses. See, e. g., American Law Institute, Model Penal Code §5.05 (1) (Prop. Off. Draft 1962), which provides in part: “Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy.” BIFULCO v. UNITED STATES 403 381 Stevens, J., dissenting identical penalties for conspiracies and completed offenses. See ante, at 391. Because the statutory language conveys quite a different meaning to me, and because the Court has not paused to consider the narrow issue presented by this case in the context of the larger objectives Congress was seeking, I respectfully dissent. 404 OCTOBER TERM, 1979 Per Curiam 447 U. S. ANDERSON, WARDEN v. CHARLES ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 79-1377. Decided June 16, 1980 At respondent’s murder trial in a Michigan court resulting in his conviction, he was asked on cross-examination why he told the jury on direct examination a different story about stealing the murder victim’s car than he had told the police officers following his arrest after being given Miranda warnings. After his conviction was affirmed on appeal, respondent unsuccessfully sought a writ of habeas corpus in Federal District Court, but the Court of Appeals reversed, holding that the cross-examination violated due process under the rule of Doyle n. Ohio, 426 U. S. 610. Held: The cross-examination did not. violate due process. Doyle, which held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant’s silence following Miranda warnings, does not apply to cross-examination, such as occurred here, that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. Certiorari granted; 610 F. 2d 417, reversed. Per Curiam. Respondent Glenn Charles was arrested in Grand Rapids, Mich., while driving a stolen car. The car belonged to Theodore Ziefle, who had been strangled to death in his Ann Arbor home less than a week earlier. The respondent was charged with first-degree murder. At his trial in the Circuit Court of Washtenaw County, Mich., the State presented circumstantial evidence linking the respondent with the crime. The respondent was found with Ziefle’s car and some of his other personal property. The respondent also owned clothing like that worn by the man last seen with the victim, and he boasted to witnesses that he had killed a man and stolen ANDERSON v. CHARLES 405 404 Per Curiam his car. Police Detective Robert LeVanseler testified that he interviewed the respondent shortly after his arrest. After giving the respondent Miranda warnings, LeVanseler asked him about the stolen automobile. According to LeVanseler, the respondent said that he stole the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles from the local bus station. The respondent testified in his own behalf. On direct examination, he stated that he took Ziefle’s unattended automobile from the parking lot of Kelly’s Tire Co. in Ann Arbor. On cross-examination, the following colloquy occurred: “Q. Now, this Kelly’s Tire Company, that’s right next to the bus station, isn’t it? “A. That’s correct. “Q. And, the bus station and Kelly’s Tire are right next to the Washtenaw County Jail are they not? “A. They are. “Q. And, when you’re standing in the Washtenaw County Jail looking out the window you can look right out and see the bus station and Kelly’s Tire, can you not? “A. That’s correct. “Q. So, you’ve had plenty of opportunity from—well, first you spent some time in the Washtenaw County Jail, haven’t you? “A. Quite a bit. “Q. And, you have had plenty of opportunity to look out that window and see the bus station and Kelly’s Tire? “A. That’s right. “Q. And, you’ve seen cars being parked there, isn’t that right? “A. That’s correct. “Q. Is this where you got the idea to come up with the story that you took a car from that location? 406 OCTOBER TERM, 1979 Per Curiam 447U.S. “A. No, the reason I came up with that is because it’s the truth. “Q. It’s the truth? “A. That’s right. “Q. Don’t you think it’s rather odd that if it were the truth that you didn’t come forward and tell anybody at the time you were arrested, where you got that car ? “A. No, I don’t. “Q. You don’t think that’s odd? “A. I wasn’t charged with auto theft, I was charged with murder. “Q. Didn’t you think at the time you were arrested that possibly the car would have something to do with the charge of murder? “A. When I tried to talk to my attorney they wouldn’t let me see him and after that he just said to keep quiet. “Q. This is a rather recent fabrication of yours isn’t [sic] it not? “A. No it isn’t. “Q. Well, you told Detective LeVanseler back when you were first arrested, you stole the car back on Washtenaw and Hill Street? “A. Never spoke with Detective LeVanseler. “Q. Never did? “A. Right, except when Detective Hall and Price were there and then it was on tape.” Trial Transcript 302-304. The jury convicted the respondent of first-degree murder. The Michigan Court of Appeals affirmed, People N. Charles, 58 Mich. App. 371, 227 N. W. 2d 348 (1975), and the Michigan Supreme Court denied leave to appeal, 397 Mich. 815 (1976). The respondent then sought a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court withheld the writ, but a divided panel of the Court of Appeals for the Sixth Circuit ANDERSON v. CHARLES 407 404 Per Curiam reversed. The Court of Appeals held that “the prosecutor’s questions about [respondent’s] post-arrest failure to tell officers the same story he told the jury violated due process” under the rule of Doyle v. Ohio, 426 U. S. 610 (1976). 610 F. 2d 417, 422 (1979).1 The prison warden now petitions for a writ of certiorari. We grant the petition, grant the respondent leave to proceed in forma pauperis, and reverse the judgment of the Court of Appeals. In Doyle, wTe held that the Due Process Clause of the Fourteenth Amendment prohibits impeachment on the basis of a defendant’s silence following Miranda warnings. The case involved two defendants who made no postarrest statements about their involvement in the crime.2 Each testified at trial that he had been framed. On cross-examination, the prosecutor asked the defendants why they had not told the frameup story to the police upon arrest. We concluded that such impeachment was fundamentally unfair because Miranda warnings inform a person of his right to remain silent and 1 Neither the Court of Appeals nor the state courts addressed the question whether Doyle should be applied retroactively. Although the petitioner now claims that Doyle should be limited to prospective application, see Stovall n. Denno, 388 U. S. 293 (1967), there is no indication that this claim was raised in the courts below. Moreover, the respondent asserts that Doyle’s prohibition against use of postarrest silence was the law of the Sixth Circuit and of the State of Michigan long before his arrest. In view of our disposition of the merits of this controversy, we express no view on the retroactivity question. 2 One defendant said nothing at all. The other asked arresting officers, “[W]hat’s this all about?” 426 U. S., at 615, n. 5. When told the reason for his arrest, he exclaimed “you got to be crazy,” or “I don’t know what you are talking about.” Id., at 622-623, n. 4 (Stevens, J., dissenting). Both the Court and the dissent in Doyle analyzed the due process question as if both defendants had remained silent. The issue was said to involve cross-examination of a person who “does remain silent” after police inform him that he is legally entitled to do so. Id., at 620 (Stevens, J., dissenting) ; see id., at 616-619; id., at 621, 622, 626 (Stevens, J., dissenting). In any event, neither the inquiry nor the exclamation quoted above contradicted the defendant’s later trial testimony. 408 OCTOBER TERM, 1979 Per Curiam 447U.S. assure him, at least implicitly, that his silence will not be used against him. 426 U. S., at 618-619; see Jenkins n. Anderson, ante, at 239-240. Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. See United States v. Agee, 597 F. 2d 350, 354-356 (CA3) (en banc), cert, denied, 442 U. S. 944 (1979); United States v. Mireles, 570 F. 2d 1287, 1291-1293 (CA5 1978); United States v. Goldman, 563 F. 2d 501, 503-504 (CAI 1977), cert, denied, 434 U. S. 1067 (1978). In this case, the Court of Appeals recognized that the respondent could be questioned about prior statements inconsistent with his trial testimony. The court therefore approved the “latter portion of the above quoted cross-examination. . . 610 F. 2d, at 421. But the Court of Appeals found that “the earlier portion of the exchange” concerned the “separate issu[e]” of the respondent’s “failure to tell arresting officers the same story he told the jury.” Ibid. In the court’s view, these questions were unconstitutional inquiries about postarrest silence. Thus, the Court of Appeals divided the cross-examination into two parts. It then applied Doyle to bar questions that concerned the respondent’s failure to tell the police the story he recounted at trial. We do not believe that the cross-examination in this case can be bifurcated so neatly. The quoted colloquy, taken as a whole, does “not refe[r] to the [respondent’s] exercise of his right to remain silent; rather [it asks] the [respondent] why, if [his trial testimony] were true, he didn’t tell the officer that he stole the decedent’s car from the tire store parking lot instead of telling him that he took it from the ANDERSON v. CHARLES 409 404 Per Curiam street.” 58 Mich. App., at 381, 227 N. W. 2d, at 354. Any ambiguity in the prosecutor’s initial questioning was quickly resolved by explicit reference to Detective LeVanseler’s testimony, which the jury had heard only a few hours before. The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement. We conclude that Doyle does not apply to the facts of this case. Each of two inconsistent descriptions of events may be said to involve “silence” insofar as it omits facts included in the other version. But Doyle does not require any such formalistic understanding of “silence,” and we find no reason to adopt such a view in this case. The judgment of the Court of Appeals is Reversed. Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissents and would affirm the judgment of the Court of Appeals for the reasons stated in its opinion. 410 OCTOBER TERM, 1979 Syllabus 447 U.S. ILLINOIS v. VITALE CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 78-1845. Argued January 8, 1980—Decided June 19, 1980 As the result of an accident in which an automobile driven by respondent struck and killed two children, respondent was convicted for failing to reduce speed to avoid the accident in violation of an Illinois statute. Subsequently, based on the same accident, respondent was charged with involuntary manslaughter under another Illinois statute. Ultimately, after the Illinois trial and intermediate appellate courts had held that the manslaughter prosecution was barred on statutory grounds, the Illinois Supreme Court held that it was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment, the court reasoning that because the lesser offense required no proof beyond that necessary for a conviction of the greater offense of involuntary manslaughter, the greater offense was the “same” as the lesser-included offense. Held: The Double Jeopardy Clause does not necessarily prohibit Illinois from prosecuting respondent for involuntary manslaughter. Pp. 415-421. (a) Whether the offense of failing to reduce speed to avoid an accident is the “same offense” for double jeopardy purposes as the manslaughter charges, depends on whether each statute in question requires proof of a fact which the other does not. Blockburger n. United States, 284 U. S. 299. Pp. 415-416. (b) Thus, if manslaughter by automobile does not always entail proof of a failure to reduce speed, then the two offenses are not the “same” under the Blockburger test. And the mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution. Pp. 416-419. (c) But, if as a matter of Illinois law, a careless failure to reduce speed is always a necessary element of manslaughter by automobile, then the two offenses are the “same” under Blockburger and respondent’s trial on the latter charge would constitute double jeopardy. Brown v. Ohio, 432 U. S. 161. In any event, if in the pending manslaughter prosecution Illinois relies on and proves a failure to reduce speed to avoid an accident as the reckless act necessary to prove manslaughter, respondent would have a substantial claim of double jeopardy. Pp. 419-421. ILLINOIS v. WYME, 411 410 Opinion of the Court (d) Because the relationship under Illinois law between the crimes of involuntary manslaughter and a careless failure to reduce speed to avoid an accident is unclear, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, the Illinois Supreme Court’s judgment is vacated and the case is remanded to that court for further proceedings. P. 421. 71 Ill. 2d 229, 375 N. E. 2d 87, vacated and remanded. White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan, Stewart, and Marshall, JJ., joined, post, p. 421. James S. Veldman argued the cause for petitioner. With him on the briefs were William J. Scott, Attorney General of Illinois, Donald B. MacKay and Melbourne A. Noel, Jr., Assistant Attorneys General, Bernard Carey, and Marcia B. Orr. Lawrence G. Dirksen argued the cause and filed a brief for respondent. Mr. Justice White delivered the opinion of the Court. The question in this case is whether the Double Jeopardy Clause of the Fifth Amendment prohibits the State of Illinois (State) from prosecuting for involuntary manslaughter the driver of an automobile involved in a fatal accident, who previously has been convicted for failing to reduce speed to avoid the collision. I On November 24, 1974, an automobile driven by respondent John Vitale, a juvenile, struck two small children. One of the children died almost immediately; the other died the following day. A police officer at the scene of the accident issued a traffic citation charging Vitale with failing to reduce speed to avoid an accident in violation of § 11-601 (a) of the Illinois Vehicle Code. Ill. Rev. Stat., ch. 95^, § 11-601 (a) (1979). This statute provides in part that “[s]peed must be 412 OCTOBER TERM, 1979 Opinion of the Court 447U.S. decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” 1 On December 23, 1974, Vitale appeared in the Circuit Court of Cook County, Ill., and entered a plea of not guilty to the charge of failing to reduce speed.2 After a trial without a jury, Vitale was convicted and sentenced to pay a fine of $15.3 On the following day, December 24, 1974, a petition for adjudication of wardship was filed in the juvenile division of 1 Section 11-601 (a) of the Illinois Vehicle Code, Ill. Rev. Stat., ch. 95%, § 11-601 (a) (1979), provides: “No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” 2 With respect to the traffic offense, the record contains a copy of the complaint, which charged that respondent on “Wednesday, November 20, 1974, 12:29 p. m., did then and there operate a certain motor vehicle upon a public highway of this State, to wit 170th and Ingleside in Thornton, situated in Cook County, Illinois, and did then and there violate section 11-601 (a) of the Illinois Vehicle Code by failure to reduce speed to avoid an accident.” (Record 66-67.) Notations on the back of the complaint indicate that Vitale pleaded not guilty, waived a jury trial, was found guilty, and fined. 3 Failing to reduce speed to avoid an accident is punishable by no more than 30 days in jail or by a fine of no more than $500. Ill. Rev. Stat., ch. 95%, § 16-104 (a) (1975), and ch. 38, §§1005-9-1 and 1005-8-3 (1979). ILLINOIS v. NTTÈ&& 413 410 Opinion of the Court the Circuit Court of Cook County, charging Vitale with two counts of involuntary manslaughter.4 The petition, which was signed by the police officer who issued the traffic citation, alleged that Vitale “without lawful justification while recklessly driving a motor vehicle caused the death of” the two children killed in the November 20, 1974, accident. App. 2-4. Vitale’s counsel filed a motion to dismiss on the grounds, among others, that the manslaughter prosecution was “violative of statutory and/or constitutional double jeopardy,” id., at 7, because of Vitale’s previous conviction for failing to reduce speed to avoid the accident. The juvenile court found it unnecessary to reach a constitutional question because it held that the manslaughter prosecution was barred by Illinois statutes requiring, with certain nonpertinent exceptions, that all offenses based on the same conduct be prosecuted in a single prosecution. Ill. Rev. Stat., ch. 38, §§ 3-3 and 3-4 (b)(1) (1979).5 The juvenile court dismissed the petition for 4 At the time Vitale was prosecuted, § 9-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, §9-3 (1973), provided: “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly, (b) If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.” 5 Section 3-3 of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, § 3-3 (1979), provides: “(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense, (b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act. (c) When 2 or more offenses are charged as required by Subsec 414 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. adjudication of wardship and the State appealed. The Appellate Court of Illinois, First District, In re Vitale, 44 Ill. App. 3d 1030, 358 N. E. 2d 1288 (1976), affirmed the holding that the manslaughter prosecution was barred by the state compulsory joinder statutes. Ill. Rev. Stat., ch. 38, §§ 3-3 and 8-4 (b)(1) (1979). The Supreme Court of Illinois, with two justices dissenting, affirmed on other grounds. In re Vitale, 71 Ill. 2d 229, 375 N. E. 2d 87 (1978). The court did not reach the state statutory question for it found “a more compelling reason why respondent cannot be prosecuted for the offense of involuntary manslaughter”: the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment. After analyzing the elements of each offense, the court held that because “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter, . . . for purposes of the double jeopardy clause, the greater offense is by definition the ‘same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91. Thus the court concluded that the man tion (b), the court in the interest of justice may order that one or more of such charges be tried separately.” Section 3-4 (b) of the Illinois Criminal Code, Ill. Rev. Stat., ch. 38, §3-4 (b) (1979), provides in pertinent part: “A prosecution is barred if the defendant was formerly prosecuted for a different offense, ... if such former prosecution: (1) Resulted in either a conviction or an acquittal, and the subsequent prosecution . . . was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge). . . .” The juvenile court held that because the prosecution knew at the time the traffic offense was prosecuted that the automobile accident had resulted in the deaths that were the basis of the manslaughter charges, § 3-3 required that the traffic offense and the manslaughter charges be prosecuted in a single prosecution. The court therefore concluded that the manslaughter prosecution was barred by §3-4 (b)(1). ILLINOIS v. VITALE 415 410 Opinion of the Court slaughter prosecution was barred by the Double Jeopardy Clause. The dissenting justices argued that the manslaughter prosecution was not barred by the Double Jeopardy Clause because the homicide charge could be proved by showing one or more reckless acts other than the failure to reduce speed. Id., at 242, 251-253, 375 N. E. 2d, at 93, 96-97 (Underwood, J., joined by Ryan, J., dissenting). On November 27, 1978, we granted the State’s petition for certiorari, vacated the judgment, and remanded the case to the Supreme Court of Illinois to consider whether its judgment was based upon federal or state constitutional grounds. 439 U. S. 974 (1978). After the Supreme Court of Illinois, on remand, certified that its judgment was based upon federal constitutional grounds, we again granted a writ of certiorari. 444 U. S. 823 (1979). The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This constitutional guarantee is applicable to the States through the Due Process Clause of the Fourteenth Amendment, Benton v. Maryland, 395 U. S. 784 (1969), and it applies not only in traditional criminal proceedings but also in the kind of juvenile proceedings Vitale faced. Breed v. Jones, 421 U. S. 519 (1975). The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) “It protects against a second prosecution for the same offense after acquittal. [(2) I]t protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U. S. 711, 717 (1969) (footnotes omitted). Because Vitale asserts that his former conviction for failing to reduce speed bars his manslaughter prosecution, we are concerned with only the second of these three guarantees in the instant case. The sole question before us is whether the 416 OCTOBER TERM, 1979 Opinion of the Court 447U.S. offense of failing to reduce speed to avoid an accident is the “same offense” for double jeopardy purposes as the manslaughter charges brought against Vitale. In Brown v. Ohio, 432 U. S. 161 (1977), we stated the principal test for determining whether two offenses are the same for purposes of barring successsive prosecutions. Quoting from Blockburger v. United States, 284 U. S. 299, 304 (1932), which in turn relied on Gavieres v. United States, 220 U. S. 338, 342-343 (1911), 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.’ ” 432 U. S., at 166. We recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial. Thus we stated that if “ ‘each statute requires proof of an additional fact which the other does not,’ Morey v. Commonwealth, 108 Mass. 433, 434 (1871),” the offenses are not the same under the Blockburger test. 432 U. S., at 166 (emphasis supplied); lannelli n. United States, 420 U. S. 770, 785, n. 17 (1975).6 III We accept, as we must, the Supreme Court of Illinois’ identification of the elements of the offenses involved here. Under Illinois law, involuntary manslaughter with a motor vehicle involves a homicide by the “reckless operation of a motor vehicle in a manner likely to cause death or great bodily 6 In lannelli v. United States, 420 U. S., at 785, n. 17, we stated: “[T]he Court’s application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” ILLINOIS v. VITALE 417 410 Opinion of the Court harm.” In re Vitale, 71 Ill. 2d, at 239, 375 N. E. 2d, at 91. The charge of failing to reduce speed on which respondent was convicted requires proof “that the defendant drove carelessly and failed to reduce speed to avoid colliding with a person.” Id., at 238, 375 N. E. 2d, at 91. The Illinois court, after specifying these elements, then stated that “the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter” and concluded, as a matter of federal law, that “the greater offense is by definition the ‘same’ as the lesser offense included within it.” Id., at 239, 375 N. E. 2d, at 91. The Illinois court relied upon our holding in Brown v. Ohio, supra, that a conviction for a lesser-included offense precludes later prosecution for the greater offense. There, Brown was first convicted of joyriding in violation of an Ohio statute under which it was a crime to “take, operate, or keep any motor vehicle without the consent of its owner.” He was then convicted under another statute of stealing the same motor vehicle. The Ohio courts had held that every element of the joyriding “is also an element of the crime of auto theft,” and that to prove auto theft one need prove in addition to joyriding only the intent permanently to deprive the owner of possession. Holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that “the prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft.” Id., at 167. But we also noted that “the prosecutor who has established auto theft necessarily has established joyriding as well.” Id., at 168. Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated, or kept the auto without the consent of the owner—if proof of the auto theft had not necessarily involved proof of joyriding—the successive prosecutions would not have been for the “same offense” within the meaning of the Double Jeopardy Clause. 418 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Vitale does not dispute this proposition, but insists that the Illinois court fully satisfied Brown when it held that the lesser offense of failure to reduce speed “requires no proof beyond that which is necessary for a conviction of the greater, involuntary manslaughter.” It is clear enough from the opinion below that manslaughter by motor vehicle could be proved against Vitale by showing a death caused by his recklessly failing to slow his vehicle to avoid a collision with the victim. Proving manslaughter in this way would also prove careless failure to slow; nothing more would be needed to prove the latter offense, an offense for which Vitale has already been convicted. The State, however, does not concede that its manslaughter charge will or must rest on proof of a reckless failure to slow; it insists that manslaughter by automobile need not involve any element of failing to reduce speed. The petition for wardship charging manslaughter alleged only that Vitale “without lawful justification, while recklessly driving a motor vehicle, caused [two] death [s]” in violation of the manslaughter statute. Further, the dissenting justices relied upon the absence of any showing that the manslaughter charge on which respondent had not been tried, would rest upon his reckless failure to reduce speed. Nor could it be known, in their view, what particular reckless acts might be relied upon to prove the homicide charge.7 The State agrees, and sub 7 “The petition for wardship may have been based on Vitale’s acts in permitting his attention to be diverted while driving at a high rate of speed, failing to appropriately maintain the vehicle’s braking system, failing to note the seven school zone and speed warning signs, initially raising the speed of his auto to a dangerous level, or by disobeying the commands of the crossing guard. While we do not now know which of that series of acts the State intended to rely on at trial, one certainly cannot now say that it would rely solely upon Vitale’s failure to reduce speed to the exclusion of his other misconduct.” In re Vitale, 71 Ill. 2d 229, 251, 375 N. E. 2d 87, 97 (1978) (Underwood, J., dissenting). The police report concerning Vitale’s accident noted that the brakes on the automobile were defective and that there had been a school crossing ILLINOIS v. VITALE 419 410 Opinion of the Court mits that because it is not necessary to prove a failure to slow to establish manslaughter, the rule of Brown v. Ohio does not bar its homicide case against Vitale. The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision. Of course, any collision between two automobiles or between an automobile and a person involves a moving automobile and in that sense a “failure” to slow sufficiently to avoid the accident. But such a “failure” may not be reckless or even careless, if, when the danger arose, slowing as much as reasonably possible would not alone have avoided the accident. Yet, reckless driving causing death might still be proved if, for example, a driver who had not been paying attention could have avoided the accident at the last second, had he been paying attention, by simply swerving his car. The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the “same” under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution. IV If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the “same” under Blockburger and guard and a stop sign at the intersection where the accident occurred. (Record 29, 30.) 420 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio.8 In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, 433 U. S. 682 (1977). In Harris, we held, without dissent, that a defendant’s conviction for felony murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. The Oklahoma felonymurder statute on its face did not require proof of a robbery to establish felony murder; other felonies could underlie a felony-murder prosecution.9 But for the purposes of the Double Jeopardy Clause, we did not consider the crime generally described as felony murder as a separate offense distinct from its various elements. Rather, we treated a killing in the course of a robbery as itself a separate statutory offense, and the robbery as a species of lesser-included offense. The State conceded that the robbery for which petitioner had been indicted was in fact the underlying felony, all elements of 8 We recognized in Brown n. Ohio, 432 U. 8., at 169, n. 7 that “[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” This exception is not applicable here because the trial court found that the prosecution was aware that Vitale’s accident had resulted in two deaths at the time he was prosecuted for failing to reduce speed. 9 The Oklahoma felony-murder statute under which Harris was convicted, Okla. Stat., Tit. 21, §701 (3) (1971), provided that homicide is murder “[wjhen perpetrated without any design to effect death by a person engaged in the commission of any felony.” ILLINOIS v. VITALE 421 410 Stevens, J., dissenting which had been proved in the murder prosecution. We held the subsequent robbery prosecution barred under the Double Jeopardy Clause, since under In re Nielsen, 131 U. S. 176 (1889), a person who has been convicted of a crime having several elements included in it may not subsequently be tried for a lesser-included offense—an offense consisting solely of one or more of the elements of the crime for which he has already been convicted. Under Brown, the reverse is also true; a conviction on a lesser-included offense bars subsequent trial on the greater offense. By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution. V Because of our doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State will rely on to prove manslaughter are still unknown, we vacate the judgment of the Illinois Supreme Court and remand the case to that court for further proceedings not inconsistent with this opinion.10 So ordered. Mr. Justice Stevens, with whom Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall join,’ dissenting. The controlling issue in this case is whether respondent’s failure to reduce speed to avoid a collision, in violation of 10 We note also that the Illinois Supreme Court did not reach the question whether the lower Illinois courts were correct in dismissing the manslaughter case under the State’s compulsory joinder statute. 422 OCTOBER TERM, 1979 Stevens, J., dissenting 447U.S. § 11-601 (a) of the Illinois Motor Vehicle Code,1 was a lesser offense included within the greater offense of killing a person by the reckless “driving of a motor vehicle,” in violation of § 9-3 (b) of the Illinois Criminal Code.2 The Illinois Supreme Court held that it was and that, because respondent had already been convicted on the lesser charge, the State was barred by the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, from prosecuting him on the greater charge. There are two separate reasons, each of which is sufficient in itself, for affirming the judgment of the Illinois Supreme Court. First, after applying the test set forth in Brown v. Ohio, 432 U. S. 161, the Illinois Supreme Court made a finding that failing to reduce speed to avoid a collision is a lesser-included offense of reckless homicide as a matter of state law. This Court clearly has a duty to respect that finding. Second, even if the dissenting members of the Illinois Supreme Court were correct in their view that, as a matter of state law, the traffic offense is not necessarily a lesser-included 1 Illinois Rev. Stat., ch. 95%, § 11-601 (a) (1979), provides: “No vehicle may be driven upon any highway of this State at a speed which is greater than is reasonable and proper with regard to traffic conditions and the use of the highway, or endangers the safety of any person or property. The fact that the speed of a vehicle does not exceed the applicable maximum speed limit does not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions. Speed must be decreased as may be necessary to avoid colliding with any person or vehicle on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.” (Emphasis supplied.) 2 “If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of the included offense of reckless homicide.” Ill. Rev. Stat., ch. 38, § 9-3 (b) (1973). ILLINOIS v. VITALE 423 410 Stevens, J., dissenting offense in every reckless homicide prosecution, the Double Jeopardy Clause bars the homicide prosecution under the particular facts of this case. For, even if the State intended to rely on evidence other than respondent’s failure to reduce speed to establish the element of reckless driving necessary for a homicide conviction, the prosecutor’s failure to apprise the respondent and the court of such a theory at some point in the lengthy proceedings on the double jeopardy issue should bar the second trial in this case. I Relying on Blockburger n. United States, 284 U. S. 299, the Court holds that the question the Illinois Supreme Court should have addressed in this case was whether proof of reckless homicide by vehicle will always, in each and every case, establish the defendant’s guilt of the traffic offense as well. If not, the Court states that the traffic offense is not necessarily the “same offense” for double jeopardy purposes and therefore the second prosecution may not be barred by the Double Jeopardy Clause.3 Ante, at 419. The Court then goes on to discuss the position of the dissenting justices in the Illinois Supreme Court that it is theoretically possible for an Illinois prosecutor to prove a charge of reckless homicide by vehicle without proving a failure to reduce speed in order to avoid a collision. Because it finds the majority’s response to this argument “cryptic,” the Court refuses to accept the Illinois court’s clear determination that the traffic offense is a lesser-included offense of reckless homicide; instead, it reverses and remands for a new determination as to whether “under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.” 4 3 See the discussion of Part IV of the Court’s opinion, infra, at 426. 4 “The Illinois Supreme Court did not expressly address the contentions that manslaughter by automobile could be proved without also proving a 424 447 U. S. OCTOBER TERM, 1979 Stevens, J., dissenting I cannot agree that this is an appropriate disposition. As the Court itself recognizes, it is not the province of this or any other federal court to tell the State of Illinois what is or is not a lesser-included offense under state law.5 To the extent that this Court has any role at all, it is to ensure that the States apply the proper analytic framework insofar as they rely on the Double Jeopardy Clause of the Federal Con-stitution. ' Unlike the Court, I have no doubt that in this case the Illinois Supreme Court did apply the proper test. As the dissenting justices in the Illinois Supreme Court pointed out at some length, the Illinois courts are hardly unfamiliar with the Blockburger test, having consistently applied it for many years in determining whether two offenses are the same for purposes of either the Double Jeopardy Clause or the State’s own compulsory joinder statute. In re Vitale, 71 Ill. 2d 229, 24^245, 375 N. E. 2d 87, 93-94 (1978). In this case the majority of the Illinois court did not purport careless failure to reduce speed, and we are reluctant to accept its rather cryptic remarks about the relationship between the two offenses involved here as an authoritative holding that under Illinois law proof of manslaughter by automobile would always involve a careless failure to reduce speed to avoid a collision.” Ante, at 419. 5 Despite its apparent agreement with the dissenters’ reading of the Illinois statutes, see ibid., the Court does not hold that the Illinois Supreme Court is foreclosed from concluding on remand that failure to reduce speed is a lesser-included offense of reckless homicide by vehicle. On the contrary, the Court states: “If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the 'same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown n. Ohio.” Ante, at 419-420. See also Brown n. Ohio, 432 U. S. 161, 167, where the Court reiterated that state courts “‘have the final authority to interpret . . . that State’s legislation.’ Garner v. Louisiana, 368 U. S. 157, 169 (1961),” and thus accepted as “authoritative” the Ohio courts’ definition of the elements of the two offenses. ILLINOIS v. NATALA 425 410 Stevens, J., dissenting to deviate from that test. On the contrary, it relied heavily on this Court’s opinion in Brown n. Ohio, supra, which in turn relied upon Blockburger. Thus, after examining the statutory definitions of the two crimes at issue in this case, without reference to the particular facts of this case, the Illinois Supreme Court concluded: “As is usually the situation between greater and lesser included offenses, the lesser offense, failing to reduce speed, requires no proof beyond that which is necessary for conviction of the greater, involuntary manslaughter. Accordingly, for purposes of the double jeopardy clause, the greater offense is by definition the ‘same’ as the lesser offense included within it.” 71 Ill. 2d, at 239, 375 N. E. 2d, at 91. In so holding, the court made the same finding as this Court did in Brown v. Ohio'. “Applying the Blockburger test, we agree with the Ohio Court of Appeals that joyriding and auto theft, as defined by that court, constitute ‘the same statutory offense’ within the meaning of the Double Jeopardy Clause. App. 23. For it is clearly not the case that ‘each [statute] requires proof of a fact which the other does not.’ 284 U. S., at 304. As is invariably true of a greater and lesser included offense, the lesser offense—joyriding—requires no proof beyond that which is required for conviction of the greater—auto theft. The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.” 432 U. S., at 168. Having made the finding required by Brown v. Ohio, based on its interpretation of its own law, the Illinois Supreme Court should not now be required to go through the process all over again simply to assure this Court that it really meant what it plainly said. 426 OCTOBER TERM, 1979 Stevens, J., dissenting 447 U. S. II In Part IV of its opinion the Court states that, even if the Illinois Supreme Court should hold on remand that failure to reduce speed is not always a lesser-included offense as a matter of state law, respondent will still have a “substantial” double jeopardy claim if the State finds it necessary to rely on his failure to reduce speed in order to sustain its manslaughter case. In my opinion such a claim would not merely be “substantial”; it would be dispositive. In Harris v. Oklahoma, 433 U. S. 682, we held that a conviction on a felony-murder charge barred a subsequent prosecution for robbery, where the robbery had been used to establish the requisite intent on the murder charge. Cf. Whalen v. United States, 445 U. S. 684. Since it was theoretically possible that a different felony could have supported the murder charge, such a result may not have been required by a literal application of the Blockburger test, see Whalen v. United States, supra, at 708-711 (Rehnquist, J., dissenting). However, the entire Court agreed that it was required by the Double Jeopardy Clause. In this case, it is equally clear that the State could not use respondent’s failure to reduce speed to avoid a collision as the reckless act necessary to establish reckless homicide by vehicle, even if theoretically his recklessness could be proved in some other way. Throughout the five years that this case has been in litigation, the State has apparently not seen fit to reveal the basis of its homicide prosecution. The Court does not view this omission as an important one. On the contrary, its opinion implies that the State may proceed to trial before a determination is made on respondent’s double jeopardy claim. But surely such a procedure is inconsistent with the Double Jeopardy Clause, which was specifically designed to protect the citizen from multiple trials. The vital interest in avoiding an unlawful second trial led the Court in Abney v. United States, 431 IT. S. 651, to allow an appeal in advance of trial ILLINOIS v. VITALE 427 410 Stevens, J., dissenting in order to assure the defendant that the substance of his constitutional right to be protected against double jeopardy would not be lost before his plea could be vindicated. In that case the Court emphasized that “the Double Jeopardy Clause protects an individual against more than being subjected to double punishments. It is a guarantee against being twice put to trial for the same offense.” Id., at 660-661 (emphasis in original). Continuing, the Court stated: “Because of this focus on the ‘risk’ of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause: “ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green [v. United States, 355 U. S. 184,] 187-188. . [I]f a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” Id., at 661-662. (Emphasis in original.) If a defendant is entitled to have an appellate court rule on his double jeopardy claim in advance of trial, he is surely entitled to a definitive ruling by the trial court in advance 428 OCTOBER TERM, 1979 447 U. S. Stevens, J., dissenting of trial. Since the State has not provided the respondent with notice of any basis for the prosecution that does not depend upon proving, for the second time, a careless failure to reduce speed, I would not require this respondent to stand trial again. I respectfully dissent. REEVES, INC. v. STAKE • 429 Syllabus REEVES, INC. v. STAKE et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 79-677. Argued April 16, 1980—Decided June 19, 1980 For more than 50 years, South Dakota has operated a cement plant that produced cement for both state residents and out-of-state buyers. In 1978, because of a cement shortage, the State Cement Commission announced a policy to confine the sale of cement by the state plant to residents of the State. This policy forced petitioner ready-mix concrete distributor, one of the out-of-state buyers, to cut its production severely. Petitioner then brought suit in Federal District Court, challenging the policy. The court granted injunctive relief on the ground that the policy violated the Commerce Clause. The Court of Appeals reversed on the ground that the State had simply acted in a proprietary capacity. Held: South Dakota’s resident-preference program for the sale of cement does not violate the Commerce Clause. Pp. 434-447. (a) “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 810. Pp. 434-436. (b) The Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace, and there is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. Restraint in this area is also counseled by considerations of state sovereignty, each State’s role as guardian and trustee for its people, and the recognized right of a trader to exercise discretion as to the parties with whom he will deal. Moreover, state proprietary activities often are burdened with the same restrictions as private market participants. And, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, the adjustment of interests in this context is, as a rule, better suited for Congress than this Court. Pp. 436-439. (c) The arguments for invalidating South Dakota’s resident-preference program—that the State, having long exploited the interstate market for cement, should not be permitted to withdraw from it when a shortage 430 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. arises; that the program responds solely to the nongovernmental objective of protectionism; that hoarding may have undesirable consequences; that the program places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; and that if South Dakota had not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region—are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. To invalidate the program would discourage similar state projects and rob South Dakota of the intended benefit of its foresight, risk, and industry. Pp. 440-447. 603 F. 2d 736, affirmed. Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Marshall, and Rehnquist, JJ., joined. Powell, J., filed a dissenting opinion, in which Brennan, White, and Stevens, JJ., joined, post, p. 447. Dennis M. Kirven argued the cause and filed a brief for petitioner. William J. Janklow argued the cause for respondents. On the brief were Michael B. DeMersseman and Curtis S. Jensen. Mr. Justice Blackmun delivered the opinion of the Court. The issue in this case is whether, consistent with the Commerce Clause, U. S. Const., Art. I, § 8, cl. 3, the State of South Dakota, in a time of shortage, may confine the sale of the cement it produces solely to its residents. I In 1919, South Dakota undertook plans to build a cement plant. The project, a product of the State’s then prevailing Progressive political movement, was initiated in response to recent regional cement shortages that “interfered with and delayed both public and private enterprises,” and that were “threatening the people of this state.” Eakin v. South Dakota State Cement Comm’n, 44 S. D. 268, 272, 183 N. W. 651, 652 REEVES, INC. v. STAKE 431 429 Opinion of the Court (1921) .1 In 1920, the South Dakota Cement Commission anticipated “[t]hat there would be a ready market for the entire output of the plant within the state.” Report of State 1 It was said that the plant was built because the only cement plant in the State “had been operating successfully for a number of years until it had been bought by the so-called trust and closed down.” Report of South Dakota State Cement Commission 6 (1920). In its report advocating creation of a cement plant, the Commission noted both the substantial profits being made by private producers in the prevailing market, and the fact that producers outside the State were “now supplying all the cement used in” South Dakota. Under the circumstances, the Commission reasoned, it would not be to the “capitalists[’] . . . advantage to build a new plant within the state.” Id., at 8. This skepticism regarding private industry’s ability to serve public needs was a hallmark of Progressivism. See, e. g., R. Hofstadter, The Age of Reform 227 (1955) (“In the Progressive era the entire structure of business . . . became the object of a widespread hostility”). South Dakota, earlier a bastion of Populism, id., at 50, became a leading Progressivist State. See R. Nye, Midwestern Progressive Politics 217-218 (1959); G. Mowry, Theodore Roosevelt and the Progressive Movement 155, and n. 125 (1946). Roosevelt carried South Dakota in the election of 1912, id., at 281, n. 69, and Robert La Follette—on a platform calling for public ownership of railroads and waterpower, see K. MacKay, The Progressive Movement of 1924, pp. 270-271 (app. 4) (1966)—ran strongly (36.9%) in the State in 1924. Congressional Quarterly’s Guide to U. S. Elections 287 (-1975). The backdrop against which the South Dakota cement project was initiated is described in H. Schell, History of South Dakota 268-269 (3d ed. 1975): “Although a majority of the voters [in 1918] had seemingly subscribed to a state-ownership philosophy, it was a question how far the Republican administration at Pierre would go in fulfilling campaign promises. As [Governor] Norbeck entered upon his second term, he again urged a state hail insurance law and advocated steps toward a state-owned coal mine, cement plant, and state-owned stockyards. He also recommended an appropriation for surveying dam sites for hydroelectric development. The lawmakers readily enacted these recommendations into law, except for the stockyards proposal. . . . “. . . In retrospect, [Norbeck’s] program must be viewed as a part of the Progressives’ campaign against monopolistic prices. There was, moreover, the fervent desire to make the services of the state government 432 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Cement Commission 9 (1920). The plant, however, located at Rapid City, soon produced more cement than South Dakotans could use. Over the years, buyers in no less than nine nearby States purchased cement from the State’s plant. App. 26. Between 1970 and 1977, some 40% of the plant’s output went outside the State. The plant’s list of out-of-state cement buyers included petitioner Reeves, Inc. Reeves is a ready-mix concrete2 distributor organized under Wyoming law and with facilities in Buffalo, Gillette, and Sheridan, Wyo. Id., at 15. From the beginning of its operations in 1958, and until 1978, Reeves purchased about 95% of its cement from the South Dakota plant. Id., at 15 and 22. In 1977, its purchases were $1,172,000. Id., at 17. In turn, Reeves has supplied three northwestern Wyoming counties with more than half their ready-mix concrete needs. Id., at 15. For 20 years the relationship between Reeves and the South Dakota cement plant was amicable, uninterrupted, and mutually profitable. As the 1978 construction season approached, difficulties at the plant slowed production. Meanwhile, a booming construction industry spurred demand for cement both regionally and nationally. Id., at 13. The plant found itself unable to meet all orders. Faced with the same type of “serious cement shortage” that inspired the plant’s construction, the Commission “reaffirmed its policy of supplying all South Dakota customers first and to honor all contract commit- available to agriculture. . . . These were basic tenets of the Progressive philosophy of government.” 2“[C]ement is a finely ground manufactured mineral product, usually gray in color. It is mixed with water and sand, gravel, crushed stone, or other aggregates to form concrete, the rock-like substance that is the most widely used construction material in the world.” Portland Cement Association, The U. S. Cement Industry, An Economic Report 5 (2d ed. 1978). “Ready-mixed concrete is the term applied to ordinary concrete that is mixed at a central depot instead of on the construction site, and is distributed in special trucks.” 4 Encyclopedia Britannica 1077 (1974). REEVES, INC. v. STAKE 433 429 Opinion of the Court ments, with the remaining volume allocated on a first come, first served basis.” Ibid.3 Reeves, which had no pre-existing long-term supply contract, was hit hard and quickly by this development. On June 30, 1978, the plant informed Reeves that it could not continue to fill Reeves’ orders, and on July 5, it turned away a Reeves truck. Id., at 17-18. Unable to find another supplier, id., at 21, Reeves was forced to cut production by 76% in mid-July. Id., at 20. On July 19, Reeves brought this suit against the Commission, challenging the plant’s policy of preferring South Dakota buyers, and seeking injunctive relief. Id., at 3-10. After conducting a hearing and receiving briefs and affidavits, the District Court found no substantial issue of material fact and permanently enjoined the Commission’s practice. The court reasoned that South Dakota’s “hoarding” was inimical to the national free market envisioned by the Commerce Clause. Id., at 27-30. The United States Court of Appeals for the Eighth Circuit reversed. Reeves, Inc. v. Kelley, 586 F. 2d 1230, 1232 (1978). It concluded that the State had “simply acted in a proprietary capacity,” as permitted by Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). Petitioner sought certiorari. This Court granted the petition, vacated the judgment, and remanded the case for further consideration in light of Hughes v. Oklahoma, 441 U. S. 322 (1979). Reeves, Inc. v. Kelley, 441 U. S. 939 (1979). On remand, the Court of Appeals distinguished that case.4 Again relying on Alexandria 3 It is not clear when the State initiated its policy preferring South Dakota customers. The record, however, shows that the policy was in place at least by 1974. App. 24. 4 We now agree with the Court of Appeals that Hughes v. Oklahoma does not bear on analysis here. That case involved a State’s attempt “ ‘to prevent privately owned articles of trade from being shipped and sold in interstate commerce.’ ” Philadelphia v. New Jersey, 437 U. S. 617, 627 (1978), quoting Foster-Fountain Packing Co. v. Hay del, 278 U. S. 1, 10 434 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Scrap, the court abided by its previous holding. Reeves, Inc. v. Kelley, 603 F. 2d 736 (1979). We granted Reeves’ petition for certiorari to consider once again the impact of the Commerce Clause on state proprietary activity. 444 U. S. 1031 (1980).5 II A Alexandria Scrap concerned a Maryland program designed to remove abandoned automobiles from the State’s roadways and junkyards. To encourage recycling, a “bounty” was offered for every Maryland-titled junk car converted into scrap. Processors located both in and outside Maryland were eligible to collect these subsidies. The legislation, as initially enacted in 1969, required a processor seeking a bounty to present documentation evidencing ownership of the wrecked car. This requirement however, did not apply to “hulks,” inoperable automobiles over eight years old. In 1974, the statute was amended to extend documentation requirements to hulks, which comprised a large majority of the junk cars being processed. Departing from prior practice, the new law imposed more exacting documentation requirements on out-of-state than in-state processors. By making it less remunerative for suppliers to transfer vehicles outside Maryland, the (1928). Thus, it involved precisely the type of activity distinguished by the Court in Alexandria Scrap. See 426 U. S., at 805-806. 5 During the pendency of this litigation, economic conditions have permitted South Dakota to discontinue enforcement of its resident-preference policy. We agree with the parties, however, that the case has not become moot. During at least three construction seasons within as many decades the cement plant has been unable, or nearly unable, to satisfy demand. See, e. g., Twelfth Biennial Report of the South Dakota State Cement Commission (1948); App. 23 (affidavit of C. A. Reeves). Under these circumstances, “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Weinstein v. Bradford, 423 U. S. 147, 149 (1975). REEVES, INC. v. STAKE 435 429 Opinion of the Court reform triggered a “precipitate decline in the number of bounty-eligible hulks supplied to appellee’s [Virginia] plant from Maryland sources.” 426 U. S., at 801. Indeed, “[t]he practical effect was substantially the same as if Maryland had withdrawn altogether the availability of bounties on hulks delivered by unlicensed suppliers to licensed non-Maryland processors.” Id., at 803, n. 13; see id., at 819 (dissenting opinion). Invoking the Commerce Clause, a three-judge District Court struck down the legislation. 391 F. Supp. 46 (Md. 1975). It observed that the amendment imposed “substantial burdens upon the free flow of interstate commerce,” id., at 62, and reasoned that the discriminatory program was not the least disruptive means of achieving the State’s articulated objective. Id., at 63. See generally Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970).6 This Court reversed. It recognized the persuasiveness of the lower court’s analysis if the inherent restrictions of the Commerce Clause were deemed applicable. In the Court’s view, however, Alexandria Scrap did not involve “the kind of action with which the Commerce Clause is concerned.” 426 U. S., at 805. Unlike prior cases voiding state laws inhibiting interstate trade, “Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price,” id., at 806, “as a purchaser, in effect, of a potential article of interstate commerce,” and has restricted “its trade to its own citizens or businesses within the State.” Id., at 808.7 6 Maryland sought to justify its reform as an effort to reduce bounties paid to out-of-state processors on Maryland-titled cars abandoned outside Maryland. The District Court concluded that Maryland could achieve this goal more satisfactorily by simply restricting the payment of bounties to only those cars abandoned in Maryland. 7 The Court invoked this rationale after explicitly reiterating the District Court’s finding that the Maryland program imposed “ ‘substantial 436 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Having characterized Maryland as a market participant, rather than as a market regulator, the Court found no reason to “believe the Commerce Clause was intended to require independent justification for [the State’s] action.” Id., at 809. The Court couched its holding in unmistakably broad terms. “Nothing in the purposes animating the Commerce Clause prohibits a State, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.” Id., at 810 (footnote omitted).8 B The basic distinction drawn in Alexandria Scrap between States as market participants and States as market regulators makes good sense and sound law. As that case explains, the burdens upon the free flow of interstate commerce.’ ” 426 U. S., at 804. Moreover, the Court was willing to accept the Virginia processor’s characterization of the Maryland program as “reducing in some manner the flow of goods in interstate commerce.” Id., at 805. Given this concession, we are unable to accept the dissent’s description of Alexandria Scrap as a case in which “we found no burden on commerce,” post, at 451, “concluded that the subsidies . . . erected no barriers to trade,” post, at 452, and determined that the Maryland program did not “cut off,” ibid., or “impede the flow of interstate commerce,” post, at 450. Indeed, even the dissent in the present case recognizes that the Maryland subsidy program “divertfed] Maryland 'hulks’ to in-state processors.” Post, at 451. To be sure, Alexandria Scrap rejected the argument that “the bounty program constituted an impermissible burden on interstate commerce.” Ibid, (emphasis added). It did so, however, solely because Maryland had “entered into the market itself.” 426 U. 8., at 806. Thus, the two-step analysis distilled by the dissent from Alexandria Scrap, see post, at 451-453, collapses into a single inquiry: whether the challenged “program constituted direct state participation in the market.” Post, at 451. The dissent agrees that that question is to be answered in the affirmative here. Ibid. 8 The dissent’s central criticisms of the result reached here seem to be that the South Dakota policy does not emanate from “the power of governments to supply their own needs,” and that it threatens “ 'the natural functioning of the interstate market.’ ” Post, at 450. The same observations, however, apply with equal force to the subsidy program challenged in Alexandria Scrap. REEVES, INC. v. STAKE 437 429 Opinion of the Court Commerce Clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. Id., at 807-808, citing H. P. Hood & Sons v. Du Mond, 336 U. S. 525, 539 (1949) (referring to “home embargoes,” “customs duties,” and “regulations” excluding imports). There is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market. See L. Tribe, American Constitutional Law 336 (1978) (“the commerce clause was directed, as an historical matter, only at regulatory and taxing actions taken by states in their sovereign capacity”). The precedents comport with this distinction.9 9 Alexandria Scrap does not stand alone. In American Yearbook Co. v. Askew, 339 F. Supp. 719 (MD Fla. 1972), a three-judge District Court upheld a Florida statute requiring the State to obtain needed printing services from in-state shops. It reasoned that “state proprietary functions” are exempt from Commerce Clause scrutiny. Id., at 725. This Court affirmed summarily. 409 U. S. 904 (1972). Numerous courts have rebuffed Commerce Clause challenges directed at similar preferences that exist in “a substantial majority of the states.” Note, 58 Iowa L. Rev. 576 (1973). City of Phoenix v. Superior Court, 109 Ariz. 533, 535, 514 P. 2d 454, 456 (1973) (citing American Yearbook to reaffirm Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 255 P. 2d 604 (1953)); Denver v. Bossie, 83 Colo. 329, 266 P. 214 (1928); In re Gemmill, 20 Idaho 732, 119 P. 298 (1911); People ex rel. Holland v. Bleigh Constr. Co., 61 Ill. 2d 258, 274-275, 335 N. E. 2d 469, 479 (1975) (citing American Yearbook); State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258 (1917); Allen v. Ldbsap, 188 Mo. 692, 87 S. W. 926 (1905); Hersey n. Neilson, 43 Mont. 132, 131 P. 30 (1913); Tribune Printing & Binding Co. v. Barnes, 1 N. D. 591, 75 N. W. 904 (1898). See also Dixon-Paul Printing Co. n. Board of Public Contracts, 117 Miss. 83, 77 So. 908 (1918); Luboil Heat & Power Corp. v. Pleydell, 178 Mise. 562, 564, 34 N. Y. S. 2d 587, 591 (Sup. 1942). The only clear departure from this pattern, People ex rel. Treat v. Coler, 166 N. Y. 144, 59 N. E. 776 (1901), drew a strong dissent, and has been uniformly criticized in later decisions. See, e. g., State ex rel. Collins v. Senatobia Blank Book & Stationery Co., supra; Allen v. Labsap, supra. One other case merits comment. In Bethlehem Steel Corp. v. Board of Commissioners, 276 Cal. App. 2d 221, 80 Cal. Rptr. 800 (1969), the court 438 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Restraint in this area is also counseled by considerations of state sovereignty,10 the role of each State “ ‘as guardian and trustee for its people,’ ” Heim v. McCall, 239 U. S. 175, 191 (1915), quoting Atkin v. Kansas, 191 U. S. 207, 222-223 (1903),11 and “the long recognized right of trader or manu struck down a California statute requiring the State to contract only with persons who promised to use or supply materials produced in the United States. In Opinion No. 69-253, 53 Op. Cal. Atty. Gen. 72 (1970), the State’s Attorney General reasoned that Bethlehem Steel similarly prohibited, under the “foreign commerce” Clause, statutes giving a preference to California-produced goods. We have no occasion to explore the limits imposed on state proprietary actions by the “foreign commerce” Clause or the constitutionality of “Buy American” legislation. Compare Bethlehem Steel Corp., supra, with K. S. B. Technical Sales Corp. v. North Jersey Dist. Water Supply Comm’n, 75 N. J. 272, 381 A. 2d 774 (1977). We note, however, that Commerce Clause scrutiny may well be more rigorous when a restraint on foreign commerce is alleged. See Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979). 10 See American Yearbook Co. v. Askew, 339 F. Supp., at 725 (“ad hoc” inquiry into burdening of interstate commerce “would unduly interfere with state proprietary functions if not bring them to a standstill”). Considerations of sovereignty independently dictate that marketplace actions involving “integral operations in areas of traditional governmental functions”—such as the employment of certain state workers—may not be subject even to congressional regulation pursuant to the commerce power. National League of Cities v. Usery, 426 U. S. 833, 852 (1976). It follows easily that the intrinsic limits of the Commerce Clause do not prohibit state marketplace conduct that falls within this sphere. Even where “integral operations” are not implicated, States may fairly claim some measure of a sovereign interest in retaining freedom to decide how, with whom, and for whose benefit to deal. The Supreme Court, 1975 Term, 90 Harv. L. Rev. 1, 56, 63 (1976). 11 See Foster-Fountain Packing Co. n. Haydel, 278 U. S., at 13 (“As the representative of its people, the State might have retained the shrimp for consumption and use therein”); Toomer n. Witsell, 334 U. S. 385, 409 (1948) (concurring opinion) (state power to provide for own citizens by developing food supply distinguished from interference with private transactions in food products); Helvering n. Gerhardt, 304 U. S. 405, 427 (1938) (concurring opinion) (“The genius of our government provides that, within the sphere of constitutional action, the people . . . REEVES, INC. v. STAKE 439 429 Opinion of the Court facturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.” United States v. Colgate & Co., 250 U. S. 300, 307 (1919).12 Moreover, state proprietary activities may be, and often are, burdened with the same restrictions imposed on private market participants.13 Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause. See State ex rel. Collins n. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 260, 76 So. 258, 260 (1917); Tribune Printing & Binding Co. v. Barnes, 7 N. D. 591, 597, 75 N. W. 904, 906 (1898). Finally, as this case illustrates, the competing considerations in cases involving state proprietary action often will be subtle, complex, politically charged, and difficult to assess under traditional Commerce Clause analysis. Given these factors, Alexandria Scrap wisely recognizes that, as a rule, the adjustment of interests in this context is a task better suited for Congress than this Court. have the power to determine as conditions demand, what services and functions the public welfare requires”). 12 When a State buys or sells, it has the attributes of both a political entity and a private business. Nonetheless, the dissent would dismiss altogether the “private business” element of such activity and focus solely on the State’s political character. Post, at 450. The Court, however, heretofore has recognized that “[l^ike private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.” Perkins v. Lukens Steel Co., 310 U. S. 113, 127 (1940) (emphasis added). While acknowledging that there may be limits on this sweepingly phrased principle, we cannot ignore the similarities of private businesses and public entities when they function in the marketplace. 13 ge6j National League of Cities v. Usery, 426 U. S., at 854, n. 18; New York v. United States, 326 U. S. 572 (1946); United States v. California, 297 U. S. 175 (1936). See also Lafayette v. Louisiana Power & Light Co., 435 U. S. 389 (1978). 440 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Ill South Dakota, as a seller of cement, unquestionably fits the “market participant” label more comfortably than a State acting to subsidize local scrap processors. Thus, the general rule of Alexandria Scrap plainly applies here.14 Petitioner argues, however, that the exemption for marketplace participation necessarily admits of exceptions. While conceding that possibility, we perceive in this case no sufficient reason to depart from the general rule. A In finding a Commerce Clause violation, the District Court emphasized that the Commission . . . made an election to become part of the interstate commerce system.” App. 28. The gist of this reasoning, repeated by petitioner here, is that one good turn deserves another. Having long exploited the interstate market, South Dakota should not be permitted to withdraw from it when a shortage arises. This argument is not persuasive. It is somewhat self-serving to say that South Dakota has “exploited” the interstate market. An equally fair characterization is that neighboring States long have benefited from South Dakota’s foresight and industry. Viewed in this light, it is not surprising that Alexandria Scrap rejected an argument that the 1974 Maryland legislation challenged there was invalid because cars abandoned in Maryland had been processed in neighboring States for five years. As m Alexandria Scrap, we must conclude that “this chronology does not distinguish the case, for Commerce Clause purposes, 14 The criticism received by Alexandria Scrap in part has been directed at its application of the proprietary immunity to state subsidy programs See Note, 18 B. C. Ind. & Com. L. Rev. 893, 924-925 (1977) But see The Supreme Court, 1975 Term, 90 Harv. L. Rev., at 60-61. We have no occasion here to inquire whether subsidy programs unlike that involved in Alexandria Scrap warrant characterization as proprietary rather than regulatory, activity. Cf. 18 B. C. Ind. & Com. L. Rev., at REEVES, INC. v. STAKE 441 429 Opinion of the Court from one in which a State offered [cement] only to domestic [buyers] from the start.” 426 U. S., at 809.15 Our rejection of petitioner’s market-exploitation theory fundamentally refocuses analysis. It means that to reverse we would have to void a South Dakota “residents only” policy even if it had been enforced from the plant’s very first days. Such a holding, however, would interfere significantly with a State’s ability to structure relations exclusively with its own citizens. It would also threaten the future fashioning of effective and creative programs for solving local problems and distributing government largesse. See n. 1, supra. A healthy regard for federalism and good government renders us reluctant to risk these results. “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). 15 Alexandria Scrap explained: “It is true that the state money initially was made available to licensed out-of-state processors as well as those located within Maryland, and not until the 1974 amendment was the financial benefit channeled, in practical effect, to domestic processors. But this chronology does not distinguish the case, for Commerce Clause purposes, from one in which a State offered bounties only to domestic processors from the start. Regardless of when the State’s largesse is first confined to domestic processors, the effect upon the flow of hulks resting within the State is the same: they will tend to be processed inside the State rather than flowing to foreign processors. But no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes their movement out of State. They remain within Maryland in response to market forces, including that exerted by money from the State.” 426 U. S., at 809-810. (Footnote omitted.) 442 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. B Undaunted by these considerations, petitioner advances four more arguments for reversal: First, petitioner protests that South Dakota’s preference for its residents responds solely to the “non-governmental ob-jectivfe]” of protectionism. Brief for Petitioner 25. Therefore, petitioner argues, the policy is per se invalid. See Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). We find the label “protectionism” of little help in this context. The State’s refusal to sell to buyers other than South Dakotans is “protectionist” only in the sense that it limits benefits generated by a state program to those who fund the state treasury and whom the State was created to serve. Petitioner’s argument apparently also would characterize as “protectionist” rules restricting to state residents the enjoyment of state educational institutions, energy generated by a state-run plant, police and fire protection, and agricultural improvement and business development programs. Such policies, while perhaps “protectionist” in a loose sense, reflect the essential and patently unobjectionable purpose of state government—to serve the citizens of the State.16 16 Petitioner would distinguish Alexandria Scrap as involving state legislation designed to advance the nonprotectionist goal of environmentalism. This characterization is an oversimplification. The challenged feature of the Maryland program—the discriminatory documentation requirement—was not aimed at improving the environment; indeed by decreasing the profit margin a hulk supplier could expect to receive if he delivered to the most accessible recycling plant, it is likely that the amendment somewhat set back the goal of encouraging hulk processing. The stated justification for the discriminatory regulation—reducing payments to out-of-state processors for recycling of hulks abandoned outside Maryland— was not even mentioned by the Court in rebuffing the Virginia processor’s Commerce Clause challenge. Indeed, the central point of the Court’s analysis was that demonstration of an “independent justification” was unnecessary to sustain the State’s program. See Note, 18 B. C. Ind. & REEVES, INC. v. STAKE 443 429 Opinion of the Court Second, petitioner echoes the District Courts warning. “If a state in this union, were allowed to hoard its commodities or resources for the use of their own residents only, a drastic situation might evolve. For example, Pennsylvania or Wyoming might keep their coal, the northwest its timber, and the mining states their minerals. The result being that embargo may be retaliated by embargo and commerce would be halted at state lines.” App. 29. See, e. g., Baldwin v. Montana Fish & Game Comm’n, 436 U. S. 371, 385-386 (1978). This argument, although rooted in the core purpose of the Commerce Clause, does not fit the present facts. Cement is not a natural resource, like coal, timber, wild game, or minerals. Cf. Hughes v. Oklahoma, 441 U. S. 322 (1979) (minnows); Philadelphia v. New Jersey, supra (landfill sites); Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (natural gas); West v. Kansas Natural Gas Com. L. Rev., at 927-928. At bottom, the discrimination challenged in Alexandria Scrap was motivated by the same concern underlying South Dakota’s resident-preference policy—a desire to channel state benefits to the residents of the State supplying them. If some underlying commendable as well as legitimate” purpose, 426 U. S., at 809, is also required, it is certainly present here. In establishing the plant, South Dakota sought the most unstartling governmental goal: improvement of the quality of life in that State by generating a supply of a previously scarce product needed for local construction and governmental improvements. A cement program, to be sure, may be a somewhat uhusual or unorthodox way in which to utilize state funds to improve the quality of residents’ lives. But “[a] State’s project is as much a legitimate governmental activity whether it is traditional, or akin to private enterprise, or conducted for profit. ... A State may deem it as essential to its economy that it own and operate a railroad, a mill, or an irrigation system as it does to own and operate bridges, street lights, or a sewage disposal plant. What might have been viewed in an earlier day as an improvident or even dangerous extension of state activities may today be deemed indispensable.” New York v. United States, 326 U. S., at 591 (dissenting opinion). 444 447 U. S. OCTOBER TERM, 1979 Opinion of the Court Co., 221 U. S. 229 (1911) (same); Note, 32 Rutgers L. Rev. 741 (1979). It is the end product of a complex process whereby a costly physical plant and human labor act on raw materials. South Dakota has not sought to limit access to the State’s limestone or other materials used to make cement. Nor has it restricted the ability of private firms or sister States to set up plants within its borders. Tr. of Oral Arg. 4. Moreover, petitioner has not suggested that South Dakota possesses unique access to the materials needed to produce cement.17 Whatever limits might exist on a State’s ability to invoke the Alexandria Scrap exemption to hoard resources which by happenstance are found there, those limits do not apply here. Third, it is suggested that the South Dakota program is infirm because it places South Dakota suppliers of ready-mix concrete at a competitive advantage in the out-of-state market; Wyoming suppliers, such as petitioner, have little chance against South Dakota suppliers who can purchase cement from the State’s plant and freely sell beyond South Dakota’s borders. The force of this argument is seriously diminished, if not eliminated, by several considerations. The argument neces- 17 Nor has South Dakota cut off access to its own cement altogether, for the policy does not bar resale of South Dakota cement to out-of-state purchasers. Although the out-of-state buyer in the secondary market will undoubtedly have to pay a markup not borne by South Dakota competitors, this result is not wholly unjust. There should be little question that South Dakota at least could exact a premium on out-of-state purchases to compensate it for the State’s investment and risk in the plan. If one views the added markup paid by out-of-state buyers to South Dakota middlemen as the rough equivalent of this “premium,” the challenged program equates with a permissible result. The “bottom line” of the scheme closely parallels the result in Alexandria Scrap: out-of-state concrete suppliers are not removed from the market altogether; to compete successfully with in-state competitors, however, they must achieve additional efficiencies or exploit natural advantages such as their location to offset the incremental advantage channeled by the State’s own market behavior to in-state concrete suppliers. REEVES, INC. v. STAKE Opinion of the Court 445 429 sarily implies that the South Dakota scheme would be unobjectionable if sales in other States were totally barred. It therefore proves too much, for it would tolerate even a greater measure of protectionism and stifling of interstate commerce than the challenged system allows. See K. S. B. Technical Sales Corp. n. North Jersey Dist. Water Supply Comm’n, 75 N. J. 272, 298, 381 A. 2d 774, 787 (1977) (“It would be odd indeed to find that when a state becomes less parochial . . . its purpose becomes suspect under the Commerce Clause”). Cf. Pike v. Bruce Church, Inc., 397 U. S., at 142 (“And the extent of the burden that will be tolerated will of course depend ... on whether [the state interest] could be promoted as well with a lesser impact on interstate activities”). Nor is it to be forgotten that Alexandria Scrap approved a state program that “not only . . . effectively protect[ed] scrap processors with existing plants in Maryland from the pressures of competitors with nearby out-of-state plants, but [that] implicitly offer[ed] to extend similar protection to any competitor . . . willing to erect a scrap processing facility within Maryland’s boundaries.” 391 F. Supp., at 63. Finally, the competitive plight of out-of-state ready-mix suppliers cannot be laid solely at the feet of South Dakota. It is attributable as well to their own States’ not providing or attracting alternative sources of supply and to the suppliers’ own failure to guard against shortages by executing long-term supply contracts with the South Dakota plant. In its last argument, petitioner urges that, had South Dakota not acted, free market forces would have generated an appropriate level of supply at free market prices for all buyers in the region. Having replaced free market forces, South Dakota should be forced to replicate how the free market would have operated under prevailing conditions. This argument appears to us to be simplistic and speculative. The very reason South Dakota built its plant was because the free market had failed adequately to supply the 446 OCTOBER TERM, 1979 447 U. S. Opinion of the Court region W1th cement. See n. 1, supra. There is no indication, and no way to know, that private industry would have moved into petitioner’s market area, and would have ensured a sup-ply of cement to petitioner either prior to or during the 1978 construction season. Indeed, it is quite possible that petitioner would never have existed-far less operated successfully for 20 years—-had it not been for South Dakota cement” C We conclude, then, that the arguments for invalidating South Dakota’s resident-preference program are weak at best. Whatever residual force inheres in them is more than offset by countervailing considerations of policy and fairness. Reversal would discourage similar state projects, even though this project demonstrably has served the needs of state residents and has helped the entire region for more than a half century. Reversal also would rob South Dakota of the intended benefit of its foresight, risk, and industry.” Under to^ tor’0"^ t0 d'stinPlish Alexandria Scrap on the ground U S ¿81^ 1 ’ ®tate “Created” ‘he relevant market S“ «28 U. S at 814-817 (concurring opinion). It is clear, however that Alexan C0Uld nOt’ and d‘d nOt’ re8t on the »»‘ion ‘hat Maryland had X^nV^^^ W,at 809,n. 18. attfr Th opmon); Note, 18 B. C. Ind. & Com. L. Rev. Note 84 w ITT 1975 Term’ 90 Harv- L at 62, n. 27; JNote, 34 Wash. & Lee L. Rev. 979, 995 (1977) ” The risk borne by South Dakota in establishing the cement plant is not to be underestimated. As explained in n. 1, supra, the cement ptant sought to XT to ‘hr ugh Which the Pr°8ressi™ «‘ate government to Thl0Cal pPobIems' The &te of other similar projects ustrates the risk borne by South Dakota taxpayers in setting up the cement plant at a cost of some $2 million. Thus, “[t]he coal mine was sold m early 1934 for $5,500 with an estimated loss of nearly $175 000 for t\f°k T yT8 °f Operation- The 1933 Legislature also liquidated the TS epartaient and the state hail insurance project. The total H^Schell6 the latter venture was approximately $265,000.” Id. Schell, History of South Dakota 286 (3d ed. 1975) REEVES, INC. v. STAKE 447 429 Powell, J., dissenting these circumstances, there is no reason to depart from the general rule of Alexandria Scrap. The judgment of the United States Court of Appeals is affirmed. It is so ordered. Mr. Justice Powell, with whom Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Stevens join, dissenting. The South Dakota Cement Commission has ordered that in times of shortage the state cement plant must turn away out-of-state customers until all orders from South Dakotans are filled. This policy represents precisely the kind of economic protectionism that the Commerce Clause was intended to prevent.1 The Court, however, finds no violation of the Commerce Clause, solely because the State produces the cement. I agree with the Court that the State of South Dakota may provide cement for its public needs without violating the Commerce Clause. But I cannot agree that South Dakota may withhold its cement from interstate commerce in order to benefit private citizens and businesses within the State. I The need to ensure unrestricted trade among the States created a major impetus for the drafting of the Constitution. “The power over commerce . .. was one of the primary objects for which the people of America adopted their government. . . y Gibbons v. Ogden, 9 Wheat. 1, 190 (1824). Indeed, the Constitutional Convention was called after an earlier convention on trade and commercial problems proved inconclusive. C. Beard, An Economic Interpretation of the 1 By “protectionism,” I refer to state policies designed to protect private economic interests within the State from the forces of the interstate market. I would exclude from this term policies relating to traditional governmental functions, such as education, and subsidy programs like the one at issue in Hughes v. Alexandria Scrap Corp., 426 U. S. 794 (1976). See injra, at 451-453. 448 447 U. S. OCTOBER TERM, 1979 Powell, J., dissenting Constitution 61-63 (1935); S. Bloom, History of the Formation of the Union Under the Constitution 14-15 (1940). In the subsequent debate over ratification, Alexander Hamilton emphasized the importance of unrestricted interstate commerce: “An unrestrained intercourse between the States themselves will advance the trade of each, by an interchange of their respective productions. . . . Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails ... it can call to its aid the staple of another.” The Federalist, No. 11, p. 71 (J. Cooke ed., 1961) (A. Hamilton); see id., No. 42, p. 283 (J. Madison). The Commerce Clause has proved an effective weapon against protectionism. The Court has used it to strike down limitations on access to local goods, be they animal, Hughes N. Oklahoma, 441 U. S. 322 (1979) (minnows); vegetable, Pike v. Bruce Church, Inc., 397 U. S. 137 (1970) (cantaloupes); or mineral, Pennsylvania v. West Virginia, 262 U. S. 553 (1923) (natural gas). Only this Term, the Court held unconstitutional a Florida statute designed to exclude out-of-state investment advisers. Lewis v. BT Investment Managers, Inc., ante, p. 27. As we observed in Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 803 (1976), “this Nation is a common market in which state lines cannot be made barriers to the free flow of both raw materials and finished goods in response to the economic laws of supply and demand.” This case presents a novel constitutional question. The Commerce Clause would bar legislation imposing on private parties the type of restraint on commerce adopted by South Dakota. See Pennsylvania v. West Virginia, supra; ci. Great A&P Tea Co. v. Cottrell, 42A U. S. 366 (1976); Foster-Fountain Packing Co. v. Hay del, 278 U. S. 1 (1928).2 Conversely, 2 The Court attempts to distinguish prior decisions that address the Commerce Clause limitations on a State’s regulation of natural resource REEVES, INC. v. STAKE 449 429 Powell, J., dissenting a private business constitutionally could adopt a marketing policy that excluded customers who come from another State. This case falls between those polar situations. The State, through its Commission, engages in a commercial enterprise and restricts its own interstate distribution. The question is whether the Commission’s policy should be treated like state regulation of private parties or like the marketing policy of a private business. The application of the Commerce Clause to this case should turn on the nature of the governmental activity involved. If a public enterprise undertakes an “integral operatio[n] in areas of traditional governmental functions,” National League of Cities n. Usery, 426 U. S. 833, 852 (1976), the Commerce Clause is not directly relevant. If, however, the State enters exploitation. E. g., Hughes n. Oklahoma, 441 U. S. 322 (1979); Pennsylvania n. West Virginia, 262 U. S. 553 (1923). The Court contends that cement production, unlike the activities involved in those cases, “is the end product of a complex process whereby a costly physical plant and human labor act on raw materials.” Ante, at 444. The Court’s distinction fails in two respects. First, the principles articulated in the natural resources cases also have been applied in decisions involving agricultural production, notably milk processing. E. g., H. P. Hood & Sons v. Du Mond, 336 U. S. 525 (1949); Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). More fundamentally, the Court’s definition of cement production describes all sophisticated economic activity, including the exploitation of natural resources. The extraction of natural gas, for example, could hardly occur except through a “complex process whereby a costly physical plant and human labor act on raw materials.” The Court also suggests that the Commerce Clause has no application to this case because South Dakota does not “posses [s] unique access to the materials needed to produce cement.” Ante, at 444. But in its regional market, South Dakota has unique access to cement. A cutoff in cement sales has the same economic impact as a refusal to sell resources like natural gas. Customers can seek other sources of supply, or find a substitute product, or do without. Regardless of the nature of the product the State hoards, the consumer has been denied the guarantee of the Commerce Clause that he “may look to . . . free competition from every producing area in the Nation to protect him from exploitation by any.” H. P. Hood & Sons n. Du Mond, supra, at 539. 450 OCTOBER TERM, 1979 Powell, J., dissenting 447U.S. the private market and operates a commercial enterprise for the advantage of its private citizens, it may not evade the constitutional policy against economic Balkanization. This distinction derives from the power of governments to supply their own needs, see Perkins v. Lukens Steel Co., 310 U. S. 113, 127 (1940); Atkin v. Kansas, 191 U. S. 207 (1903), and from the purpose of the Commerce Clause itself, which is designed to protect “the natural functioning of the interstate market,” Hughes v. Alexandria Scrap Corp., supra, at 806. In procuring goods and services for the operation of government, a State may act without regard to the private marketplace and remove itself from the reach of the Commerce Clause. See American Yearbook Co. v. Askew, 339 F. Supp. 719 (MD Fla.), summarily aff’d, 409 U. S. 904 (1972). But when a State itself becomes a participant in the private market for other purposes, the Constitution forbids actions that would impede the flow of interstate commerce. These categories recognize no more than the “constitutional line between the State as government and the State as trader.” New York v. United States, 326 U. S. 572, 579 (1946); see United States v. California, 297 U. S. 175 (1936); Ohio v. Helvering, 292 U. S. 360 (1934); South Carolina v. United States, 199 U. S. 437 (1905). The Court holds that South Dakota, like a private business, should not be governed by the Commerce Clause when it enters the private market. But precisely because South Dakota is a State, it cannot be presumed to behave like an enterprise “ ‘engaged in an entirely private business.’ ” See ante, at 439, quoting United States v. Colgate & Co., 250 U. S. 300, 307 (1919). A State frequently will respond to market conditions on the basis of political rather than economic concerns. To use the Court’s terms, a State may attempt to act as a “market regulator” rather than a “market participant.” See ante, at 436. In that situation, it is a pretense to equate the State with a private economic actor. State action burdening interstate trade is no less state action because it is REEVES, INC. v. STAKE 451 429 Powell, J., dissenting accomplished by a public agency authorized to participate in the private market. II The threshold issue is whether South Dakota has undertaken integral government operations in an area of traditional governmental functions, or whether it has participated in the marketplace as a private firm. If the latter characterization applies, we also must determine whether the State Commission’s marketing policy burdens the flow of interstate trade. This analysis highlights the differences between the state action here and that before the Court in Hughes n. Alexandria Scrap Corp. A In Alexandria Scrap, a Virginia scrap processor challenged a Maryland program to pay bounties for every junk car registered in Maryland that was converted into scrap. The program imposed more onerous documentation standards on nonMaryland processors, thereby diverting Maryland “hulks” to in-state processors. The Virginia plaintiff argued that this diversion burdened interstate commerce. As the Court today notes, Alexandria Scrap determined that Maryland’s bounty program constituted direct state participation in the market for automobile hulks. Ante, at 435. But the critical question—the second step in the opinion’s analysis—was whether the bounty program constituted an impermissible burden on interstate commerce. Recognizing that the case did not fit neatly into conventional Commerce Clause theory, 426 U. S., at 807, we found no burden on commerce. The Court first observed: “Maryland has not sought to prohibit the flow of hulks, or to regulate the conditions under which it may occur. Instead, it has entered into the market itself to bid up their price. There has been an impact upon the interstate flow of hulks only because . . . Maryland effectively 452 447 U. S. OCTOBER TERM, 1979 Powell, J., dissenting has made it more lucrative for unlicensed suppliers to dispose of their hulks in Maryland. . . .” Id., at 806. We further stated “that the novelty of this case is not its presentation of a new form of ‘burden’ upon commerce, but that appellee should characterize Maryland’s action as a burden which the Commerce Clause was intended to make suspect.” Id., at 807. The opinion then emphasized that “no trade barrier of the type forbidden by the Commerce Clause, and involved in previous cases, impedes th[e] movement [of hulks] out of State.” Id., at 809-810. Rather, the hulks “remain within Maryland in response to market forces, including that exerted by money from the State.” Id., at 810. The Court concluded that the subsidies provided under the Maryland program erected no barriers to trade. Consequently, the Commerce Clause did not forbid the Maryland program. B Unlike the market subsidies at issue in Alexandria Scrap, the marketing policy of the South Dakota Cement Commission has cut off interstate trade.3 The State can raise such a bar when it enters the market to supply its own needs. In order to ensure an adequate supply of cement for public uses, the State can withhold from interstate commerce the cement needed for public projects. Cf. National League of Cities v. Usery, supra. The State, however, has no parallel justification for favoring private, in-state customers over out-of-state customers.4 3 One distinction between a private and a governmental function is whether the activity is supported with general tax funds, as was the case for the reprocessing program in Alexandria Scrap, or whether it is financed by the revenues it generates. In this case, South Dakota’s cement plant has supported itself for many years. See Tr. of Oral Arg. 27. There is thus no need to consider the question whether a state-subsidized business could confine its sales to local residents. 4 The consequences of South Dakota’s “residents-first” policy were devastating to petitioner Reeves, Inc., a Wyoming firm. For 20 years, REEVES, INC. v. STAKE 453 429 Powell, J., dissenting In response to political concerns that likely would be inconsequential to a private cement producer, South Dakota has shut off its cement sales to customers beyond its borders. That discrimination constitutes a direct barrier to trade “of the type forbidden by the Commerce Clause, and involved in previous cases.Alexandria Scrap, 426 U. S., at 810. The effect on interstate trade is the same as if the state legislature had imposed the policy on private cement producers. The Commerce Clause prohibits this severe restraint on commerce. Ill I share the Court’s desire to preserve state sovereignty. But the Commerce Clause long has been recognized as a limitation on that sovereignty, consciously designed to maintain a national market and defeat economic provincialism. The Court today approves protectionist state policies. In the absence of contrary congressional action,5 those policies now can be implemented as long as the State itself directly participates in the market.6 By enforcing the Commerce Clause in this case, the Court would work no unfairness on the people of South Dakota. They still could reserve cement for public projects and share in whatever return the plant generated. They could not, how- Reeves had purchased about 95% of its cement from the South Dakota plant. When the State imposed its preference for South Dakota residents in 1978, Reeves had to reduce its production by over 75%. Ante, at 432-433. As a' result, its South Dakota competitors were in a vastly superior position to compete for work in the region. 5 The Court explicitly does not exclude the possibility that, under the Commerce Clause, Congress might legislate against protectionist state policies. See ante, at 435-436. 6 Since the Court’s decision contains no limiting principles, a State will be able to manufacture any commercial product and withhold it from citizens of other States. This prerogative could extend, for example, to pharmaceutical goods, food products, or even synthetic or processed energy sources. 454 OCTOBER TERM, 1979 Powell, J., dissenting 447 U. S. ever, use the power of the State to furnish themselves with cement forbidden to the people of neighboring States. The creation of a free national economy was a major goal of the States when they resolved to unite under the Federal Constitution. The decision today cannot be reconciled with that purpose. CAREY v. BROWN 455 Syllabus CAREY, STATE’S ATTORNEY OF COOK COUNTY V. BROWN ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 79-703. Argued April 15, 1980—Decided June 20, 1980 An Illinois statute generally prohibits picketing of residences or dwellings, but exempts from its prohibition peaceful picketing of a place of employment involved in a labor dispute. Appellees were convicted in state court of violating this statute when they picketed the Mayor of Chicago’s home in protest against his alleged failure to support the busing of schoolchildren to achieve racial integration. Thereafter, appellees brought suit in Federal District Court, seeking a declaratory judgment that the statute is unconstitutional on its face and as applied, and an injunction prohibiting appellant and other state and local officials from enforcing the statute. The District Court denied all relief, but the Court of Appeals reversed, holding that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment. Held: The Illinois statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Police Department of Chicago n. Mosley, 408 U. S. 92. *Pp. 459-471. (a) In prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the statute regulates expressive conduct that falls within the First Amendment’s preserve, and, in exempting peaceful labor picketing from its general prohibition, the statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator’s communication. On its face, the statute accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated but discussion of all other issues is restricted. The permissibility of residential picketing is thus dependent solely on the nature of the message being conveyed. Pp. 459-463. (b) Standing alone, the State’s asserted interest in promoting the privacy of the home is not sufficient to save the statute. The statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. More fundamentally, the exclusion of labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that 456 OCTOBER TERM, 1979 Syllabus 447 U. S. nothing in the content-based labor-nonlabor distinction has any bearing on privacy. Pp. 464—465. (c) Similarly, the State’s interest in providing special protection for labor protests cannot, without more, justify the labor picketing exemption. Labor picketing is no more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which appellees wished to demonstrate. Pp. 466-467. (d) Nor can the statute be justified as an attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes, since such an attempt hinges on the validity of both of these goals, the latter of which—the desire to favor one form of speech over all others—is illegitimate. Likewise, the statute cannot be justified as an attempt to prohibit picketing that would impinge on residential privacy while permitting picketing that would not. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests, and numerous other actions of a homeowner might constitute “nonresidential” uses of his property and would thus serve to vitiate the right to residential privacy. Pp. 467-469. (e) While the State’s interest in protecting the well-being, tranquility, and privacy of the home is of the highest order, the crucial question is whether the statute advances that objective in a manner consistent with the Equal Protection Clause. Because the statute discriminates among pickets based on the subject matter of their expression, the answer to that question must be “No.” Pp. 470—471. 602 F. 2d 791, affirmed. Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Powell, and Stevens, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 471. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun, J., joined, post, p. 472. Ellen G. Robinson argued the cause pro hac vice for appellant. With her on the briefs were Bernard Carey, pro se, and Paul P. Biebel, Jr. Edward Burke Arnolds argued the cause for appellees. With him on the brief was Michael P. Seng* *Briefs of amici curiae urging reversal were filed by William W. Becker CAREY v. BROWN 457 455 Opinion of the Court Mr. Justice Brennan delivered the opinion of the Court. At issue in this case is the constitutionality under the First and Fourteenth Amendments of a state statute that generally bars picketing of residences or dwellings, but exempts from its prohibition “the peaceful picketing of a place of employment involved in a labor dispute.” I On September 6, 1977, several of the appellees, all of whom are members of a civil rights organization entitled the Committee Against Racism, participated in a peaceful demonstration on the public sidewalk in front of the home of Michael Bilandic, then Mayor of Chicago, protesting his alleged failure to support the busing of schoolchildren to achieve racial integration. They were arrested and charged with unlawful residential picketing in violation of Ill. Rev. Stat., ch. 38, § 21.1-2 (1977), which provides: “It is unlawful to picket before or about the residence or dwelling of any person, except when the residence or dwelling is used as a place of business. However, this Article does not apply to a person peacefully picketing his own residence or dwelling and does not prohibit the peaceful picketing of a place of employment involved in a labor dispute or the place of holding a meeting or assembly on premises commonly used to discuss subjects of general public interest.” 1 for the New England Legal Foundation; and by Ronald A. Zumbrun, Robert K. Best, and Robin L. Rivett for the Pacific Legal Foundation et al. Howard Eglit and David Goldberger filed a brief for the Roger Baldwin Foundation of ACLU, Inc., as amicus curiae urging affirmance. XA violation of §21.1-2 is a “Class B” misdemeanor punishable by a fine of up to $500 and imprisonment for not more than six months. See Ill. Rev. Stat., ch. 38, §§21.1-3, 1005-8-3, 1005-9-1 (1977). At least four other States have enacted antiresidential picketing laws similar in form to this statute. See Ark. Stat. Ann. §§ 41-2966 to 41-2968 (1977); Conn. Gen. Stat. §31-120 (1979); Haw. Rev. Stat. § 379A-1 (1976); Md. Ann. Code, Art. 27, § 580A (1976). Connecticut’s law has 458 OCTOBER TERM, 1979 447 U. S. Opinion of the Court Appellees pleaded guilty to the charge and were sentenced to periods of supervision ranging from six months to a year. In April 1978, appellees commenced this lawsuit in the United States District Court for the Northern District of Illinois, seeking a declaratory judgment that the Illinois residential picketing statute is unconstitutional on its face and as applied, and an injunction prohibiting defendants—various state, county, and city officials—from enforcing the statute. Appellees did not attempt to attack collaterally their earlier state-court convictions, but requested only prospective relief. Alleging that they wished to renew their picketing in residential neighborhoods but were inhibited from doing so by the threat of criminal prosecution under the residential picketing statute, appellees challenged the Act under the First and Fourteenth Amendments as an overbroad, vague, and, in light of the exception for labor picketing, impermissible content-based restriction on protected expression. The District Court, ruling on cross-motions for summary judgment, denied all relief. Brown v. Scott, 462 F. Supp. 518 (1978). The Court of Appeals for the Seventh Circuit reversed. Brown v- Scott, 602 F. 2d 791 (1979). Discerning “no principled basis” for distinguishing the Illinois statute from a similar picketing prohibition invalidated in Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), the court concluded that the Act’s differential treatment of labor and nonlabor picketing could not be justified either by the important state been construed to permit all picketing in a residential area except for labor picketing that is not conducted at the situs of a labor dispute. State n. Anonymous, 6 Conn. Cir. 372, 274 A. 2d 897 (App. Div. 1970); DeGregory n. Giesing, ^21 F. Supp. 910 (Conn. 1977) (three-judge court). The Maryland statute was declared unconstitutional by the Maryland Court of Appeals in State v. Schuller, 280 Md. 305, 372 A. 2d 1076 (1977). See also People Acting Through Community Effort v. Doorley, 468 F. 2d 1143 (CAI 1972) (invalidating municipal ordinance virtually identical to the Illinois residential picketing statute); but see Wauwatosa v. King, 49 Wis. 2d 398, 182 N. W. 2d 530 (1971) (upholding validity of similar ordinance). CAREY v. BROWN 459 455 Opinion of the Court interest in protecting the peace and privacy of the home or by the special character of a residence that is also used as a “place of employment.” Accordingly, the court held that the statute, both on its face and as applied to appellees, violated the Equal Protection Clause of the Fourteenth Amendment.2 We noted probable jurisdiction. 444 U. S. 1011 (1980). We affirm. II As the Court of Appeals observed, this is not the first instance in which this Court has had occasion to consider the constitutionality of an enactment selectively proscribing peaceful picketing on the basis of the placard’s message. Police Department of Chicago v. Mosley, supra, arose out of a challenge to a Chicago ordinance that prohibited picketing in front of any school other than one “involved in a labor dispute.” 3 We held that the ordinance violated the Equal Protection Clause because it impermissibly distinguished between labor picketing and all other peaceful picketing with 2 Because the Court of Appeals concluded that the labor dispute exception was not severable from the remainder of the statute, it invalidated the enactment in its entirety. Cf. State v. Schuller, supra, at 318-321, 372 A. 2d, at 1083-1084. The court therefore found it unnecessary to consider the constitutionality under the First Amendment of a statute that prohibited all residential picketing. Brown v. Scott, 602 F. 2d 791, 795, n. 6 (1979). Because we find the present statute defective on equal protection principles, we likewise do not consider whether a statute barring all residential picketing regardless of its subject matter would violate the First and Fourteenth Amendments. 3 Chicago Municipal Code, ch. 193-1 (i) (1968), provided: “A person commits disorderly conduct when he knowingly: “(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute. . . .” (Emphasis supplied.) 460 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. out any showing that the latter was “clearly more disruptive” than the former. 408 U. S., at 100. Like the Court of Appeals, we find the Illinois residential picketing statute at issue in the present case constitutionally indistinguishable from the ordinance invalidated in Mosley. There can be no doubt that in prohibiting peaceful picketing on the public streets and sidewalks in residential neighborhoods, the Illinois statute regulates expressive conduct that falls within the First Amendment’s preserve. See, e. g., Thornhill v. Alabama, 310 U. S. 88 (1940); Gregory v. Chicago, 394 U. S. Ill, 112 (1969); Shuttlesworth y. Birmingham, 394 U. S. 147, 152 (1969). “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague v. CIO, 307 U. S. 496, 515 (1939) (opinion of Roberts, J.). “‘[S]treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.’ ” Hudgens v. NLRB, 424 U. S. 507, 515 (1976) (quoting Food Employees v. Logan Valley Plaza, 391 U. S. 308, 315 (1968)). Nor can it be seriously disputed that in exempting from its general prohibition only the “peaceful picketing of a place of employment involved in a labor dispute,” the Illinois statute discriminates between lawful and unlawful conduct based upon the content of the demonstrator’s communication.4 On 4 The Illinois residential picketing statute apparently has not been construed by the state courts. Throughout this litigation, however, all parties and the courts below have interpreted the statutory exception for “peaceful picketing of a place of employment involved in a labor dispute” as embodying the additional requirement that the subject of the picketing be related to the ongoing labor dispute. Police Department of Chicago v. CAREY v. BROWN 461 455 Opinion of the Court its face, the Act accords preferential treatment to the expression of views on one particular subject; information about labor disputes may be freely disseminated, but discussion of all other issues is restricted. The permissibility of residential picketing under the Illinois statute is thus dependent solely on the nature of the message being conveyed.5 In these critical respects, then, the Illinois statute is identical to the ordinance in Mosley, and it suffers from the same constitutional infirmities. When government regulation discriminates among speech-related activities in a public forum, the Equal Protection Clause mandates that the legislation be finely tailored to serve substantial state interests, and the jus Mosley, 408 U. S. 92 (1972), was premised upon an identical construction. See id., at 94, n. 2 (statutory exemption for “the peaceful picketing of any school involved in a labor dispute” applies only to labor picketing of a school involved in such a dispute). 5 The District Court read the labor exception in this statute as creating two separate classifications: one between “places of employment” and all other “residences,” and a second between “places of employment involved in a labor dispute” and “places of employment not involved in a labor dispute.” The court held that the first classification was a permissible content-neutral regulation of the location of picketing. And although recognizing that the second distinction may well be based on the subject matter of the demonstration, see n. 4, supra, the court held that appellees lacked standing to challenge it because they were not seeking to picket “a place of employment,” and thus would not have benefitted from a determination that the second classification was unconstitutional. Brown v. Scott, 462 F. Supp. 518, 534-535 (1978). The Court of Appeals, in reversing the District Court, refused to adopt the lower court’s interpretation of the statute. Rather, it read the “place of employment” exception to divide “residences and dwellings” into but two categories those at which picketing is lawful (i. e., all places of employment involved in labor disputes) and those at which it is unlawful (i. e., all other residences and dwellings). Brown v. Scott, 602 F. 2d, at 793-794. We accept the construction of the Court of Appeals. Appellees sought to picket at a residence and were denied permission to do so. They clearly have standing to attack the statutory classification on which that denial was premised. Indeed, appellant does not challenge the Court of Appeals’ interpretation of the statute, Tr. of Oral Arg. 13, and he concedes that this restriction is content-based, id., at 21. 462 OCTOBER TERM, 1979 Opinion of the Court 447U.S. tifications offered for any distinctions it draws must be carefully scrutinized. Police Department of Chicago v. Mosley, 408 U. S., at 98-99, 101; see United States v. O’Brien, 391U. S. 367, 376-377 (1968); Williams n. Rhodes, 393 U. S. 23, 30-31 (1968); Dunn v. Blumstein, 405 U. S. 330, 342-343 (1972); San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 34, n. 75 (1973). As we explained in Mosley: “Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses ‘can be controlled by narrowly drawn statutes/ Saia v. New York, 334 IT. S., at 562, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter.” 408 IT. S., at 101-102. Yet here, under the guise of preserving residential privacy, Illinois has flatly prohibited all nonlabor picketing even though it permits labor picketing that is equally likely to intrude on the tranquility of the home. Moreover, it is the content of the speech that determines whether it is within or without the statute’s blunt prohibition.6 What we said in Mosley has equal force in the present case: “The central problem with Chicago’s ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school’s labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. . . . Any restriction on expressive activity because of its content would completely undercut the ‘profound national commitment to 6 It is, of course, no answer to assert that the Illinois statute does not discriminate on the basis of the speaker’s viewpoint, but only on the basis of the subject matter of his message. “The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Consolidated Edison Co. v. Public Service Comm’n, post, at 537. CAREY v. BROWN 463 Opinion of the Court the principle that debate on public issues should be uninhibited, robust, and wide-open/ New York Times Co. v. Sullivan, [376 U. S. 254], 270. “Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.” Id., at 95-96 (citations and footnote omitted).7 7 Mosley was neither the Court’s first nor its last pronouncement that the First and Fourteenth Amendments forbid discrimination in the regulation of expression on the basis of the content of that expression See Cox v. Louisiana, 379 U. S. 536, 581 (1965) (Black, J., concurring): “Standing, patrolling, or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited. But by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It thus is trying to prescribe by law what matters of public interest people whom it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form, unconstitutional under the First and Fourteenth Amendments. And to deny this appellant and his group use of the streets because of their views against racial discrimination, while allowing other groups to use the streets to voice opinions on other subjects, also' amounts, I think, to an invidious discrimination forbidden by the Equal Protection Clause of the Fourteenth Amendment.” See also Erznoznik v. City of Jacksonville, 422 U. S. 205 209 215 (1975) • Hudgens v. NLRB, 424 U. S. 507, 520 (1976); Madison’Joint School 464 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Ill Appellant nonetheless contends that this case is distinguishable from Mosley. He argues that the state interests here are especially compelling and particularly well served by a statute that accords differential treatment to labor and nonlabor picketing. We explore in turn each of these interests, and the manner in which they are said to be furthered by this statute. A Appellant explains that whereas the Chicago ordinance sought to prevent disruption of the schools, concededly a “substantial” and “legitimate” governmental concern, see id., at 99, 100, the Illinois statute was enacted to ensure privacy in the home, a right which appellant views as paramount in our constitutional scheme.8 For this reason, he contends that the same content-based distinctions held invalid in the Mosley context may be upheld in the present case. We find it unnecessary, however, to consider whether the State’s interest in residential privacy outranks its interest in quiet schools in the hierarchy of societal values. For even District No. 8 v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176 (1976); First National Bank of Boston v. Bellotti, 435 U. S. 765, 784-785 (1978); Consolidated Edison Co. v. Public Service Comm’n, post, at 536-538. 8 The importance which the State attaches to the interest in maintaining residential privacy is reflected in the Illinois Legislature s finding accompanying the residential picketing statute: “The Legislature finds and declares that men in a free society have the right to quiet enjoyment of their homes; that the stability of community and family life cannot be maintained unless the right to privacy and a sense of security and peace in the home are respected and encouraged; that residential picketing, however just the cause inspiring it, disrupts home, family and communal life; that residential picketing is inappropriate in our society, where the jealously guarded rights of free speech and assembly have always been associated with respect for the rights of others. For these reasons the Legislature finds and declares this Article to be necessary.” Ill. Rev. Stat., ch. 38, §21.1-1 (1977). CAREY v. BROWN 465 455 Opinion of the Court the most legitimate goal may not be advanced in a constitutionally impermissible manner. And though we might agree that certain state interests may be so compelling that where no adequate alternatives exist a content-based distinction— if narrowly drawn—would be a permissible way of furthering those objectives, cf. Schenck v. United States, 249 U. S. 47 (1919), this is not such a case. First, the generalized classification which the statute draws suggests that Illinois itself has determined that residential privacy is not a transcendent objective: While broadly permitting all peaceful labor picketing notwithstanding the disturbances it would undoubtedly engender, the statute makes no attempt to distinguish among various sorts of nonlabor picketing on the basis of the harms they would inflict on the privacy interest. The apparent overinclusiveness and underinclusiveness of the statute’s restriction would seem largely to undermine appellant’s claim that the prohibition of all nonlabor picketing can be justified by reference to the State’s interest in maintaining domestic tranquility.9 More fundamentally, the exclusion for labor picketing cannot be upheld as a means of protecting residential privacy for the simple reason that nothing in the content-based labor-nonlabor distinction has any bearing whatsoever on privacy. Appellant can point to nothing inherent in the nature of peaceful labor picketing that would make it any less disruptive of residential privacy than peaceful picketing on issues of broader social concern. Standing alone, then, the State’s asserted interest in promoting the privacy of the home is not sufficient to save the statute. 9 Cf. Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 29 (quoted in Young v. American Mini Theatres, Inc., 427 U. S. 50, 67, n. 27 (1976) (opinion of Stevens, J.)): “If some groups are exempted from a prohibition on parades and pickets, the rationale for regulation is fatally impeached.” See also Police Department of Chicago v. Mosley, 408 U. S., at 100; Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 638-639 (1980). 466 447 U. S. OCTOBER TERM, 1979 Opinion of the Court B The second important objective advanced by appellant in support of the statute is the State’s interest in providing special protection for labor protests. He maintains that federal 10 and state11 law has long exhibited an unusual concern for such activities, and he contends that this solicitude may be furthered by a narrowly drawn exemption for labor picketing. The central difficulty with this argument is that it forthrightly presupposes that labor picketing is more deserving of First Amendment protection than are public protests over other issues, particularly the important economic, social, and political subjects about which these appellees wish to demonstrate. We reject that proposition. Cf. T. Emerson, The System of Freedom of Expression 444-449 (1970) (suggesting that nonlabor picketing is more akin to pure expression than labor picketing and thus should be subject to fewer restrictions). Public-issue picketing, “an exercise of . . . basic constitutional rights in their most pristine and classic form,” 10 See generally 29 U. S. C. §141 et seq.; Thornhill v. Alabama, 310 U. S. 88 (1940); AFL v. Swing, 312 U. S. 321 (1941). Appellant does not go so far as to suggest that the National Labor Relations Act preempts the State from enacting a law prohibiting the picketing of residences involved in labor disputes. Such an argument has dubious merit. See Machinists n. Wisconsin Employment Relations Comm’n, 427 U. S. 132, 136, and n. 2 (1976). 11 See Ill. Rev. Stat., ch. 48, §2a (1977), which provides: “No restraining order or injunction shall be granted by any court of this State ... in any case involving or growing out of a dispute concerning terms or conditions of employment, enjoining or restraining any person or persons, either singly or in concert, . . . from peaceably and without threats or intimidation being upon any public street, or thoroughfare or highway for the purpose of obtaining or communicating information, or to peaceably and without threats or intimidation persuade any person or persons to work or to abstain from working, or to employ or to peaceably and without threats or intimidation cease to employ any party to a labor dispute, or to recommend, advise, or persuade others so to do.” CAREY v. BROWN 467 455 Opinion of the Court Edwards n. South Carolina, 372 U. S. 229, 235 (1963), has always rested on the highest rung of the hierarchy of First Amendment values: “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.” Stromberg v. California, 283 U. S. 359, 369 (1931). See generally A. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). While the State’s motivation in protecting the First Amendment rights of employees involved in labor disputes is commendable, that factor, without more, cannot justify the labor picketing exemption. C Appellant’s final contention is that the statute can be justified by some combination of the preceding objectives. This argument is fashioned on two different levels. In its elemental formulation, it posits simply that a distinction between labor and nonlabor picketing is uniquely suited to furthering the legislative judgment that residential privacy should be preserved to the greatest extent possible without also compromising the special protection owing to labor picketing. In short, the statute is viewed as a reasonable attempt to accommodate the competing rights of the homeowner to enjoy his privacy and the employee to demonstrate over labor disputes.12 12 We note that the statute’s labor dispute exemption is overbroad in this respect, for it not only protects the rights of the employee to picket the residence of his employer, but it also permits third parties to picket both the employer and his employee, even when there is no dispute between those individuals. As appellant’s counsel explained at oral argument: “[T]he labor dispute could exist even if the employee wasn’t part of the dispute. For example, if you have a condominium that employs non-union janitors and the non-union janitor is perfectly happy to be there, conceivably union janitors could engage in picketing, very much like a traditional labor law case.” Tr. of Oral Arg. 14. 468 OCTOBER TERM, 1979 Opinion of the Court 447U.S. But this attempt to justify the statute hinges on the validity of both of these goals, and we have already concluded that the latter—the desire to favor one form of speech over all others—is illegitimate. The second and more complex formulation of appellant’s position characterizes the statute as a carefully drafted attempt to prohibit that picketing which would impinge on residential privacy while permitting that picketing which would not. In essence, appellant asserts that the exception for labor picketing does not contravene the State’s interest in preserving residential tranquility because of the unique character of a residence that is a “place of employment.” By “inviting” a worker into his home and converting that dwelling into a place of employment, the argument goes, the resident has diluted his entitlement to total privacy. In other words, he has “waived” his right to be free from picketing with respect to disputes arising out of the employment relationship, thereby justifying the statute’s narrow labor exception at those locations.13 13 An alternative justification for the statute—one not pressed by appellant—is that it is intended to protect privacy in the home, but only insofar as that objective can be accomplished without prohibiting those forms of speech that are peculiarly appropriate to residential neighborhoods and cannot effectively be exercised elsewhere. Since labor picketing arising out of disputes occurring in residential neighborhoods can only be carried out in those neighborhoods, the argument would continue, it is permitted under the statute while other forms of picketing, for which suitable alternative forums will generally exist, are barred. Even assuming that a content-based distinction might in some cases be permissible on these grounds, but see Schneider v. State, 308 U. S. 147, 163 (1939) (“one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place”), this is not such a case because the Illinois statute is seriously underinclusive in this respect. It singles out for special protection only one of the many sorts of picketing which must be carried out in residential neighborhoods or not at all. Protests arising out of landlord-tenant relationships, zoning disputes, and historic preservation issues are just some CAREY v. BROWN 469 455 Opinion of the Court The flaw in this argument is that it proves too little. Numerous types of peaceful picketing other than labor picketing would have but a negligible impact on privacy interests,14 and numerous other actions of a homeowner might constitute “nonresidential” uses of his property and would thus serve to vitiate the right to residential privacy. For example, the resident who prominently decorates his windows and front yard with posters promoting the qualifications of one candidate for political office might be said to “invite” a counterdemonstration from supporters of an opposing candidate. Similarly, a county chairman who uses his home to meet with his district captains and to discuss some controversial issue might well expect that those who are deeply concerned about the decision the chairman - will ultimately reach would want to make their views known by demonstrating outside his home during the meeting. And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resident who invites a repairman into his home to fix his television set has “waived” his right to privacy with respect to a dispute between the repairman and the local union,15 but that the official who has voluntarily chosen to enter the public arena has not likewise “waived” his right to privacy with respect to a challenge to his views on significant issues of social and economic policy.16 of the many demonstrations that bear a direct relation to residential neighborhoods. See generally Comment, Picketers at the Doorstep, 9 Harv. Civ. Rights—Civ. Lib. L. Rev. 95, 101-102, 106 (1974). Indeed, appellees themselves assert that they want to engage in residential picketing because it is the only effective means they have of communicating their concern about the issue of busing to the desired neighborhood audience. Yet the Illinois statute bars all of these groups from picketing in residential areas while those wishing to picket at the site of a labor dispute are permitted to do so. 14 See supra, at 461-462. 15 See n. 12, supra. 16 Cf. Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974). 470 OCTOBER TERM, 1979 Opinion of the Court 447U.S. IV We therefore conclude that appellant has not successfully distinguished Mosley. We are not to be understood to imply, however, that residential picketing is beyond the reach of uniform and nondiscriminatory regulation. For the right to communicate is not limitless. E. g., Cox v. Louisiana, 379 U. S. 536, 554-555 (1965); Cox v. Louisiana, 379 U. S. 559, 563-564 (1965).17 Even peaceful picketing may be prohibited when it interferes with the operation of vital governmental facilities, see, e. g., ibid, (picketing or parading prohibited near courthouses); Adderley v. Florida, 385 U. S. 39 (1966) (demonstrations prohibited on jailhouse grounds), or when it is directed toward an illegal purpose, see, e. g., Teamsters v. Vogt, Inc., 354 U. S. 284 (1957) (prohibition of picketing directed toward achieving “union shop” in violation of state law). Moreover, we have often declared that “[a] state or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 209 (1975) (emphasis supplied). See, e. g., Cox v. New Hampshire, 312 U. S. 569 (1941); Kovacs v. Cooper, 336 U. S. 77 (1949); Poulos v. New Hampshire, 345 U. S. 395 (1953); Cox v. Louisiana, 379 U. S., at 554; Grayned v. City of Rockford, 408 U. S. 104 (1972). In sum, “no mandate in our Constitution leaves States and governmental units powerless to pass laws to protect the public from the kind of boisterous and threatening conduct that disturbs the tranquility of spots selected by the people either for homes, 17 Mr. Justice Goldberg’s opinion for the Court in the first Cox case stated: “The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.” 379 U. S., at 554. CAREY v. BROWN 471 455 Stewart, J., concurring wherein they can escape the hurly-burly of the outside business and political world, or for public and other buildings that require peace and quiet to carry out their functions, such as courts, libraries, schools, and hospitals.” Gregory v. Chicago, 394 U. S. Ill, 118 (1969) (Black, J., concurring). Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value. Our decisions reflect no lack of solicitude for the right of an individual “to be let alone” in the privacy of the home, “sometimes the last citadel of the tired, the weary, and the sick.” Id., at 125 (Black, J., concurring). See generally Stanley v. Georgia, 394 U. S. 557 (1969); Rowan v. United States Post Office Dept., 397 U. S. 728 (1970); FCC v. Pacifica Foundation, 438 U. S. 726 (1978); Pay ton v. New York, 445 U. S. 573 (1980). The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society. “ ‘The crucial question, however, is whether [the Illinois’ statute] advances that objective in a manner consistent with the command of the Equal Protection Clause.’ Reed v. Reed, 404 U. S. [71 ], 76 [ (1971) ].” Police Department of Chicago v. Mosley, 408 U. S., at 99. And because the statute discriminates among pickets based on the subject matter of their expression, the answer must be “No.” The judgment of the Court of Appeals is , ~ Affirmed. Mr. Justice Stewart, concurring. The opinion of the Court in this case, as did the Court’s opinion in Police Department of Chicago v. Mosley, 408 U. S. 92, invokes the Equal Protection Clause of the Fourteenth Amendment as the basis of decision. But what was actually at stake in Mosley, and is at stake here, is the basic meaning of the constitutional protection of free speech: “[W]hile a municipality may constitutionally impose reasonable time, place, and manner regulations on the 472 447 U. S. OCTOBER TERM, 1979 Rehnquist, J., dissenting use of its streets and sidewalks for First Amendment purposes, and may even forbid altogether such use of some of its facilities; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression.” Hudgens v. NLRB, 424 U. S. 507, 520. (Citations omitted.) It is upon this understanding that I join the opinion and judgment of the Court. Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Blackmun join, dissenting. I address the merits of the Court’s constitutional decision first, although I also seriously question the appellees’ standing to assert the grounds for invalidity on which the Court apparently relies.1 One who reads the opinion of the Court is probably left with the impression that Illinois has enacted a residential picketing statute which reads: “All residential picketing, except for labor picketing, is prohibited.” Buch an 1 The Court premises its finding that the appellees have standing to challenge the statute at least in part on the basis of the appellant’s “concessions” at oral argument that the State was not persisting in its challenge to appellees’ standing in this Court. See ante, at 461, n. 5. But we have said that “[w]e are loath to attach conclusive weight to the relatively spontaneous responses of counsel to equally spontaneous questioning from the Court during oral argument.” Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 170 (1972). Moreover, while appellant may have chosen not to challenge appellees’ standing to argue that they had been denied equal protection under the statute, appellant certainly did not concede that appellees had? standing to argue that other individuals desiring to picket under circumstances dissimilar to appellees might be denied equal protection under the statute. In fact, counsel quite explicitly stated that the Court should only consider the constitutionality of prohibiting the appellees’ conduct: “I would urge that the . . . First Amend-ment question only be as applied to the plaintiffs, to the conduct that the plaintiffs actually engaged in. . . .” Tr. of Oral Arg. 17. And this is the standing question that is implicated by the Court’s opinion. See infra, at 486-489. CAREY v. BROWN 473 455 Rehnquist, J., dissenting impression is entirely understandable; indeed, it is created by the Court’s own phrasing throughout the opinion. The Court asserts that Illinois, “in exempting from its general prohibition only the ‘peaceful picketing of a place of employment involved in a labor dispute,’ . . . discriminates between lawful and unlawful conduct based upon . . . content. . . (Emphasis added.) Ante, at 460. It states that “information about labor disputes may be freely disseminated, but discussion of all other issues is restricted.” Ante, at 461. The Court finds that the permissibility of residential picketing in Illinois is dependent “solely on the nature of the message being conveyed.” Ibid. (Emphasis added.) And again the Court states that “Illinois has flatly prohibited all nonlabor picketing” while the statute is said to “broadly permi[t] all peaceful labor picketing.” Ante, at 462,465. Dissenting opinions are more likely than not to quarrel with the Court’s exposition of the law, but my initial quarrel is with the accuracy of the Court’s paraphrasing and selective quotation from the Illinois statute. The complete language of the statute, set out accurately in the text of the Court’s opinion, reveals a legislative scheme quite different from that described by the Court in its narrative paraphrasing of the enactment.2 The statute provides that residential picketing is prohibited, but goes on to exempt four categories of residences from this general ban. First, if the residence is used as a “place 2 The simplistic construction of the statute reflected in the Court’s opinion apparently is also justified by supposed “concessions” of appellant’s counsel at oral argument. Ante, at 461, n. 5. Appellant, however, has never suggested that the statute regulates picketing solely by permitting labor, but not nonlabor, issues to be aired through residential picketing. While admitting the use of some content differentiation, the appellant asserts throughout his argument that the statute is a “place” regulation; it allows picketing at homes used for nonresidential purposes but not at those homes used exclusively for residential purposes. See, e.'g., the question presented for review in the Juris. Statement 4. 474 447 U. S. OCTOBER TERM, 1979 Rehnquist, J., dissenting of business” all peaceful picketing is allowed. Second, if the residence is being used to “hol[d] a meeting or assembly on premises commonly used to discuss subjects of general public interest all peaceful picketing is allowed. Third, if the residence is also used as a “place of employment” which is involved in a labor dispute, labor-related picketing is allowed. Finally, the statute provides that a resident is entitled to picket his own home. Thus it is clear that information about labor disputes may not be “freely disseminated” since labor picketing is restricted to a narrow category of residences. And Illinois has not flatly prohibited all nonlabor picketing” since it allows nonlabor picketing at residences used as a place of business, residences used as public meeting places, and at an individual’s own residence. Only through this mischaracterization of the Illinois statute may the Court attempt to fit this case into the Mosley rule prohibiting regulation on the basis of “content alone.” (Emphasis added.) Police Department of Chicago v. Mosley, 408 U. S. 92, 96 (1972). For in Mosley, the sole determinant of an individual’s right to picket near a school was the content of the speech. As the Court today aptly observes, such a regulation warrants exacting scrutiny. In contrast, the principal determinant of a person’s right to picket a residence in Illinois is not content, as the Court suggests, but rather the character of the residence sought to be picketed. Content is relevant only in one of the categories established by the legislature. The cases appropriate to the analysis therefore are those establishing the limits on a State’s authority to impose time, place, and manner restrictions on speech activities. Under this rubric, even taking into account the limited content distinction made by the statute, Illinois has readily satisfied its constitutional obligation to draft statutes in conformity with First Amendment and equal protection principles. In fact, the very statute which the Court today cavalierly invalidates has been hailed by commentators as “an excellent model” of CAREY v. BROWN 475 455 Rehnquist, J., dissenting legislation achieving a delicate balance among rights to privacy, free expression, and equal protection. See Kamin, Residential Picketing and the First Amendment, 61 Nw. U. L. Rev. 177, 207 (1966); Comment, 34 U. Chi. L. Rev. 106, 139 (1966). The state legislators of the Nation will undoubtedly greet today’s decision with nothing less than exasperation and befuddlement. Time after time, the States have been assured that they may properly promote residential privacy even though free expression must be reduced. To be sure, our decisions have adopted a virtual laundry list of “Don’ts” that must be adhered to in the process. Heading up that list of course is the rule that legislatures must curtail free expression through the “least restrictive means” consistent with the accomplishment of their purpose, and they must avoid standards which are either vague or capable of discretionary application. But somewhere, the Court says in these cases (with a reassuring pat on the head to the legislatures), there is the constitutional pot of gold at the end of the rainbow of litigation. Here, where Illinois has drafted such a statute, avoiding an outright ban on all residential picketing, avoiding reliance on any vague or discretionary standards, and permitting categories of permissible picketing activity at residences where the State has determined the resident’s own actions have substantially reduced his interest in privacy, the Court in response confronts the State with the “Catch-22” that the less restrictive categories are constitutionally infirm under principles of equal protection. Under the Court’s approach today, the State would fare better by adopting more restrictive means, a judicial incentive I had thought this Court would hesitate to afford. Either that, or uniform restrictions will be found invalid under the First Amendment and categorical exceptions found invalid under the Equal Protection Clause, with the result that speech and only speech will be entitled to protection. This can only mean that the hymns of praise in prior opinions celebrating carefully drawn statutes are no 476 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. more than sympathetic clucking, and in fact the State is damned if it does and damned if it doesn’t. Equally troublesome is the methodology by which these difficult questions of constitutional law have been reached. The Court today figuratively walked a country mile to find a potential unconstitutional application of this statute, and it is primarily on that potential which the total nullification of this statute rests. Just because it is a statute which is in issue does not relieve this Court of its duty to decide only the concrete controversy presented by the case. As discussed below, I think it quite clear that the statute does not prohibit the appellees in this action from engaging in conduct which must be protected under the First Amendment, the state interests would not be satisfied by a statute employing less restrictive means, the statute is not facially overbroad by prohibiting conduct which clearly must be permitted under the First Amendment, and the appellees have not themselves been denied equal protection because they do not seek to picket under circumstances which are indistinguishable from the circumstances where picketing is allowed. Only by speculating that there might be an individual or group that will be denied equal protection by the statute can the Court invalidate it. This is speculation this Court is not permitted to indulge in when nullifying the acts of a legislative branch. I The Illinois statute in issue simply does not contravene the First Amendment. A Repeatedly, this Court has upheld state authority to restrict the time, place, and manner of speech, if those regulations “protect a substantial governmental interest unrelated to the suppression of free expression” and are narrowly tailored, limiting the restrictions to those reasonably necessary to protect the substantial government interest. Brown v. Glines, CAREY v. BROWN 477 455 Rehnquist, J., dissenting 444 U. S. 348, 354 (1980); Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). This standard of measuring permissible state regulation, often echoed in this Court’s opinions, is readily satisfied in this case. The interest which the State here seeks to protect is residential privacy, as clearly demonstrated by the legislature’s statement of purpose. Ante, at 464, n. 8. When a residence is used for exclusively residential purposes, the State recognizes no exception to the ban on picketing. As in this case, it has not been asserted that Mayor Bilandic’s home fell into any category other than a residence used solely for residential purposes. The appellees nevertheless assert that their interest in publicizing their opinions on the issue of school integration outweigh the State’s asserted interest in protecting residential privacy. Our cases simply do not support such a construction of the First Amendment. In Kovacs v. Cooper, 336 U. S. 77, 81 (1949), the state interest in preventing interference with the social activities in which [city residents] are engaged or the quiet that they would like to enjoy” warranted the prohibition of sound trucks on residential streets. In Rowan v. United States Post Office Dept., 397 U. S. 728, 736 (1970), this Court held that “ [t]he right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate.” The Court recognized a “very basic right to be free from sights, sounds, and tangible matter we do not want” in the home. Ibid. These interests were sufficient to justify a resident s ability to absolutely preclude delivery of unwanted mail to his address. Similarly, in FCC v. Pacifica Foundation,. 438 U. S 726, 748 (1978), the Court found that an offensive broadcast could be absolutely banned from the airwaves because it “confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” Under these authorities, the ap 478 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. pellees have no fundamental First Amendment right to picket in front of a residence. B Nor can it be said that the state interest could be fully protected by a less restrictive statute. An absolute ban on picketing at residences used solely for residential purposes permissibly furthers the state interest in protecting residential privacy. The State could certainly conclude that the presence of even a solitary picket in front of a residence is an intolerable intrusion on residential privacy. The Court today suggests that some picketing activities would have but a “negligible impact on privacy interests,” intimating that Illinois could satisfy its interests through more limited restrictions on picketing, such as regulating the hours and numbers of pickets. Ante, at 469. But I find nothing in the cases of this Court to suggest that a State may not permissibly conclude that even one individual camped in front of the home is unacceptable. It is the State, and not this Court, which legislates to prohibit evils which its citizens find unescapable, subject only to the limitations of the United States Constitution. Unlike sound trucks, it is not just the distraction of the noise which is in issue—it is the very presence of an unwelcome visitor at the home. As a Wisconsin court described in Wauwatosa v. King, 49 Wis. 2d 398, 411-412, 182 N. W. 2d 530 537 (1971): “To those inside . . . the home becomes something less than a home when and while the picketing . . . continue [s]. . . . [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquility.” Whether noisy or silent, alone or accompanied by others, whether on the streets or on the sidewalk, I think that there are few of us that would feel comfortable knowing that a CAREY v. BROWN 479 455 Rehnquist, J., dissenting stranger lurks outside our home. The State’s prohibition of this conduct is even easier to justify than regulations previously upheld by this Court limiting mailings and broadcasts into the home. In Rowan, as in Pacifica, the resident at least could have short-circuited the annoyance by throwing away the mail or turning off the radio. Even that alternative redress, however, was held not sufficient to preclude the legislative authorities from prohibiting the initial intrusion. Where, as here, the resident has no recourse of escape whatsoever, the State may quite justifiably conclude that the protection afforded by a statute such as this seems even more necessary. C Thus the appellees cannot secure the invalidation of this statute by urging that they seek to engage in expression which must be protected by the First Amendment or by demonstrating that a statute less restrictive of picketing would satisfy the state interest. On occasion this Court has, of course, permitted invalidation of a statute even though the plaintiff’s conduct was not protected if the statute clearly “sweeps within its prohibitions what may not be punished under the First . . . Amendmen[t].” Grayned v. City of Rockjord, 408 U. S. 104, 114-115 (1972). But this statute satisfies even the overbreadth challenge. It is arguable that when a resident has voluntarily used his home for nonresidential uses in a way which reduces the resident’s privacy interest, and the person seeking to picket the home has no alternative forum for effectively airing the grievance because it relates to this nonresidential use of the home, some form of residential picketing might be protected under the First Amendment. The courts which have found general prohibitions on residential picketing to be permissible under the First Amendment have considered the question more difficult under such circumstances. For example, in Walinsky v. Kennedy, 94 Mise. 2d 121, 404 N. Y. S. 2d 491 (1977), the 480 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. New York court enjoined all residential picketing but concluded that “[a] more difficult question would be raised if the [resident’s] office were in his home and there was thus no other suitable forum wherein he could be confronted or the picket’s viewpoints could be heard.” Id., at 132, n. 15, 404 N. Y. S. 2d, at 498, n. 15. Similarly, in Hibbs v. Neighborhood Organization to Rejuvenate Tenant Housing, 433 Pa. 578, 580, 252 A. 2d 622, 623-624 (1969), the court found that a slumlord could be picketed at his home, but only because he effectively operated his business out of his residence and no other alternative situs was available to air the dispute. This Court has intimated a similar concern in dicta in Senn v. Tile Layers, 301 U. S. 468 (1937). There the right of laborers under a state statute to picket the residence of an employer who operated his business in his home was upheld, and the Court went on to say that “[m] embers of a union might, without special statutory authorization by a state, make known the facts of a labor dispute, for freedom of speech is guaranteed by the Federal Constitution.” Id., at 478. I would by no means say without more that the State would have to permit such residential picketing, but such circumstances would, as the courts have found, present the greatest potential for a complaint of overbreadth. The State in the present case has forestalled any such challenge, however, by exempting such groups from the ban on residential picketing. Whether required by the Constitution or not, such exemptions are the concern of this Court only if they violate the Constitution. This Court in fact upheld enforcement of a statute permitting similar residential picketing in Senn v. Tile Layers, supra. Since the State has a legitimate interest in protecting speech activity and in particular, providing a forum where no other is reasonably available, excluding residences used for nonresidential purposes from the general CAREY v. BROWN 481 455 Rehnquist, J., dissenting prohibition on residential picketing is an entirely rational legislative policy, even if not mandated by the First Amendment. Thus no overbreadth challenge should succeed here. II Even though the statute does not prohibit conduct which is protected, the statute must also survive the hurdle of the Equal Protection Clause of the Fourteenth Amendment. By choosing a less-restrictive-means approach and excluding pickets at residences used for nonresidential purposes from the general prohibition, the Court concludes the State has violated equal protection. I do not think this result can be sustained because the appellees have not been denied equal protection and that is the only question this Court may properly review. A Police Department oj Chicago v. Mosley, 408 U. S. 92 (1972), states a standard by which equal protection requirements in the First Amendment context must be measured. The Court in that case identified the “crucial question” as “whether there is an appropriate governmental interest suitably furthered by the differential treatment” of the appellees’ picketing. Id., at 95. The interest asserted by the city was the prevention of disruption in the schools. Thus the statute, to satisfy Mosley, should have prohibited all picketing which could reasonably be categorized as disruptive. Yet the ordinance permitted labor picketing while prohibiting picketing relating to race discrimination (and all other nonlabor topics), even though both forms of picketing were equally disruptive. Thus the question is whether the State has a substantial interest in differentiating between the picketing which appellees seek to conduct and the picketing which is permitted under the statute. For equal protection does not require that “things which are different in fact ... be treated in law 482 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. as though they were the same.” Tigner v. Texas, 310 U. S. 141, 147 (1940). Appellees seek to picket a residence to voice their views on school integration. There has been no showing that the resident has used his home for nonresidential purposes, or that no other forum is available where appellees may publicize their dispute.3 All pickets who fall within this category, no matter what the content of their expression may be, are prohibited from residential picketing. School integration, public housing, labor disputes, and the recognition of Red China are treated alike in this respect. The State has differentiated only when the residence has been used as a place of business, a place for public meetings, or a place of employment, or is occupied by the picket himself. In each of these categories, the State has determined that the resident has waived some measure of privacy through voluntary use of his home for these purposes. Our cases clearly support a State’s authority to design the permissibility of picketing in relation to the use to which a particular building is put. As stated in Grayned v. City of Rockford, 408 U. S., at 116: “The nature of a place, ‘the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.’ . . . The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” The fact that all areas could be classified as school grounds, however, would not mean that all school grounds had to be subject to the same restrictions. As the Court in Grayned noted: “Different considerations, of course, apply in different circumstances. For example, re 3 If it is the Mayor the appellees seek to reach, they have not shown they cannot do so at city hall. If it is the neighborhoods they seek to reach, they have not shown that they cannot do so in neighborhood parks. I think it is now clear that when speech interests are countered by other substantial governmental interests, the availability of another forum is a highly relevant factor in determining the appropriate balance. See Pell v. Procunier, 417 U. S. 817, 823-824 (1974). CAREY v. BROWN 483 455 Rehnquist, J., dissenting strictions appropriate to a single-building high school during class hours would be inappropriate in many open areas on a college campus. . . .” Id., *at 120, n. 45. And just as surely the State may differentiate between residences used exclusively for residential purposes and those which are not. It is far from nonsensical or arbitrary for a legislature to conclude that privacy interests are reduced when the residence is used for these other purposes. In another First Amendment case, Paris Adult Theatre I v. Slaton, 413 U. S. 49, 61 (1973), we stated: “From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs.” Despite the state interest in treating residences which are used for nonresidential purposes differently from residences which are not, the Court finds that the categories are improper because there is an element of content regulation in the statutory scheme. While content is clearly not the principal focus of the statutory categories, since content is only relevant in the one subcategory of “places of employment,” the content restriction is quite clearly related to a legitimate state purpose. When an individual hires an employee to perform services in his home, it would not seem reasonable to conclude that the resident had so greatly compromised his residential status so as to permit picketing on any subject. The State may quite properly decide that the balance is better struck by the rule embodied in this statute which recognizes a more limited waiver of privacy interests by allowing only picketing relating to any labor dispute involving the resident as employer which has arisen out of the resident’s choice of using his residence as a place of employment. Content regulation, when closely related to a permissible state purpose, is clearly permitted. Surely the Court would not prohibit a city from preventing an individual from interrupting an orderly city council discussion of public housing to orate on the vices or virtues of nuclear power. Yet this is 484 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 u. S. content regulation. More accurately, it is restriction of topics to those appropriate to the forum. In this case, the forum is a confined one residences used as a place of employment— and clearly labor picketing in that forum is the relevant topic. This differentiation is supported by Cox v. Louisiana, 379 U. S. 559 (1965). There the Court upheld a state prohibition on picketing in front of a government building which was used as a courthouse if the content of the picketing could be presumed to demonstrate an intent to influence the judiciary. In Cox then, because of the nature of the state interest invoked, both the content of the picketing as well as the use of the building were considered determinative. The Court noted that if a mayor had an office in the courthouse and individuals were picketing on a topic relevant to the mayor, rather than the judiciary, then the speech would be permissible. Thus use and content, or as Mr. Justice Stevens stated for the plurality in Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), “content and context” are important determinants. As in Cox, a State need not treat residences which are used for different purposes in the same fashion, and when reasonably related to the state purpose, distinctions in content are permissible. See also FCC v. Pacifica Foundation, 438 U. S. 726 (1978); Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975); Young v. American Mini Theatres, supra. The question, therefore, is not whether there is some differentiation on the basis of content, but whether the appellees’ prohibited conduct can be said to share the same characteristics of the conduct which is permitted. The Court devotes less than one page to what purports to be an equal protection analysis of this determinative question. In fact, only one sentence relates to the differences between the litigants in this case and the permitted picketing: “And, with particular regard to the facts of the instant case, it borders on the frivolous to suggest that a resi CAREY v. BROWN 485 455 Rehnquist, J., dissenting dent who invites a repairman into his home to fix his television set has ‘waived’ his right to privacy with respect to a dispute between the repairman and the local union, but that the official who has voluntarily chosen to enter the public arena has not likewise ‘waived’ his right to privacy with respect to a challenge to his views on significant issues of social and economic policy.” Ante, at 469. First, it is unclear whether the Illinois statute would be construed to permit the type of labor picketing described in the Court s example where the dispute is not between the employer and the employee.4 Second, the fact that an official has chosen to enter the public arena has no bearing on the question of how he uses his residence—the only question of relevance to the Illinois Legislature. Further, just as the State had an interest in Cox in preventing picketing which might tend to improperly influence the judicial process, the State certainly has an equal interest in preventing residential picketing of their officials where the result might be influence through the harassment of the official’s family. This is not the type of influence that a democratic society has traditionally held high as a part of the Bill of Rights. Finally, at least in the case of the repairman, the home in fact is the situs of the publicized dispute, while the Mayor’s home is not. The appellees do not seek to picket the situs of the dispute; they do not seek to picket the home of an individual who has used his residence for nonresidential purposes relevant to that dispute; they have not established the unavailability of any alternative forum. These are the characteristics of residen- 4 If given an opportunity, the Illinois courts might determine that many repairmen are not “employees” under the statute. Further, it is also possible that the state courts would limit the disputes covered by the exception to those between the resident and his employee. More importantly, these are questions with which this court should not be concerned until the state courts have had an opportunity to address them. See infra, at 488. 486 447 U. S. OCTOBER TERM, 1979 Rehnquist, J., dissenting tial picketing which the State has allowed. The appellees have thereby failed to establish that they seek to picket under circumstances rationally indistinguishable from the circumstances under which the State has permitted picketing. They have therefore not been denied equal protection. B The Court makes little effort to establish that the appellees seek to picket under circumstances which are indistinguishable from the picketing permitted under the statute. Instead, it places the fulcrum of its equal protection argument on the fact that there might well be other actions of a homeowner which would constitute a “nonresidential” use of his property, warranting additional statutory exceptions. While I am not persuaded that the Court has identified an example of another picket who should likewise be permitted to picket under the justification forwarded by the State,5 the flaws in 5 The Court identifies several examples of picketing which the State would allegedly have to allow in order to avoid a successful equal protection attack. The Court indicates that there is no ground for differentiating between the picketing which is permitted and picketing relating to landlord-tenant disputes, zoning disputes, and historic preservation issues. Ante, at 468-469, n. 13. The first of these examples seems particularly inappropriate since picketing in relation to landlord-tenant disputes would most likely be permissible under the statute just as written. The statute exempts picketing by an individual at his residence, so it would certainly appear that a tenant could picket in front of his own dwelling (which also happens to be the situs of the dispute). If the landlord operates his business out of his home, the tenants would also be able to picket there under the statute. Thus there is no reason to believe that the picketing opportunities of tenants have been substantially limited by the statutory classifications, and in fact would appear to be at least as broad as those afforded to employees with labor disputes. Zoning disputes and historic preservation issues are distinguishable in several respects. First, those issues have no relationship to the use of an individual’s residence (other than their own, which of course they may picket) and the individual resident would not have waived any privacy interests. CAREY v. BROWN 487 455 Rehnquist, J., dissenting the analysis are more fundamental. First, the fact that there may be someone other than the appellees who has a right to be treated similarly to those permitted to picket is irrelevant to the question of constitutional validity in this case. The Court apparently believes it has a license to import the more relaxed standing requirements of First Amendment overbreadth into equal protection challenges. This, however, is not and should not be the law. Precedent supports no such approach and the rationale underlying the expanded standing principles in the overbreadth context are inapposite in the equal protection realm. As we stated in Grayned, standing to challenge an ordinance which has been constitutionally applied to the plaintiff is permitted because otherwise the statute, if allowed to stand until a later challenge, will “deter privileged activity.” 408 U. S., at 114. In the equal protection context, however, we are not concerned that conduct which must be permitted under the First Amendment will be prohibited, but only that conduct which could be and is properly prohibited be permitted if indistinguishable from other permitted conduct. The impact on speech is therefore a minimal one, while the jurisprudential considerations for declining to consider alternative applications loom large. In Barrows v. Jackson, 346 U. S. 249, 256 (1953), an equal protection case, the Court identified the ordinary rule that, “even though a party will suffer a direct substantial injury Second, alternative forums would theoretically include residential parks as well as the office of the authorities responsible for the relevant decisions. The Court’s citation of lawn decorations as a waiver of residential privacy seems odd since that act does not involve the voluntary admis-sion of strangers into the home for some nonresidential purposes—a characteristic shared by each of the other exceptions. Ante, at 469. The Court s citation of a political party meeting is also distinguishable since this example does not share the commercial attributes of the other exemptions—where “nonresidential use” seems most readily found. An alternative forum would also not seem difficult to obtain in those circumstances. 488 447 U. S. OCTOBER TERM, 1979 Rehnquist, J., dissenting from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed.” The Court justified the rule, stating: “One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provision separable. New York ex rel. Hatch v. Reardon, [204 U. S.], at 160-161. ... It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U. S. 167,172.” Id., at 256-257. More recently in Craig v. Boren, 429 U. S. 190, 193 (1976), we emphasized that standing is “designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.” Sound principles of standing simply do not permit this Court to entertain any claim by the appellees in this action that someone other than themselves might be denied equal protection by the operation of the statute. See also Young v. American Mini Theatres, Inc., 427 U. S., at 58-59, 60; Broad-rick v. Oklahoma, 413 U. S. 601 (1973). This consideration is particularly compelling in this case since the appellees had an opportunity to seek a limiting construction of the statute by the Illinois courts when originally prosecuted for their picketing, but chose to plead guilty instead, thereby denying the one court system that could authoritatively limit the statute the opportunity to do so. Even if this Court could properly take cognizance of the fact that some identifiable person not clearly encompassed in the statutory categories permitting picketing should also be CAREY v. BROWN 489 455 Rehnquist, J., dissenting allowed to picket, under equal protection standards, that fact alone would not justify wholesale invalidation of the entire statutory framework. In Califano v. Jobst, 434 U. S. 47, 53-55 (1977), this Court emphasized that sound equal protection analysis must uphold general rules “even though such rules inevitably produce seemingly arbitrary consequences in some individual cases,” and that “the broad legislative classification must be judged by reference to characteristics typical of the affected classes rather than by focusing on selected, atypical examples.” Any other standard of review, such as that employed by the Court today, will inevitably lead to invalidation, for this or any other court will always be able to conceive of a hypothetical not properly accounted for by the statutory categories. The state courts, if given an opportunity, have the tools to correct such minor deficiencies. This Court has soundly permitted state legislatures far more room for error in the drafting of its categories than what the Court today allows. As it stated in Ginsberg v. New York, 390 U. S. 629, 642-643 (1968), “[w]e do not demand of legislatures ‘scientifically certain criteria of legislation,’ Noble State Bank v. Haskell, 219 U. S. 104, 110.” And more recently, we recognized a compelling need to allow to local government “a reasonable opportunity to experiment with solutions to admittedly serious problems.” Young v. American Mini Theatres, supra, at 71. I can conclude this dissent with no more apt words than those of Mr. Justice Frankfurter in his concurring opinion in Kovacs v. Cooper, 336 U. S., at 97: “[I]t is not for us to supervise the limits the legislature may impose in safeguarding the steadily narrowing opportunities for serenity and reflection.” 490 OCTOBER TERM, 1979 Syllabus 447 U. S. NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL LONGSHOREMEN’S ASSN., AFL-CIO, et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-1082. Argued April 22, 1980—Decided June 20, 1980 This case presents the question whether Rules on Containers (Rules) in a collective-bargaining agreement between the International Longshoremen’s Association (ILA) and employer organizations in the shipping industry which were adopted in response to the technological innovation of containerized shipping are a lawful work preservation agreement. The new technology involves the use on specially designed ships of large, reusable metal receptacles which can be moved on and off the vessel unopened and which can be attached to a truck chassis and transported intact to and from the pier, saving costs and time in loading and unloading ships and in warehousing cargo, as compared with the amount of on-pier work involved in handling loose cargo for conventional ships. The amount of work available for longshoremen has been further reduced by the shipping companies’ practice of making their containers available for loading (stuffing) and unloading (stripping) away from the pier by shippers and by freight consolidators who combine the goods of various shippers into a single shipment. The Rules permit the great majority of containers to pass over the piers intact, reserving to the ILA the right to stuff and strip at the pier only those containers that would otherwise be stuffed or stripped “locally” (within a 50-mile radius of the port) by anyone except employees of the beneficial owner of the cargo, the shipping company being liable for specified liquidated damages for any container handled in violation of the Rules. Separate unfair labor practice proceedings were brought before the National Labor Relations Board (Board) by truckers and consolidators who, because of the operation against shipping companies of the Rules’ liquidated-damages provisions, could no longer perform local stuffing and stripping services. The Board concluded that the Rules were not valid work preservation clauses because the work of stuffing and stripping containers away from the pier had not traditionally been done by ILA members, but had instead been performed by employees of consolidators and truckers. It therefore held that the Rules violated § 8 (e) of the National Labor Relations Act, which makes unlawful those collective-bargaining agreements whereby the employer agrees to cease doing business with any other person, and that union action to enforce NLRB v. LONGSHOREMEN 491 490 Syllabus the Rules violated §8 (b)(4)(B), which prohibits unions from engaging in secondary activities whose object is to force one employer to cease doing business with another. The Court of Appeals, consolidating the cases and holding that the Board had erred as a matter of law in defin-ing the work in controversy, vacated the Board’s decisions, denied its applications for enforcement, and remanded the cases. Held: The Board’s definition of the work in controversy in this dispute was erroneous as a matter of law. Pp. 503-513. (a) To constitute a lawful work preservation agreement, the agreement must have as its objective the preservation of work traditionally performed by employees represented by the union, and the contracting employer must have the power to give the employees the work in question. The first and most basic question is: What is the “work” that the agreement allegedly seeks to preserve ? Cf. NLRB v. Pipefitters, 429 U. S. 507; National Woodwork Manufacturers Assn. v. NLRB, 386 U. S. 612. Pp. 504-505. (b) Identification of the work at issue in a complex case of technological displacement requires a careful analysis of the traditional work patterns that the parties are allegedly seeking to preserve, and of how the agreement seeks to accomplish that result under the changed circumstances created by the technological advance. The inquiry must focus on the bargaining unit employees’ work, not on the work of other employees who may be doing the same or similar work, and must examine the relationship between the work as it existed before the innovation and as the agreement proposes to preserve it. P. 507. (c) The Board’s conclusion that the “work in controversy” was the off-pier stuffing and stripping of containers erroneously focused on the work done by the employees of truckers and consolidators after the introduction of containerized shipping. That approach foreclosed, by definition, any possibility that the longshoremen could negotiate an agreement to permit them to play any part in the loading and unloading of containerized cargo. The Board’s determination that the traditional work of ILA members was to load and unload ships should have been only the beginning of the analysis. The next step is to look at how the contracting parties sought to preserve that work, to the extent possible, in the face of a massive technological change that largely eliminated the need for cargo handling at intermediate stages of the intermodal trans-portation of goods, and to evaluate the relationship between traditional longshore work and the work which the Rules attempt to assign to ILA members. Pp. 507-510. (d) Viewing the work allegedly to be preserved by the Rules from the proper perspective, the Board on remand will be free to det-ermine 492 OCTOBER TERM, 1979 Syllabus 447 U.S. whether the Rules represent a lawful attempt to preserve traditional longshore work, or whether, instead, they are tactically calculated to satisfy union goals elsewhere. This determination must be informed by an awareness of the congressional preference for collective bargaining as the method for resolving disputes over dislocations caused by the introduction of technological innovations in the workplace, the question being not whether the Rules represent the most rational or efficient response to innovation, but whether they are a legally permissible effort to preserve jobs. If the Board finds that the Rules have a lawful work preservation objective, it must then consider the charging parties’ contention that members of the employer organization did not have the right to control the stuffing and stripping of containers. Pp. 510-512. 198 U. S. App. D. C. 157, 613 F. 2d 890, affirmed. Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, and Powell, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Stewart, Rehnquist, and Stevens, JJ., joined, post, p. 522. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Stephen M. Shapiro, Robert E. Allen, Norton J. Come, Linda Sher, and Howard E. Perlstein. J. Alan Lips argued the cause for Tidewater Motor Truck Association, respondent under this Court’s Rule 21 (4), in support of petitioner. With him on the briefs was Marshall T. Bohannon, Jr. Thomas W. Gleason argued the cause for respondent International Longshoremen’s Association, AFL-CIO. With him on the brief were Ernest L. Mathews, Jr., and Andre Mazzola Mardon. Constantine P. Lambos argued the cause for respondents New York Shipping Association, Inc., et al. With him on the brief were Francis A. Scanlan, Alfred A. Giardino, and Donato Caruso. Carl W. Schwarz and Stephen P. Murphy filed a brief for respondent Dolphin Forwarding, Inc. Whiteford S. Blakeney and William L. Auten filed a brief for respondent Houff Transfer, Inc.* *Briefs of amici curiae urging reversal were filed by Kenneth C. Mc-Guiness, Robert E. Williams, and Daniel R. Levinson for the Air Condi- NLRB v. LONGSHOREMEN 493 490 Opinion of the Court Mr. Justice Marshall delivered the opinion of the Court. This case presents the question whether provisions of the collective-bargaining agreement between the International Longshoremen’s Association (ILA) and employer organizations in the shipping industry which were adopted in response to the technological innovation of containerized shipping are a lawful work preservation agreement. The National Labor Relations Board held that the provisions did not preserve traditional work opportunities for employees represented by the union, but sought instead to acquire work they had not previously performed; therefore, it concluded that the provisions violated § 8 (e) of the National Labor Relations Act, 29 U. S. C. § 158 (e), and union action to enforce them violated § 8 (b)(4)(B) of the Act, 29 U. S. C. § 158 (b)(4)(B). International Longshoremen's Assn. {Dolphin Forwarding, Inc.), 236 N. L. R. B. 525 (1978); International Longshoremen's Assn. {Associated Transport, Inc.), 231 N. L. R. B. 351 (1977). A divided panel of the United States Court of Appeals for the District of Columbia Circuit declined to enforce the Board’s orders. 198 U. S. App. D. C. 157, 613 F. 2d 890 (1979). We granted certiorari, 444 U. S. 1042 (1980), to resolve a conflict among the Circuits on this important question of federal labor law.1 I This controversy arises out of the collective-bargaining response of the ILA and the east coast shipping industry to tioning & Refrigeration Institute et al.; by Nelson J. Conney, Kenneth E. Siegel, Robert A. Hirsch, and Alan J. Thiemann for the American Trucking Associations, Inc.; and by Raymond P. de Member for the International Association of NVOCCS. 1A contrary result was reached in International Longshoremen’s Assn., Local 1575 v. NLRB, 560 F. 2d 439 (CAI 1977), and in International Longshoremen’s Assn. v. NLRB, 537 F. 2d 706 (CA2 1976), cert, denied, 429 U. S. 1041 (1977). Cf. Humphrey n. International Longshoremen’s Assn., 548 F. 2d 494 (CA4 1977). 494 447 U. S. OCTOBER TERM, 1979 Opinion of the Court containerization, a technological innovation which has had such a profound effect on that industry that it has frequently been termed “the container revolution.” 2 In the words of one observer, “containerization may be said to constitute the single most important innovation in ocean transport since the steamship displaced the schooner.”3 A Containers are large, reusable metal receptacles, ranging in length from 20 to 40 feet and capable of carrying upwards of 30,000 pounds of freight, which can be moved on and off an ocean vessel unopened. Container ships are specially designed and constructed to carry the containers, which are affixed to the hold. A container can also be attached to a truck chassis and transported intact to and from the pier like a conventional trailer. The use of containers is substantially more economical than traditional methods of handling ocean-borne cargo.4 Because cargo does not have to be handled and repacked as it moves from the warehouse by truck to the dock, into the vessel, then from the vessel to the dock and by truck or rail to its destination, the costs of handling are significantly reduced. Expenses of separate export packaging, storage, losses from pilferage and breakage, and costs of insurance and processing cargo documents may also be decreased. Perhaps most sig 2 See, e. g., Ullman, The Role of the American Ocean Freight Forwarder in Intermodal, Containerized Transportation, 2 J. Mar. L. & Comm 625, 627 (1971); Schmeltzer & Peavy, Prospects and Problems of the Container Revolution, 1 J. Mar. L. & Comm. 203 (1970); Note, Containerization and Intermodal Service in Ocean Shipping, 21 Stan. L. Rev 1077 1078 (1969). 3 Ross, Waterfront Labor Response to Technological Change: A Tale of Two Unions, 21 Lab. L. J. 397, 398 (1970). 4 See Ross, supra, n. 3, at 399—400; Schmeltzer & Peavy, supra n. 2, at 206-210; Note, supra n. 2, at 1087-1092. NLRB v. LONGSHOREMEN 495 490 Opinion of the Court nificantly, a container ship can be loaded or unloaded in a fraction of the time required for a conventional ship.6 As a result, the unprofitable in-port time of each ship is reduced, and a smaller number of ships are needed to carry a given volume of cargo.6 Before the introduction of container ships, and as is still the case with conventional vessels, trucks delivered loose, or break-bulk, cargo to the head of the pier. The cargo was then transferred piece by piece from the truck’s tailgate to the ship by longshoremen employed by steamship or stevedoring companies. The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship’s hold.7 The process was reversed for cargo taken off incoming ships. With the advent of containers, the amount of on-pier work involved in cargo handling has been drastically reduced, since the cargo need not be loaded and unloaded piece by piece. The amount of work available for longshoremen has been further reduced by the shipping companies’ practice of making their containers available to ship 5 See Ross, supra n. 3, at 399 (36-48 hours, compared to 7 or 8 days for conventional vessel); Schmeltzer & Peavy, supra n. 2, at 208 (8 hours compared to 3 days). 6 See Note, supra n. 2, at 1088 (container ship spends 25% of its time in port, compared to 60% for conventional vessel). 7 The longshore unit in the Port of New York was certified by the National Labor Relations Board as “[a]ll longshore employees engaged in work pertaining to the rigging of ships, coaling of same, loading and unloading of cargoes, including mail, ships’ stores and baggage, handling lines in connection with the docking and undocking of ships, including hatch bosses; cargo repairmen, checkers, clerks and timekeepers and their assistants, including head receiving and delivery clerks; general maintenance, mechanical and miscellaneous workers; horse and cattle fitters, grain ceilers, and marine carpenters, in the Port of Greater New York and vicinity. . . .” New York Shipping Assn., 116 N. L. R. B. 1183, 1188 (1956) (footnote omitted). 496 OCTOBER TERM, 1979 Opinion of the Court 447U.S. pers and consolidators8 for loading and unloading away from the pier. Containerization, then, was a technological advance of great importance to the shipping industry which at the same time threatened the jobs of longshoremen by dramatically increasing their productivity.9 As one might expect, the subject has been a hotly disputed topic of collective bargaining between the union and the employers.10 We are concerned with the results of that collective-bargaining process as it affects the shipping industry in the Ports of New York, Baltimore, and Hampton Roads, Va. B It is necessary, in discussing the collective-bargaining agreements here at issue, to define certain industry terms of art 8 A freight consolidator combines the goods of various shippers into a single shipment at its own off-pier terminal and delivers the shipment to the pier. Ordinarily, consolidators operate no transportation of their own except for pickup and delivery equipment. They contract with carriers, such as truckers and steamship lines, for the actual transportation of the goods. See Comment, Intermodal Transportation and the Freight Forwarder, 76 Yale L. J. 1360, 1362 (1967). A consolidator who acts as a carrier by arranging for the transportation of goods from port to port is called a nonvessel operating common carrier by water (NVOCC), and is regulated by the Federal Maritime Commission. See Federal Maritime Commission, Preliminary Staff Report on Non-Vessel Operating Common Carriers by Water (Dec. 8, 1970); see generally Ullman, supra n. 2. 9 See, e. g., 198 U. S. App. D. C., at 159, 613 F. 2d, at 892; Ross, supra n. 3, at 400. 10 The longshoremen involved in this dispute are represented by the ILA. Their employers, shipowners and stevedoring companies operating in the Ports of New York, Baltimore, and Hampton Roads, belong to several employers’ organizations. These include the New York Shipping Association (NYSA), the Steamship Trade Association of Baltimore (STAB), and the Hampton Roads Shipping Association (HRSA). Since 1970, the Council of North Atlantic Shipping Associations (CONASA), a multiemployer bargaining association representing shipping associations including NYSA, STAB, and HRSA, has bargained with ILA on a master-contract basis. NLRB v. LONGSHOREMEN 497 490 Opinion of the Court pertaining to containerized cargo. Loading cargo into a container is called “stuffing”; unloading cargo from a container is called “stripping.” Containers holding goods beneficially owned by one shipper or consignee are called full shippers’ loads (FSL). Containers holding goods belonging to more than one shipper or consignee are called consolidated container loads. Such cargo is also called “less than trailer load” (LTL) or “less than container load” (LCL) cargo. The first collective-bargaining agreement to contain a provision dealing with containerized shipping was the 1959 agreement between ILA and the New York Shipping Association (NYSA). At that time, containerization was in its infancy.11 The provision in the 1959 agreement was prompted by a dispute over the use of Dravo containers, boxes eight cubic feet in size. See International Longshoremen’s Assn. (Consolidated Express, Inc.), 221 N. L. R. B. 956, 957 (1975), enf’d, 537 F. 2d 706 (CA2 1976), cert, denied, 429 U. S. 1041 (1977). The agreement recognized the right of NYSA members “to use any and all type [sic] of containers without restriction or stripping by the union.” 221 N. L. R. B., at 957. In return, NYSA agreed to contribute royalty payments on “containers which are loaded or unloaded away from the pier by non-ILA labor.” Ibid. The agreement also provided: “Any work performed in connection with the loading and discharging of containers for employer members of NYSA which is performed in the Port of Greater New York whether on piers or terminals controlled by them, 11 The first specially fitted container ship began operating in the late 1950’s between New York and Puerto Rico. See App. 117. As late as 1966, the percentage of general cargo moved by containers in the Port of New York was only 3%. See Ross, supra n. 3, at 398. The first container ships did not appear in the Ports of Baltimore and Hampton Roads until 1965 and 1966. See 198 U. S. App. D. C., at 161, 613 F. 2d, at 894; International Longshoremen’s Assn. (Associated Transport, Inc.), 231 N. L. R. B. 351,359 (1977). 498 OCTOBER TERM, 1979 Opinion of the Court 447U.S. or whether through direct contracting out, shall be performed by ILA labor at longshore rates.” Ibid. After the 1959 agreement was reached, the development of container shipping accelerated. In 1967, ILA demanded in collective-bargaining negotiations that longshoremen stuff and strip all containers crossing the piers. Following a lengthy strike, ILA and NYSA in 1969 adopted, as part of their 1968-1971 collective-bargaining agreement, the Rules on Containers (Rules). The terms of that master agreement were adopted by other ports on the North Atlantic coast, including Hampton Roads and Baltimore. The Rules were slightly modified in 1971, after another long strike. In 1973 ILA and the Council of North Atlantic Shipping Associations (CONASA) executed the “Dublin Supplement” as an “interpretive bulletin” to the Rules. The substance of the Dublin Supplement was incorporated in the version of the Rules contained in the 1974-1977 collective-bargaining agreement.12 In essence, the Rules contained in the 1968 and 1971 agreements provided that if containers owned or leased by the shipping companies and carrying LTL or consolidated container loads were to be stuffed or stripped within the local port area (that is, within a geographical radius of 50 miles of the port) by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. The shipping companies were required to pay a royalty on containers that passed over the piers intact, as well as liquidated damages, presently set at $1,000 per container, for any container handled in violation of the Rules. The Dublin Supplement declared that the Rules applied to all containers, including those designated as FSL containers, which were stuffed or stripped in the local area by other than the beneficial owner’s own employees. The Supplement also noted an exception for FSL containers warehoused locally for at least 30 days, and, as a method of enforcing the Rules, 12 The 1974 Rules are reproduced in the appendix to this opinion. NLRB v. LONGSHOREMEN 499 490 Opinion of the Court prohibited the employers from releasing any of their containers to known consolidators with facilities located within 50 miles of the port. Thus, under the final version of the Rules incorporated in the 1974 agreement, if containers owned or leased13 by the shipping companies are to be stuffed or stripped locally by anyone other than the employees of the beneficial owner of the cargo, that work must be done at the piers by ILA labor. FSL containers that are transported intact to or from the beneficial owner or that are warehoused locally for 30 days, and consolidated containers coming from or bound for points outside the local area, do not have to be stuffed and stripped by ILA members. The practical effect of the Rules is that some 80% of containers pass over the piers intact. App. 612. The remaining 20% are stuffed and stripped by longshoremen, regardless of whether that work duplicates work done by non-ILA employees off-pier. C This case involves two proceedings before the National Labor Relations Board (Board) on charges that the Rules are illegal secondary activity in violation of federal labor law. The cases were consolidated on appeal. The Dolphin proceeding, 236 N. L. R. B. 525 (1978), concerns the application 13 The 1968 and 1971 versions of the Rules referred only to containers “owned or leased” by the employers, see App. 237, 238, 247, 272, 273. The 1974 agreement refers to containers “owned, leased or used by carriers.” See infra, at 514. There is nothing in the record to indicate that the fines which led to the unfair labor practice charges before us were imposed for infractions relating to containers which were not owned or leased by CONASA members. Therefore we, like the Board and the Court of Appeals, assume that the Rules have application only to containers that belong to the contracting employers. See 198 U. S. App. D. C., at 179, 613 F. 2d, at 912; 236 N. L. R. B., at 526; 231 N. L. R. B., at 359; International Longshoremen’s Assn. (Consolidated Express, Inc.), 221 N. L. R. B. 956, 958, 959 (1975); but see 231 N. L. R. B., at 353, n. 3 (Fanning, Chairman, dissenting). 500 447 U. S. OCTOBER TERM, 1979 Opinion of the Court of the provisions on LCL cargo to containers used by consolidators operating within 50 miles of the Port of New York. The Associated Transport proceeding, 231 N- L. R. B. 351 (1977), concerns the application of the Rules to FSL containers whose cargo was transferred by truckers to their own trucks within 50 miles of the Ports of Baltimore and Hampton Roads. The affected truckers and consolidators filed unfair labor practice charges with the Board, alleging that the Rules constituted a “hot cargo” agreement in violation of § 8 (e) of the National Labor Relations Act (Act) and that the activities of the parties to the agreement in enforcing its terms were an illegal secondary boycott prohibited by §8 (b)(4)(B) of the Act. The facts underlying the charges may be briefly stated. Dolphin Forwarding, Inc. (Dolphin), and San Juan Freight Forwarding, Inc. (San Juan), were NVOCC consolidators, see n. 8, supra, soliciting business from shippers throughout the United States who wished to transport LCL cargo between New York and Puerto Rico.14 Dolphin and San Juan received their customers’ goods at their off-pier facilities, located within 50 miles of the Port of New York. Using subcontracted non-ILA labor, they consolidated the goods of two or more shippers, stuffed them into containers provided by members of NYSA, and had the filled containers trucked to the pier to be loaded onto ships by longshoremen.15 As a result of these practices, the NYSA members who had supplied their containers to the consolidators were assessed liquidated damages of approximately $47,000. Those carriers then 14 Dolphin has since ceased doing business in New York. 15 Dolphin began such operations several years before the adoption of the Rules. The NYSA members contended that they supplied containers to Dolphin only because it listed Massachusetts as the point of origin for the containers rather than the actual facility within the port area. San Juan was established in 1972, several years after the Rules were first adopted. It apparently listed Chicago as the point of origin of containers it shipped. 198 U. S. App. D. C., at 166, 613 F. 2d, at 899. NLRB v. LONGSHOREMEN 501 490 Opinion of the Court informed Dolphin and San Juan that they would no longer furnish them with containers. Thereupon, Dolphin and San Juan filed unfair labor practice charges with the Board. Houff Transport, Inc. (Houff), and Associated Transport, Inc. (Associated),16 were Interstate Commerce Commission-licensed common carriers who operated motor freight terminals within 50 miles of the Ports of Baltimore and Hampton Roads. Since the advent of containerization, they had transported FSL container loads to consignees both within and beyond the 50-mile radius, and routinely stripped such FSL containers and restuffed the cargo into their own vehicles for reasons of economy, safety, or state highway or bridge regulations. The practice of using non-ILA labor to strip and restuff FSL cargo within the 50-mile radius is known as shortstopping. Although the Rules, prior to the Dublin Supplement, did not expressly discuss FSL cargo, see App. 235-250, 270-276, the ILA and the shipping companies apparently regarded shortstopping as an infraction, see 198 U. S. App. D. C., at 162, 613 F. 2d, at 895; 231 N. L. R. B., at 355 (Fanning, Chairman, dissenting). The Dublin Supplement, and subsequent versions of the Rules, provided that ILA labor must handle all FSL containers that otherwise would be handled within the local area by other than the consignee’s own employees, except for FSL cargo consigned to the beneficial owner’s place of business or warehoused for 30 days within the port area. After the new Rules became effective, Houff and Associated shortstopped containers picked up from CONASA members. The shipping companies were assessed liquidated damages for each such container. When Houff and Associated refused to indemnify them for the fines, the shipping companies canceled their interchange agreements. Houff, Associated, and the Tidewater Motor Truck Association (TMTA), an asso 16 Associated is no longer in business. 502 OCTOBER TERM, 1979 Opinion of the Court 447 u. g ciation of which Associated was a member, filed unfair labor practice charges. In holding that the charges were substantiated in both the Dolphin and Associated Transport proceedings, the Board relied on its previous decision in International Longshoremens Assn. (Consolidated Express, Inc.), 221 NLRB enf’d’ 537 R 2d 706 (CA2 1976), denied, I29 i (1977) 63 (°P“- J The New York Court of Appeals stated: In light of current exigencies, one of the policies of any public service soSci^The“ T T86™'“” of our "tel “d irreplaceable re-Legislature has but recently imposed upon the commission a duty to encourage all persons and corporations ... to formulate and ^.1 , PrOgramS ' ' • [for] the P^ation of environ- mental values and the conservation of natural resources’ (Public Service ’ f a k?' 2 '■ ImP1Clt in thls amendment is a legislative recogni-tion of the serious situation which confronts our State and Nation More important, conservation of resources has become an avowed legislative 584 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. The Court’s asserted justification for invalidating the New York law is the public interest discerned by the Court to underlie the First Amendment in the free flow of commercial information. Prior to this Court’s recent decision in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), however, commercial speech was afforded no protection under the First Amendment whatsoever. See, e. g., Breard v. Alexandria, 341 U. S. 622 (1951); Valentine v. Chrestensen, 316 U. S. 52 (1942). Given what seems to me full recognition of the holding of Virginia Pharmacy Board that commercial speech is entitled to some degree of First Amendment protection, I think the Court is nonetheless incorrect in invalidating the carefully considered state ban on promotional advertising in light of pressing national and state energy needs. The Court’s analysis in my view is wrong in several respects. Initially, I disagree with the Court’s conclusion that the speech of a state-created monopoly, which is the subject of a comprehensive regulatory scheme, is entitled to protection under the First Amendment. I also think that the Court errs here in failing to recognize that the state law is most accurately viewed as an economic regulation and that the speech involved (if it falls within the scope of the First Amendment at all) occupies a significantly more subordinate position in the hierarchy of First Amendment values than the Court gives it today. Finally, the Court in reaching its decision improperly substitutes its own judgment for that of the State in deciding how a proper ban on promotional advertising should be drafted. With regard to this latter point, the Court adopts as its final part of a four-part test a “no more policy embodied in the commission’s enabling act (see also, Matter of New York State Council of Retail Merchants v. Public Serv. Comm, of State of N. Y., 45 N. Y. 2d 661, 673-674).” Consolidated Edison Co. v. Public Service Comm’n, 47 N. Y. 2d 94, 102-103, 390 N. E. 2d 749, 753 (1979). CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 585 557 Rehnquist, J., dissenting extensive than necessary” analysis that will unduly impair a state legislature’s ability to adopt legislation reasonably designed to promote interests that have always been rightly thought to be of great importance to the State. I In concluding that appellant’s promotional advertising constitutes protected speech, the Court reasons that speech by electric utilities is valuable to consumers who must decide whether to use the monopoly service or turn to an alternative energy source, and if they decide to use the service how much of it to purchase. Ante, at 567. The Court in so doing assume [s] that the willingness of a business to promote its products reflects a belief that consumers are interested in the advertising. Ante, at 568. The Court’s analysis ignores the fact that the monopoly here is entirely state-created and subject to an extensive state regulatory scheme from which it derives benefits as well as burdens. While this Court has stated that the “capacity [of speech] for informing the public does not depend upon the identity of its source,” First National Bank of Boston v. Bellotti, 435 U. S. 765, 777 (1978), the source of the speech nevertheless may be relevant in determining whether a given message is protected under the First Amendment.2 When the source of the speech is a state-created monopoly such as this, traditional First Amendment concerns, if they come into play at all, certainly do not justify the broad interventionist role adopted by the Court today. In Consolidated Edison Co. v. 2 In Brown v. GUnes, 444 U. S. 348 (1980), for example, we recently upheld Air Force regulations that imposed restrictions on the free speech and petition rights of Air Force personnel. See also, e. g., Parker v. Levy, 417 U. S. 733 (1974) (commissioned officer may be prohibited from publicly urging enlisted personnel to disobey orders that might send them into combat); Snepp v. United States, 444 U. S. 507 (1980) (employees of intelligence agency may be required to submit publications relating to agency activity for prepublication review by the agency). 586 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. Public Service Comm’n, ante, at 549-550, Mr. Justice Black-mun observed: “A public utility is a state-created monopoly. See, e. g., N. Y. Pub. Serv. Law § 68 (McKinney 1955); Jones, Origins of the Certificate of Public Convenience and Necessity; Developments in the States 1870-1920, 79 Colum. L. Rev. 426, 458-461 (1979); Comment, Utility Rates, Consumers, and the New York State Public Service Commission, 39 Albany L. Rev. 707, 709-714 (1975). Although monopolies generally are against the public policies of the United States and of the State of New York, see, e. g., N. Y. Gen. Bus. Law § 340 (McKinney 1968 and Supp. 1979-1980), . . . utilities are permitted to operate as monopolies because of a determination by the State that the public interest is better served by protecting them from competition. See 2 A. Kahn, The Economics of Regulation 113-171 (1971). “This exceptional grant of power to private enterprises justifies extensive oversight on the part of the State to protect the ratepayers from exploitation of the monopoly power through excessive rates and other forms of overreaching. . . . New York law gives its Public Service Commission plenary supervisory powers over all property, real and personal, ‘used or to be used for or in connection with or to facilitate the . . . sale or furnishing of electricity for light, heat or power? N. Y. Pub. Serv. Law §§ 2 (12) and 66 (1) (McKinney 1955).” Thus, although First National Bank oj Boston v. Bellotti, supra, holds that speech of a corporation is entitled to some First Amendment protection, it by no means follows that a utility with monopoly power conferred by a State is also entitled to such protection. The state-created monopoly status of a utility arises from the unique characteristics of the services that a utility provides. As recognized in Cantor v. Detroit Edison Co., 428 U. S. 579, 595-596 (1976), “public utility regulation typically CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 587 557 Rehnquist, J., dissenting assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation.” The consequences of this natural monopoly m my view justify much more wide-ranging supervision and control of a utility under the First Amendment than this Court held in Bellotti to be permissible with regard to ordinary corporations. Corporate status is generally conferred as a result of a State’s determination that the corporate characteristics “enhance its efficiency as an economic entity.” First National Bank of Boston v. Bellotti, supra, at 825-826 (Rehnquist, J., dissenting). A utility, by contrast, fulfills a function that serves special public interests as a result of the natural monopoly of the service provided. Indeed, the extensive regulations governing decisionmaking by public utilities suggest that for purposes of First Amendment analysis, a utility is far closer to a state-controlled enterprise than is an ordinary corporation.3 Accordingly, I think a State has broad discretion in determining the statements that a utility may make in that such statements emanate from the entity created by the State to provide important and unique public services. And a state regulatory body charged with the oversight of these types of services may reasonably decide to impose on the utility a special duty to conform its conduct to „ 3 In this regard the New York Court of Appeals stated: “Public utilities, from the earliest days in this State, have been regulated and franchised to serve the commonweal. Our policy is ‘to withdraw the unrestricted right of competition between corporations occupying the public streets . and supplying the public with their products or utilities which are well nigh necessities’ (People ex rel. New York Edison Cn 2m N V ^Y' 86’ MMer °f Nm Y°rk tn1 £ Y' 32 V' The real,tles of ‘he situation all but dictate that a utility be granted monopoly status (see People ex rel. New York Elec Lmes Co. v. Squtre, 107 N. Y. 593, 603-605). To protect against abuse of this superior economic position extensive governmental regulation has been deaned a necessary coordinate (see People ex rel. New York Edison 2d' Vt SUPm’ at PP' 93-M)” 47 N- Y- 2d. 109-110, 390 N E 588 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. the agency’s conception of the public interest. Thus I think it is constitutionally permissible for it to decide that promotional advertising is inconsistent with the public interest in energy conservation. I also think New York’s ban on such advertising falls within the scope of permissible state regulation of an economic activity by an entity that could not exist in corporate form, say nothing of enjoy monopoly status, were it not for the laws of New York.4 II This Court has previously recognized that although commercial speech may be entitled to First Amendment protection, that protection is not as extensive as that accorded to the advocacy of ideas. Thus, we stated in Ohrdlik v. Ohio State Bar Assn., 436 U. S. 447, 455-456 (1978): “Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protec- 4 The Commission’s restrictions on promotional advertising are grounded in its concern that electric utilities fulfill their obligation under the New York Public Service Law to provide “adequate” service at “just and reasonable” rates. N. Y. Pub. Serv. Law §65 (1) (McKinney 1955). The Commission, under state law, is required to set reasonable rates. N. Y. Pub. Serv. Law §§66 (2) and 72 (McKinney 1955); §66(12) (McKinney Supp. 1979). The Commission has also been authorized by the legislature to prescribe “such reasonable improvements [in electric utilities’ practices] as will best promote the public interest. ...” § 66 (2). And in the performance of its duties the Commission is required to “encourage all persons and corporations subject to its jurisdiction to formulate and carry out long-range programs, individually or cooperatively, for the performance of their public service responsibilities with economy, efficiency, and care for the public safety, the preservation of environmental values, and the conservation of natural resources.” N. Y. Pub. Serv. Law § 5 (2) (McKinney Supp. 1979). Here I think it was quite reasonable for the State Public Service Commission to conclude that the ban on promotional advertising was necessary to prevent utilities from using their broad state-conferred monopoly power to promote their own economic well-being at the expense of the state interest in energy conservation—an interest that could reasonably be found to be inconsistent with the promotion of greater profits for utilities. CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 589 $5? Rehnquist, J., dissenting tion only recently. In rejecting the notion that such speech ‘is wholly outside the protection of the First Amendment/ Virginia Pharmacy, supra, at 761, we were careful not to hold ‘that it is wholly undifferentiable from other forms’ of speech. 425 U. S., at 771, n. 24. We have not discarded the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commer-cial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” (Footnote omitted.) The Court s decision today fails to give due deference to this subordinate position of commercial speech. The Court in so doing returns to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies. I had thought by now it had become well established that a State has broad discretion in imposing economic regulations. As this Court stated in Nebbia v. New York 291 U S 502, 537 (1934): “[T]here can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects. . . . 590 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. “So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. ... [I]t does not lie with the courts to determine that the rule is unwise.” And Mr. Justice Black, writing for the Court, observed more recently in Ferguson n. Skrupa, 372 U. S. 726, 730 (1963): “The doctrine . . . that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely—has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” The State of New York has determined here that economic realities require the grant of monopoly status to public utilities in order to distribute efficiently the services they provide, and in granting utilities such status it has made them subject to an extensive regulatory scheme. When the State adopted this scheme and when its Public Service Commission issued its initial ban on promotional advertising in 1973, commercial speech had not been held to fall within the scope of the First Amendment at all. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), however, subsequently accorded commercial speech a limited measure of First Amendment protection. CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 591 557 Rehnquist, J., dissenting The Court today holds not only that commercial speech is entitled to First Amendment protection, but also that when it is protected a State may not regulate it unless its reason for doing so amounts to a “substantial” governmental interest, its regulation “directly advances” that interest, and its manner of regulation is “not more extensive than necessary” to serve the interest. Ante, at 566. The test adopted by the Court thus elevates the protection accorded commercial speech that falls within the scope of the First Amendment to a level that is virtually indistinguishable from that of noncommercial speech. I think the Court in so doing has effectively accomplished the “devitalization” of the First Amendment that it counseled against in Ohralik. I think it has also, by labeling economic regulation of business conduct as a restraint on “free speech,” gone far to resurrect the discredited doctrine of cases such as Lochner and Tyson & Brother y Banton, 273 U. S. 418 (1927). New York’s order here is in my view more akin to an economic regulation to which virtually complete deference should be accorded bv this Court. I doubt there would be any question as to the constitutionality of New York’s conservation effort if the Public Service Commission had chosen to raise the price of electricity, see, e. g., Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381 (1940); Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183 (1936), to condition its sale on specified terms, see, e. g., Nebbia v. New York, supra, at 527-528 or to restrict its production, see, e. g., Wickard v. Filb^rn, S’ 111 (1942)- In terms of constitutional values, I thmk that such controls are virtually indistinguishable from the State s ban on promotional advertising. An ostensible justification for striking down New York’s ban on promotional advertising is that this Court has previously “rejected the ‘highly paternalistic’ view that government has complete power to suppress or regulate commercial speech. ‘[P]eople will perceive their own best interests if 592 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. only they are well enough informed and . . . the best means to that end is to open the channels of communication, rather than to close them. ...’ ” Ante, at 562. Whatever the merits of this view, I think the Court has carried its logic too far here. The view apparently derives from the Court’s frequent reference to the “marketplace of ideas,” which was deemed analogous to the commercial market in which a laissez-faire policy would lead to optimum economic decisionmaking under the guidance of the “invisible hand.” See, e. g., Adam Smith, Wealth of Nations (1776). This notion was expressed by Mr. Justice Holmes in his dissenting opinion in Abrams v. United States, 250 U. S. 616, 630 (1919), wherein he stated that “the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . .” See also, e. g., Consolidated Edison v. Public Service Comm’n, ante, at 534; J. Mill, On Liberty (1858); J. Milton, Areo-pagitica, A Speech for the Liberty of Unlicensed Printing (1644). While it is true that an important objective of the First Amendment is to foster the free flow of information, identification of speech that falls within its protection is not aided by the metaphorical reference to a “marketplace of ideas.” There is no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market. See, e. g., Baker, Scope of the First Amendment, Freedom of Speech, 25 UCLA L. Rev. 964, 967-981 (1978). Indeed, many types of speech have been held to fall outside the scope of the First Amendment, thereby subject to governmental regulation, despite this Court’s references to a marketplace of ideas. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942) (fighting words); Beauharnais n. Illinois. 343 U. S. 250 (1952) (group libel); Roth v. United States, 354 U. S. 476 (1957) (obscenity). It also has been held that the government has CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 593 557 Rehnquist, J., dissenting a greater interest in regulating some types of protected speech than others. See, e. g., FCC v. Pacifica Foundation, 438 U. S. 720 (1978) (indecent speech); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, supra (commercial speech). And as this Court stated in Gertz v. Robert Welch Inc., 418 U. S. 323, 344, n. 9 (1974): “Of course, an opportunity for rebuttal seldom suffices to undo [the] harm of a defamatory falsehood. Indeed the law of defamation is rooted m our experience that the truth rarely catches up with a lie.7 The Court similarly has recognized that false and misleading commercial speech is not entitled to any First Amendment protection. See, e. g., ante, at 566. The above examples illustrate that in a number of instances government may constitutionally decide that societal interests justify the imposition of restrictions on the free flow of information. When the question is whether a given commercial message is protected, I do not think this Court’s determination that the information will “assist” consumers justifies judicial invalidation of a reasonably drafted state restriction on such speech when the restriction is designed to promote a concededly substantial state interest. I consequently disagree with the Court’s conclusion that the societal interest in the dissemination of commercial information is sufficient to justify a restriction on the State’s authority to regulate promotional advertising by utilities; indeed, in the case of a regulated monopoly, it is difficult for me to distinguish society” from the state legislature and the Public Service Commission. Nor do I think there is any basis for concluding that individual citizens of the State will recognize the need for and act to promote energy conservation to the extent the government deems appropriate, if only the chan-nels of communication are left open.5 Thus, even if I were 5 Although the Constitution attaches great importance to freedom of speech under the First Amendment so that individuals will be better informed and their thoughts and ideas will be uninhibited, it does not follow that people will perceive their own best interests,” or that if they do 594 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. to agree that commercial speech is entitled to some First Amendment protection, I would hold here that the State’s decision to ban promotional advertising, in light of the substantial state interest at stake, is a constitutionally permissible exercise of its power to adopt regulations designed to promote the interests of its citizens. The plethora of opinions filed in this case highlights the doctrinal difficulties that emerge from this Court’s decisions granting First Amendment protection to commercial speech. My Brother Stevens, quoting Mr. Justice Brandeis in Whitney v. California, 274 TJ. S. 357, 376-377 (1927), includes Mr. Justice Brandeis’ statement that “[tjhose who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.” Ante, at 582. Mr. Justice Blackmun, in his separate opinion, joins only in the Court’s judgment because he believes that the Court’s opinion “does not provide adequate protection for truthful, nonmisleading, noncoercive commercial speech.” Ante, at 573. Both Mr. Justice Stevens, ante, at 582, and Mr. Justice Blackmun, ante, at 577, would apply the following formulation by Mr. Justice Brandeis of the clear-and-present-danger test to the regulation of speech at issue in this case: “If there be time to expose through discussion the false- they will act to promote them. With respect to governmental policies that do not offer immediate tangible benefits and the success of which depends on incremental contributions by all members of society, such as would seem to be the case with energy conservation, a strong argument can be made that while a policy may be in the longrun interest of all members of society, some rational individuals will perceive it to their own shortrun advantage to not act in accordance with that policy. When the regulation of commercial speech is at issue, I think this is a consideration that the government may properly take into account. As was observed in Townsend v. Yeomans, 301 U. S. 441, 451 (1937), “the legislature, acting within its sphere, is presumed to know the needs of the people of the State.” This observation in my view is applicable to the determination of the State Public Service Commission here. CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 595 557 Rehnquist, J., dissenting hood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Whitney v. California, supra, at 377 (concurring opinion). Although the Court today does not go so far as to adopt this position, its reasons for invalidating New York’s ban on promotional advertising make it quite difficult for a legislature to draft a statute regulating promotional advertising that will satisfy the First Amendment requirements established by the Court in this context. See Part III, infra. Two ideas are here at war with one another, and their resolution, although it be on a judicial battlefield, will be a very difficult one. The sort of “advocacy” of which Mr. Justice Brandeis spoke was not the advocacy on the part of a utility to use more of its product. Nor do I think those who won our independence, while declining to “exalt order at the cost of liberty,” would have viewed a merchant’s unfettered freedom to advertise in hawking his wares as a “liberty” not subject to extensive regulation in light of the government’s substantial interest in attaining “order” in the economic sphere. While I agree that when the government attempts to regulate speech of those expressing views on public issues, the speech is protected by the First Amendment unless it presents “a clear and present danger” of a substantive evil that the government has a right to prohibit, see, e. g., Schenck v. United States, 249 U. S. 47, 52 (1919), I think it is important to recognize that this test is appropriate in the political context in light of the central importance of such speech to our system of self-government. As observed in Buckley v. Valeo 424 U. S. 1, 14 (1976): “Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to 596 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. such political expression in order ‘to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people? ” And in Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964), this Court stated that “speech concerning public affairs is more than self-expression; it is the essence of self-government.” The First Amendment, however, does not always require a clear and present danger to be present before the government may regulate speech. Although First Amendment protection is not limited to the “exposition of ideas” on public issues, see, e. g., Winters v. New York, 333 U. S. 507, 510 (1948)— both because the line between the informing and the entertaining is elusive and because art, literature, and the like may contribute to important First Amendment interests of the individual in freedom of speech—it is well established that the government may regulate obscenity even though its does not present a clear and present danger. Compare, e. g., Paris Adult Theatre I v. Slaton, 413 U. S. 49, 57-58 (1973), with Brandenburg v. Ohio, 395 U. S. 444, 447 (1969). Indecent speech, at least when broadcast over the airwaves, also may be regulated absent a clear and present danger of the type described by Mr. Justice Brandeis and required by this Court in Brandenburg. FOG v. Pacifica Foundation, 438 U. S. 726 (1978). And in a slightly different context this Court declined to apply the clear-and-present-danger test to a conspiracy among members of the press in violation of the Sherman Act because to do so would “degrade” that doctrine. Associated Press v. United States, 326 U. S. 1, 7 (1945). Nor does the Court today apply the clear-and-present-danger test in invalidating New York’s ban on promotional advertising. As noted above, in these and other contexts the Court has clearly rejected the notion that there must be a free “marketplace of ideas.” If the complaint of those who feel the Court’s opinion does not go far enough is that the “only test of truth is its ability CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 597 Rehnquist, J., dissenting to get itself accepted in the marketplace of ideas”—the test advocated by Thomas Jefferson in his first inaugural address, and by Mr. Justice Holmes in Abrams v. United States, 250 U. S. 616, 630 (1919) (dissenting opinion)—there is no reason whatsoever to limit the protection accorded commercial speech to truthful, nonmisleading, noncoerci ve” speech. See ante, at 573 (Blackmun, J., concurring in judgment). If the commercial speech is in fact misleading, the “marketplace of ideas will in time reveal that fact. It may not reveal it sufficiently soon to avoid harm to numerous people, but if the reasoning of Brandeis and Holmes is applied in this context, that was one of the risks we took in protecting free speech in a democratic society. Unfortunately, although the “marketplace of ideas” has a historically and sensibly defined context in the world of political speech, it has virtually none in the realm of business transactions. Even so staunch a defender of the First Amendment as Mr. Justice Black, in his dissent in Breard v. Alexandra, 341 U. S., at 650, n., stated: “Of course I believe that the present ordinance could constitutionally be applied to a ‘merchant’ who goes from door to door ‘selling pots.’ ” And yet, with the change in solicitation and advertising techniques, the line between what Central Hudson did here and the peddler selling pots in Alexandria a generation ago is difficult, if not impossible to fix. Doubtless that was why Mr. Justice Black joined the unanimous opinion of the Court in Valentine v. Chrestensen, 316 U. S., at 54, in which the Court stated: “This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these pub 598 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. lie thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.” (Emphasis added.) I rem a,in of the view that the Court unlocked a Pandora’s Box when it “elevated” commercial speech to the level of traditional political speech by according it First Amendment protection in Virginia Pharmacy Board n. Virginia Citizens Consumer Council, 425 U. S. 748 (1976). The line between “commercial speech,” and the kind of speech that those who drafted the First Amendment had in mind, may not be a technically or intellectually easy one to draw, but it surely produced far fewer problems than has the development of judicial doctrine in this area since Virginia Pharmacy Board. For in the world of political advocacy and its marketplace of ideas, there is no such thing as a “fraudulent” idea: there may be useless proposals, totally unworkable schemes, as well as very sound proposals that will receive the imprimatur of the “marketplace of ideas” through our majoritarian system of election and representative government. The free flow of information is important in this context not because it will lead to the discovery of any objective “truth,” but because it is essential to our system of self-government. The notion that more speech is the remedy to expose falsehood and fallacies is wholly out of place in the commercial bazaar, where if applied logically the remedy of one who was defrauded would be merely a statement, available upon request, reciting the Latin maxim “caveat emptor.” But since “fraudulent speech” in this area is to be remediable under Virginia Pharmacy Board, supra, the remedy of one defrauded is a lawsuit or an agency proceeding based on common-law notions of fraud that are separated by a world of difference CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 599 557 Rehnquist, J., dissenting from the realm of politics and government. What time, legal decisions, and common sense have so widely severed, I declined to join in Virginia Pharmacy Board, and regret now to see the Court reaping the seeds that it there sowed. For in a democracy, the economic is subordinate to the political, a lesson that our ancestors learned long ago, and that our descendants will undoubtedly have to relearn many years hence. Ill The Court concedes that the state interest in energy conservation is plainly substantial, ante, at 568, as is the State’s concern that its rates be fair and efficient. Ante, at 569. It also concedes that there is a direct link between the Commission’s ban on promotional advertising and the State’s interest in conservation. Ibid. The Court nonetheless strikes down the ban on promotional advertising because the Commission has failed to demonstrate, under the final part of the Court’s four-part test, that its regulation is no more extensive than necessary to serve the State’s interest. Ante, at 569-571. In reaching this conclusion, the Court conjures up potential advertisements that a utility might make that conceivably would result in net energy savings. The Court does not indicate that the New York Public Service Commission has in fact construed its ban on “promotional” advertising to preclude the dissemination of information that clearly would result in a net energy savings, nor does it even suggest that the Commission has been confronted with and rejected such an advertising proposal.6 The final part of the Court’s test 6 Indeed appellee in its brief states: “[N] either Central Hudson nor any other party made an attempt before the Commission to demonstrate or argue for a specific advertising strategy that would avoid the difficulties that the Commission found inherent in electric utility promotional advertising. The Commission, therefore, continued to enforce its ban on promotion which it had instituted in 1973.” Brief for Appellee 15. The Court makes no attempt to address this statement, or to explain why, 600 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. thus leaves room for so many hypothetical “better” ways that any ingenious lawyer will surely seize on one of them to secure the invalidation of what the state agency actually did. As Mr. Justice Blackmun observed in Illinois Elections Bd. v. Socialist Workers Party, 440 U. S. 173, 188-189 (1979) (concurring opinion): “A judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation, and thereby enable himself to vote to strike legislation down.” Here the Court concludes that the State’s interest in energy conservation cannot justify a blanket ban on promotional advertising. In its statement of the facts, the Court observes that the Commission’s ban on promotional advertising is not “a perfect vehicle for conserving energy.” It states: “[T]he Commission’s order prohibits promotional advertising to develop consumption during periods when demand for electricity is low. By limiting growth in ‘off-peak’ consumption, the ban limits the ‘beneficial side effects’ of such growth in terms of more efficient use of existing powerplants. [App. to Juris. Statement] 37a.” Ante, at 559. The Court’s analysis in this regard is in my view fundamentally misguided because it fails to recognize that the beneficial side effects of “more efficient use” may be inconsistent with the goal of energy conservation. Indeed, the Commission explicitly found that the promotion of off-peak consumption would impair conservation efforts.7 The Commission stated: Increased off-peak generation, . . . while conferring when no state body has addressed the issue, the Court should nonetheless resolve it by invalidating the state regulation. 7 In making this finding, the Commission distinguished “between promotional advertising designed to shift existing consumption from peak to off-peak hours and advertising designed to promote additional consump CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 601 557 Rehnquist, J., dissenting some beneficial side effects, also consumes valuable energy resources and, if it is the result of increased sales, necessarily creates incremental air pollution and thermal discharges to waterways. More important, any increase in off-peak generation from most of the major companies producing electricity in this State would not, at this time, be produced from coal or nuclear resources, but would require the use of oil-fired generating facilities. The increased requirement for fuel oil to serve the incremental off-peak load created by promotional advertising would aggravate the nation’s already unacceptably high level of dependence on foreign sources of supply and would, in addition, frustrate rather than encourage conservation efforts.” App. to Juris. Statement 37a.8 The Court also observes, as the Commission acknowledged, that the ban on promotional advertising can achieve only “piecemeal conservationism” because oil dealers are not under the Commission’s jurisdiction, and they remain free to advertise. Until I have mastered electrical engineering and marketing, I am not prepared to contradict by virtue of my judicial office those who assume that the ban will be successful in making a substantial contribution to conservation efforts. tion during off-peak hours.” App. to Juris. Statement 58a, n. 2. It proscribed only the latter. Ibid. 8 And in denying appellant’s petition for rehearing, the Commission again stated: “While promotion of off-peak usage, particularly electric space heating, is touted by some as desirable because it might increase off-peak usage and thereby improve a summer-peaking company’s load factor, we are convinced that off-peak promotion, especially in the context of imperfectly structured electric rates, is inconsistent with the public interest, even if it could be divorced in the public mind from promoting electric usage generally. As we pointed out in our Policy Statement, increases in generation, even off-peak generation, at this time, requires the burning of scarce oil resources. This increased requirement for fuel oil aggravates the nation’s already high level of dependence on foreign sources of supply.” Id., at 58a (footnotes omitted). 602 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. And I doubt that any of this Court’s First Amendment decisions justify striking down the Commission’s order because more steps toward conservation could have been made This is especially true when, as here, the Commission lacks authority over oil dealers. The Court concludes that the Commission’s ban on promotional advertising must be struck down because it is more extensive than necessary: it may result in the suppression of advertising by utilities that promotes the use of electrical devices or services that cause no net increase in total energy use. The Court’s reasoning in this regard, however, is highly speculative. The Court provides two examples that it claims support its conclusion. It first states that both parties acknowledge that the “heat pump” will be “a major improvement in electric heating,” and that but for the ban the utilities would advertise this type of “energy efiicien[t]” product.9 The New York Public Service Commission, however, considered the merits of the heat pump and concluded that it would most likely result in an overall increase in electric energy consumption. The Commission stated: “[Installation of a heat pump means also installation of central air-conditioning. To this extent, promotion of off-peak electric space heating involves promotion of on-peak summer air-conditioning as well as on-peak usage 9 As previously discussed, however, it does not follow that because a product is “energy efficient” it is also consistent with the goal of energy conservation. Thus, with regard to the heat pump, counsel for appellees stated at oral argument that “Central Hudson says there are some [heat pumps] without air conditioning, but . . . they have never advised us of that. Tr. of Oral Arg. 32-33. The electric heat pump, he continued, nonnally carr[ies] with it air conditioning in the summer, and the commission found that this would result in air conditioning that would not otherwise happen.” Id., at 33. This is but one example of the veritable Sargasso Sea of difficult nonlegal issues that we wade into by adopting a rule that requires judges to evaluate highly complex and often controversial questions arising in disciplines quite foreign to ours. CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 603 557 Rehnquist, J., dissenting of electricity for water heating. And the price of electricity to most consumers in the State does not now fully reflect the much higher marginal costs of on-peak consumption in summer peaking markets. In these circumstances, there would be a subsidization of consumption on-peak, and consequently, higher rates for all consumers.” App. to Juris. Statement 58a. Subsidization of peak consumption not only may encourage the use of scarce energy Resources during peak periods, but also may lead to larger reserve generating capacity requirements for the State. The Court next asserts that electric heating as a backup to solar and other heat may be an efficient alternative energy source. Ante, at 570. The Court fails to establish, however, that an advertising proposal of this sort was properly presented to the Commission. Indeed, the Court’s concession that the Commission did not make findings on this issue suggests that the Commission did not even consider it. Nor does the Court rely on any support for its assertion other than the assertion of appellant. Rather, it speculates that “[i]n the absence of authoritative findings to the contrary, we must credit as within the realm of possibility the claim that electric heat can be an efficient alternative in some circumstances.” Ibid.10 Ordinarily it is the role of the State Public Service Commission to make factual determinations concerning whether a device or service will result in a net energy savings and, if so, whether and to what extent state law permits dissemination of information about the device or service. Otherwise, 10 Even assuming the Court’s speculation is correct, it has shown too little. For the regulation to truly be “no more extensive than necessary,” it must be established that a more efficient energy source will serve only as a means for saving energy, rather than as an inducement to consume more energy because the cost has decreased or because other energy using products will be used in conjunction with the more efficient one. 604 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U. S. as here, this Court will have no factual basis for its assertions. And the State will never have an opportunity to consider the issue and thus to construe its law in a manner consistent with the Federal Constitution. As stated in Barrows v. Jackson, 346 U. S. 249, 256-257 (1953): “It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U. S. 167, 172.” I think the Court would do well to heed the admonition in Barrows here. The terms of the order of the New York Public Service Commission in my view indicate that advertising designed to promote net savings in energy use does not fall within the scope of the ban. The order prohibits electric corporations “from promoting the use of electricity through the use of advertising, subsidy payments . . . , or employee incentives.” App. to Juris. Statement 31a (emphasis added). It is not clear to me that advertising that is likely to result in net savings of energy is advertising that “promot[es] the use of electricity,” nor does the Court point to any language in the Commission order that suggests it has adopted this construction. Rather, it would seem more accurate to characterize such advertising as designed to “discourage” the use of electricity.11 Indeed, I think it is quite likely that the Com- 11 This characterization is supported by the reasoning of the New York Court of Appeals, which stated: [Promotional advertising . . . seeks ... to encourage the increased consumption of electricity, whether during peak hours or off-peak hours. Thus, not only does such communication lack any beneficial informative content, but it may be affirmatively detrimental to the society. . . . Conserving diminishing resources is a matter of vital State concern and increased use of electrical energy is inimical to our interests. Promotional advertising, if permitted, would only serve to exacerbate the crisis ” 47 N. Y. 2d, at 110, 390 N. E. 2d, at 757-758. CENTRAL HUDSON GAS & ELEC. v. PUBLIC SERV. COMM’N 605 557 Rehnquist, J., dissenting mission would view advertising that would clearly result in a net savings in energy as consistent with the objectives of its order and therefore permissible.12 The Commission, for example, has authorized the dissemination of information that would result in shifts in electrical energy demand, thereby reducing the demand for electricity during peak periods. Id., at 37a.13 It has also indicated a willingness to consider at least some other types of “specific proposals” submitted by utilities. Id., at 37a-38a. And it clearly permits informational as opposed to promotional dissemination of information. Id., at 43a-46a. Even if the Commission were ultimately to reject the view that its ban on promotional advertising does not include advertising that results in net energy savings, I think the Commission should at least be given an opportunity to consider it. It is in my view inappropriate for the Court to invalidate the State’s ban on commercial advertising here, based on its speculation that in some cases the advertising may result in a net savings in electrical energy use, and in the cases in which it is clear a net energy savings would result from utility advertising, the Public Service Commission would apply its 12 At oral argument counsel for appellant conceded that the ban would not apply to utility advertising promoting the nonuse of electricity. Tr. of Oral Arg. 6. Indeed, counsel stated: “If the use reduces the amount of electricity used, it is not within the ban. The promotional ban is defined as anything which might be expected to increase the use of electricity.” Ibid. And counsel for appellee stated that “the only thing that is involved here is the promotion by advertising of electric usage.” Id., at 30. “And if a showing can be made that promotion in fact is going to conserve energy,” counsel for appellee continued, “which . . . has never been made to us, the commission’s order says we are ready to relax our ban, we’re not interested in banning for the sake of banning it. We think that is basically a bad idea, if we can avoid it. In gas, we have been relaxing it as more gas has become available.” Id., at 40. 13 By contrast, as previously discussed, the Public Service Commission does not permit the promotion of off-peak consumption alone. Supra, at 600-601, and n. 8. 606 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447 U.S. ban so as to proscribe such advertising. Even assuming that the Court’s speculation is correct, I do not think it follows that facial invalidation of the ban is the appropriate course. As stated in Parker v. Levy, 417 U. S. 733, 760 (1974), “even if there are marginal applications in which a statute" would infringe on First Amendment values, facial invalidation is inappropriate if the ‘remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct. . . / CSC v. Letter Carriers, 413 U. S. 548, 580-581 (1973).” This is clearly the case here. For the foregoing reasons, I would affirm the judgment of the New York Court of Appeals. NLRB v. RETAIL STORE EMPLOYEES 607 Syllabus NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, bt al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-672. Argued April 15, 1980—Decided June 20, 1980 Safeco Title Insurance Co. does business with several title companies that derive over 90% of their gross incomes from the sale of Safeco insurance policies. When contract negotiations between Safeco and respondent Union, the bargaining representative for certain Safeco employees, reached an impasse, the employees went on strike. The Union picketed each of the title companies, urging customers to support the strike by canceling their Safeco policies. Safeco and one of the title companies filed complaints with the National Labor Relations Board, charging that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed and ordered the Union to cease picketing. The Board held that the Union’s secondary picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act, which makes it an unfair labor practice for a union to coerce a person not party to a labor dispute with the object of forcing or requiring [him] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. The Court of Appeals set aside the Board’s order. Although the court held that the title companies were neutral parties entitled to the benefit of § 8 (b) (4) (ii) (B), it concluded that the Union’s activity was lawful product picketing. Held: The judgment is reversed, and the case is remanded. Pp. 611—616* 616-618; 618-619. 194 U. S. App. D. C. 400, 600 F. 2d 280, and 201 U. S. App. D. C. 147, 627 F. 2d 1133, reversed and remanded. Mr. Justice Powell delivered the opinion of the Court with respect to Parts I and II, concluding that respondent Union’s secondary picketing violated § 8 (b) (4) (ii) (B). NLRB n. Fruit Packers, 377 U. S. 58, distinguished. Secondary product picketing, such as respondent Union conducted, that reasonably can be expected to threaten neutral parties with ruin or substantial loss does not square with §8 (b) (4) (ii) (B)’s 608 OCTOBER TERM, 1979 Syllabus 447 U. S. language or purpose. Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violated the statutory ban on the coercion of neutral parties with the object of forcing them to cease dealing in tne primary product or to cease doing business with the primary employer. Pp. 611-615. Mr. Justice Powell, joined by The Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist, concluded in Part III that as applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4) (ii) (B) imposes no unconstitutional restrictions upon speech protected by the First Amendment. P. 616. Mr. Justice Blackmun, concurring in the result, expressed a reluctance to hold unconstitutional Congress’ striking of the delicate balance between union freedom of expression and the ability of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife. Pp. 616-618. Mr. Justice Stevens concluded that the statute in question is consistent with the First Amendment because the restrictions on picketing it imposes are sufficiently justified by the purpose to avoid embroiling neutrals in a third party’s labor dispute. Pp. 618—619. Powell, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined, and an opinion with respect to Part III, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined. Blackmun, J., post, p. 616, and Stevens, J., post, p. 618, filed opinions concurring in part and in the result. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 619. Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree and Linda Sher. Bruce Michael Cross filed a brief for the Safeco Title Insurance Co., respondent under this Court’s Rule 21 (4), in support of petitioner. Laurence Gold argued the cause for respondent Retail Store Employees Union. With him on the brief were James H. Webster, J. Albert Woll, and George Kaufmann* *Andrew M. Kramer, Adin C. Goldberg, and Stephen A. Bokat filed a NLRB v. RETAIL STORE EMPLOYEES 609 607 Opinion of the Court Mr. Justice Powell delivered the opinion of the Court.t The question is whether § 8 (b)(4)(ii)(B) of the National Labor Relations Act, 29 U. S. C. § 158 (b)(4)(ii)(B), forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott a neutral party’s business. I Safeco Title Insurance Co. underwrites real estate title insurance in the State of Washington. It maintains close business relationships with five local title companies.1 The companies search land titles, perform escrow services, and sell title insurance. Over 90% of their gross incomes derives from the sale of Safeco insurance. Safeco has substahtial stockholdings in each title company, and at least one Safeco officer serves on each company’s board of directors. Safeco, however, has no control over the companies’ daily operations. It does not direct their personnel policies, and it never exchanges employees with them. Local 1001 of the Retail Store Employees Union became the certified bargaining representative for certain Safeco employees in 1974. When contract negotiations between Safeco and the Union reached an impasse, the employees went on strike. The Union did not confine picketing to Safeco’s office in Seattle. The Union also picketed each of the five local title companies. The pickets carried signs brief for the Chamber of Commerce of the United States of America as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; and by David C. Viadeck and Alan B. Morrison for Public Citizen et al. •¡•Part III of the opinion is joined only by The Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist. 1 The title companies are Land Title Co. of Clark County, Land Title Co. of Cowlitz County, Land Title Co. of Kitsap County, Land Title Co. of Pierce County, and Land Title Co. of Snohomish County. 610 OCTOBER TERM, 1979 Opinion of the Court 447U.S. declaring that Safeco had no contract with the Union,2 and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.3 Safeco and one of the title companies filed complaints with the National Labor Relations Board. They charged that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed. 226 N. L. R. B. 754 (1976).4 It found the title companies to be neutral in the dispute between Safeco and the Union. Id., at 756. The Board then concluded that the Union’s picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act. The Union had directed its appeal against Safeco insurance policies. But since the sale of those policies accounted for substantially all of the title companies’ business, the Board found that the Union s action was “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757. The Board therefore rejected the Union’s reliance upon NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits'), which held that § 8 (b)(4) (ii)(B) allows secondary picketing against a struck product. It ordered the Union to cease picketing and to take limited corrective action. 2 The picket signs read: "SAFECO NONUNION DOES NOT EMPLOY MEMBERS OF OR HAVE CONTRACT WITH RETAIL STORE EMPLOYEES LOCAL 1001.” 3 The distribution of handbills has not been an issue in this case. Sec-Labor Relations Act does not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer. . . 61 Stat. 141, as amended 73 Stat. 543, 29 U. S. C. § 158 (b) (4). 4 The parties waived intermediate proceedings before an administrative law judge and submitted the stipulated facts directly to the Board 226 N. L. R. B., at 754. NLRB v. RETAIL STORE EMPLOYEES 611 607 Opinion of the Court The United States Court of Appeals for the District of Columbia Circuit set aside the Board’s order. 194 U. S. App. D. C. 400, 600 F. 2d 280 (1979) (en banc). The court agreed that the title companies were neutral parties entitled to the benefit of § 8 (b)(4)(ii)(B). 201 U. S. App. D. C. 147, 151, 627 F. 2d 1133, 1137 (1979). It held, however, that Tree Fruits leaves neutrals susceptible to whatever consequences may flow from secondary picketing against the consumption of products produced by an employer involved in a labor dispute. Even when product picketing predictably encourages consumers to boycott a neutral altogether, the court concluded, § 8 (b)(4) (ii)(B) provides no protection. 201 U. S. App. D. C., at 159-160, 627 F. 2d, at 1145-1146. We granted a writ of certiorari to consider whether the Court of Appeals correctly understood § 8 (b)(4) (ii)(B) as interpreted in Tree Fruits. 444 U. S. 1011 (1980).5 Having concluded that the Court of Appeals misapplied the statute, we now reverse and remand for enforcement of the Board’s order. II Section 8 (b) (4) (ii) (B) of the National Labor Relations Act makes it “an unfair labor practice for a labor organization ... to threaten, coerce, or restrain” a person not party to a labor dispute “where ... an object thereof is . . . forcing or requiring [him] to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person. . . .”6 In Tree Fruits, the Court held that § 8 (b)(4)(ii)(B) does not prohibit all peaceful picketing at secondary sites. There, a union striking certain Washington fruit packers picketed large supermarkets in order to persuade consumers not to buy 5 The Union has not challenged the Court of Appeals’ determination that the title companies are neutral, secondary parties. 8 61 Stat. 141, as amended, 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (ii) (B). 612 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Washington apples. Concerned that a broad ban against such picketing might run afoul of the First Amendment, the Court found the statute directed to an “‘isolated evil.’” The evil was use of secondary picketing “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Congress intended to protect secondary parties from pressures that might embroil them in the labor disputes of others, but not to shield them from business losses caused by a campaign that successfully persuades consumers “to boycott the primary employer’s goods.” Ibid. Thus, the Court drew a distinction between picketing “to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer” and picketing that “only persuades his customers not to buy the struck product.” Id., at 70. The picketing in that case, which “merely follow [ed] the struck product,” did not “ ‘threaten, coerce, or restrain’ ” the secondary party within the meaning of § 8 (b)(4) (ii)(B). 377 U. S., at 72. Although Tree Fruits suggested that secondary picketing against a struck product and secondary picketing against a neutral party were “poles apart,” id., at 70, the courts soon discovered that product picketing could have the same effect as an illegal secondary boycott. In Hoffman ex ret. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 (CAO 1972), cert, denied, 411 U. S. 986 (1973), for example, a union embroiled with a general contractor picketed the housing subdivision that he had constructed for a real estate developer. Pickets sought to persuade prospective purchasers not to buy the contractor s houses. The picketing was held illegal because purchasers “could reasonably expect that they were being asked not to transact any business whatsoever” with the neutral developer. 468 F. 2d, at 1192. “[W]hen a union’s interest in picketing a primary employer at a ‘one product’ site [di- NLRB v. RETAIL STORE EMPLOYEES 613 607 Opinion of the Court rectly conflicts] with the need to protect . . . neutral employers from the labor disputes of others,” Congress has determined that the neutrals’ interests should prevail. Id., at 1191.7 Cement Masons highlights the critical difference between the picketing in this case and the picketing at issue in Tree Fruits. The product picketed in Tree Fruits was but one item among the many that made up the retailer’s trade. 377 U. S., at 60. If the appeal against such a product succeeds, the Court observed, it simply induces the neutral retailer to reduce his orders for the product or “to drop the item as a poor seller.” Id., at 73. The decline in sales attributable to consumer rejection of the struck product puts pressure upon the primary employer, and the marginal injury to the neutral retailer is purely incidental to the product boycott. The neutral therefore has little reason to become involved in the labor dispute. In this case, on the other hand, the title companies sell only the primary employer’s product and perform the services associated with it. Secondary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the title companies altogether. If the appeal succeeds, each company “stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on [its] business generally.” Thus, “the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.” Id., at 72. Such an expansion of 7 The so-called merged product cases also involve situations where an attempt to follow the struck product inevitably encourages an illegal boycott of the neutral party. See K & K Construction Co. v. NLRB, 592 F. 2d 1228, 1231-1234 (CA3 1979) ; American Bread Co. v. NLRB, 411 F. 2d 147, 154-155 (CA6 1969) ; Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1, 3-4, 401 F. 2d 952, 954-955 (1968); Note, Consumer Picketing and the Single-Product Secondary Employer 47 U. Chi. L. Rev. 112, 132-136 (1979). 614 OCTOBER TERM, 1979 Opinion of the Court 447U.S. labor discord was one of the evils that Congress intended § 8 (b)(4) (ii)(B) to prevent. 377 U. S., at 63-64. As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott. See id., at 72-73. But the Union’s secondary appeal against the central product sold by the title companies in this case is “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757.8 The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits? Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square 8 See Local 1^055, United Steelworkers (Dow Chemical Co.), 211 N. L. R. B. 649, 651-652 (1974), enf. denied, 173 U. S. App. D. C. 299, 524 F. 2d 853 (1975), vacated and remanded, 429 U. S. 807 (1976), complaint dism’d, 229 N. L. R. B. 302 (1977). We do not disagree with Mr. Justice Brennan’s dissenting view that successful secondary product picketing may have no greater effect upon a neutral than a legal primary boycott. Post, at 623. But when the neutral’s business depends upon the products of a particular primary employer, secondary product picketing can produce injury almost identical to the harm resulting from an illegal secondary boycott. See generally Duerr, Developing a Standard for Secondary Consumer Picketing, 26 Lab. L. J. 585 (1975). Congress intended § 8 (b) (4) (ii) (B) to protect neutrals from that type of coercion. Mr. Justice Brennan’s view that the legality of secondary picketing should depend upon whether the pickets “urge only a boycott of the primary employer’s product,” post, at 622, would provide little or no protection. No well-advised union would allow secondary pickets to carry placards urging anything other than a product boycott. Section 8 (b) (4) (ii) (B) cannot bear a construction so inconsistent with the congressional intention to prevent neutrals from becoming innocent victims in contests between others. 9 The Union is responsible for the “foreseeable consequences” of its conduct. NLRB v. Operating Engineers, 400 U. S. 297, 304-305 (1971); see Radio Officers v. NLRB, 347 U. S. 17, 45 (1954). See also NLRB n. Denver Building Council, 341 U. S. 675, 689 (1951). NLRB v. RETAIL STORE EMPLOYEES 615 607 Opinion of the Court with the language or the purpose of § 8 (b)(4) (ii)(B).10 Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. §8 (b)(4)(ii)(B); see Tree Fruits, 377 U. S., at 68.11 10 Representative Griffin, a sponsor of the Landrum-Griffin amendments that brought § 8 (b) (4) (ii) (B) into law, emphasized to the Congress that the statute would outlaw secondary picketing likely to coerce the neutral party. “If the purpose of the picketing,” he said, “is to coerce or to restrain the employer of that second establishment, to get him not to do business with the manufacturer—then such a boycott could be stopped.” 105 Cong. Rec. 15673 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1615 (1959). Senator McClellan, who offered a bill quite similar to the statute actually adopted, noted that secondary picketing is particularly likely to coerce neutrals who have based their businesses upon one manufacturer’s products. He pointed out: “[W]e have cases of merchants who for 20 years, 10 years, or for a long period of time, may have been handling a particular brand of product. A merchant may have built his business around the product, such as the John Deere plows or some kind of machinery from some other company. The merchant may have built up his trade entirely on that product.” 105 Cong. Rec. 6667 (1959), reprinted in 2 Legislative History, supra, at 1194. 11 The picketing in Tree Fruits and the picketing in this case are relatively extreme examples of the spectrum of conduct that the Board and the courts will encounter in complaints charging violations of § 8 (b) (4) (ii) (B). If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominant product, neither Tree Fruits nor today’s decision necessarily would control. The critical question would be whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with min 616 OCTOBER TERM, 1979 Opinion of Blackmun, J. 447U.S. Ill The Court of Appeals suggested that application of § 8 (b) (4)(ii)(B) to the picketing in this case might violate the First Amendment. 201 U. S. App. D. C., at 161, 627 F. 2d, at 1147. We think not. Although the Court recognized in Tree Fruits that the Constitution might not permit “a broad ban against peaceful picketing,” the Court left no doubt that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U. S. 694, 705 (1951), this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment. See American Radio Assn. v. Mobile S.S. Assn., 419 U. S. 215, 229-231 (1974); Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4)(ii)(B) imposes no impermissible restrictions upon constitutionally protected speech. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded with directions to enforce the National Labor Relations Board’s order. So ordered. Mr. Justice Blackmun, concurring in part and concurring in the result. I join Parts I and II of the Court’s opinion, but not Part III. The plurality’s cursory discussion of what for me are difficult First Amendment issues presented by this case fails to or substantial loss. Resolution of the question in each case will be entrusted to the Board’s expertise. NLRB v. RETAIL STORE EMPLOYEES 617 607 Opinion of Blackmun, J. take account of the effect of this Court’s decision in Police Department of Chicago v. Mosley, 408 U. S. 92 (1972), on the question whether the National Labor Relations Act’s content-based ban on peaceful picketing of secondary employers is constitutional. The failure to take Mosley into account is particularly ironic given that the Court today reaffirms and extends the principles of that case in Carey v. Brown, ante, p. 455. In NLRB v. Fruit Packers, 377 U. S. 58, 76 (1964), Mr. Justice Black wrote a concurring opinion in which he concluded that §8(b)(4)(ii)(B) of the National Labor Relations Act “abridges freedom of speech and press in violation of the First Amendment.” He said: “In short, we have neither a case in which picketing is banned because the picketers are asking others to do something unlawful nor a case in which all picketing is, for reasons of public order, banned. Instead, we have a case in which picketing, otherwise lawful, is banned only when the picketers express particular views. The result is an abridgement of the freedom of these picketers to tell a part of the public their side of a labor controversy, a subject the free discussion of which is protected by the First Amendment.” 377 U. S., at 79. (Emphasis in original.) These views, central to Mr. Justice Black’s vision of the First Amendment, were, one would have supposed until today, “accepted” by the Court in Mosley. See 408 U. S., at 98. I have never been fully comfortable with Mosley’s equating all content selectivity in affording access to picketers with censorship. See Mosley, 408 U. S., at 102 (concurring statement). For this reason, I join today in Mr. Justice Rehnquist’s dissenting opinion in Carey v. Brown. I concur in the result in this case, however, only because I am reluctant to hold unconstitutional Congress’ striking of the delicate balance between union freedom of expression and the ability 618 OCTOBER TERM, 1979 Opinion of Stevens, J. 447U.S. of neutral employers, employees, and consumers to remain free from coerced participation in industrial strife. My vote should not be read as foreclosing an opposite conclusion where another statutory ban on peaceful picketing, unsupported by equally substantial governmental interests, is at issue. Mr. Justice Stevens, concurring in part and concurring in the result. For the reasons stated by Mr. Justice Harlan and Mr. Justice Black in their separate opinions in NLRB v. Fruit Packers, 377 U. S. 58, 76, 80 {Tree Fruits'), I am persuaded that Congress intended to prohibit this secondary picketing, and for the reasons stated by Mr. Justice Powell, I agree that this case is not governed by Tree Fruits. I therefore join Parts I and II of the Court’s opinion. The constitutional issue, however, is not quite as easy as the plurality would make it seem because, as Mr. Justice Black pointed out in Tree Fruits, “we have a case in which picketing, otherwise lawful, is banned only when the picketers express particular views.” Id., at 79. In other words, this is another situation in which regulation of the means of expression is predicated squarely on its content. See Consolidated Edison Co. v. Public Service Comm’n, ante, at 546 (Stevens, J., concurring in judgment). I agree with the plurality that this content-based restriction is permissible but not simply because it is in furtherance of objectives deemed unlawful by Congress. Ante, at 616. That a statute proscribes the otherwise lawful expression of views in a particular manner and at a particular location cannot in itself totally justify the restriction. Otherwise the First Amendment would place no limit on Congress’ power. In my judgment, it is our responsibility to determine whether the method or manner of expression, considered in context, justifies the particular restriction. I have little difficulty in concluding that the restriction at issue in this case is constitutional. Like so many other kinds NLRB v. RETAIL STORE EMPLOYEES 619 607 Brennan, J., dissenting of expression, picketing is a mixture of conduct and communication. In the labor context, it is the conduct element rather than the particular idea being expressed that often provides the most persuasive deterrent to third persons about to enter a business establishment. In his concurring opinion in Bakery Drivers v. Wohl, 315 IT. S. 769, 776-777, Mr. Justice Douglas stated: “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulation.”* Indeed, no doubt the principal reason why handbills containing the same message are so much less effective than labor picketing is that the former depend entirely on the persuasive force of the idea. The statutory ban in this case affects only that aspect of the union’s efforts to communicate its views that calls for an automatic response to a signal, rather than a reasoned response to an idea. And the restriction on picketing is limited in geographical scope to sites of neutrals in the labor dispute. Because I believe that such restrictions on conduct are sufficiently justified by the purpose to avoid embroiling neutrals in a third party’s labor dispute, I agree that the statute is consistent with the First Amendment. Mr. Justice Brennan, with whom Mr. Justice White and Mr. Justice Marshall join, dissenting. NLRB v. Fruit Packers, 377 U. S. 58 (1964) {Tree Fruits), held that it was permissible under § 8 (b)(4) (ii)(B) of the *See also Teamsters v. Vogt, Inc., 354 U. S. 284, 289; Hughes n. Superior Court, 339 U. S. 460, 465-466, 468. 620 OCTOBER TERM, 1979 Brennan, J., dissenting 447U.S. National Labor Relations Act (NLRA)1 for a union involved in a labor dispute with a primary employer to conduct peaceful picketing at a secondary site with the object of persuading consumers to boycott the primary employer’s product. Today’s decision stunts Tree Fruits by declaring that secondary site picketing is illegal when the primary employer’s product at which it is aimed happens to be the only product which the secondary retailer distributes. I dissent. The NLRA does not place the secondary site off limits to all consumer picketing over the dispute with the primary employer. Tree Fruits, supra, at 63. The Act only prohibits a labor union from picketing to “coerce” a secondary firm into joining the union’s struggle against the primary employer. § 8 (b)(4)(ii)(B). But inasmuch as the secondary retailer is, by definition, at least partially dependent upon the sale of the primary employer’s goods, the secondary firm will necessarily feel the pressure of labor activity pointed at the primary enterprise. Thus, the pivotal problem in secondary site picketing cases is determining when the pressure imposed by consumer picketing is illegitimate, and therefore deemed to “coerce” the secondary retailer. Tree Fruits addressed this problem by focusing upon whether picketing at the secondary site is directed at the primary employer’s product, or whether it more broadly exhorts customers to withhold patronage from the full range of goods carried by the secondary retailer, including those goods originating from nonprimary sources. The Tree Fruits test reflects the distinction between economic damage Sustained by the secondary firm solely by virtue of its dependence upon the primary employer’s goods, and injuries inflicted upon interests of the secondary firm that are unrelated to the primary dispute—injuries that are calculated to influence the secondary retailer’s conduct with respect to the primary dispute. 1 As amended by the Labor-Management Reporting and Disclosure Act of 1959 (Landrum-Griffin Act), §704 (a), 73 Stat. 542-543, 29 U. S C §158 (b)(4). NLRB v. RETAIL STORE EMPLOYEES 621 607 Brennan, J., dissenting The former sort of harm is simply the result of union success in its conflict with the primary employer. The secondary firm is hurt only insofar as it entwines its economic fate with that of the primary employer by carrying the latter’s goods. To be sure, the secondary site may be a battleground; but the secondary retailer, in its own right, is not enlisted as a combatant. The latter kind of economic harm to the secondary firm, however, does not involve merely the necessary commercial fallout from the primary dispute. Appeals to boycott nonprimary goods sold by a secondary retailer place more at stake for the retailer than the risk it has assumed by handling the primary employer’s product. Four considerations indicate that this broader pressure is highly undesirable from the standpoint of labor policy. First, nonprimary product boycotts distort the strength of consumer response to the primary dispute; the secondary retailer’s decision to continue purchasing the primary employer’s line becomes a function of consumer reaction to the primary conflict amplified by the impact of the boycott upon nonprimary goods. Tree Fruits, supra, at 72, and n. 20. Second, although it seems proper to compel the producer or retailer of an individual primary product to internalize the costs of labor conflict engendered in the course of the item’s production, a nonprimary product boycott may unfairly impose multiple costs upon the secondary retailer who does not wish to terminate his relationship with the primary employer. Third, nonprimary product boycotts attack interests of the secondary firm that are not derivative of the interests of the primary enterprise; because the retailer thereby becomes an independent disputant, the primary labor controversy may be aggravated and complicated. Finally, by affecting the sales of nonprimary goods handled by the secondary firm, the disruptive effect of the primary dispute is felt even by those businesses that manufacture and sell nonprimary products to the secondary retailer. These sound reasons support Tree Fruits’ conclusion that the legality of secondary site picketing should turn upon 622 447 U. S. OCTOBER TERM, 1979 Brennan, J., dissenting whether the union pickets urge only a boycott of the primary employer’s product. 377 U. S., at 63-64, 71-72.2 Concomitantly, Tree Fruits expressly rejected the notion that the coerciveness of picketing should depend upon the extent of loss suffered by the secondary firm through diminished purchases of the primary product. Id., at 72-73. Nevertheless, the Court has now apparently abandoned the Tree Fruits approach, choosing instead to identify coerciveness with the percentage of the secondary firm’s business made up by the primary product. The conceptual underpinnings of this new standard are seriously flawed. The type of economic pressure exerted upon the secondary retailer by a primary product boycott is the same whatever the percentage of its business the primary product composes—in each case, a decline in sales at the secondary outlet may well lead either to a decrease in purchases from the primary employer or to product substitution. To be sure, the damaging effect of this pressure upon individual secondary firms will vary, but it is far from clear that the harmfulness of a primary product boycott is necessarily correlated with the percentage of the secondary firm’s business the product constitutes. For example, a marginally profitable large retailer may handle a multiplicity of products, yet find the decrease in sales of a single, very profitable, primary product ruinous. A small healthy single product secondary retailer, on the other hand, might be able to sustain losses during a boycott, or substitute a comparable product. 2 Because a “merged product” consists in part of nonprimary products, the prohibition of “merged product” boycotts follows as a matter of logic and of policy from Tree Fruits’ primary product boycott test. Thus, “merged product” cases, see, e. g., American Bread Co. v. NLRB, 411 F. 2d 147, 154 (CA6 1969), do not support the Court’s view that certain purely primary product boycotts are proscribed by the National Labor Relations Act. In fact, “merged product” boycotts are wholly different than primary product boycotts against single product retailers. “Merged product boycotts need not entail a total withholding of patronage from the secondary retailer, which may carry other, nonmerged, products. NLRB v. RETAIL STORE EMPLOYEES 623 Brennan, J., dissenting Moreover, it is odd to treat the NLRA’s prohibition against coercion of neutral secondary parties as a means of protecting single product secondary firms from the effects of a successful primary product boycott. A single product retailer will always suffer a degree of harm incident to a successful primary product boycott, whether or not the retailer becomes the focus of union activity. Thus, a ban on coercion of neutral businesses is mismatched to the goal of averting that harm. Far more sensible would be to read the statutory ban on coercion of neutral parties as shielding secondary firms from the injuries that ensue precisely because of union conduct aimed at them. Nonprimary product boycotts fall within this category because they are specifically targeted at the secondary retailer. Unlike the Tree Fruits rule, the test formulated by the Court in this case is not rooted in the policy of maintaining secondary firm neutrality with respect to the primary dispute. There is no ground to believe that a single product secondary retailer is more prone than a multiproduct retailer to react to a primary product boycott by joining the union in its struggle against the primary employer. On the contrary, the single product secondary firm is likely to be the primary employer’s strongest ally because of the alignment of their respective economic interests. Nor is it especially unfair to subject the single product retailer to a primary product boycott. Whatever the percentage of a retailer’s business that is constituted by a given item, the retailer necessarily assumes the risks of interrupted supply or declining sales that follow when labor conflict embroils the manufacturer of the item. By shifting its focus from the nature of the product boycotted to the composition of the secondary firm’s business, today’s decision substitutes a confusing and unsteady standard for Tree Fruits’ clear approach to secondary site picketing. Labor unions will no longer be able to assure that their secondary site picketing is lawful by restricting advocacy of a boycott to the primary product, as ordained by Tree Fruits. 624 OCTOBER TERM, 1979 Brennan, J., dissenting 447U.S. Instead, picketers will be compelled to guess whether the primary product makes up a sufficient proportion of the retailer’s business to trigger the displeasure of the courts or the Labor Relations Board. Indeed, the Court’s general disapproval of “[p]roduct picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss . . . ,” ante, at 614, leaves one wondering whether unions will also have to inspect balance sheets to determine whether the primary product they wish to picket is too profitable for the secondary firm. I continue to “disagree . . . that the test of ‘to threaten, coerce, or restrain’ ... is whether [the secondary retailer] suffered or was likely to suffer economic loss.” Tree Fruits, supra, at 72.3 I would adhere to the primary product test. Accordingly, I dissent. 3 The only fragment of legislative history the Court musters in support of its holding forbidding picketing of single product secondary firms is Senator McClellan’s expression of concern that some secondary firms may have developed their business entirely on the basis of “ ‘a particular brand of product.’ ” Ante, at 615, n. 10, quoting 105 Cong. Rec. 6667 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1194 (1959). But that remark was offered in support of a proposed amendment restricting secondary boycotts that was rejected by the Senate. 2 Legislative History, supra, at IX. Section 8 (b) (4) as finally enacted was narrower than Senator McClellan’s proposed amendment. See Comment, 32 Stan. L. Rev. 631, 641-642, n. 61 (1980). BECK v. ALABAMA 625 Syllabus BECK v. ALABAMA CERTIORARI TO THE SUPREME COURT OF ALABAMA No. 78-6621. Argued February 20, 1980—Decided June 20, 1980 Under Alabama law felony murder is a lesser included offense of the capital crime of robbery-intentional killing. Under the Alabama death penalty statute the trial judge is prohibited from giving the jury the option of convicting the defendant of the lesser included offense; instead, the jury must either convict the defendant of the capital crime, in which case it must impose the death penalty, or acquit him. If the defendant is convicted, the trial judge must hold a hearing to consider aggravating and mitigating circumstances, and may then refuse to impose the death sentence and instead sentence the defendant to life imprisonment. Petitioner was convicted of robbery-intentional killing, and the jury accordingly imposed the death sentence, which the Alabama trial court refused to overturn. At petitioner’s trial, his own testimony established his participation in the robbery, but he denied killing, or any intent to kill, the victim. Because of the statutory prohibition, the trial court did not instruct the jury as to the lesser included offense of felony murder, The Alabama appellate courts upheld the conviction and death sentence, rejecting petitioner’s constitutional attack on the statutory prohibition on lesser included offense instructions. Held: The death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense where the jury was not permitted to consider a verdict of guilt of a lesser included offense. Pp. 633-646. (a) Providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard. This procedural safeguard is especially important in cases such as this one. For when the evidence establishes that the defendant is guilty of a serious, violent offense but leaves some doubt as to an element justifying conviction of a capital offense, the failure to give the jury such a “third option” inevitably enhances the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant’s life is at stake Pp. 633-638. (b) Alabama’s argument that, in the context of an apparently mandatory death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination, must be rejected. The unavailability of lesser included 626 OCTOBER TERM, 1979 Syllabus 447 U. S. offense instructions and the apparently mandatory nature of the death penalty both interject irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the “third option” may encourage the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage the jury to acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death. While in any particular case these two extraneous factors may favor the defendant or the prosecution or may cancel each other out, in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case. Pp. 638-643. (c) The jury’s “option” of refusing to return any verdict at all, thus causing a mistrial, is not an adequate substitute for proper instructions on lesser included offenses. Nor does the fact that the trial judge has the ultimate sentencing power compensate for the risk that the jury may return an improper verdict because of the unavailability of the “third option.” If the jury finds the defendant guilty only of a lesser included offense, the judge would not have the opportunity to impose the death sentence. Moreover, the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Under these circumstances, it cannot be presumed that a post-trial hearing will always correct whatever mistakes occurred in the performance of the jury’s factfinding function. Pp. 643-646. 365 So. 2d 1006, reversed. Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Blackmun, and Powell, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 646. Marshall, J., filed an opinion concurring in the judgment, post, p. 646. Rehnquist, J., filed a dissenting opinion, in which White, J., joined, post, p. 646. David Klingsberg argued the cause for petitioner. With him on the briefs were John A. Herfort, Jay Wishingrad, and John L. Carroll. Edward E. Carnes, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was Charles A. Graddick, Attorney General. BECK v. ALABAMA 627 625 Opinion of the Court Mr. Justice Stevens delivered the opinion of the Court. We granted certiorari to decide the following question: “May a sentence of death constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included non-capital offense, and when the evidence would have supported such a verdict?” 444 U. S 897. We now hold that the death penalty may not be imposed under these circumstances. Petitioner was tried for the capital offense of “[rjobbery or attempts thereof when the victim is intentionally killed by the defendant.”1 Under the Alabama death penalty statute 1 There are 14 capital offenses under the Alabama statute, Ala. Code §§13-11-2 (a) (1)-(14) (1975): "(1) Kidnapping for ransom or attempts thereof, when the victim is intentionally killed by the defendant; “(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant; “(3) Rape when the victim is intentionally killed by the defendant; carnal knowledge of a girl under 12 years of age, or abuse of such girl in an attempt to have carnal knowledge, when the vie-tim is intentionally killed by the defendant; “(4) Nighttime burglary of an occupied dwelling when any of the occupants is intentionally killed by the defendant; (5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard; (6) Any murder committed while the defendant is under sentence of life imprisonment; “(7) Murder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire; “(8) Indecent molestation of, or an attempt to indecently molest, a child under the age of 16 years, when the child victim is intentionally killed by the defendant; (9) Willful setting off or exploding dynamite or other explosive under 628 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. the requisite intent to kill may not be supplied by the felonymurder doctrine.2 Felony murder is thus a lesser included offense of the capital crime of robbery-intentional killing. However, under the statute the judge is specifically prohibited from giving the jury the option of convicting the defendant of a lesser included offense.3 Instead, the jury is given the circumstances now punishable by section 13-2-60 or 13-2-61, when a person is intentionally killed by the defendant because of said explosion; “(10) Murder in the first degree wherein two or more human beings are intentionally killed by the defendant by one or a series of acts; “(11) Murder in the first degree where the victim is a public official or public figure and the murder stems from or is caused by or related to his official position, acts or capacity; “(12) Murder in the first degree committed while the defendant is engaged or participating in the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewman thereon, or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft; “(13) Any murder committed by a defendant who has been convicted of murder in the first or second degree in the 20 years preceding the crime; or “(14) Murder when perpetrated against any witness subpoenaed to testify at any preliminary hearing, trial or grand jury proceeding against the defendant who kills or procures the killing of witness, or when perpetrated against any human being while intending to kill such witness.” 2 Alabama Code § 13-11-2 (b) (1975) states that “[e]vidence of intent under this section shall not be supplied by the felony-murder doctrine.” In Ritter v. State, 375 So. 2d 270, 275 (1979), cert, pending, No. 79-5741, the Alabama Supreme Court held that the State could not satisfy its burden of proof under the new death penalty statute simply by showing that the defendant intended to commit robbery or even by showing that he should have known that there was a substantial possibility that someone would be killed. Although the State is not required to prove that the defendant was the actual triggerman, it must show that he had a “particularized intent” to kill the victim or that he “sanctioned and facilitated the crime [of intentional killing] so that his culpability is comparable to that of” the actual killer. 3 Alabama Code § 13-11-2 (a) (1975) provides: “If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the BECK v. ALABAMA 629 625 Opinion of the Court choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime. If the defendant is convicted and the death penalty imposed, the trial judge must then hold a hearing with respect to aggravating and mitigating circumstances; after hearing the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole.4 In this case petitioner’s own testimony established his participation in the robbery of an 80-year-old man named Roy Malone. Petitioner consistently denied, however, that he killed the man or that he intended his death. Under petitioner’s version of the events, he and an accomplice entered following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses.” The last phrase of this subsection has been consistently construed to preclude any lesser included offense instructions in capital cases. See Jacobs v. State, 361 So. 2d 640, 646 (Ala. 1978) (Torbert, C. J., concurring in part and dissenting in part), cert, denied, 439 U. S. 1122; Evans v. Birtton, 472 F. Supp. 707, 714 (SD Ala. 1979). 4 Alabama Code § 13—11—3 (1975) provides: If the jury finds the defendant guilty of one of the aggravated offenses listed in section 13-11-2 and fixes the punishment at death, the court shall thereupon hold a hearing to aid the court to determine whether or not the court will sentence the defendant to death or to life imprisonment without parole. In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13—11—6 and 13—11—7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements; provided further, that this section shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the state of Alabama. The state and the defendant, or his counsel, shall be permitted to present argument for or against the sentence of death.” 630 OCTOBER TERM, 1979 Opinion of the Court 447U.S. their victim’s home in the afternoon, and, after petitioner had seized the man intending to bind him with a rope, his accomplice unexpectedly struck and killed him. As the State has conceded, absent the statutory prohibition on such instructions, this testimony would have entitled petitioner to a lesser included offense instruction on felony murder as a matter of state law.5 Because of the statutory prohibition, the court did not instruct the jury as to the lesser included offense of felony murder. Instead, the jury was told that if petitioner was acquitted of the capital crime of intentional killing in the course of a robbery, he “must be discharged” and “he can never be tried for anything that he ever did to Roy Malone.” Record 743. The jury subsequently convicted petitioner and imposed the death penalty; after holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty. In the courts below petitioner attacked the prohibition on lesser included offense instructions in capital cases, arguing that the Alabama statute was constitutionally indistinguishable from the mandatory death penalty statutes struck down in Woodson n. North Carolina, 428 U. S. 280, and Roberts v. Louisiana, 428 U. S. 325.6 The Alabama Court of Criminal 5 The Alabama rule in cases other than capital cases is that the defendant is entitled to a lesser included offense instruction if “there is any reasonable theory from the evidence which would support the position.” Fulghum v. State, 291 Ala. 71, 75, 277 So. 2d 886, 890 (1973). The State concedes that under this standard petitioner would have been entitled to instructions on first-degree (felony) murder and robbery. Brief for Respondent 78-79; Tr. of Oral Arg. 23. The parties disagree as to whether petitioner also would have been entitled to an instruction on second-degree murder under state law. We, of course, have no occasion to pass on this issue. 6 In the trial court petitioner’s counsel argued that telling the jury that “you have got a choice of two things, either you can sentence him to die or you can acquit him” unconstitutionally interfered with its fact-finding role and made the statute an unconstitutional mandatory death BECK v. NLKQNMA 631 625 Opinion of the Court Appeals rejected this argument on the ground that the jury’s only function under the Alabama statute is to determine guilt or innocence and that the death sentence it is required penalty. Record 40. In the Alabama Court of Criminal Appeals the court described petitioner’s argument with respect to the constitutionality of the Alabama death penalty statute as follows: “The trial jury cannot be instructed on lesser included offenses. “In the absence of such a provision, the appellant insists that the only choice that a petit jury has is imposing death or acquitting the defendant He states that because only those two choices are presented to the jury, the statute can only be interpreted as having a mandatory death provision.” 365 So. 2d 985, 999 (1978). In his petition for certiorari to the Alabama Supreme Court petitioner specifically stated that he was challenging the Alabama statute as being in violation of the Eighth, Sixth, and Fourteenth Amendments to the United States Constitution and argued that it is “in fact a mandatory death sentence.” However, petitioner did not explore these issues more fully in his brief to the Alabama Supreme Court, Tr. of Oral Arg. 5, and, in its one-paragraph opinion affirming the judgment of the Alabama Court of Criminal Appeals, the Supreme Court adverted only to the state constitutional issues petitioner had raised In his dissenting opinion Mr. Justice Rehnquist takes the position that we are required to construe the Alabama Supreme Court’s failure to address petitioners federal constitutional claims as a determination that petitioner had waived those claims. We disagree. It is clear that petitioner did present his federal claims in some fashion to the Alabama Supreme Court. The State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue. On the contrary, in its brief in opposition to the petition for certiorari, the State argued that the Alabama Appellate Courts have reviewed these matters raised^ in the petition, fully considered them and correctly decided the issues.” Similarly, after certiorari was granted, the State again did not argue that petitioner’s due process and Eighth Amendment claims were not properly raised or preserved below. While the parties of course cannot confer jurisdiction on this Court by agreement, we should not simply brush aside the Alabama Attorney General’s view of his own State’s law. Cf. Chambers v. Mississippi, 410 U. S. 284, 290, n. 3. That is especially true in a case such as this, where the death penalty was imposed in a plainly unconstitutional manner, Cf. Vachon v. New Hampshire, 414 U. S. 478. 632 OCTOBER TERM, 1979 Opinion of the Court 447U.S. to impose after a finding of guilt is merely advisory.7 In a brief opinion denying review, the Alabama Supreme Court also rejected petitioner’s arguments, citing Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert, denied, 439 U. S. 1122, in which it had upheld the constitutionality of the Alabama death penalty statute against a similar challenge. 365 So. 2d 1006, 1007 (1978). In this Court petitioner contends that the prohibition on giving lesser included offense instructions in capital cases violates both the Eighth Amendment as made applicable to the States by the Fourteenth Amendment and the Due Process Clause of the Fourteenth Amendment by substantially increasing the risk of error in the factfinding process. Petitioner argues that, in a case in which the evidence clearly establishes the defendant’s guilt of a serious noncapital crime such as felony murder, forcing the jury to choose between conviction on the capital offense and acquittal creates a danger that it will resolve any doubts in favor of conviction.8 7 365 So. 2d, at 1000. The Alabama Court of Criminal Appeals relied on Jacobs n. State, 361 So. 2d 640 (Ala. 1978), cert, denied, 439 U. S. 1122, for this proposition. The majority in Jacobs did not specifically discuss the validity of the prohibition on lesser included offense instructions. However, in an opinion concurring in part and dissenting in part, Chief Justice Torbert stated that, far from being suspect, the prohibition helped to save the statute from being an unconstitutional mandatory death penalty. He noted that in Roberts v. Louisiana, 428 U. S. 325, this Court had struck down a mandatory death penalty statute which required the judge to give the jury the option of convicting on lesser included offenses whether or not such instructions were warranted by the evidence, on the ground that such a statute gave the jury de facto, standardless sentencing discretion. Because Alabama’s statute withdraws from the jury the discretion to control the imposition of the death penalty by convicting the defendant on a lesser included offense and because it is the judge and not the jury who does the actual sentencing, the chief justice concluded that the statute was acceptable as a matter of federal constitutional law. 8 Petitioner also argues that, because Alabama law requires a trial judge to give lesser included offense instructions where appropriate in noncapital cases, the total prohibition on such instructions in capital cases con- BECK v. ALABAMA 633 625 Opinion of the Court In response, Alabama argues that the preclusion of lesser included offense instructions does not impair the reliability of the factfinding process or prejudice the defendant in any way. Rather, it argues that the apparently mandatory death penalty will make the jury more prone to acquit in a doubtful case and that the jury’s ability to force a mistrial by refusing to return a verdict acts as a viable third option in a case in which the jury has doubts but is nevertheless unwilling to acquit. The State also contends that prohibiting lesser included offense instructions is a reasonable way of assuring that the death penalty is not imposed arbitrarily and capriciously as a result of compromise verdicts. Finally, it argues that any error in the imposition of the death penalty by the jury can be cured by the judge after a hearing on aggravating and mitigating circumstances. I At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged.9 This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. See 2 C. Wright, Federal Practice and Procedure § 515, n. 54 (1969). But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal. As Mr. Justice Brennan explained in his opinion stitutes an irrational discrimination violative of the Equal Protection Clause of the Fourteenth Amendment. In view of our disposition of the case, it is not necessary to consider this issue. Moreover, petitioner failed to raise this claim in the courts below. 9 2 M. Hale, Pleas of the Crown 301-302 (1736); 2 W. Hawkins, Pleas of the Crown 623 (6th ed. 1787); 1 J. Chitty, Criminal Law 250 (5th Am. ed. 1847); T. Starkie, Treatise on Criminal Pleading 351-352 (2d ed. 1822). 634 447 U.S. OCTOBER TERM, 1979 Opinion of the Court for the Court in Keeble v. United States, 412 U. S. 205, 208, providing the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard: “Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option—convicting the defendant of simple assault—could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury instructed on a lesser included offense, it is nevertheless clear that a construction of the Major Crimes Act to preclude such an BECK v. ALABAMA 635 625 Opinion of the Court instruction would raise difficult constitutional questions.” Id., at 212-213 (emphasis in original). Alabama’s failure to afford capital defendants the protection provided by lesser included offense instructions is unique in American criminal law.10 In the federal courts, it has long been “beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, supra, at 208.11 Similarly, the state courts that have ad- 10 Mississippi’s post-Fwrman death penalty statute also contained a prohibition on charging lesser included offenses. In Jackson v. State, 337 So. 2d 1242, 1255 (1976), the Mississippi Supreme Court struck down this part of the statute on the ground that it “constitutes an impedi-ment to full and complete administration of justice in the trial of capital cases and is therefore not binding on the courts. . . .” While warning that lesser included offense instructions should not be given “indiscrim-inately or automatically,” the court held that they should continue to be given when “warranted by the evidence.” 11 This principle was first announced in Stevenson v. United States, 162 U. S. 313, 323: A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice ; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.” See also Berra v. United States, 351 U. S. 131, 134, where Mr. Justice Harlan indicated that the defendant’s entitlement to such an instruction could not be doubted: In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justified it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense. See Stevenson v. United States, 162 U. S. 313.” Rule 31 (c) of the Federal Rules of Criminal Procedure provides that [t]he defendant may be found guilty of an offense necessarily included 636 447 U.S. OCTOBER TERM, 1979 Opinion of the Court dressed the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it.12 Indeed, for all noncapital crimes in the offense charged. . . .” Although the Rule is permissively phrased, it has been universally interpreted as granting a defendant a right to a requested lesser included offense instruction if the evidence warrants it. See, e. g., United States v. Scharf, 558 F. 2d 498, 502 (CA8 1977); United States v. Crutchfield, 547 F. 2d 496, 500 (CA9 1977); Government of Virgin Islands v. Carmona, 422 F. 2d 95, 100 (CA3 1970); 2 C. Wright, Federal Practice and Procedure § 515, n. 57 (1969). 12 Although the States vary in their descriptions of the quantum of proof necessary to give rise to a right to a lesser included offense instruction, they agree that it must be given when supported by the evidence See, e. g., Christie v. State, 580 P. 2d 310 (Alaska 1978); State v. Valencia, 121 Ariz. 191, 589 P. 2d 434 (1979); Westbrook v. State, 265 Ark. 736, 580 S. W. 2d 702 (1979); People v. Preston, 9 Cal. 3d 308, 508 P. 2d 300 (1973); People v. White, 191 Colo. 353, 553 P. 2d 68 (1976); State v. Brown, 173 Conn. 254, 377 A. 2d 268 (1977); Matthews v. State, 310 A. 2d 645 (Del. 1973); State v. Terry, 336 So. 2d 65 (Fla. 1976) ; Loury v. State, 147 Ga. App. 152, 248 S. E. 2d 291 (1978); State v. Travis, 45 Haw. 435, 368 P. 2d 883 (1962); State v. Beason, 95 Idaho 267, 506 P. 2d 1340 (1973); People n. Simpson, 57 Ill. App. 3d 442, 373 N. E. 2d 809 (1978); Pruitt v. State, 269 Ind. 559, 382 N. E. 2d 150 (1978); State v. MiUspaugh, 257 N. W. 2d 513 (Iowa 1977); State v. White, 225 Kan. 87, 587 P. 2d 1259 (1978); Martin v. Commonwealth, 571 S. W. 2d 613 (Ky. 1978); State v. Carmichael, 405 A. 2d 732 (Me. 1979); Blackwell n. State, 278 Md. 466, 365 A. 2d 545 (1976), cert, denied, 431 U. S. 918; Commonwealth v. Santo, 375 Mass. 299, 376 N. E. 2d 866 (1978); People n. Jones, 395 Mich. 379, 236 N. W. 2d 461 (1975); State v. Merrill, 274 N. W. 2d 99 (Minn. 1978); Jackson v. State, 337 So. 2d 1242 (Miss. 1976); State v. Stone, 571 S. W. 2d 486 (Mo. App. 1978); State v. Ostwald, 180 Mont. 530, 591 P. 2d 646 (1979); State v. Hegwood, 202 Neb. 379, 275 N. W. 2d 605 (1979); Colle n. State, 85 Nev. 289, 454 P. 2d 21 (1969); State n. Boone, 119 N. H. 594,406 A. 2d 113 (1979); State n. Saulnier, 63 N. J. 199, 306 A. 2d 67 (1973); State v. Aubrey, 91 N. M. 1, 569 P. 2d 411 (1977); People n. Henderson, 41 N. Y. 2d 233, 359 N. E. 2d 1357 (1976); State v. Drumgold, 297 N. C. 267, 254 S. E. 2d 531 (1979); State v. Piper, 261 N. W. 2d 650 (N. D. 1977); State v. Kilby, 50 Ohio St. 2d 21, 361 N. W. 2d 1336 (1977); Gilbreath v. State, 555 P. 2d 69 (Okla. Crim. App. 1976); State v. Thayer, 32 Ore. App. 193, 573 P. 2d 758 (1978); Commonwealth N. Terrell, 482 Pa. BECK v. ALABAMA 637 625 Opinion of the Court Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. 5, supra. While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments: “[D]eath is a different kind of punishment from any other which may be imposed in this country. . . . From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on 303, 393 A. 2d 1117 (1978); State v. Funchess, 267 S. C. 427, 229 S. E. 2d 331 (1976); State v. Grimes, 90 S. D. 43, 237 N. W. 2d 900 (1976); Howard n. State, 578 S. W. 2d 83 (Tenn. 1979); Day v. State, 532 S. W. 2d 302 (Tex. Crim. App. 1975); State v. Gillian, 23 Utah 2d 372, 463 P. 2d 811 (1970); Painter v. Commonwealth, 210 Va. 360, 171 S. E. 2d 166 (1969); State v. Workman, 90 Wash. 2d 443, 584 P. 2d 382 (1978); State v. Wayne, — W. Va. —, 245 S. E. 2d 838 (1978); Leach v. State, 83 Wis. 2d 199, 265 N. W. 2d 495 (1978); Jones v. State, 580 P. 2d 1150 (Wyo. 1978). 638 OCTOBER TERM, 1979 Opinion of the Court 447U.S. reason rather than caprice or emotion.” Gardner v. Florida, 430 U. S. 349, 357-358 (opinion of Stevens, J.). To insure that the death penalty is indeed imposed on the basis of “reason rather than caprice or emotion,” we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.13 The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.14 II Alabama argues, however, that petitioner’s factual premise is wrong and that, in the context of an apparently mandatory 13 See Gardner v. Florida, 430 U. S. 349 (opinion of Stevens, J.); Lockett n. Ohio, 438 U. S. 586. In Lockett The Chief Justice explained the rationale for requiring more reliable procedures in capital sentencing determinations: “There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Id., at 605. See also Woodson v. North Carolina, 428 U. S. 280, 305 (opinion of Stewart, Powell, and Stevens, JJ.): “Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” 14 We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a noncapital case. BECK v. ALABAMA 639 625 Opinion of the Court death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination. The State argues that, because the jury is led to believe that a death sentence will automatically follow a finding of guilt,15 it will be more likely to acquit than to convict whenever it has anything approaching a reasonable doubt. In support of this theory the State relies on the historical data described in Woodson v. North Carolina, 428 U. S., at 293 (opinion of Stewart, Powell, and Stevens, JJ.), which indicated that American juries have traditionally been so reluctant to impose the death penalty that they have “with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict.” The State’s argument is based on a misreading of our cases striking down mandatory death penalties. In Furman v. Georgia, 408 U. S. 238, the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the “wanton” and “freakish” imposition of the penalty. Id., at 310 (Stewart, J., concurring). In response to Furman several States enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in Woodson v. North Carolina, in so doing the States “simply papered over the problem of unguided and unchecked jury discretion.” 428 U. S., at 302 (opinion of Stewart, Powell, and Stevens, JJ.). For, as historical evidence indicated, juries faced with a mandatory death penalty statute often 15 The jury is not told that the judge is the final sentencing authority. Rather, the jury is instructed that it must impose the death sentence if it finds the defendant guilty and is led to believe, by implication, that its sentence will be final. 640 OCTOBER TERM, 1979 Opinion of the Court 447U.S. created their own sentencing discretion by distorting the fact-finding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman.16 The Alabama statute, which was enacted after Furman but before Woodson, has many of the same flaws that made the North Carolina statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury’s feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue. In Jacobs v. State, 361 So. 2d 640 (Ala. 1978), cert, denied, 439 U. S. 1122, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North Carolina and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty. 16 The same analysis led to the conclusion that Louisiana’s death penalty statute was unconstitutional. Roberts v. Louisiana, 428 U. S. 325 (opinion of Stewart; Powell, and Stevens, JJ.). That case involved a mandatory death penalty statute that required the judge to give a lesser included offense instruction whether or not it was justified by the evidence. Because such a procedure “invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate,” it was the equivalent of a discretionary death statute in which the jury was given complete and unreviewable discretion, unguided by any standards as to when the death penalty was appropriate. Id., at 335. BECK v. ALABAMA 641 625 Opinion of the Court However, because the death penalty is mandatory, the State argues that the jury will be especially careful to accord the defendant the full benefit of the reasonable-doubt standard. In the State’s view the end result is a perfect balance between competing emotional pressures that ensures the defendant a reliable procedure, while at the same time reducing the possibility of arbitrary and capricious guilt determinations.17 The State’s theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise.18 17 In Gregg v. Georgia, 428 U. S. 153, 199 (opinion of Stewart, Powell, and Stevens, JJ.), the prevailing opinion specifically rejected the argument that the new Georgia statute was unconstitutional because the availability of lesser included offense instructions made it possible that a jury might erroneously remove a defendant from consideration as a candidate for the death penalty. Under a statute like Georgia’s, where guilt is determined separately from punishment, there is little risk that the jury will use its power to decide guilt to make a de facto punishment decision. Thus, eliminating lesser included offense instructions would not have the effect of reducing the risk of arbitrariness in the imposition of the death penalty. On the contrary, as was stated in a footnote in Gregg, eliminating this and other procedural safeguards that have long been accorded criminal defendants would raise serious constitutional questions. Id., at 199, n. 50. Thus, it is only in cases like this in which the preclusion of lesser included offenses is linked to a mandatory death penalty that the State could even raise the possibility that the elimination of this procedural safeguard was a permissible way to reduce the arbitrary and capricious infliction of the death penalty. 18 Forty-eight out of the first 50 defendants tried under the Alabama statute were convicted. See Brief in Opposition in Jacobs v. Alabama, 0. T. 1978, No. 78-5696, pp. 10, 35. In this case the State has argued that the reason for the high conviction rate is that prosecutors rarely indict for capital offenses except in the clearest of cases because of the risk that a failure of proof on an essential element of the crime might lead to an acquittal. Assuming that this is the reason for the high conviction rate, the statistics still do not support the hypothesis that juries will be more likely to acquit than convict in a doubtful case. 642 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Moreover, it seems unlikely that many jurors would react in the theoretically perfect way the State suggests. As Justice Shores stated in dissent in Jacobs v. State, supra, at 651-652: “The Supreme Court of the United States did remark in Furman, injra, and again in Woodson, supra, that this nation abhorred the mandatory death sentence. . . . I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury’s deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience. . . In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury’s attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason— its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to BECK v. ALABAMA 643 625 Opinion of the Court acquit for an equally impermissible reason—that, whatever his crime, the defendant does not deserve death.19 In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case. Ill The State also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the State argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the State may reindict on the capital offense or on lesser included offenses.20 In this case the jury was in 19 The closing arguments in this case indicate that under the Alabama statute the issue of whether or not the defendant deserves the death penalty will often seem more important than the issue of whether the State has proved each and every element of the capital crime beyond a reasonable doubt. Thus, in this case both the prosecutors and defense attorneys spent a great deal of argument time on the desirability of the death penalty in general and its application to the petitioner in particular, rather than focusing on the crucial issue of whether the evidence showed that petitioner had possessed the intent necessary to convict on the capital charge. 20 Alabama Code § 13-11-2 (c) (1975) provides: “[I]f the jury finds the defendant not guilty, the defendant must be discharged. The court may enter a judgment of mistrial upon failure of the jury to agree on a verdict of guilty or not guilty or on the fixing of the penalty of death. After entry of a judgment of mistrial, the defendant may be tried again for the aggravated offense, or he may be reindicted for an offense wherein the indictment does not allege an aggravated circumstance. If the defendant is reindicted for an offense wherein the indictment does not allege an aggravated circumstance, the punishment upon conviction shall be as heretofore or hereafter provided 644 OCTOBER TERM, 1979 Opinion of the Court 447U.S. structed that a mistrial would be declared if it was unable to agree on a verdict or if it was unable to agree on fixing the death penalty; it was also told that, in the event of a mistrial, the defendant could be tried again. Record 743. We are not persuaded by the State’s argument that the mistrial “option” is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial 21 or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper case—contrary to the State’s assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in noncapital cases despite the availability of the mistrial “option” by law; however, the punishment shall not be death or life imprisonment without parole.” 21 The jury in this case could hardly have been sure of the effect of a mistrial. In his closing argument one of petitioner’s attorneys told the jury that “if I can have any opportunity under any reindictment or any other way to take him [petitioner] before this bar of justice and enter a plea of guilty of murder, robbery, either one, life in prison, I’ll take him.” Record 689. At another point, however, petitioner’s other attorney indicated that petitioner could still be punished even if he were acquitted, stating: “I submit to you if you acquit him he’s still in the Etowah County Jail. I submit to you if you acquit him that he can receive his due punishment, but I say to you his due punishment is not death.” Id., at 709. In his instructions to the jury the trial judge stated that, if acquitted, petitioner could not be tried “for anything he ever did to Roy Malone.” And, although he explained that petitioner could be retried in the event of a mistrial, he did not elaborate on what that retrial would entail. Id., at 743. BECK v. ALABAMA 645 625 Opinion of the Court indicates that such instructions provide a necessary additional measure of protection for the defendant. The State’s second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a “third option.” If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury’s verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the State’s Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence.22 Under these circumstances, we are unwilling to presume that a post-trial hearing will always cor 22 The State’s brief in opposition to the petition for certiorari in Jacobs v. Alabama, 0. T. 1978, No. 78-5696, states that of the first 45 defendants sentenced after conviction by a jury of capital offenses, 37 received the death penalty from the trial judge. See pp. 10, 35 of that brief. In his dissent in Jacobs v. State, 361 So. 2d, at 650-651, Justice Jones pointed out the practical obstacles to treating the jury’s imposition of the death penalty as being purely advisory: “[T]o leave sentence reduction in the prerogative of the trial court is to place undue pressures upon this office. Again, admittedly, a trial judge must often be the bulwark of the legal system when presented with unpopular causes and adverse public opinion. This State’s recent history, however, reflects the outcry of unjustified criticism attendant with a trial judge’s reduction of a sentence to life imprisonment without possibility of parole, after a jury has returned a sentence of death. Clearly, this pressure constitutes an undue compulsion on the trial judge to conform the sentence which he imposes with that previously returned by the jury.” (Footnote omitted.) 646 OCTOBER TERM, 1979 Rehnquist, J., dissenting 447U.S. rect whatever mistakes have occurred in the performance of the jury’s factfinding function. Accordingly, the judgment of the Alabama Supreme Court Reversed. Mr. Justice Brennan, concurring. Although I join the Court’s opinion, I continue to believe that the death penalty is, in all circumstances, contrary to the Eighth Amendment’s prohibition against imposition of cruel and unusual punishments. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (Brennan, J., dissenting). Mr. Justice Marshall, concurring in the judgment. I continue to believe that the death penalty is, under all circumstances, cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U. S. 238, 314-374 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231-241 (1976) (Marshall, J., dissenting); Godfrey v. Georgia, 446 U. S. 420, 433-442 (1980) (Marshall, J., concurring in judgment). In addition, I agree with the Court that Alabama’s prohibition on giving lesser included offense instructions in capital cases is unconstitutional because it substantially increases the risk of error in the factfinding process. I do not, however, join in the Court’s assumption that the death penalty may ever be imposed without violating the command of the Eighth Amendment that no “cruel and unusual punishments” be imposed. Lockett v. Ohio, 438 U. S. 586, 621 (1978) (Marshall, J., concurring in judgment); Bell v. Ohio, 438 U. S. 637, 643-644 (1978) (Marshall, J., concurring in judgment). I join in the judgment of the Court. Mr. Justice Rehnquist, with whom Mr. Justice White joins, dissenting. The opinion of the Court begins by stating that we granted certiorari to decide the question of whether a sentence of BECK v. ALABAMA 647 625 Rehnquist, J., dissenting death may be constitutionally imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense where the evidence would have supported such a verdict. I find the Court’s treatment of this issue highly unusual, since although this question was raised in the Alabama trial court and the Alabama intermediate Court of Appeals, it was not preserved in the Supreme Court of Alabama. That court began its opinion with this language: “Petitioner Beck raises only one issue here: “‘Whether the Alabama Court of Criminal Appeals erred in its finding that the Alabama Death Penalty Statute is not in violation of Article III, Section 43, Article V, Section 124 and Amendment 38, of the 1901 Constitution of Alabama.’ ” 365 So. 2d 1006, 1007. Obviously, unless the Supreme Court of Alabama was wholly in error in deciding what issue petitioner had raised there, it was obviously not a question involving the United States Constitution. I do not believe it suffices, under the jurisdiction granted to us by the Constitution and by Congress, to brush this matter off as the Court does in its footnote 6 on the grounds that petitioner presented his claim “in some fashion” to the Supreme Court of Alabama, and that “[t]he State has never argued that this presentation was insufficient, as a matter of state law, to preserve the issue.” This is not a matter that may be stipulated or waived by any of the parties to a case decided on its merits here. Title 28 U. S. C. § 1257 provides that our certiorari jurisdiction extends only to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had. . . .” In Hulbert v. Chicago, 202 U. S. 275, 280 (1906), this Court said: “It is urged that in the writ of error and petition for citation it is stated that certain rights and privileges were 648 447 U. S. OCTOBER TERM, 1979 Rehnquist, J., dissenting claimed under the Constitution of the United States, and that the Supreme Court of the State of Illinois decided against such rights and privileges, and, it is further urged, that the chief justice of the court allow the writ of error. This is not sufficient.” More recently, in Street v. New York, 394 U. S. 576, 582 (1969), the Court has said: “Moreover, this Court has stated that when, as here, the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts unless the aggrieved party in this Court can affirmatively show the contrary.” (Emphasis supplied.) Thus it is insufficient that the State “has never argued” that a judgment under review is not that of the highest court of the State in which a judgment could be had; it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary. Here I am not convinced that such a showing has been made. Believing, therefore, because of the proceedings in the Supreme Court of Alabama, that we do not have jurisdiction under 28 U. S. C. § 1257 to decide the question which the Court purports to decide, I dissent. WALTER v. UNITED STATES 649 Syllabus WALTER v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 79-67. Argued February 26, 1980—Decided June 20, 1980* When an interstate shipment of several securely sealed packages containing 8-millimeter films depicting homosexual activities was mistakenly delivered by a private carrier to a third party rather than to the consignee, employees of the third party opened each of the packages, finding individual film boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes and attempted without success to view portions of the film by holding it up to the fight. After the Federal Bureau of Investigation was notified and picked up the packages, agents viewed the films with a projector without first making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment. Thereafter, petitioners were indicted on federal obscenity charges relating to the interstate transportation of certain of the films in the shipment, a motion to suppress and return the films was denied, and petitioners were convicted. The Court of Appeals affirmed, and rehearing was denied. Held: The judgments are reversed. Pp. 653-660; 660-662. Certiorari dismissed in part; 592 F. 2d 788 and 597 F. 2d 63, reversed. Mr. Justice Stevens, joined by Mr. Justice Stewart, concluded that even though the nature of the contents of the films was indicated by descriptive material on their individual containers, the Government’s unauthorized screening of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances. Cf. Stanley v. Georgia, 394 U. S. 557, 569 (Stewart, J., concurring in result). Pp. 653-660. (a) The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. An officer’s authority to possess a package is distinct from his authority to examine its contents, and when the contents of the package are books or other materials arguably protected by the First Amendment, and the basis *Together with No. 79-148, Sanders et al. v. United States, also on certiorari to the same court. 650 OCTOBER TERM, 1979 Syllabus 447 U. S. for the seizure is disapproval of the message contained therein, it is especially important that the Fourth Amendment’s warrant requirement be scrupulously observed. Pp. 654-655. (b) Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. Even though some circumstances for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government’s re-examination of the materials, the Government may not exceed the scope of the private search unless it has the right to make an independent search. Here, the private party had not actually viewed the films, and prior to the Government screening one could only draw inferences about what was on the films. Thus, the projection of the films was a significant expansion of the previous search by a private party and therefore must be characterized as a separate search, which was not supported by any exigency or by a warrant even though one could have easily been obtained. Pp. 656-657. (c) The fact that the cartons of film boxes, which cartons were securely wrapped and had no markings indicating the character of their contents, were unexpectedly opened by a third party before the shipment was delivered to its intended consignee, thus uncovering the descriptive labels on the film boxes, does not alter the consignor’s legitimate expectation of privacy in the films. The private search merely frustrated that expectation in part and did not strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Pp. 658-659. Mr. Justice White, joined by Mr. Justice Brennan, concurring in part and in the judgment, agreed that the Government’s warrantless projection of the films constituted a search that infringed petitioners’ Fourth Amendment interests even though the Government had acquired the films from a private party, but disagreed with the suggestion that it is an open question whether the Government’s projection of the films would have infringed any Fourth Amendment interest if private parties had projected the films before turning them over to the Government. The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles, and even if the private parties in this action had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them Pp. 660-662. Mr. Justice Marshall concurred in the judgment. WALTER v. UNITED STATES 651 649 Opinion of Stevens, J. Stevens, J., announced the judgment of the Court and delivered an opinion, in which Stewart, J., joined. White, J., filed an opinion concurring in part and in the judgment, in which Brennan, J., joined, post, p. 660. Marshall, J., concurred in the judgment. Blackmun, J., filed a dissenting opinion, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 662. W. Michael Mayock argued the cause and filed a brief for petitioner in No. 79—67. Glenn Zell argued the cause and filed a brief for petitioners in No. 79-148. Elliott Schulder argued the cause for the United States in both cases. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Jerome M. Feit, and Patty Merkamp Stemler. Mr. Justice Stevens announced the judgment of the Court and delivered an opinion, in which Mr. Justice Stewart joined. Having lawfully acquired possession of a dozen cartons of motion pictures, law enforcement officers viewed several reels of 8-millimeter film on a Government projector. Labels on the individual film boxes indicated that they contained obscene pictures. The question is whether the Fourth Amendment required the agents to obtain a warrant before they screened the films. Only a few of the bizarre facts need be recounted. On September 25, 1975, 12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities were shipped by private carrier from St. Petersburg, Fla., to Atlanta, Ga. The shipment was addressed to “Leggs, Inc.,”1 but was mistakenly delivered to a substation in the suburbs of Atlanta, where “L’Eggs Products, Inc.,” regularly received deliveries. Employees of the latter company opened 1 There was no “Leggs, Inc.” “Leggs” was the nickname of a woman employed by one of petitioners’ companies. The packages indicated that the intended recipient would pick them up and pay for them at the carrier’s terminal in Atlanta. 652 OCTOBER TERM, 1979 Opinion of Stevens, J. 447U.S. each of the packages, finding the individual boxes of film. They examined the boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes, and attempted without success to view portions of the film by holding it up to the light.2 Shortly thereafter, they called a Federal Bureau of Investigation agent who picked up the packages on October 1,1975. Thereafter, without making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment, FBI agents viewed the films with a projector. The record does not indicate exactly when they viewed the films, but at least one of them was not screened until more than two months after the FBI had taken possession of the shipment.3 On April 6, 1977, petitioners were indicted on obscenity charges relating to the interstate transportation of 5 of the 871 films in the shipment. A motion to suppress and return the films was denied, and petitioners were convicted on multiple counts of violating 18 U. S. C. §§ 371, 1462, and 1465. Over Judge Wisdom’s dissent, the Court of Appeals for the Fifth Circuit affirmed, 592 F. 2d 788, and rehearing was denied, 597 F. 2d 63 (1979). We granted certiorari, 444 U. S. 914,4 and now reverse. 2 Each reel was eight millimeters in width. Petitioner Walter informs us that, excluding three millimeters for sprocketing and one millimeter for the border, the film itself is only four millimeters wide. Brief for Petitioner in No. 79-67, p. 30, n. 8. Since the scenes depicted within the frame are necessarily even more minute, it is easy to understand why such films cannot be examined successfully with the naked eye. 3 The FBI had meanwhile received no request from the consignee or the consignor of the films for their return, but the agents had been told by employees of L’Eggs Products, Inc., that inquiries had been made as to their whereabouts. 4 The petition for certiorari in No. 79-67 presented 10 separate questions, and the petition in No. 79-148 presented 5 separate questions. Except WALTER v. UNITED STATES 653 $49 Opinion of Stevens, J. In his concurrence in Stanley v. Georgia, 394 U. S. 557, 569, Mr. Justice Stewart expressed the opinion that the warrantless projection of motion picture films was an unconstitutional invasion of the privacy of the owner of the films. After noting that the agents in that case were lawfully present in the defendant s home pursuant to a warrant to search for wagering paraphernalia, Mr. Justice Stewart wrote: “This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection. . . . After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant’s projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant. “Even in the much-criticized case of United States v. Rabinowitz, 339 U. S. 56, the Court emphasized that ‘exploratory searches . . . cannot be undertaken by officers with or without a warrant.’ Id., at 62. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man’s home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant. “Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmis- with respect to the issues discussed in the text, we have determined that certiorari was improvidently granted. We therefore dismiss as to the other questions that have been briefed and argued. For purposes of decision, we accept the Government’s argument that the delivery of the films to the FBI by a third party was not a “seizure” subject to the warrant requirement of the Fourth Amendment. 654 447 U.S. OCTOBER TERM, 1979 Opinion of Stevens, J. sible in evidence at the appellant’s trial.” Id., at 571-572 (footnote omitted). Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner’s constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances. It is perfectly obvious that the agents’ reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation—that is to say, a search of the contents of the films—was necessary in order to obtain the evidence which was to be used at trial. The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field’s opinion for the Court in Ex parte Jackson, 96 U. S. 727, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer’s authority to possess a package is distinct from his authority to examine its contents.5 See Arkansas v. Sanders, 442 U. S. 753, 758; United 8 “In th[e] enforcement [of regulations as to what may be transported in the mails], a distinction is to be made between different kinds of mail matter,—between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined. Letters and WALTER v. UNITED STATES 655 649 Opinion of Stevens, J. States n. Chadwick, 433 U. S. 1, 10. When the contents of the package are books or other materials arguably protected by the First Amendment, and when the basis for the seizure is disapproval of the message contained therein, it is especially important that this requirement be scrupulously observed.6 sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.” 96 U. 8., at 732-733. And later in his opinion, Mr. Justice Field again noted that “regulations excluding matter from the mail cannot be enforced in a way which would require or permit an examination into letters, or sealed packages subject to letter postage, without warrant, issued upon oath or affirmation, in the search for prohibited matter. . . .” Id., at 735. 6 “This is the history which prompted the Court less than four years ago to remark that ‘[t]he use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.’ Marcus v. Search Warrant, 367 U. S. 717, at 724. ‘This history was, of course, part of the intellectual matrix within which our constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.’ Id., at 729. As Mr. Justice Douglas has put it, ‘The commands of our First Amendment (as well as the prohibitions of the Fourth and the Fifth) reflect the teachings of Entick n. Carrington, [19 How. St. Tr. 1029 (1765)]. These three amendments are indeed closely related, safeguarding not only privacy and protection against self-incrimination 656 OCTOBER TERM, 1979 Opinion of Stevens, J. 447 U. S. Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. It has, of course, been settled since Burdeau v. McDowell, 256 U. S. 465, that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully. See Coolidge v. New Hampshire, 403 U. S. 443, 487-490. In these cases there was nothing wrongful about the Government’s acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties. Since that examination had uncovered the labels, and since the labels established probable cause to believe the films were obscene, the Government allies that the limited private search justified an unlimited official search. That argument must fail, whether we view the official search as an expansion of the private search or as an independent search supported by its own probable cause When an official search is properly authorized—whether bv consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization.’ Consent but “eonsrienee and human dignity and freedom of expression as well ” ’ Frank v Maryland, 359 U S. 360, 376 (dissenting opinion). «iU, ? i’ Wha‘ this. history bidispensabiy teaches is that the con-itutional requirement that warrants must particularly describe the ‘things k1S?° the m»st scrupulous exactitude when the conto are books> and the basis for their seizure is the ideas which they contain. Stanford n. Texas, 379 U. S. 476 484-485 8» also Roadeny. Kentucky, 413 U. S.496, 501.' Although there were See ™lvfi cri" rn shipment- there °”ly 25 different titles. h’¿“j® were «s«l as a basis for prosecution, it may be presumed that the other films were not obscene /¿The r'J)uir®ment warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another” Marr an v. United States, 275 U. S. 192, 196. Marron WALTER v. UNITED STATES 657 649 Opinion of Stevens, J. to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers. Because “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment,” Payton v. New York, 445 U. S. 573, 583, that Amendment requires that the scope of every authorized search be particularly described.8 If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party’s invasion of another person’s privacy. Even though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government’s reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films.9 The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained.10 8 The Warrant Clause of the Fourth Amendment expressly provides that no warrant may issue except those “particularly describing the place to be searched, and the persons or things to be seized.” 9 Since the viewing was first done by the Government when it screened the films with a projector, we have no occasion to decide whether the Government would have been required to obtain a warrant had the private party been the first to view them. 10 The fact that the labels on the boxes established probable cause to believe the films were obscene clearly cannot excuse the failure to obtain a 658 OCTOBER TERM, 1979 Opinion of Stevens, J. 447U.S. The Government claims, however, that because the packages had been opened by a private party, thereby exposing the descriptive labels on the boxes, petitioners no longer had any reasonable expectation of privacy in the films, and that the warrantless screening therefore did not invade any privacy interest protected by the Fourth Amendment. But petitioners expected no one except the intended recipient either to open the 12 packages or to project the films. The 12 cartons were securely wrapped and sealed, with no labels or markings to indicate the character of their contents.11 There is no reason why the consignor of such a shipment would have any lesser expectation of privacy than the consignor of an ordinary locked suitcase.12 The fact that the cartons were unexpectedly warrant; for if probable cause dispensed with the necessity of a warrant, one would never be needed. Contrary to the dissent, post, at 665—666, n. 3, there were no impracti-calities in these cases that would vitiate the warrant requirement. The inability to serve a warrant on the owner of property to be searched does not make execution of the warrant unlawful. See ALT, Model Code of Pre-Arraignment Procedure §220.3 (4) (Prop. Off. Draft 1975). Obviously, such inability does not render a warrant unnecessary under the Fourth Amendment. Nor is it clear in these cases that it would have been impossible to serve petitioners with a search warrant had the FBI made any effort to find them prior to screening the films. See n. 3, supra. 11 For the same reason, one may not deem petitioners to have consented to the screening merely because the labels on the unexposed boxes were explicit. Nor can petitioners’ failure to make a more prompt claim to the Government for return of the films be fairly regarded as an abandonment of their interest in preserving the privacy of the shipment. As subsequent events have demonstrated, such a request could reasonably be expected to precipitate criminal proceedings. We cannot equate an unwillingness to invite a criminal prosecution with a voluntary abandonment of any interest in the contents of the cartons. In any event, the record in these cases does indicate that the defendants made a number of attempts to locate the films before they were examined by the FBI agents. 12 The consignor’s expectation of privacy in the contents of a carton delivered to a private carrier must be measured by the condition of the package at the time it was shipped unless there is reason to assume that WALTER v. UNITED STATES 659 649 Opinion of Stevens, J. opened by a third party before the shipment was delivered to its intended consignee does not alter the consignor’s legitimate expectation of privacy. The private search merely frustrated that expectation in part.13 It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.14 Since the additional search conducted by the FBI—the screening of the films—was not supported by any justification, it violated that Amendment. We therefore conclude that the rationale of Mr. Justice Stewart’s concurrence in Stanley v. Georgia, 394 U. S. 557, it would be opened before it arrived at its destination. Thus, for example, if a gun case is delivered to a carrier, there could then be no expectation that the contents would remain private, cf. Arkansas v. Sanders, 442 U. S. 753, 764-765, n. 13; but if the gun case were enclosed in a locked suitcase, the shipper would surely expect that the privacy of its contents would be respected. The dissent asserts, post, at 665, that “[a]ny subjective expectation of privacy on the part of petitioners was undone ... by their own actions and the private search.” But it is difficult to understand how petitioners’ subjective expectation of privacy could have been altered in any way by subsequent events of which they were obviously unaware. 13 A partial invasion of privacy cannot automatically justify a total invasion. As Learned Hand noted in a somewhat different context: “It is true that when one has been arrested in his home or his office, his privacy has already been invaded; but that interest, though lost, is altogether separate from the interest in protecting his papers from indiscriminate rummage, even though both are customarily grouped together as parts of the ‘right of privacy.’ ” United States v. Rabinowitz, 176 F. 2d 732, 735 (CA2 1949), rev’d, 339 U. S. 56. Judge Hand’s view was ultimately vindicated in Chimel v. California, 395 U. S. 752, 768, which specifically disapproved this Court’s decision in Rabinowitz. See also Mr. Justice Stewart’s opinion concurring in the result in Stanley v. Georgia, 394 U. S. 557, 571-572, quoted supra, at 653-654. 14 It is arguable that a third party’s inspection of the contents of “private books, papers, memoranda, etc.” could be so complete that there would be no additional search by the FBI when it re-examines the materials. Cf. Burdeau v. McDowell, 256 U. S. 465, 470. But this is not such a case, because it was clearly necessary for the FBI to screen the films, which the private party had not done, in order to obtain the evidence needed to accomplish its law enforcement objectives. 660 OCTOBER TERM, 1979 Opinion of White, J. 447U.S. is applicable to these cases and that it requires that the judgments of the Court of Appeals be reversed. It is so ordered. Mr. Justice Marshall concurs in the judgment. Mr. Justice White, with whom Mr. Justice Brennan joins, concurring in part and concurring in the judgment. I agree with Mr. Justice Stevens that the Government’s warrantless projection of the films constituted a search that infringed petitioners’ Fourth Amendment interests despite the fact that the Government had acquired the films from a private party.1 I write separately, however, because I disagree with Mr. Justice Stevens’ suggestion that it is an open question whether the Government’s projection of the films would have infringed any Fourth Amendment interest if private parties had projected the films before turning them over to the Government, ante, at 657, n. 9. The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles. Nor does it follow from our recognition in Burdeau v. McDowell, 256 U. S. 465 (1921), and Coolidge v. New Hampshire, 403 U. S. 443, 487—490 (1971), that the Fourth Amendment proscribes only governmental action.2 1 Although Mr. Justice Stevens’ opinion refers to the films as having been “lawfully acquired” by the Government, ante, at 651, 654, 656, I note that he does not reach the question whether the Government’s acquisition of the films was a “seizure” subject to the warrant requirement of the Fourth Amendment, ante, at 653, n. 4, a question on which the Court of Appeals was divided. 592 F. 2d 788, 792-793, 800-802 (CA5 1979). Likewise, I do not address this question. Neither Burdeau v. McDowell nor Coolidge n. New Hampshire supports the proposition that private searches insulate subsequent governmental searches from Fourth Amendment scrutiny. In Burdeau the Court held that the actions of a private party in illegally seizing evidence will not be attributed to the Government for Fourth Amendment purposes WALTER v. UNITED STATES 661 649 Opinion of White, J. I agree with Mr. Justice Stevens that there was “nothing wrongful” about the Government’s examination of the contents of the packages that had been opened by private parties. When the private parties turned the films over to the Government, the packages already had been opened, and the Government saw no more than what was exposed to plain view. No Fourth Amendment interest was implicated by this conduct because the opening of the packages cannot be attributed to the Government and considered a governmental search.3 As the Court noted in Coolidge v. New Hampshire, supra, at 489, where a private party produced evidence for government inspection, “it was not incumbent on the police to stop her or avert their eyes.” This does not mean, however, that the Government subsequently may conduct the same kind of search that private parties have conducted without implicating Fourth Amendment interests. The contrary view would permit Government agents to conduct warrantless searches of personal property whenever probable cause exists as a result of a prior private search. We have previously held, however, that police must obtain a warrant before searching a suspect’s luggage even when the private party turns the evidence over to the Government. The Court noted that because “no official of the Federal Government had anything to do with the wrongful seizure of the petitioner’s property, . . . [i]t is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another.” 256 U. S., at 475. Similarly, in Coolidge v. New Hampshire, the Court held that a wife’s voluntary action in turning over to police her husband’s guns and clothing did not constitute a search and seizure by the government. 403 U. S., at 487-490. 3 Because the private party’s opening of the packages exposed their contents to plain view and made it unnecessary for the FBI agents to open the packages, there was no governmental search when the FBI viewed their contents. Except in such circumstances, I do not understand how a third party’s inspection of a package’s contents “could be so complete that there would be no additional search by the FBI when it re-examines the materials,” ante, at 659, n. 14. 662 447 U. S. OCTOBER TERM, 1979 Blackmun, J., dissenting if they have probable cause to believe that it contains contraband. Arkansas v. Sanders, 442 U. S. 753 (1979); United States v. Chadwick, 433 U. S. 1 (1977). The fact that such probable cause may be the product of a private search would not alter the need to comply with the warrant requirement. Thus, if the private parties in these cases had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. As Mr. Justice Stevens recognizes, petitioners possessed a legitimate expectation of privacy in the films, and this expectation was infringed by the Government's unauthorized screening of them. Unlike the opening of the packages that destroyed their privacy by exposing their contents to the plain view of subsequent observers, a private screening of the films would not have destroyed petitioners’ privacy interest in them. Thus the Government’s subsequent screening of the films constituted an independent, governmental search that would have infringed petitioners’ Fourth Amendment interests without regard to any previous screening by private parties. I therefore concur in part and in the judgment. Mr. Justice Blackmun, with whom The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist join, dissenting. The Court at least preserves the integrity of the rule specifically recognized long ago in Burdeau v. McDowell, 256 U. S. 465 (1921). That rule is to the effect that the Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official. I disagree with Mr. Justice Stevens’ opinion’s parsing of the cases’ “bizarre facts” see ante, at 651, to reach a result that WALTER v. UNITED STATES 663 649 Blackmun, J., dissenting the Government’s screening of the films in question was an additional and unconstitutional search. The facts, indeed unusual, convince me that, by the time the FBI received the films, these petitioners had no remaining expectation of privacy in their contents. The cartons in which the films were contained were shipped by petitioners via Greyhound, a private carrier, to a fictitious addressee, and with the shipper fictitiously identified. The private examination of the packages by employees of L’Eggs Products, Inc., whom Greyhound innocently asked to pick up the packages, revealed that they contained films and that the films were of an explicit sexual nature. This was obvious from the drawings and labels on the containers, drawings that Mr. Justice Stevens’ opinion describes as “suggestive,” and descriptions he refers to as “explicit.” Ante, at 652. The containers thus clearly revealed the nature of their contents. See 592 F. 2d 788, 793-794, and n. 5 (CA5 1979). The opinion acknowledges that “there was nothing wrongful about the Government’s acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties.” Ante, at 656. But in finding that the FBI’s “projection of the films was a significant expansion of the search that had been conducted previously by a private party,” ante, at 657, the opinion seems conveniently to have overlooked the fact that the FBI received the film cartons after they had been opened, and after the films’ labels had been exposed to the public. I agree with the conclusion reached by the Court of Appeals’ majority: “Under these circumstances, since the L’Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI’s subsequent viewing of the movies on a projector did not ‘change the nature of the search’ and was not an additional search 664 OCTOBER TERM, 1979 Blackmun, J., dissenting 447 u. g subject to the warrant requirement.” 592 F 2d at 793-794.1 * ’ The Stevens opinion’s contrary conclusion apparently is based on the view that petitioners had a legitimate expectation of privacy in the contents of these films, which they had protected by sealing them securely in the proverbial “plain brown wrapper,” that was “frustrated” only “in part,” ante, at 659, by the earlier private search.2 But it seems to me that the opinion ignores the fact that the partial frustration of petitioners’ subjective expectation of privacy was directly attributable to their own actions. The District Court described it well when it ruled: And it seems to me, under the circumstances of this case, that shipping or causing or suffering to be shipped by a common carrier, namely, Greyhound Bus Lines, with a fictitious name given for the shipper as well as the fictitious name given for the consignee or addressee, ’The Court of Appeals noted, 592 F. 2d, at 794, n. 6, and placed some reliance on, the observations of Judge William H. Webster in his dissenting opinion in United States v. Haes, 551 F. 2d 767 (CA8 1977): Can it be seriously argued that an agent receiving a suspected book or magazine from a freight carrier employee could not reasonably open the publication and peruse its pages to determine whether its contents offended the law? . . Would a government agent who used a magnifying glass or other mechanical aid to identify an object be vulnerable to a claim of an unreasonable search independent of the lawful private search which produced the object? I think clearly not. The film in this case was not a means of concealing something else. In looking at the film through a projector, the agents did no more than view the motion pictures in the manner in which they were intended to be viewed.” Id., at 772-773 (footnote omitted). The present cases are even stronger ones for recognizing the legality of the °f the fihn than the ca^ Judee Webster posed. When the FBI screened these films, they already were aware of the nature 01 their contents. 2 In contrast, I am at a loss to explain the conclusion stated in Mr Justice Whites opinion, ante, at 662, that even “a private screening of e films would not have destroyed petitioners’ privacy interest in them.” WALTER v. UNITED STATES 665 649 Blackmun, J., dissenting amounts to a relinquishment or abandonment of any reasonable expectation of privacy. “Or, stated another way, it seems to me that it was reasonably foreseeable in those circumstances that what actually occurred would occur. That is to say, that there was substantial likelihood that the material would be misdelivered and fall into the hands of some third party, as actually happened in this case, where it would be opened and its privacy, if it had any, invaded.” App. 37-38, quoted in part in 592 F. 2d, at 791. Given the facts, and the Stevens opinion’s conclusions based thereon, I cannot help but wonder at the concession that “if a gun case is delivered to a carrier, there could then be no expectation that the contents would remain private.” Ante, at 659, n. 12. The films in question were in a state no different from Mr. Justice Stevens’ hypothetical gun case when they reached the FBI. Their contents were obvious from “the condition of the package,” ante, at 658, n. 12, and those contents had been exposed as a result of a purely private search that did not implicate the Fourth Amendment. Moreover, it was petitioners’ own actions that made it likely that such a private search would occur. The opinion fails to explain, at least to my satisfaction, why petitioners’ subjective expectation of privacy at the time they shipped the films, rather than at the time the films came into possession of the FBI (with the resulting protection of constitutional safeguards from unreasonable governmental action), controls this inquiry. Any subjective expectation of privacy on the part of petitioners was undone by that time by their own actions and the private search. In any event, it was abandoned by their shunning the property, under the circumstances of these cases, for over 20 months.3 3 All this is reinforced by the impracticalities the Court would impose upon the FBI in these cases. The Stevens opinion and the White opinion both insist that a warrant should have been obtained before any of the 666 OCTOBER TERM, 1979 Blackmun, J., dissenting 447 U. S. We tend occasionally to strain credulity and to spin the thread of argument so thin that we depart from the commonsense approach to an obvious fact situation. It seems to me to be beyond the limits of sound precedent to exclude the evidence of petitioners’ crimes in the face of the “bizarre” developments that transpired here, developments that petitioners brought upon themselves. But the cases are strange and particular ones. The margin for reversal is narrow, and I rest assured that sound constitutional precepts will survive the result the Court reaches today. I would affirm the judgments of the Court of Appeals. films were viewed. One might inquire, on whom would the warrant be served? Surely, not on L’Eggs Products, Inc., which no longer had possession and wanted only to wish these films a speedy good riddance. And surely not on the shippers, who purposefully had concealed their identities. UNITED STATES v. 667 Syllabus UNITED STATES v. RADDATZ CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THÉ SEVENTH CIRCUIT No. 79-8. Argued February 25, 1980—Decided June 23, 1980 Prior to his trial on federal criminal charges, respondent moved to suppress certain incriminating statements he had made to police officers and federal agents. Over objections, the District Court referred the motion to a Magistrate for an evidentiary hearing pursuant to a provision of the Federal Magistrates Act, 28 U. S. C. §636 (b)(1), which authorizes a district court to refer such a motion to a magistrate and thereafter to determine and decide such motion based on the record developed before the magistrate, including the magistrate’s proposed findings of fact and recommendations. Section 636 (b)(1) also provides that the judge shall make a “de novo determination” of those portions of the magistrate’s report, findings, or recommendations to which objection is made, and that the judge may accept, reject, or modify, in whole or in part, the magistrate’s findings or recommendations; alternatively the judge may receive further evidence or recommit the matter to the magistrate with instructions. Based on his view of the credibility of the testimony at the hearing on respondent’s motion, the Magistrate found that respondent had knowingly, intelligently, and voluntarily made the inculpatory statements and recommended that the motion to suppress be denied. Over respondent’s objections to the Magistrate’s report, the District Court accepted the recommendation and denied the motion to suppress, stating that it had considered the transcript of the Magistrate’s hearing, the parties’ proposed findings of fact, conclusions of law, and supporting memoranda, the Magistrate’s recommendation, and oral argument of counsel. Respondent was then tried and convicted, but the Court of Appeals reversed, holding, inter alia, that respondent had been deprived of due process by the District Court’s failure personally to hear the controverted testimony on the motion to suppress. Held: 1. Under the statute—which calls for “de novo determination,” not a de novo hearing—the District Court was not required to rehear the testimony on which the Magistrate based his findings and recommendations in order to make an independent evaluation of credibility. The legislative history discloses that Congress purposefully used the word 668 OCTOBER TERM, 1979 Syllabus 447 u g determination rather than hearing, believing that Art. Ill was satisfied 1 ic U^™a^e adjudicatory determination was reserved to the Art. Ill officer, and that Congress intended to permit whatever reliance the judge, m the exercise of sound judicial discretion, chose to place on the magistrate’s proposed findings and recommendations. Pp. 673-676. 2. The statute strikes the proper balance between the demands of due Process under the Fifth Amendment and the constraints of Art. Ill Pp. 677-684. (a) The nature of the issues presented and the interests implicated m a motion to suppress evidence do not require, as a matter of due process that the district judge must actually hear the challenged testimony. While the resolution of a suppression motion may determine the outcome of the case, the interests underlying a voluntariness hearing do not coincide with the criminal law objective of determining guilt or inno-iT’ ™ T °f a leSSer maSnitude than those in the criminal trial itself The due process rights claimed here are adequately protected by the statute, under which the district judge alone acts as the ultimate decisionmaker, with the broad discretion to accept, reject, or modify the magistrate’s proposed findings, or to hear the witnesses live to resolve conflicting credibility claims. The statutory scheme also includes sufficient procedures to alert the district court whether to exercise its discretion to conduct a hearing and view the witnesses itself. Pp. 677-681. (b) Although the statute permits the district court to give the magistrate’s proposed findings of fact and recommendations such weight as their merit commands and the sound discretion of the judge warrants that delegation does not violate Art. Ill so long as the ultimate decision is made by the district court. Congress has not sought to delegate the ^7 a final decision on a suppression motion to a non- Art. Ill officer, but instead has made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evi-dentiary hearing and that the magistrate acts subsidiary to and only in aid 01 the court, the entire process thereafter taking place under the courts total control and jurisdiction. Pp. 681-683. 592 F. 2d 976, reversed. Burger, C J., delivered the opinion of the Court, in which White Blackmun, Rehnquist, and Stevens, JJ., joined. Blackmun J filed a concurring opinion, post, p. 684. Powell, J., filed an opinion concurring in part and dissenting in part, post, p. 686. Stewart, J filed a dissenting opinion, in which Brennan and Marshall, JJ., joined,’post, p. 687. Marshall, J., filed a dissenting opinion, in which Brennan J joined, post, p. 694. ’ *’ UNITED STATES v. RADDATZ 669 667 Opinion of the Court Andrew J. Levander argued the cause pro hoc vice for the United States. With him on the briefs were Solicitor General McCree, Assistant Attorney General Heymann, and Patty Merkamp Stemler. Joan B. Gottschall, by appointment of the Court, 444 U. S. 923, argued the cause for respondent. With her on the brief was Terence F. MacCarthy* Mr. Chief Justice Burger delivered the opinion of the Court. We granted certiorari, 444 U. S. 824, to resolve the constitutionality of a provision of the Federal Magistrates Act, 28 U. S. C. § 636 (b)(1)(B), which permits a district court to refer to a magistrate a motion to suppress evidence and authorizes the district court to determine and decide such motion based on the record developed before a magistrate, including the magistrate’s proposed findings of fact and recommendations. I Respondent Raddatz was indicted on March 31, 1977, in the Northern District of Illinois for unlawfully receiving a firearm in violation of 18 U. S. C. § 922 (h). Prior to trial, respondent moved to suppress certain incriminating statements he had made to police officers and to agents of the Bureau of Alcohol, Tobacco, and Firearms. Over his objections, the District Court referred the motion to a Magistrate for an evidentiary hearing pursuant to the Federal Magistrates Act, 28 U. S. C. § 636 (b)(1)(B). The evidence received at the suppression hearing disclosed that on August 8, 1976, two police officers responded to a report of a crime in progress. When they arrived at the scene, they observed respondent standing next to one Jimmy Baston, who was lying on the street, bleeding from the head. *George F. Galland, Jr., filed a brief for the Chicago Council of Lawyers as amicus curiae urging affirmance. 670 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Respondent was placed under arrest for illegal use of a weapon and was given Miranda warnings. The arresting officers testified that respondent explained at the time of his arrest and after the warning that he had been fighting with Baston over a family dispute and had brought the gun with him in case any of Baston’s friends tried to interfere. In due course, state charges were filed against respondent. One month later, on November 19, 1976, Agents Russell and McCulloch of the Bureau of Alcohol, Tobacco, and Firearms interviewed respondent at his home. According to their testimony at the suppression hearing, the agents had been informed by state officials that a state firearms charge was pending against respondent. The agents questioned respondent about the gun found in his possession at the time he was arrested because it had at one time been owned by an out-of-state man who had been slain in an unsolved homicide. At this interview, respondent gave a different version of the events, stating that he had seized the gun from Baston during their August 8 fight and that he did not know where Baston had obtained a gun. The agents asked respondent to help them locate Baston and told him they would inform the United States Attorney of his cooperation if he were subsequently prosecuted. Respondent’s testimony before the Magistrate concerning the November 19 interview varied from that of the federal agents. According to his testimony, he was informed that he would shortly be indicted for violations of federal firearms laws, but that if he agreed to cooperate, “somebody would talk to the prosecutor, and it would be dismissed.” He also testified that he was told that if he did not agree to help, he could find himself “going to the Federal penitentiary for a long time.” On January 12, 1977, respondent telephoned the agents and requested a meeting. At this interview, he retracted his November 19 version and stated that he had not taken the gun from Baston, but had obtained it from his half-brother. UNITED STATES v. RADDATZ Opinion of the Court 671 667 He testified at the suppression hearing that he made the incriminating statements at the January 12 meeting only after first obtaining confirmation from the agents of their November 19 promise that the indictment would be dismissed if he cooperated. The agents testified that no such promise was ever made to respondent, either on November 19 or on January 12 They testified that at the January 12 meeting to “ an informant and that they gave $10 at that time to assist him in gathering information. A final meeting occurred on January 14, 1977. Respondent returned to the local offices of the Bureau of Alcohol Tobacco, and Firearms, accompanied by his wife and children’ He was informed by Agent McCulloch that his case had been referred to the United States Attorney for prosecution. The agents again discussed with him the possibility of his becoming ““TT’ their promise that “y cooperation would be brought to the attention of the United States Attorney. Agent McCulloch gave respondent $50 to pay expenses of acquiring information. II The focus of respondent’s legal argument at the suppres-that Under v- 378 U. S. 1 7 18071’ V’ Vnited States’ 168 U' S- 532, 542-543 (1897) his confession was not freely and voluntarily given. e contended that he had been induced to utter the incriminating statements through a promise of immunity and sought to demonstrate a course of conduct on the part of the agents supportive of such a promise. In his report and findings, the Magistrate recommended that the motion to suppress the statements made on August 8 November 19, and January 12 be denied. He made findings that respondent had knowingly, intelligently, and voluntarily made inculpatory statements on all three occasions. More-over the Magistrate specificaily stated: “I find the testimony of the Alcohol, Tobacco and Firearms Agent more credi- 672 447 U. S. OCTOBER TERM, 1979 Opinion of the Court ble ... ; I find that Federal agents never advised [respondent] that charges against him would be dismissed, if he cooperated.” App. to Pet. for Cert. 41a. The evidence before the Magistrate showed that respondent had altered his version of events on several occasions. Respondent filed objections to the Magistrate’s report. In rendering its decision, the District Court stated that it considered the transcript of the hearing before the Magistrate on the motion to suppress, the parties’ proposed findings of fact, conclusions of law, and supporting memoranda, and that it read the recommendation of the Magistrate and heard oral argument of counsel. Finding “that the three statements given by the defendant and sought to be suppressed were made voluntarily,” the District Court accepted the recommendation of the Magistrate and denied the motion to suppress. By agreement of the parties, the court tried respondent on the basis of the transcript of the suppression hearing, and stipulations that the firearm had been manufactured in Florida and that respondent had been convicted of eight felonies. He was found guilty and sentenced to six months’ impri son -ment to be followed by four and one-half years on probation. The Court of Appeals reversed. 592 F. 2d 976. It first rejected the statutory arguments, holding that the District Court had the power to refer to a magistrate the motion to suppress and did not abuse its discretion under the statute in deciding the issue without hearing live testimony of disputed questions of fact. Turning to the constitutional issues, the court held that the referral provisions of the Federal Magistrates Act, 28 U. S. C. § 636 (b)(1)(B), did not violate Art. Ill of the Constitution because the statute required the District Court to make a de novo determination of any disputed portion of the Magistrate’s proposed findings and recommendations. However, the Court of Appeals held that respondent had been deprived of due process by the failure of the District Court personally to hear the controverted testimony. Where UNITED STATES v. RADDATZ 673 667 Opinion of the Court credibility is crucial to the outcome, “the district court cannot constitutionally exercise its discretion to refuse to hold a hearing on contested issues of fact in a criminal case.” 592 F. 2d, at 986. The District Court was directed to hold a new hearing. Ill We first address respondent’s contention that under the statute, the District Court was required to rehear the testimony on which the Magistrate based his findings and recommendations in order to make an independent evaluation of credibility. The relevant statutory provisions authorizing a district court to refer matters to a magistrate and establishing the mode of review of the magistrate’s actions are in 28 U. S. C. §636 (b)(1). In § 636 (b)(1)(A), Congress provided that a district court judge could designate a magistrate to “hear and determine” any pretrial matter pending before the court, except certain “dispositive” motions. Review by the district court of the magistrate’s determination of these nondispositive motions is on a “clearly erroneous or contrary to law” standard. Certain “dispositive” motions, including a “motion ... to suppress evidence in a criminal case,” are covered by § 636 (b)(1)(B). As to these “dispositive” motions, the district judge may “designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court of [the] motion.” However, the magistrate has no authority to make a final and binding disposition. Within 10 days after the magistrate files his proposed findings and recommendations, any party may file objections. The statute then provides: “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole 674 447 U. S. OCTOBER TERM, 1979 Opinion of the Court or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” § 636 (b)(1) (emphasis added). It should be clear that on these dispositive motions, the statute calls for a de novo determination, not a de novo hearing. We find nothing in the legislative history of the statute to support the contention that the judge is required to rehear the contested testimony in order to carry out the statutory command to make the required “determination.”1 Congress enacted the present version of § 636 (b) as part of the 1976 amendments to the Federal Magistrates Act in response to this Court’s decision in Wingo v. Wedding, 418 U. S. 461 (1974). Wingo held that as a matter of statutory construction, the 1968 Magistrates Act did not authorize magistrates to hold evidentiary hearings in federal habeas corpus cases. Congress amended the Act “in order to clarify and further define the additional duties which may be assigned to a United States Magistrate in the discretion of a judge of the district court. S. Rep. No. 94—625, p. 1 (1976) (hereinafter S. Rep.); H. R. Rep. No. 94-1609, p. 2 (1976) (hereinafter H. R. Rep.). The bill as reported out of the Senate Judiciary Committee did not include the language requiring the district court to make a de novo determination.2 Rather, it included only the 1 Before the Court of Appeals, respondent apparently conceded that the statute permits the procedures employed here. His statutory arguments m the Court of Appeals were that the reference was invalid because not made pursuant to required enabling rules and that the Court of Appeals should exercise its supervisory powers to prohibit the procedure employed. That court rejected both arguments, and he has pursued neither before this Court. 2 As originally introduced in the Senate, the bill provided that upon request by a party to a proceeding before a magistrate, the district “court shall hear de novo those portions of the report or specific proposed findings of fact or conclusions of law to which objection is made ” S. 1283, 94th UNITED STATES v. RADDATZ 675 667 Opinion of the Court language permitting the district court to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Yet the Senate Report which accompanied the bill emphasized that the purpose of the bill’s language was to vest “ultimate adjudicatory power over dispositive motions” in the district court while granting the “widest discretion” on how to treat the recommendations of the magistrate. S. Rep., at 10. The House Judiciary Committee added to the Senate bill the present language of the statute, providing that the judge shall make a “de novo determination” of contested portions of the magistrate’s report upon objection by any party. According to the House Report, “[t]he amendment states expressly what the Senate implied: i. e. that the district judge in making the ultimate determination of the matter, would have to give fresh consideration to those issues to which specific objection has been made by a party.” The Report goes on to state, quite explicitly, what was intended by “de novo determination”: “The use of the words ‘de novo determination’ is not intended to require the judge to actually conduct a new hearing on contested issues. Normally, the judge, on application, will consider the record which has been developed before the magistrate and make his own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate. In some specific instances, however, it may be necessary for the judge to modify or reject the findings of the magistrate, to take additional evidence, recall witnesses, or recommit the matter to the magistrate for further proceedings.” H. R. Rep., at 3. Cong., 1st Sess. (1975) (emphasis added). As reported out of the Senate Judiciary Committee, however, this language, including the word “hear,” was deleted. 676 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Further evidence that Congress did not intend to require the district court to rehear the witnesses is provided in the House Committee Report’s express adoption of the Ninth Circuit’s procedures for district court review of a magistrate’s credibility recommendations as announced in Campbell v. United States District Court for the Northern District of California, 501 F. 2d 196, cert, denied, 419 U. S. 879 (1974). There, in language quoted in the Committee Report, the court had stated: “Tf [the district court] finds there is a problem as to the credibility of a witness or witnesses or for other good reasons, it may, in the exercise of its discretion, call and hear the testimony of a witness or witnesses in an adversary proceeding. It is not required to hear any witness and not required to hold a de novo hearing of the case.’ ” H. R. Rep., at 3-4 (emphasis added), quoting 501 F. 2d, at 206.3 Congressional intent, therefore, is unmistakable. Congress focused on the potential for Art. Ill constraints in permitting a magistrate to make decisions on dispositive motions. See S. Rep., at 6; H. R. Rep., at 8. The legislative history discloses that Congress purposefully used the word determination rather than hearing, believing that Art. Ill was satisfied if the ultimate adjudicatory determination was reserved to the district court judge. And, in providing for a “de novo determination” rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations. See Mathews v. Weber, 423 U. S. 261, 275 (1976). 3 We conclude that to construe §636 (b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate’s credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts. We cannot “impute to Congress a purpose to paralyze with one hand what it sought to promote with the other.” Clark n. Uebersee Finanz-Korporation, 332 U. S. 480, 489 (1947). UNITED STATES v. RADDATZ 677 667 Opinion of the Court IV Having rejected respondent’s statutory argument, we turn to his constitutional challenge. He contends that the review procedures established by § 636 (b)(1) permitting the district court judge to make a de novo determination of contested credibility assessments without personally hearing the live testimony, violate the Due Process Clause of the Fifth Amendment and Art. Ill of the United States Constitution. A The guarantees of due process call for a “hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950). The issue before us, therefore, is whether the nature of the issues presented and the interests implicated in a motion to suppress evidence require that the district court judge must actually hear the challenged testimony. The core of respondent’s challenge to the statute is that “[t]he one who decides must hear.” Morgan v. United States, 298 U. S. 468, 481 (1936). Here, he contends, only the magistrate “hears,” but the district court is permitted to “decide” by reviewing the record compiled before the magistrate and making a final determination. In Mathews v. Eldridge, 424 U. S. 319, 335 (1976), we emphasized that three factors should be considered in determining whether the flexible concepts of due process have been satisfied: (a) the private interests implicated; (b) the risk of an erroneous determination by reason of the process accorded and the probable value of added procedural safeguards; and (c) the public interest and administrative burdens, including costs that the additional procedures would involve. In providing the fullest measure of due process protection, the Court of Appeals stressed that in this particular case the success or failure of the motion to suppress would, as a practical matter, determine the outcome of the prosecution. Of course, the resolution of a suppression motion can and 678 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. often does determine the outcome of the case; this may be true of various pretrial motions. We have repeatedly pointed out, however, that the interests underlying a voluntariness hearing do not coincide with the criminal law objective of determining guilt or innocence.4 See, e. g., United States v. Janis, 428 U. S. 433, 453-454 (1976); United States v. Peltier, 422 U. S. 531, 535-536, 538-539 (1975); Rogers v. Richmond, 365 U. S. 534, 540-544 (1961). In Lego v. Twomey, 404 U. S. 477 (1972), we considered whether the prosecution was required to prove beyond a reasonable doubt that a confession was voluntary. In holding that a preponderance of the evidence was sufficient, we stated that “the purpose that a voluntariness hearing is designed to serve has nothing whatever to do with improving the reliability of jury verdicts.” Id., at 486. Accord, Jackson v. Denno, 378 U. S. 368, 384-385 (1964), holding that the “reliability of a confession has nothing to do with its voluntariness.” A defendant who has not prevailed at the suppression hearing remains free to present evidence and argue to—and may persuade—the jury that the confession was not reliable and therefore should be disregarded.5 See 18 U. S. C. § 3501 (a).6 4 Under the Fifth Amendment, a criminal defendant may not be compelled to testify against himself. In that sense, the exclusion of involuntary confessions derives from the Amendment itself. United States v. Janis, 428 U. S. 433, 443 (1976). 5 Lego v. Twomey, 404 U. S. 477 (1972), also rejected the argument that because of the high value society places on the constitutional right to be free from compulsory self-incrimination, due process requires proof of voluntariness beyond a reasonable doubt. This Court found no indication that federal rights would suffer from determining admissibility by a preponderance of the evidence. 6 Nothing in the Magistrates Act or other statute precludes renewal at trial of a motion to suppress evidence even though such motion was denied before trial. A district court’s authority to consider anew a suppression motion previously denied is within its sound judicial discretion. See generally Gouled v. United States, 255 U. S. 298, 312 (1921); Rouse v. United States, 123 U. S. App. D. C. 348, 359 F. 2d 1014 (1966). UNITED STATES v. RADDATZ 679 667 Opinion of the Court This Court on other occasions has noted that the interests at stake in a suppression hearing are of a lesser magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial. United States v. Matlock, 415 U. S. 164, 172-174 (1974); Brinegar v. United States, 338 U. S. 160, 172-174 (1949); Fed. Rules Evid. 104 (a), 1101 (d)(1). Furthermore, although the Due Process Clause has been held to require the Government to disclose the identity of an informant at trial, provided the identity is shown to be relevant and helpful to the defense, Roviaro v. United States, 353 U. S. 53, 60-61 (1957), it has never been held to require the disclosure of an informant’s identity at a suppression hearing. McCray v. Illinois, 386 U. S. 300 (1967). We conclude that the process due at a suppression hearing may be less demanding and elaborate than the protections accorded the defendant at the trial itself. To be sure, courts must always be sensitive to the problems of making credibility determinations on the cold record. More than 100 years ago, Lord Coleridge stated the view of the Privy Council that a retrial should not be conducted by reading the notes of the witnesses’ prior testimony: “The most careful note must often fail to convey the evidence fully in some of its most important elements. . .. It cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; . . . the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it.” Queen v. Bertrand, 4 Moo. P. C. N. S. 460, 481, 16 Eng. Rep. 391, 399 (1867). This admonition was made with reference to an appellate court’s review of a nisi prius judge in a trial on the merits; 680 OCTOBER TERM, 1979 Opinion of the Court 447U.S. here we are dealing with a situation more comparable to a special master’s findings or actions of an administrative tribunal on findings of a hearing officer. The Court of Appeals rejected an analogy to administrative agency cases because of its view that the interest inherent in a suppression motion was often the equivalent, as a practical matter, of the trial itself. Our view of the due process demands of a motion to suppress evidence makes those agency cases relevant, although to be sure we do not suggest that the interests inherent in administrative adjudications are always equivalent to those implicated in a constitutional challenge to the admissibility of evidence in a criminal case. Generally, the ultimate factfinder in administrative proceedings is a commission or board, and such trier has not heard the witnesses testify. See, e. g., 5 U. S. C. § 557 (general rule under the Administrative Procedure Act); 29 U. S. C. § 160 (c) (National Labor Relations Board); 33 U. S. C. § 921 (b) (3) (Benefits Review Board); 17 CFR § 207.17 (g)(2) (1979) (Securities and Exchange Commission). While the commission or board—or an administrator—may defer to the findings of a hearing officer, that is not compelled. See, c. g., Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951); NLRB v. Mackay Radio & Tel. Co., 304 U. S. 333, 350-351 (1938); Morgan v. United States, 298 U. S. 468 (1936); Utica Mutual Ins. Co. v. Vincent, 375 F. 2d 129, 132 (CA2) (Friendly, J.), cert, denied, 389 U. S. 839 (1967). We conclude that the due process rights claimed here are adequately protected by §636 (b)(1). While the district court judge alone acts as the ultimate decisionmaker, the statute grants the judge the broad discretion to accept, reject, or modify the magistrate’s proposed findings. That broad discretion includes hearing the witnesses live to resolve conflicting credibility claims. Finally, we conclude that the statutory scheme includes sufficient procedures to alert the UNITED STATES v. RADDATZ 681 667 Opinion of the Court district court whether to exercise its discretion to conduct a hearing and view the witnesses itself.7 B In passing the 1976 amendments to the Federal Magistrates Act, Congress was alert to Art. Ill values concerning the vesting of decisionmaking power in magistrates.8 Accordingly, Congress made clear that the district court has plenary discretion whether to authorize a magistrate to hold an evidentiary hearing and that the magistrate acts subsidiary to and only in aid of the district court. Thereafter, the entire process takes place under the district court’s total control and jurisdiction. We need not decide whether, as suggested by the Government, Congress could constitutionally have delegated the task of rendering a final decision on a suppression motion to a nonArt. Ill officer. See Palmore v. United States, 411 U. S. 389 (1973). Congress has not sought to make any such delegation. Rather, Congress has provided that the magistrate’s 7 Neither the statute nor its legislative history reveals any specific consideration of the situation where a district judge after reviewing the record in the process of making a de novo “determination” has doubts concerning the credibility findings of the magistrate. The issue is not before us, but we assume it is unlikely that a district judge would reject a magistrate’s proposed findings on credibility when those findings are dispositive and substitute the judge’s own appraisal; to do so without seeing and hearing the witness or witnesses whose credibility is in question could well give rise to serious questions which we do not reach. 8 The Committee Reports noted several instances prior to the 1976 amendments where Congress had vested in officers of the court, other than the judge, the power to exercise discretion in performing an adjudicatory function, “subject always to ultimate review by a judge of the court,” citing 11 U. S. C. § 67 (c) (reference to bankruptcy referee) and 28 U. S. C. § 1920 (power of clerk of court to tax costs). By analogy, Congress reasoned that permitting the exercise of an adjudicatory function by a magistrate, subject to ultimate review by the district court, would also pass constitutional muster. S. Rep., at 6; H. R. Rep., at 8. 682 OCTOBER TERM, 1979 Opinion of the Court 447U.S. proposed findings and recommendations shall be subjected to a de novo determination “by the judge who . . . then exercise [s] the ultimate authority to issue an appropriate order.” S. Rep., at 3. Moreover, “[t]he authority—and the responsibility to make an informed, final determination . . . remains with the judge.” Mathews v. Weber, 423 U. S., at 271. On his Art. Ill claim, Crowell v. Benson, 285 U. S. 22 (1932), and its progeny offer little comfort to respondent.9 There, the Court stated that “[i]n cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.” Id., at 60. See also Ng Fung Ho v. White, 259 U. S. 276 (1922).10 While stating that “the enforcement of constitutional rights requires that the Federal court should determine such an issue upon its own record and the facts elicited before it,” 285 U. S., at 64, the Court pointedly noted a “distinction of controlling importance” between records formed before administrative agencies and those compiled by officers of the court such as masters in chancery or commissioners in admiralty where the proceeding is “constantly subject to the court’s control.” We view the statutory scheme here as rendering a magistrate’s recommendations 9 In Crowell, in reviewing the constitutionality of the delegation of fact-finding to administrative officers to consider claims under the Longshoremen’s and Harbor Workers’ Compensation Act, the Court was concerned that Congress could not reach beyond the constitutional limits which are inherent in the admiralty and maritime jurisdiction. It stated that unless the injuries to which the Act relates occurred upon the navigable waters of the United States, they would fall outside that jurisdiction 285 U S at 55. ' - 10 The Crowell Court rejected a wholesale attack on any delegation of factfinding to the administrative tribunal. It noted that “there is no requirement that, in order to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges.” Id., at 51-52. UNITED STATES v. RADDATZ 683 667 Opinion of the Court more analogous to a master or a commissioner than to an administrative agency for Art. Ill purposes.11 Moreover, four years later, in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 (1936), Mr. Chief Justice Hughes substantially cut back on the Court’s Crowell holding, which he had authored, and on which respondent relies. The question there was whether administrative rate regulations were unconstitutionally confiscatory. While reaffirming his statement that administrative agencies cannot finally determine “constitutional facts,” Mr. Chief Justice Hughes noted: “But this judicial duty to exercise an independent judgment does not require or justify disregard of the weight which may properly attach to findings [by an administrative body] upon hearing and evidence. On the contrary, the judicial duty is performed in the light of the proceedings already had and may be greatly facilitated by the assembling and analysis of the facts in the course of the legislative determination.” 298 U. S., at 53. See also Estep v. United States, 327 U. S. 114, 122-123 (1946). Thus, although the statute permits the district court to give to the magistrate’s proposed findings of fact and recommendations “such weight as [their] merit commands and the sound discretion of the judge warrants,” Mathews v. Weber, supra, at 275, that delegation does not violate Art. Ill so long as the ultimate decision is made by the district court. We conclude that the statute strikes the proper balance 11 In exercising our original jurisdiction under Art. Ill, we appoint special masters who may be either Art. Ill judges or members of the Bar; the role of the master is, for these purposes, analogous to that of a magistrate. The master is generally charged to “take such evidence as may be . . . necessary,” Nebraska N. Iowa, 379 U. S. 996 (1965), and to “find the facts specially and state separately his conclusions of law thereon.” Mississippi v. Louisiana, 346 U. S. 862 (1953). In original cases, as under the Federal Magistrates Act, the master’s recommendations are advisory only, yet this Court regularly acts on the basis of the master’s report and exceptions thereto. 684 OCTOBER TERM, 1979 Blackmun, J., concurring 447 U. S. between the demands of due process and the constraints of Art. III. Accordingly, the judgment of the Court of Appeals is Reversed. Mr. Justice Blackmun, concurring. While I join the Court’s opinion, my analysis of the due process issue differs somewhat from that set forth therein, and I write separately to articulate it. The Court seems to focus on the diminished importance of pretrial suppression motions and the acceptability in some agency proceedings of decisionmaking without personal observation of witnesses. For me, these considerations are of less importance than the practical concern for accurate results that is the focus of the Due Process Clause. In testing the challenged procedure against that criterion, I would distinguish between instances where the district court rejects the credibility-based determination of a magistrate and instances, such as this one, where the court adopts a magistrate’s proposed result.1 In the latter context, the judge accurately can be described as a “backup” jurist whose review serves to enhance reliability and benefit the defendant. Respondent was afforded procedures by which a neutral decisionmaker, after seeing and hearing the witnesses, rendered a decision.2 After that decisionmaker found against him, respondent received a second 1 This is not to say that a district court’s rejection of a magistrate’s recommendation in favor of a defendant will inevitably violate the Due Process Clause. 2 The magistrate, of course, makes only a recommendation, rather than a formal decision. But, at least in this context, I see no reason to believe that the process of “recommending” is more susceptible to error than “finally deciding.” And even if we were to speculate that some additional risk of error inheres in “recommending,” I would conclude that it is more than offset by the doublecheck provided by the district judge and the congressional determination that this procedure permits independent judicial evaluation of suppression motions while conserving scarce judicial resources. UNITED STATES v. RADDATZ 685 667 Blackmun, J., concurring turn, albeit on a cold record, before another neutral decisionmaker. In asking us to invalidate the magistrate program, respondent in effect requests removal of the second level of procedural protections afforded him and others like him.3 In my view, such a result would tend to undermine, rather than augment, accurate decisionmaking. It therefore is not a result I could embrace under the Due Process Clause. Although Mr. Justice Marshall ably argues that this characterization of the magistrate procedure clashes with Art. Ill, I am not persuaded. As the Court observes, the handling of suppression motions invariably remains completely in the control of the federal district court. The judge may initially decline to refer any matter to a magistrate. When a matter is referred, the judge may freely reject the magistrate’s recommendation. He may rehear the evidence in whole or in part. He may call for additional findings or otherwise “recommit the matter to the magistrate with instructions.” See 28 U. S. C. §636 (b)(1). Moreover, the magistrate himself is subject to the Art. Ill judge’s control. Magistrates are appointed by district judges, § 631 (a), and subject to removal by them, § 631 (h). In addition, district judges retain plenary authority over when, what, and how many pretrial matters are assigned to magistrates, and “(e]ach district court shall establish rules pursuant to which the magistrates shall discharge their duties.” §636 (b)(4). Thus, the only conceivable danger of a “threat” to the “independence” of the magistrate comes from within, rather than without, the judicial department. It is also significant that the Magistrates Act imposes significant requirements to ensure competency and impartiality, §§ 631(b), (c), and (i), 632, 637 (1976 ed. and 3 Certainly respondent does not have a due process right to have an Art. Ill judge resolve all factual issues surrounding his suppression motion. If he did, virtually every decision on a suppression motion in a state court would violate the Due Process Clause. 686 447 U. 8. OCTOBER TERM, 1979 Opinion of Powell, J. Supp. II), including a rule generally barring reduction of salaries of full-time magistrates, § 634 (b). Even assuming that, despite these protections, a controversial matter might be delegated to a magistrate who is susceptible to outside pressures, the district judge—insulated by life tenure and irreducible salary—is waiting in the wings, fully able to correct errors. Under these circumstances, I simply do not perceive the threat to the judicial power or the independence of judicial decisionmaking that underlies Art. III. We do not face a procedure under which “Congress [has] delegatefd] to a non-Art. Ill judge the authority to make final determinations on issues of fact.” Post, at 703 (dissenting opinion). Rather, we confront a procedure under which Congress has vested in Art. Ill judges the discretionary power to delegate certain functions to competent and impartial assistants, while ensuring that the judges retain complete supervisory control over the assistants’ activities. Mr. Justice Powell, concurring in part and dissenting in part. I agree with the Court’s interpretation of the Federal Magistrates Act in Part III of its opinion. The terms and legislative record of § 636 (b)(1) plainly indicate that Congress intended to vest broad discretion in the district courts to decide whether or not to rehear witnesses already heard by a magistrate in a suppression proceeding. The Court recognizes that “serious questions” would be raised if a district judge rejected a magistrate’s proposed findings on credibility. See ante, at 681, n. 7. But the Court finds no error in this case, where the District Court accepted the Magistrate’s judgment on credibility. I would reach a different conclusion. Under the standards set out in Mathews v. Eldridge, 424 U. S. 319, 335 (1976), due process requires a district court to rehear crucial witnesses when, as in this case, a suppression hearing turns only on credibility. As Mr. Justice Marshall points out in his dissenting opinion, UNITED STATES v. RADDATZ 687 667 Stewart, J., dissenting the private interests at stake in a suppression hearing often are substantial. Moreover, the risk of erroneous deprivation of rights is real when a decider of fact has not heard and observed the crucial witnesses. The value of hearing and seeing those witnesses testify is undeniable. Finally, the government interest in limiting rehearing is not sufficient to outweigh these considerations. In sum, I agree with Mr. Justice Marshall’s statement that, under the Due Process Clause of the Fifth Amendment, a hearing requirement should be imposed “only in situations in which the case turns on issues of credibility that cannot be resolved on the basis of a record. ... If the district judge offered a statement of reasons presenting his independent view of the facts and explaining in some reasoned manner why it was not necessary for him to hear the witnesses in order to adopt that view, it would be an exceptionally rare case in which an abuse of discretion should be found.” Post, at 701-702.* I would affirm the judgment of the Court of Appeals on this ground. Mr. Justice Stewart, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. A federal indictment was returned charging the respondent, who had previously been convicted of a felony, with unlawfully receiving a firearm in violation of 18 U. S. C. § 922 (h) (1). Before the trial, the respondent filed in the District Court a motion to suppress various incriminating statements he had made to agents of the Federal Bureau of Alcohol, *The classic situation requiring a hearing de novo is when the record of a suppression proceeding contains little beyond a “swearing contest.” In many cases, however, the entire record will contain additional evidence-direct or circumstantial—that fully supports the magistrate’s recommendation. In those cases, the district court may decide, within its sound discretion, not to hear witnesses. 688 OCTOBER TERM, 1979 Stewart, J., dissenting 447U.S. Tobacco, and Firearms.1 Pursuant to the Federal Magistrates Act (Act), 28 U. S. C. § 636 (b)(1),2 the District Judge referred this motion to a Magistrate, who held an evidentiary hearing and then recommended that the respondent’s motion be denied. Without taking further evidence the District Judge accepted the Magistrate’s recommendation and denied 1 The respondent also moved to suppress certain statements the Government claimed he had made to Chicago police officers shortly after his arrest. At the suppression hearing, the respondent denied having ever made such remarks. A Chicago police officer testified to the contrary, making the issue one for determination at trial by the trier of fact. 2 Title 28 U. S. C. §636 (b)(1) provides: “Notwithstanding any provision of law to the contrary— “(A) a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. “(B) a judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications for postrial [sfc] relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement. “(C) the magistrate shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties. “Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions.” UNITED STATES v. RADDATZ 689 667 Stewart, J., dissenting the motion to suppress. The Court of Appeals reversed, holding that the respondent was constitutionally entitled to a hearing by the judge before his suppression motion could be denied. Today this Court reverses that judgment. I dissent, because I believe that the statute itself required a hearing before the judge in this case. The statute provides that a district judge, in ruling on a motion to suppress, “shall make a de novo determination of those portions of the [magistrate’s] report or specified proposed findings or recommendations to which objection is made.” 28 U. S. C. § 636 (b)(1) (emphasis added). It is my view that the judge could not make the statutorily required “de novo determination” of the critically contested factual issues in this case without personally observing the demeanor of the witnesses. At the hearing before the Magistrate the respondent testified that he had made the incriminating statements to the federal agents only because they promised that he would not be prosecuted if he cooperated, and offered to employ him as an informer. The agents gave a different version of the relevant events. They expressly testified that at no time was the respondent ever told that he would not be prosecuted. Instead, according to the agents, he was simply told that any assistance he might provide would be mentioned to the United States Attorney. Their story also undermined the respondent’s testimony that he had been offered employment as an informer before he made the incriminating statements. If the respondent’s testimony was true, his motion to suppress evidence of his incriminating statements should have been granted. See Malloy v. Hogan, 378 U. S. 1, 7; Bram v. United States, 168 U. S. 532, 542-543. The Magistrate, however, did not believe him, expressly finding that “the testimony of the Alcohol, Tobacco and Firearms agent [s is] more credible” and that the “Federal agents never advised Raddatz that charges against him would be dismissed, if he cooperated.” In concluding for this reason that the motion should be denied, 690 447 U.S. OCTOBER TERM, 1979 Stewart, J., dissenting the Magistrate properly exercised the authority granted him by 28 U. S. C. § 636 (b)(1)(B) “to submit . . . proposed findings of fact and recommendations for the disposition” of the suppression motion. But the Act also empowered the respondent to object to these findings. He did so, and the responsibility then devolved on the District Judge to “make a de novo determination” of the contested issues of fact. The phrase “de novo determination” has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy. Thus, in Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1, 23, the Court had occasion to define “de novo proceeding” as a review that was “unfettered by any prejudice from the [prior] agency proceeding and free from any claim that the [agency’s] determination is supported by substantial evidence.”3 And, in United States n. First City National Bank, 386 U. S. 361, 368, this Court observed that “review de novo” means “that the court should make an independent determination of the issues” and should “not . . . give any special weight to the [prior] determination of” the administrative agency.4 3 In Renegotiation Board v. Bannercraft Clothing Co., the Court was construing the following language in the Renegotiation Act of 1951 as amended: “Any contractor . . . aggrieved by an order of the Board [of Renegotiation] determining the amount of excessive profits received or accrued by such contractor . . . may— file a petition with the Court of Claims for a redetermination thereof. . . . A proceeding before the Court of Claims to finally determine the amount, if any, of excessive profits shall not be treated as a proceeding to review the determination of the Board, but shall be treated as a proceeding de novo. . . .” 65 Stat. 21, as amended, 50 U. S. C. App. § 1218. 4 In United States v. First City National Bank, the Court was construing 12 U. S. C. § 1828 (c)(7)(A), which provides that in an antitrust action brought under the Bank Merger Act of 1966 the court “shall review de novo the issues presented.” UNITED STATES v. RADDATZ 691 667 Stewart, J., dissenting Here, the District Judge was faced with a transcript that contained two irreconcilable accounts of the critical facts. Neither version was intrinsically incredible or, for that matter, less plausible on its face than the other. Moreover, there was in the record no evidence inherently more trustworthy than that supported by human recollection. In these circumstances, the District Judge could not make the statutorily mandated “de novo determination” without being exposed to the one kind of evidence that no written record can ever reveal—the demeanor of the witnesses.5 In declining to conduct a hearing in this case, the District Judge thus necessarily gave the Magistrate’s prior assessment of credibility the kind of “special weight” that the “de novo determination” standard does not permit. Contrary to the Court’s assertion, nothing in the legislative history of the 1976 amendments to the Federal Magistrates Act compels a different conclusion. Congress, to be sure, explicitly rejected a version of the ultimately enacted bill that would have required a district judge always to “hear de novo” those aspects of the case whose proposed resolution by the magistrate dissatisfied one or more of the parties. Compare S. Rep. No. 94-625, p. 2 (1976) (hereinafter S. Rep.) (bill as reported by Senate Committee on the Judiciary), with S. 1283, 94th Cong., 1st Sess. (1975) (bill as originally introduced by Senator Burdick). Moreover, as the Court points out, the Report of the House Judiciary Committee says that “[t]he use of the words 'de novo determination’ is not intended to require the judge to actually conduct a new hearing on contested issues.” H. R. Rep. No. 94-1609, p. 3 (1976) (hereinafter H. R. Rep.). In other contexts, the Courts of Appeals have held that critical issues of credibility can be resolved only by personally hearing live testimony. See, e. g., Weahkee v. Perry, 190 U. S. App. D. C. 359, 370, 587 F. 2d 1256, 1267 (1978) (Title VII of Civil Rights Act of 1964); Hockley v. Roude-bush, 171 U. S. App. D. C. 376, 427, and n. 202, 520 F. 2d 108, 159, and n. 202 (1975) (same); Pignatello v. Attorney General, 350 F. 2d 719, 723-724 (CA2 1965) (Immigration and Nationality Act). 692 OCTOBER TERM, 1979 Stewart, J., dissenting 447U.S. Other passages in the legislative history, however, make clear that these indications of legislative intent comport with the plain language of the statute. As the Senate and House Reports emphasize, “the ultimate adjudicatory power over” suppression and other dispositive motions is to be “exercised by [a district] judge . . . after receiving assistance from and the recommendation of the magistrate.” S. Rep., at 10; H. R. Rep., at 11. Thus, according to the House Report, a district judge, “in making the ultimate determination of the matter, would have to give fresh consideration to those issues to which specific objection has been made by a party.” Id., at 3 (emphasis supplied). The Report describes this responsibility as follows: “Normally, the judge . . . will consider the record which has been developed before the magistrate and make his own determination on the basis of that record. ... In some specific instances, however, it may be necessary for the judge . . . to take additional evidence, recall witnesses. . . .” Ibid, (emphasis supplied). See also 122 Cong. Rec. 35182 (1976) (Rep. Railsback). It is thus evident that Congress anticipated that occasions would arise when a district judge could not make the requisite “de novo determination” without hearing the evidence himself.6 Congress’ prime objective in 1976 was to overrule this Court’s decision in Wingo v. Wedding, 418 U. S. 461, which had interpreted the then existing Federal Magistrates Act as 6 Nothing in the passage from the opinion of the Court of Appeals in Campbell v. United States District Court, 501 F. 2d 196, 206-207 (CA9 1974), that is quoted in the House Report can be read to mean anything different. In Campbell, the court said that a district court “may, in the exercise of its discretion, call and hear the testimony of a witness or witnesses” when “it finds there is a problem as to the credibility of a witness or witnesses or for other good reasons.” Nothing said in Campbell, however, implied that a district judge’s failure to call a witness or witnesses is invariably permissible. UNITED STATES v. RADDATZ 693 667 Stewart, J., dissenting barring a magistrate from holding an evidentiary hearing on a petition for habeas corpus. See S. Rep., at 3, 9; H. R. Rep., at 5, 11. The 1976 Act thus granted magistrates the power to take evidence on matters like habeas corpus petitions and motions to suppress. By enacting such legislation, Congress obviously anticipated that hearings conducted by magistrates would in many instances obviate the need for district judges to take evidence as well. It does not follow, however, that Congress told district judges that they need not conduct hearings in every case where an evidentiary hearing has been conducted by a magistrate, regardless of the circumstances. Instead, Congress expressly limited the “clearly erroneous” standard of review to pretrial motions that are termed non-“dispositive” in the Act’s legislative history, see S. Rep., at 7, 9-10; H. R. Rep., at 9, 10-11, and excluded habeas corpus petitions, motions to suppress, and other important motions from that category, see 28 U. S. C. §636 (b)(1). The Court suggests that a plain reading of the statutory language would, as a practical matter, frustrate the Act’s objective of alleviating the increasing congestion of litigation in the district courts. But, as I interpret the statutory language, district judges need not always hold evidentiary hearings in order properly to dispose of suppression motions. Although many motions to suppress turn on issues of credibility, many do not. A suppression motion predicated, for instance, on the claim that a search warrant was not supported by an adequate affidavit could normally be resolved without the taking of any testimony. More importantly, the “de novo determination” requirement of the Federal Magistrates Act applies to a much wider range of motions and applications than simply pretrial motions to suppress.7 Some of these—such as motions to dismiss for failure to state a claim, motions for judgment on the pleadings, 7 See n. 2, supra. 694 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. and motions for summary judgment—presume as a legal matter the lack of any need for an evidentiary hearing, even at the magistrate’s level. Others—such as motions for injunctive relief, motions to dismiss or quash an indictment, motions to dismiss or to permit maintenance of a class action, motions to dismiss an action involuntarily, applications for post-trial relief made by those convicted of criminal offenses, and petitions by prisoners challenging conditions of confinement— could often, as a practical matter, be granted or denied by a district court on the strength alone of the transcript of the magistrate’s hearing and his recommendation. Thus, contrary to the Court’s suggestion, the plain reading I would give to the pertinent statutory language would not equate “de novo determination” with “de novo hearing.” Since I believe that the plain language of the statute required the District Judge in this case to hear the conflicting factual testimony of the witnesses, I would affirm the judgment of the Court of Appeals. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. I agree with my Brother Stewart that the statutory provision for “a de novo determination of . . . specified proposed findings ... to which objection is made,” 28 U. S. C. § 636 (b)(1), should be construed to require the district court to conduct an evidentiary hearing when there are case-dispositive issues of credibility that cannot be resolved on the basis of the record compiled before the magistrate. I write separately to express my view that unless the Act is construed in that fashion, its application in this case is impermissible under the Due Process Clause of the Fifth Amendment and under Art. III. In my view, the Due Process Clause requires that a judicial officer entrusted with finding the facts in a criminal case must hear the testimony whenever a fair resolution of disputed issues cannot be made on the basis of a review of the cold UNITED STATES v. RADDATZ 695 667 Marshall, J., dissenting record. Accordingly, if the Act permits the district judge not to hear the witnesses, but at the same time requires him to make a de novo determination of the facts, its application violates the Due Process Clause in any case that turns on issues of credibility that cannot be resolved on the written record. This infirmity cannot be avoided by interpreting the Act to allow the district judge to give final effect to the magistrate’s findings on issues of credibility. Such an interpretation would render the Act fatally inconsistent with Art. Ill of the Constitution, which entitles a criminal defendant in a federal court to an independent determination of the case-dispositive facts by an Art. Ill judge. I The Court of Appeals held that the unconsented referral of the suppression motion to the Magistrate was not an unlawful delegation of the federal judicial power to a non-Art. Ill judge. To reach this conclusion, it relied on its understanding that the Act required the District Judge to make a de novo determination of all contested issues. At the same time, it concluded that the Due Process Clause required the District Judge to hear the witnesses before making a de novo determination of the facts. The Court rejects this conclusion in an analysis suggesting that the individual’s interest in vindicating his right against compulsory self-incrimination is an unimportant one. I disagree. A One of the most deeply engrained principles in Anglo-American jurisprudence requires that an official entrusted with finding facts must hear the testimony on which his findings will be based. As I explained in Swisher v. Brady, 438 U. S. 204, 229-233 (1978) (dissenting opinion),1 our constitutional 1 Swisher involved a Maryland procedure whereby a master first made factual findings with respect to the issue of juvenile delinquency, and a judge subsequently conducted a de novo review of the evidence. The 696 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. tradition rejects the notion that factual findings in criminal cases may be made by an official who acts in isolation and on the basis of a cold record. The principle that “[t]he one who decides must hear,” Morgan v. United States, 298 U. S. 468, 481 (1936), is supported by two distinct rationales. First, judicial factfinding on the basis of a written record carries an intolerably high risk of error. Any experienced lawyer is aware that findings of fact frequently rest on impressions of demeanor and other factors which do not appear on the face of the record. As the Court stated in Holiday v. Johnston, 313 U. S. 342, 352 (1941), “[o]ne of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony.” Accordingly, the Court has rejected the proposition “that an appraisal of the truth of the [witness’] oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge’s own exercise of the function of the trier of the facts.” See also Wingo v. Wedding, 418 U. S. 461 (1974); United States v. Oregon Medical Society, 343 U. S. 326, 339 (1952); Dyer v. MacDougall, 201 F. 2d 265, 268-269 (CA2 1952). The principle is not, however, based solely on the constitutional interest in accurate factfinding. It also derives from the notion that, as a matter of basic fairness, a person facing the prospect of grievous loss is entitled to relate his version of the facts to the official entrusted with judging its accuracy. The Due Process Clause “promot[es] participation and dia- judge’s review was confined to the record, with the exception that he could receive additional evidence when the parties did not object. The Court held that the procedure did not violate the Double Jeopardy Clause, but reserved the due process issue on the ground that it was not properly presented. Writing for myself and my Brothers Brennan and Powell, I expressed the view that the issue was before us and that the procedure violated the due process principle that, where demeanor evidence is critical, the ultimate factfinder in a criminal case must hear the witnesses on whose testimony his findings will be based. UNITED STATES v. RADDATZ 697 667 Marshall, J., dissenting logue ... in the decisionmaking process,” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980), by ensuring that individuals adversely affected by governmental action may confront the ultimate decisionmaker and thus play some part in formulating the ultimate decision. See Carey v. Piphus, 435 U. S. 247 (1978); Board of Curators, Univ, of Mo. v. Horowitz, 435 U. S. 78, 103, n. 15 (1978) (Marshall, J., concurring in part and dissenting in part).2 In this respect, the requirement that a finder of facts must hear the testimony offered by those whose liberty is at stake derives from deep-seated notions of fairness and human dignity. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 170 (1951) (Frankfurter, J., concurring). A rule that would allow a criminal defendant to face a jail sentence on the basis of factual findings made by one who has not heard the evidence is, in my view, foreign to notions of fair adjudicative procedure embodied in the Due Process Clause.3 2 Cf. Michelman, Formal and Associational Aims in Procedural Due Process, in J. Pennock & J. Chapman, Due Process: Nomos XVIII, PP-126-171 (1977) I do not, of course, mean to suggest that all adverse effects faff within the categories of “life, liberty, [and] property" under the Fifth and Fourteenth Amendments. In recent years the Court has held that those terms encompass only so-called statutory entitlements and certain kinds of grievous losses. See Vitek v. Jones, 445 U. S. 480 (1980); cf. PruneYard Shopping Center v. Robins, ante, at 93-94, and n. 2 (Marshall, J., concurring). 3 The principle that deference must be paid to the findings ot the official who hears the testimony is reflected in a wide variety of areas of the law. Under Rule 52 of the Federal Rules of Civil Procedure, a trial court’s factual findings may be reversed only when “clearly erroneous, a standard that reflects the common understanding thai “[f]ace to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate metho of ascertaining the truth.” United States v. Oregon Medical Society, 343 U S 326 339 (1952). For this reason, the successor of a trial judge who has resigned or died after the conclusion of a trial is ordinarily barred from resolving factual disputes on the basis of the trial transcript. Brennan v. 698 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. I do not, of course, mean to suggest that a district judge must hear the witnesses in every case, or even in all cases in which issues of credibility are raised. An actual rehearing would be required only in cases involving case-dispositive issues that are impossible to resolve on the basis of the written record. But as my Brother Stewart demonstrates, the District Judge could not make an independent finding in this case without hearing the witnesses. Neither respondent’s nor the agents’ story carried inherent indicia of reliability. Both accounts suffered from inconsistencies. In the end the issue was solely one of credibility. On the basis of the cold record, the District Judge had no basis for determining whether the respondent or the agents were telling the truth. He was required, therefore, either blindly to accept the Magistrate’s findings as to matters of credibility or to flip a coin. The first course is forbidden by the statute and by Art. Ill;4 the second is forbidden by the requirements of fair adjudicative procedure that the Due Process Clause reflects. B It is true that the principle that “[t]he one who decides must hear” should not be applied with mechanical rigidity. Administrators are permitted to base factual findings on a record compiled before a hearing examiner who does not play a role in formulating the ultimate findings. See Morgan v. Grisso, 91 U. S. App. D. C. 101, 198 F. 2d 532 (1952); United States v. Nugent, 100 F. 2d 215 (CA6 1938), cert, denied, 306 U. S. 648 (1939). And in United States ex rel. Graham v. Mancusi, 457 F. 2d 463 (CA2 1972) (Friendly, J.), the court applied the principle in habeas corpus proceedings to invalidate a procedure under which a state appellate court had entered a conviction for a lesser offense when reversal of the original conviction was required because of improperly admitted evidence. The court stated: “Due process forbids that, when an issue of fact is presented, a man should be sent to prison without the trier of the facts having seen and heard his accusers and himself, if he desires to testify, and weighing their credibility in the light of their demeanor on the stand.” Id., at 469. 4 See Part II, infra. UNITED STATES v. RADDATZ 699 667 Marshall, J., dissenting United States, 298 U. S. 468,481 (1936); 2 K. Davis, Administrative Law Treatise § 11.02 (1958). Similar qualifications of the principle have been recognized by lower courts in certain civil contexts. See, e. g., Utica Mutual Ins. Co. v. Vincent, 375 F. 2d 129 (CA2), cert, denied, 389 U. S. 839 (1967) (National Labor Relations Board determination of proper unit in a representation election). The Court errs, however, in suggesting that those exceptions provide support for the decision announced today. In a number of the cases in which such exceptions have been permitted, the factual issues to be resolved did not at all depend on issues of credibility; the demeanor of the witnesses was entirely irrelevant. See examples cited ante, at 680. And in other cases, the factfinder was not entrusted, as was the District Judge here, with making a de novo determination, but was instead permitted to give appropriate deference to the conclusions of the official who conducted the hearing. See 2 K. Davis, supra, § 10.04. I am aware of no case, and the Court cites none, in which a federal court has upheld a procedure in which a judge is required to conduct a de novo determination without hearing the witnesses when the factual issues have turned on issues of credibility that cannot be fairly resolved on the basis of the record. Under such a procedure, the judge’s determination is so inevitably arbitrary, and so plainly a blind guess, that I believe it to be prohibited by the Due Process Clause under any circumstances. But even if I were not so persuaded, the answer in the present context would be clear, for the simple reason that this case is criminal in nature. It is, of course, in such cases that the need for scrupulous observance of procedural safeguards is greatest. Whatever the appropriate limits of the principle that the factfinder must hear the witnesses where demeanor evidence is critical, the principle is fully applicable to criminal cases. As the Court correctly observes, see ante, at 677, under Mathews v. Eldridge, 424 U. S. 319, 335 (1976), the determination of “what process is due” turns on a balancing of three 700 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. factors: “[f]irst, 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.” The Court recites this test, but it does not even attempt to apply it. Instead, the Court resolves the due process issue solely by distinguishing a motion to suppress evidence from a criminal trial. See ante, at 677-681. To state the obvious point that guilt or innocence is not determined in a suppression hearing, however, is only the beginning of the inquiry. That fact does not render the interest of both the defendant and the public in vindicating the right against compulsory self-incrimination an unimportant one, or make it analogous to other interests, such as those involved in a securities transaction, that have been thought to merit comparatively little due process protection, see ante, at 680. Mathews contemplates and requires a thorough inquiry into the three factors it specifies rather than the conclusory approach taken by the Court today. The private interests at stake here are hardly insignificant. The suppression hearing was conducted to determine whether the agents had violated respondent’s privilege against selfincrimination, an interest that the Constitution singles out for special protection and that our cases recognize as fundamentally important. See, e. g., Miranda n. Arizona, 384 U. S. 436 (1966). Moreover, respondent’s liberty was wholly dependent on whether the trier of fact believed his account of his confession rather than that of the agents. The subsequent history of the case confirms this fact. As my Brother Powell has explained: “In our criminal justice system as it has developed, suppression hearings often are as important as the trial which may follow. The government’s case may turn UNITED STATES v. RADDATZ 701 667 Marshall, J., dissenting upon the confession or other evidence that the defendant seeks to suppress, and the trial court’s ruling on such evidence may determine the outcome of the case.” Gannett Co. v. De-Pasquale, 443 U. S. 368, 397, n. 1 (1979) (Powell, J., concurring). See also id., at 434 (Blackmun, J., dissenting in part). Indeed, Congress itself recognized the importance of suppression motions by providing for a de novo determination by the district judge. Second, both the risk of an erroneous deprivation and the probable value of the additional safeguard were substantial. The issues presented here could not be resolved de novo solely on the basis of the record. As my Brother Stewart suggests, the case was a classic swearing match: the only issues were ones of credibility. The risk of error could be minimized only if the District Judge heard the witnesses himself. The Court itself confirms that if the judge does not hear the witnesses his decisions on credibility issues can only be a blind guess, when it intimates that a district judge may not reject a magistrate’s findings without hearing the witnesses. See ante, at 680-681. The sole distinction that can be drawn between accepting the magistrate’s findings and rejecting them is that in the former case the district judge is deferring to the magistrate. But the Court rejects this distinction by asserting, in order to avoid the Art. Ill objection, that in either event it is the district judge who “[makes] the ultimate decision.” See ante, at 683. Finally, the governmental interest—essentially one of administrative convenience—is not in this context substantial. The Court of Appeals’ holding would not require the district judge to hear the witnesses whenever objection is made to the magistrate’s findings. A rehearing requirement would be imposed only in situations in which the case turns on issues of credibility that cannot be resolved on the basis of a record. Nor is there much force to the Government’s argument that an occasional rehearing of the witnesses would impose an 702 OCTOBER TERM, 1979 Marshall, J., dissenting 447 U. S. intolerable burden on the district courts.5 Finally, I would afford the district judge considerable discretion to determine whether a rehearing of the witnesses was required in order for him to make the requisite de novo determination. If the district judge offered a statement of reasons presenting his independent view of the facts and explaining in some reasoned manner why it was not necessary for him to hear the witnesses in order to adopt that view, it would be an exceptionally rare case in which an abuse of discretion should be found. In this case, it is plain that a de novo determination could not be made without hearing the witnesses. I am therefore brought to the conclusion that the Due Process Clause required the District Judge to rehear the witnesses. Indeed, a contrary conclusion would suggest that, save for the criminal trial itself, there may be no settings in which the principle that “[t]he one who decides must hear” will carry force. In Speiser v. Randall, 357 U. S. 513, 520 (1958), we observed that “the outcome of a lawsuit—and hence the vindication of legal rights—depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents.” By today’s decision, the Court permits the vindication of Fifth Amendment rights to depend on a form of bureaucratic factfinding foreign to our 5 Experience shows that motions to suppress evidence consume a relatively small proportion of the time of federal district judges. A recent study indicated that suppression motions involving confessions were filed in only 4% of all federal criminal cases. GAO, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Report by the Comptroller General of the United States, App. II, p. 8 (Apr. 19, 1979). Moreover, a rehearing by the district judge would be required only in some of those cases, since the rehearing requirement would be imposed solely in situations (1) involving case-dispositive issues that (2) could not be resolved on the basis of the record and (3) that were contested by a party. Finally, the rehearing requirement would create an additional burden only where the judge would otherwise choose not to hear the witnesses. In light of these factors, the incremental expenses that would be imposed by the ruling of the Court of Appeals would be relatively small. UNITED STATES v. RADDATZ 703 667 Marshall, J., dissenting constitutional traditions. I am unwilling to join in that enterprise. II The due process infirmity cannot be remedied by interpreting the statute to permit the district judge to give final effect to the magistrate’s findings on issues of credibility. Such an interpretation would render the Act fatally inconsistent with Art. Ill of the Constitution. The Court attempts to avoid this conclusion by suggesting that the district judge retains “control” of the suppression motion and by indicating that Art. Ill in any event does not prohibit a federal court from giving final effect to a magistrate’s findings of fact. I find neither argument convincing. A At the outset, it is important to observe that the Court’s suggestion that “a magistrate’s recommendations [are] analogous to [those of] a master or a commissioner,” ante, at 682-683, is highly misleading. If the motion to suppress turns on issues of credibility that cannot be resolved on the basis of the record, and if the district judge does not hear the witnesses, the magistrate’s report is no mere “recommendation. Unless the district judge ventures a blind guess, that report is effectively the final determination of the facts underlying the suppression motion. For this reason, it is simply incorrect to say that the “ultimate decision is made by the district court. Ante, at 683. This case squarely presents the issue whether, in a criminal case tried in federal court, Congress may delegate to a non-Art. Ill judge the authority to make final determinations on issues of fact. Article III vests the “judicial Power of the United States ... in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. It provides that judges “both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, 704 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. which shall not be diminished during their Continuance in Office.” The rationale underlying the tenure and salary protections of Art. Ill has often been stated and need not be rehearsed in detail here. But it is worth remembering that the Framers of the Constitution believed that those protections were necessary in order to guarantee that the judicial power of the United States would be placed in a body of judges insulated from majoritarian pressures and thus able to enforce constitutional principles without fear of reprisal or public rebuke. See The Federalist Nos. 78 and 79; Glidden Co. v. Zdanok, 370 U. S. 530 (1962) (plurality opinion); O'Donoghue v. United States, 289 U. S. 516, 530 (1933). In this case it is agreed that magistrates are not Art. Ill judges. Appointed by the judges of the district court, they serve 8-year terms. They are subject to removal by the judges of the district court for “incompetency, misconduct, neglect of duty, or physical or mental disability.” If the Judicial Conference concludes that “the services performed by his office are no longer needed,” 28 U. S. C. § 631 (h), a magistrate’s office may be terminated. None of these factors, of course, suggests that a magistrate will be unable to perform his assigned tasks fairly and in accordance with constitutional principles. But there can be no doubt that one holding the office of magistrate is unprotected by the safeguards that the Framers regarded as indispensable to assuring the independence of the federal judiciary. It is true that a number of our decisions have recognized Congress’ authority to create legislative tribunals unprotected by the tenure and salary provisions of Art. III. See Glidden Co. v. Zdanok, supra, at 543-552, and cases cited. Those decisions do not, however, provide any support for the proposition that Congress may, with respect to suppression hearings in criminal cases, displace the federal judiciary and entrust the finding of case-dispositive facts to a non-Art. Ill tribunal. UNITED STATES v. RADDATZ 705 667 Marshall, J., dissenting The rationale of our decisions involving legislative courts has been far more limited, focusing on Congress’ plenary power over specialized areas of geography or subject matter and on the manifest need for a more flexible tribunal to perform adjudicatory functions in those areas. See generally 370 U. S., at 543-552. Nor has the Court suggested that it will defer blindly to a congressional determination that an alternative tribunal is necessary. “The touchstone of decision in all these cases has been the need to exercise the jurisdiction then and there and for a transitory period. Whether constitutional limitations on the exercise of judicial power have been held inapplicable has depended on the particular local setting, the practical necessities, and the possible alternatives.” Id., at 547-548. Thus “the requirements of Art. Ill, which are applicable where laws of national applicability and affairs of national concern are at stake, must in proper circumstances give way to accommodate plenary grants of power to Congress to legislate with respect to specialized areas having particularized needs and warranting distinctive treatment.” Palmore v. United States, 411 U. S. 389, 407-408 (1973) (emphasis added). Congress has never attempted to displace Art. Ill courts when laws of nationwide applicability were involved, and nothing in our prior decisions suggests that it may constitutionally do so.6 6 The Government contends that since Congress is constitutionally entitled not to create federal courts, see Palmore v. United States, 411 U. S. 389 (1973); Sheldon v. Sill, 8 How. 441 (1850), and may instead entrust the resolution of federal questions to state courts, it follows that Congress also has the authority to create federal tribunals that do not carry the safeguards of Art. III. Such a view would, of course, render the requirements of Art. Ill practically meaningless by permitting Congress to vest the judicial power in whatever tribunal it chose. The argument is unpersuasive for two additional reasons. First, it represents a revival of the now discredited idea that Congress may attach whatever conditions it wishes to entities or programs that it is free not to create. Cf. Vitek v. Jones, 445 U. S., at 487-494. But there is no logical infirmity in concluding that although Congress is free not to create 706 447 U. S. OCTOBER TERM, 1979 Marshall, J., dissenting Our decision in United States ex rel. Toth v. Quarles, 350 U. S. 11 (1955), confirms that there are severe limits on Congress’ authority to displace Art. Ill courts. In that case the Government attempted to try a civilian ex-serviceman in a military tribunal. The Court agreed that Congress’ authority under Art. I, § 8, cl. 14, “To make Rules for the Government and Regulation of the land and naval Forces” permitted it to subject persons in the Armed Services to trial by court-martial. Nonetheless, it concluded that the clause shou’d not be construed to encompass civilian ex-servicemen. Such a construction, the Court held, “necessarily encroaches on the jurisdiction of federal courts set up under Article III of the Constitution.” Id., at 15. The Court emphasized that “[t]he provisions of Article III were designed to give judges maximum freedom from possible coercion or influence by the executive or legislative branches of the Government.” Id., at 16. Accordingly, Congress’ power to circumvent criminal trials in Art. Ill tribunals would not “be inferred through the Necessary and Proper Clause,” but would instead call “for limitation to The least possible power adequate to the end federal courts, if it chooses to do so, those courts must be as described in Art. Ill, subject to limited exceptions. Second, the argument misconceives the intentions that underlay the constitutional compromise embodied in Art. III. The Framers were especially concerned about the possibility of an alliance between federal judges and the Congress. For this reason, they ensured that federal judges would be isolated from the legislative branch of the Federal Government and protected from congressional reprisal. State courts were perceived as necessarily independent from the Federal Government and as a relatively reliable buffer against its excesses. No such assurance would be possible with respect to federal judges unprotected by the provisions of Art. III. It follows from those assumptions that under Art. Ill, Congress is generally prohibited from creating specially accountable federal tribunals but at the same time is permitted to entrust issues of federal law to state tribunals. See generally Tushnet, Invitation to a Wedding: Some Thoughts on Article III and a Problem of Statutory Interpretation, 60 Iowa L. Rev. 937, 944-945 (1975); cf. R. Berger, Congress v. The Supreme Court 8, 117-119 (1969). UNITED STATES v. RADDATZ 707 667 Marshall, J., dissenting proposed/ ” id., at 22-23 (emphasis omitted), quoting Anderson v. Dunn, 6 Wheat. 204, 231 (1821). The Quarles decision has been applied in other contexts to limit sharply Congress’ power to try civilians in Art. I courts. See Reid n. Covert, 354 U. S. 1 (1957) (civilian dependents living with servicemen on military base may not be tried in Art. I court); O’Callahan v. Parker, 395 U. S. 258 (1969) (crimes that are not service connected may not be tried in Art. I court). In my view, Quarles and its progeny foreclose the conclusion that Congress may use its Art. I powers to create legislative tribunals in order to divest Art. Ill courts of their authority to conduct federal criminal proceedings. B As the Court observes, see ante, at 681, Congress has not in this case attempted to substitute magistrates for Art. Ill judges on a wholesale basis. The district court retains authority over questions of law. Under the Court’s construction, it is also compelled to make a de novo determination of the facts, to the extent that that task can be performed on the basis of an evidentiary record. Reasoning by analogy from the context of masters and commissioners, the Court suggests that the retained power of the district court is sufficient to satisfy the requirements of Art. III. As I have explained, however, when a district judge does not hear the witnesses, it is the magistrate who makes the final determination of factual questions in any case involving issues of credibility that cannot be resolved on the basis of the record. The Court’s conclusion must therefore rest on an understanding that the requirements of Art. Ill are fully applicable when the issues are ones of law, but not when the issues are factual in nature. See ante, at 683. I am unable to discern any such distinction in Art. Ill or in any other provision of the Constitution. As the Court rightly observes, the primary case relevant to the question is Crowell v. Benson, 285 U. S. 22 (1932). There the Court upheld the constitutionality of an administrative 708 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. scheme by which deputy commissioners adjudicated compensation claims under the Longshoremen’s and Harbor Workers’ Compensation Act, but at the same time ruled that the federal district court must find de novo whether a master-servant relationship existed and whether the injury occurred on the navigable waters of the United States. Mr. Chief Justice Hughes, speaking for the Court, did rely on the “historic practice” of permitting the courts to be assisted in factual findings by masters and commissioners, id., at 51. But the Court’s opinion in Crowell provides no authority for the statutory scheme upheld today. The Court in Crowell expressly rejected the proposition that Congress had authority to displace the federal judiciary by removing all questions of fact from Art. Ill courts. “In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.” Id., at 60. The Court’s reasoning on this point bears quotation in full: “[T]he question is not the ordinary one as to the propriety of provision for administrative determinations. . . . It is rather a question of the appropriate maintenance of the Federal judicial power in requiring the observance of constitutional restrictions. It is the question whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency ... for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend. The recognition of the utility and convenience of administrative agencies for the investigation and finding of facts within their proper province, and the support of their authorized action, does not require the conclusion that there is no limitation of their use, and that the Congress could com- UNITED STATES v. RADDATZ 709 667 Marshall, J., dissenting pletely oust the courts of all determinations of fact by vesting the authority to make them with finality in its own instrumentalities or in the Executive Department. That would be to sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our system, wherever fundamental rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law.” Id., at 56-57. The Court relied on Ng Fung Hon. White, 259 U. S. 276 (1922), where it held that persons involved in deportation proceedings and claiming to be citizens of the United States are constitutionally entitled to a de novo judicial determination of their factual claims. “ [W]hen fundamental rights are in question, this Court has repeatedly emphasized ‘the difference in security of judicial over administrative action.’ ” Crowell v. Benson, supra, at 61, quoting Ng Fung Ho v. White, supra, at 285. In this respect, the Court found that its earlier discussion of the historical use of masters and commissioners was irrelevant, for even as to factual issues “their reports are essentially advisory, a distinction of controlling importance when questions of a fundamental character are in issue.” Crowell v. Benson, supra, at 61. In his celebrated dissent, Mr. Justice Brandeis rejected the view that the particular factual issues in Crowell were ones that must constitutionally be resolved de novo in an Art. Ill court. He did agree, however, that there are some issues of fact which must be found independently in an Art. Ill court. “[U]nder certain circumstances,” he stated, “the constitutional requirement of due process is a requirement of judicial process.” 285 U. S., at 87. As he explained in a subsequent opinion: “A citizen who claims that his liberty is being infringed is entitled, upon habeas corpus, to the opportunity of a judicial determination of the facts. And, so highly is this liberty prized, that the opportunity must be accorded to any 710 447 U. S. OCTOBER TERM, 1979 Marshall, J., dissenting resident of the United States who claims to be a citizen.” Si. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 77 (1936) (concurring opinion) (emphasis added).7 It may fairly be said that in certain respects at least, Mr. Justice Brandeis’ views in Crowell and St. Joseph Stock Yards have become the law. It can no longer be claimed that a person is entitled under Art. Ill or the Due Process Clause to a de novo judicial determination of the facts in every case that implicates constitutional rights. Yet neither Crowell nor Ng Fung Ho has been overruled, and the Court has cited both with approval in recent years. See Agosto v. INS, 436 U. S. 748, 753 (1978); Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 450, n. 7 (1977). Cf. Hampton v. Mow Sun Wong, 426 U. S. 88, 118 (1976) (Rehnquist, J., dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 102, and n. 20 (1973) (Brennan, J., dissenting).8 7 Federal courts on habeas corpus are not obliged to examine the facts independently in every case. Under Townsend n. Sain, 372 U. S. 293 (1963), deference to the state-court findings is permitted in the absence of any allegation of procedural irregularity. As the holdings of Ng Fung Ho and Crowell make clear, however, this deference is based on the special role played by state courts in the federal system, and not on any rule allowing Congress to create non-Art. Ill tribunals to make findings of fact that are binding on Art. Ill courts. See n. 6, supra. 8 In St. Joseph Stock Yards Co. n. United States, 298 U. S. 38,53 (1936), the Court indicated that, in the context of a claim of unconstitutional confiscation, the requirement of independent judicial judgment would be satisfied even if the court gives uthe weight which may properly attach to findings [by an administrative body] upon hearing and evidence.” In subsequent cases the Court has made clear that the scope of judicial review of confiscation claims may be limited to the substantial-evidence test. See FPC v. National Gas Pipeline Co., 315 U. S. 575 (1942); FPC v. Hope Natural Gas Co., 320 U. S. 591 (1944); Alabama Public Service Comm’n v. Southern R. Co., 341 U. S. 341, 348 (1951); American Trucking Assns. v. United States, 344 U. S. 298 (1953). See generally 4 K. Davis, Administrative Law Treatise § 29.09 (1958). But the Court errs if it reads’ St. Joseph Stock Yards to establish the far more radical proposition that all questions of fact may be transferred to and decided by non-Art. Ill UNITED STATES v. RADDATZ 711 667 Marshall, J., dissenting There is no basis, then, for a conclusion that there are no circumstances in which a person is entitled to a determination of the facts by an Art. Ill court. In my view, both Mr. Chief Justice Hughes and Mr. Justice Brandeis were correct on one of the few propositions on which they were in agreement in Crowell: that there remain some cases in which an opportunity for an independent judicial determination of the facts is constitutionally required. The Court’s conclusion to the contrary appears premised on its perception that, under the Act, effective control of suppression motions remains in the hands of district judges, and the submission of “recommendations” by magistrates is a relatively mechanical task for which the special characteristics of an Art. Ill judge are unnecessary. But in view of the likely finality of the magistrate’s decision and the importance of fact-finding to the process of legal decision, that view is unsupportable. As I have explained, in cases like this one the magistrate’s decision is effectively unreviewable if the district judge does not hear the witnesses. The fact that the judge is permitted to hear the witnesses is an irrelevance in any case in which he does not do so. Moreover, the Court has emphasized that the vindication of constitutional rights more frequently depends on findings of fact than abstract principles of law. See Speiser v. Randall, 357 U. S., at 520. And it cannot seriously be suggested that the majoritarian pressures the Framers sought to avoid by the tenure and salary protections of Art. Ill become inapplicable when the relevant question is one of fact. Indeed, it is precisely in resolving constitutional issues that are dependent on questions of credibility as between a government official and one accused of crime that a detached and independent arbiter may be most indispensable. A contrary conclusion would mean that the federal tribunals. See ante, at 683. Our continued adherence to Ng Fung Ho v. White, 259 U. S. 276 (1922), demonstrates that such a reading would be unwarranted. 712 OCTOBER TERM, 1979 Marshall, J., dissenting 447 U. S. protections of Art. Ill, viewed as so fundamental by the Framers of the Constitution, were intended to apply solely to appellate judges. C Since I reject the suggestion that every issue of fact may be removed from Art. Ill courts and submitted instead to federal magistrates, the question remains whether a suppression hearing is one of the admittedly few contexts in which independent factfinding by an Art. Ill judge is constitutionally required. I believe that it is. As noted above, Mr. Justice Brandeis would have restricted the requirement of independent judicial factfinding to situations in which personal liberty was at stake, such as habeas corpus and deportation. I agree that for both criminal cases and deportation, a citizen is constitutionally entitled to an independent determination of the case-dispositive facts by an Art. Ill court. My conclusion is based on two factors, the nature of the issue and the individual interest in a determination by an Art. Ill judge.9 Resolution of the issues involved in criminal cases and deportation proceedings does not require specialization or expertise in an area in which a federal judge is untrained. Moreover, the Framers adopted Art. Ill precisely in order to protect individual interests of the sort involved here.10 In my view, the independence provided by 9 See L. Jaffe, Judicial Control of Administrative Action 640-648 (1965). In my view, this standard is far preferable to a test that would draw a rigid line between issues of law and issues of fact, and hold that, with the exception of the criminal trial, the latter need never be resolved independently by an Art. Ill court. No such line appears in the Constitution, and it is contradicted by the rationale that underlies the tenure and salary protections of Art. III. 10 Alexander Hamilton justified the tenure and salary protections of Art. Ill in this fashion: “That inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by UNITED STATES v. RADDATZ 713 667 Marshall, J., dissenting Art. Ill is hardly dispensable in finding facts underlying a motion to suppress evidence on Fifth Amendment grounds. Nor, for these purposes, is it possible to distinguish between suppression motions and the trial itself; as experience shows, the primary issues in a criminal case often deal with whether evidence should be excluded because illegally obtained. I am therefore brought to the conclusion that the Constitution entitled respondent to an independent judicial determination of the facts on which his motion to suppress was based.11 Ill The Court’s holding today is undoubtedly influenced by its sympathy with Congress’ perception that the assistance of federal magistrates was a necessary measure to ensure that the already severe pressures on the federal district courts do not become overwhelming. I too sympathize with that concern. And I applaud the conspicuous and conscientious legislative effort to conform to the dictates of the Constitution by ensuring maximum control of suppression motions by the federal district courts. I agree with my Brother Stewart that § 636 a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. . . . “Next to permanency in office, nothing can contribute more to the independence of the judges, than a fixed provision for their support. ... In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.” The Federalist No. 78, p. 489, and No. 79, p. 491 (Gideon ed. 1818) (emphasis in original). 11 Actual rehearing of the witnesses, of course, would be required only in exceptional cases. In most circumstances the requirement of independent judicial factfinding would be satisfied on the basis of record review. It is only when that task cannot fairly be performed in the absence of the witnesses that a de novo hearing should\be required. And as I have indicated, see supra, at 701-702, if the district judge offered a statement of reasons explaining why it was not necessary for him to hear the witnesses, an abuse of discretion would be found quite rarely. See n. 5, supra; ante, at 693-694 (Stewart, J., dissenting). 714 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. (b)(1) should be construed to avoid the constitutional objections and to require the district court to call witnesses when a fair resolution of the facts is not otherwise possible. The Court’s unwillingness to construe the relevant provision in this fashion may be attributable to an understandable desire to minimize existing burdens on federal district judges, burdens that may seem especially unnecessary with respect to the gathering and evaluation of the facts. But the replacement of Art. Ill judges with magistrates, even if the replacement extends only to the finding of facts, erodes principles that strike near the heart of the constitutional order. In such contexts considerations of administrative cost are least forceful, and the Court must be most wary lest principles that were meant to endure be sacrificed to expediency. I would affirm the decision of the Court of Appeals. SUN SHIP, INC. v. PENNSYLVANIA 715 Syllabus SUN SHIP, INC. v. PENNSYLVANIA et al. APPEAL FROM THE COMMONWEALTH COURT OF PENNSYLVANIA No. 79-343. Argued April 14, 1980—Decided June 23, 1980 Held: A State may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act (Act), as amended in 1972. Pp. 717-726. (a) Under the law governing jurisdiction over marine-related injuries before 1972, nonlocal maritime injuries fell under the Act, “maritime but local” injuries “upon the navigable waters of the United States,” 33 U. S. C. § 903 (a), could be compensated either under the Act or under state law, and injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction—were remediable only under state law. Cf. Davis v. Department of Labor, 317 U. S. 249; Calbeck n. Travelers Insurance Co., 370 U. S. 114; Nacirema Operating Co. v. Johnson, 396 U. S. 212. Pp. 717-719. (b) The extension of federal jurisdiction landward beyond the shoreline of the navigable waters of the United States under the 1972 amendments of the Act supplements, rather than supplants, state compensation law. The language of the 1972 amendments cannot fairly be understood as pre-empting state workers’ remedies from the field of the Act, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis, supra, and Calbeck, supra. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Act. Pp. 719-722. (c) The disparities which Congress had in view in amending the Act lay primarily in the paucity of relief under state compensation laws, and concurrent jurisdiction for state and federal compensation laws is not inconsistent with the amendments’ policy of raising awards to a federal minimum. Even though, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers’ injuries than under an exclusively federal compensation system, there is no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits, the quid pro quo to employers for the 1972 landward extension of the Act being simply the abolition of the longshoremen’s unseaworthiness remedy. Nor does the bare fact that the federal and state com- 716 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. pensation systems are different give rise to a conflict that, from the employer’s standpoint, necessitates exclusivity for each system within a separate sphere, since, even were the Act exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the Act’s scope. Pp. 723-726. 41 Pa. Commw. 302, 398 A. 2d 1111, affirmed. Brennan, J., delivered the opinion for a unanimous Court. Jeffery C. Hayes argued the cause for appellant. With him on the briefs was Thomas E. Zemaitis. Joseph Lurie argued the cause and filed a brief for appellees.* Mr. Justice Brennan delivered the opinion of the Court. The single question presented by these consolidated cases is whether a State may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), as amended in 1972. 33 U. S. C. §§ 901-950. We hold that it may. I The individual appellees are five employees of appellant Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River, a navigable water of the United States in Pennsylvania. Each employee was injured after the effective date of the 1972 amendments to the LHWCA while involved in shipbuilding or ship repair activities. Although the LHWCA applied to the injuries sustained, each appellee filed claims for benefits under the Pennsylvania Workmen’s Compensation Act with state authorities. Appellant contended that the federal compensation statute was the employees’ exclusive remedy. In upholding awards to *Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Deputy Solicitor General Geller, Laurie M. Streeter, and Joshua T. Gillelan II for the United States; and by Patrick N. McTeague for Local No. 6, Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO. SUN SHIP, INC. v. PENNSYLVANIA 717 715 Opinion of the Court each appellee,1 the Pennsylvania Workmen’s Compensation Appeal Board ruled that the LHWCA did not pre-empt state compensation laws. The Commonwealth Court affirmed, and the Supreme Court of Pennsylvania denied petitions for allowance of appeal. We noted probable jurisdiction, 444 U. S. 1011 (1980), and affirm. II The evolution of the law of compensation for workers injured in maritime precincts is familiar. In 1917, Southern Pacific Co. v. Jensen, 244 U. S. 205, declared that States were constitutionally barred from applying their compensation systems to maritime injuries, and thus interfering with the overriding federal policy of a uniform maritime law. Subsequent decisions invalidated congressional efforts to delegate compensatory authority to the States within this national maritime sphere. Knickerbocker Ice Co. n. Stewart, 253 U. S. 149 (1920); Washington v. W. C. Dawson & Co., 264 U. S. 219 (1924). At the same time, the Court began to narrow the Jensen doctrine by identifying circumstances in which the subject of litigation might be maritime yet “local in character,” and thus amenable to relief under state law. Western Fuel Co. v. Garcia, 257 U. S. 233 (1921); Grant Smith-Porter Ship Co. v. Rohde, 257 U. S. 469 (1922). And, in 1927, Congress was finally successful in extending a measure of protection to marine workers excluded by Jensen by enacting a federal compensation law—the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. That statute provided, in pertinent part, that “[c]ompensa-tion shall be payable [for an injury] . . . occurring upon the navigable waters of the United States ... if recovery . . . 1 Initially referees heard each of the claims. Four referees granted compensation, rejecting appellant’s pre-emption argument. The referee in appellee Fields’ case determined that a compensable injury had been inflicted, but agreed with appellant’s jurisdictional contention, and dismissed the case. 718 OCTOBER TERM, 1979 Opinion of the Court 447U.S. through workmen’s compensation proceedings may not validly be provided by State law.” 44 Stat. 1426. Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim ; the price of error was unnecessary expense and possible foreclosure from the proper forum by statute of limitations. Davis v. Department of Labor, 317 U. S. 249, 254 (1942). After a decade and a half during which there had not been formulated “any guiding, definite rule to determine the extent of state power in advance of litigation,” id., at 253, the Court determined that the border between federal and state compensation schemes was less a line than a “twilight zone,” in which “employees must have their rights determined case by case . . . ,” id., at 256. Within this zone, Davis effectively established a regime of concurrent jurisdiction. Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962), further overlapped federal and state-law coverage for marine workers. Calbeck held that the LHWCA comprehended “all injuries sustained by employees on navigable waters,” id., at 124, without regard to whether the locus of an event was “maritime but local,” and hence within the scope of state compensation provisions. We interpreted the statutory phrase “if recovery . . . may not validly be provided by State law” to mean that the LHWCA would “reacfh] all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy ... [,] whether or not a particular one was also within the constitutional reach of a state workmen’s compensation law.” Id., at 126-127. Yet having extended the LHWCA into the “maritime but local” zone, Calbeck did not overturn Davis by treating the SUN SHIP, INC. v. PENNSYLVANIA 719 715 Opinion of the Court federal statute as exclusive. To the contrary, Calbeck relied upon Davis, and discussed at length its proposition that an injury within the “maritime but local” sphere might be compensated under either state or federal law. 370 U. S., at 128-129. So, too, Calbeck’s explanation of Avondale Marine Ways, Inc. v. Henderson, 346 U. S. 366 (1953), indicated that although an injury might be compensable under the Longshoremen’s Act, “there is little doubt that a state compensation act could validly have been applied to it.” 370 U. S., at 129. Even more significantly, Calbeck’s ruling that one of the employees in a consolidated case should not be held to have elected to pursue state remedies was necessarily premised upon the view that state relief was concurrently available. Id., at 131-132; see also Nadrema Co. v. Johnson, 396 U. S. 212, 220-221 (1969); Nations v. Morris, 483 F. 2d 577 (CA5 1973) (Brown, C. J.). Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. “Maritime but local” injuries “upon the navigable waters of the United States,” 33 U. S. C. § 903 (a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters—albeit within the range of federal admiralty jurisdiction—were remediable only under state law. Nadrema Co. v. Johnson, supra. Ill In 1972, Congress superseded Nadrema Co. v. Johnson by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States. Pub. L. 92-576, 86 Stat. 1251, amending 33 U. S. C. § 903 (a). In so doing, the Longshoremen’s Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law. Absent any contradicting signal from Congress, the principles of Davis v. Department of Labor, supra, and of Calbeck 720 OCTOBER TERM, 1979 Opinion of the Court 447U.S. v. Travelers Insurance Co., supra, direct the conclusion that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen’s Act ran concurrently with state remedies in the “maritime but local” zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Compare State Industrial Comm’n v. Nordenholt Corp., 259 U. S. 263 (1922), with Southern Pacific Co. v. Jensen, 244 U. S. 205 (1917). Furthermore, the “jurisdictional dilemma,” Davis, supra, at 255, that results when employees must claim relief under one of two exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is fixed upon land, as it is when the line is drawn between two maritime spheres. To read the 1972 amendments as compelling laborers to seek relief under two mutually exclusive remedial systems wou1d lead to the prejudicial consequences which we described in Davis as “defeat [ing] the purpose of the federal act, which seeks to give ‘to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation,’ and the state Acts . . . which ai[m] at ‘sure and certain relief for workmen.’ ” 317 U. S., at 254. See Calbeck, supra, at 126. The language of the 1972 amendments cannot fairly be understood as pre-empting state workers’ remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis and Calbeck. Appellant focuses our attention upon the deletion from amended § 903 (a) of the phrase: “[i]f recovery . . . through workmen’s compensation proceedings may not validly be provided by State law.” But, if anything, that change reinforces our previous interpretation of that sec- SUN SHIP, INC. v. PENNSYLVANIA 721 715 Opinion of the Court tion as contemplating concurrent jurisdiction. Calbeck, 370 U. S., at 126. For it was that reference to state law which provided the strongest (although ultimately unsuccessful) argument for reading the pre-1972 § 903 (a) as an exclusive jurisdictional provision. Calbeck, supra, at 132 (Stewart, J., dissenting). Whether Congress accepted Calbeck’s view that the state-law clause was consonant with concurrent jurisdiction, or the dissenters’ construction of the clause as inconsistent with concurrent jurisdiction, the deletion of that language in 1972—if it indicates anything—may logically only imply acquiescence in Calbeck’s conclusion that the LHWCA operates within the same ambit as state workers’ remedies.2 It would be a tour de force of statutory misinterpretation to treat the removal of phrasing that arguably establishes exclusive jurisdiction as manifesting the intent to command such exclusivity. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen’s Act. Appellant can draw little support from general expressions of intent to alleviate unjust disparities in recovery conditioned upon the location of marine laborers at the time of an accident; as Part IV, infra, demonstrates, concurrency of jurisdiction in no way undercuts that commendable policy. And appellant is not much assisted by fixing upon the sentence in the bill Reports that declares: “It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a 2 If Congress joined in Calbeck’s understanding that the phrase underscored the LHWCA’s application where state-law compensability had been drawn into question by Jensen, then the striking of the language may be explained on the ground of its superfluity once Congress had pushed the federal Act landward beyond the Jensen line. If the Court took the dissenters’ position that the state-law clause imposed jurisdictional exclusivity, then its deletion indicates repeal of any such exclusivity. Finally, Congress may simply have endeavored to reaffirm the correctness of the Calbeck result by removing possibly contradictory language. 722 OCTOBER TERM, 1979 Opinion of the Court 447U.S. substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water’s edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land.” S. Rep. No. 92-1125, p. 13 (1972); H. R. Rep. No. 92-1441, p. 10 (1972) (emphasis added). That statement likely means only that state laws should not be permitted to apply exclusively to injuries occurring upon land; the “substantial disparity in benefits” that troubled Congress is eliminated once federal law provides a concurrent or supplementary route to compensation. And, in any event, as Professors Gilmore and Black have noted, “the statement does not appear to be entitled to much weight,” since the “part of the Committee Report which is devoted to the shoreward extension of LH[W]CA coverage does not so much as mention the pre-1972 case law on ‘maritime but local’ and the ‘twilight zone.’ . . .” G. Gilmore & C. Black, The Law of Admiralty 425 (2d ed. 1975) (hereafter Gilmore & Black).3 In particular, there is no intimation of intent to overrule Davis and Calbeck—a significant omission in light of the care which the Reports elsewhere take in identifying the Supreme Court cases to be overturned by the abolition of longshoremen’s actions for unseaworthiness. See S. Rep. No. 92-1125, supra, at 8-12; H. R. Rep. No. 92-1441, supra, at 4-8; Gilmore & Black 425. We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine.4 3 “It may be that the writer of the Report mistakenly assumed that the LH[W]CA had always provided the exclusive compensation remedy for injuries which occurred on navigable waters and consequently assumed that it would also be exclusive with respect to the land injuries newly covered by the amendments.” Gilmore & Black 425. 4 Appellant also argues that a mandate for exclusive jurisdiction may be SUN SHIP, INC. v. PENNSYLVANIA 723 715 Opinion of the Court IV Appellant vigorously contends, nevertheless, that jurisdictional exclusivity is—in “fact” or in “law”—implied in the LHWCA. Pointing to declarations of congressional policy to eliminate disparities in compensation to marine workers depending on whether they were injured on land or over water, S. Rep. No. 92-1125, supra, at 12-13; H. R. Rep. No. 92-1441, supra, at 10-11, appellant urges that concurrent remedial jurisdiction on land would defeat the uniformity principle underlying the statute. As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws.5 The thrust of the amendments was to “upgrade the benefits.” S. Rep. No. 92-1125, supra, at 1; see Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 261-262 (1977). Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal discerned in 33 U. S. C. §905 (a), which provides in pertinent part that “[t]he liability of an employer . . . shall be exclusive and in place of all other liability of such employer to the employee. . . .” Since that provision predates the 1972 amendments, however, appellant’s interpretation would also discredit our previous decisions in Davis v. Department of Labor, 317 U. S. 249 (1942), and Calbeck v. Travelers Insurance Co., 370 U. S. 114 (1962). In fact, Calbeck upheld an award under the LHWCA against which had been credited payments made under the aegis of a state compensation statute; we noted that 33 U. S. C. §905 was “not involved in this case,” 370 U. S., at 132, n. 16. Thus, we did not construe § 905 (a) to exclude remedies offered by other jurisdictions. See Gilmore & Black 432-433, and n. 335d; cf. Industrial Common v. McCartin, 330 U. S. 622 (1947). The 1972 amendments signify no rejection of this interpretation. 5 “To make matters worse, most State Workmen’s Compensation laws provide benefits which are inadequate; even the better State laws generally come nowhere close to meeting the National Commission on State Workmen’s Compensation Laws recommended standard of a maximum limit on benefits. . . S. Rep. No. 92-1125, p. 12 (1972); H. R. Rep. No. 92-1441, p. 10 (1972). 724 OCTOBER TERM, 1979 Opinion of the Court 447U.S. minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the Longshoremen’s Act, if the latter applies.6 To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers’ injuries than under an exclusively federal compensation system.7 But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen’s unseaworthiness remedy. See S. Rep. No. 92-1125, supra, at 4—5; H. R. Rep. No. 92-1441, supra, at 1; Northeast Marine Terminal Co. v. Caputo, supra, at 261-262. Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the 6 Most often, state workmen’s compensation laws will not be treated as making awards thereunder final or conclusive. See Calbeck v. Travelers Insurance Co., supra, at 131-132; Industrial Comm’n v. McCartin, supra; Gilmore & Black 431-433; 4 A. Larson, Law of Workmen’s Compensation §§85.20, 89.53 (a) and (b) (1979); Larson, The Conflict of Laws Problem Between the Longshoremen’s Act and State Workmen’s Compensation Acts, 45 S. Cal. L. Rev. 699, 729-730 (1972). Admittedly, if a particular state compensation law provision does indisputably declare its awards final, a conflict with the LHWCA may possibly arise where a claimant seeks inferior state benefits in the first instance. But the consequences to the claimant of this error would be less drastic than those of a mistake under the rule appellant contemplates—under which a misstep could result in no benefits. At any rate, although the question is not directly before us, we observe that if federal preclusion ever need be implied to cope with this remote contingency, a less disruptive approach would be to pre-empt the state compensation exclusivity clause, rather than to pre-empt the entire state compensation statute as appellant suggests. 7 But this situation will be exceedingly rare. See 4 A. Larson, Law of Workmen’s Compensation, supra, § 89.27, at 16-180. SUN SHIP, INC. v. PENNSYLVANIA 725 715 Opinion of the Court unseaworthiness action, and do not mention pre-emption of state remedies. See S. Rep. No. 92-1125, supra, at 4-5; H. R. Rep. No. 92-1441, supra, at 1. Finally, we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer’s standpoint, necessitates exclusivity for each compensation system within a separate sphere. Mandating exclusive jurisdiction will not relieve employers of their distinct obligations under state and federal compensation law. The line that circumscribes the jurisdictional compass of the LHWCA—a compound of “status” and “situs”—is no less vague than its counterpart in the pre-“twilight zone” Jensen era. See generally P. C. Pfeiffer Co. v. Ford, 444 U. S. 69 (1980); Northeast Marine Terminal Co. N. Caputo, supra; Gilmore & Black 424, 428-430; 4 A. Larson, Law of Workmen’s Compensation § 89.70, p. 16-283 (1979). Thus, even were the LHWCA exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond the scope of the LHWCA.8 Our observation about exclusive jurisdiction in Davis v. Department of Labor is apt whether jurisdictional barriers are erected on land or at the water’s edge: “The horns of the jurisdictional dilemma press as sharply on employers as on employees.” 317 U. S., at 255. Of one thing we may be certain. The exclusivity rule which appellant urges upon us would thrust employees into the same jurisdictional peril from which they were rescued by Davis and Calbeck v. Travelers Insurance Co. See Gilmore & Black 425.9 The legislative policy animating the LHWCA’s land- 8 See also Larson, 45 S. Cal. L. Rev., supra, at 736-737. Of course, there is no danger of double recovery under concurrent jurisdiction since employers’ awards under one compensation scheme would be credited against any recovery under the second scheme. See, e. g., Calbeck v. Travelers Insurance Co., supra, at 131. 9 “Indeed a theory of concurrent jurisdiction . . . seems to be the only sensible way of dealing with state and federal statutes which meet at some vaguely defined line.” Gilmore & Black 425. 726 OCTOBER TERM, 1979 447 U.S. Opinion of the Court ward shift was remedial; the amendments’ framers acted out of solicitude for the workers. See P. C. Pfeiffer Co., supra, at 74-75; Northeast Marine Terminal Co., 432 U. S., at 268. To adopt appellant’s position, then, would blunt the thrust of the 1972 amendments, and frustrate Congress’ intent to aid injured maritime laborers. We decline to do so in the name of “uniformity.” Accordingly, we affirm. It is so ordered. UNITED STATES v. PAYNER 727 Syllabus UNITED STATES v. PAYNER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 78-1729. Argued February 20, 1980—Decided June 23, 1980 At respondent’s nonjury trial for falsifying a federal income tax return by denying that he maintained a foreign bank account, respondent moved to suppress a loan guarantee agreement in which he pledged the funds in the bank account as security. The District Court found respondent guilty on the basis of all the evidence, but then (1) found that the Government had discovered the guarantee agreement as the result of a flagrantly illegal search of a bank officer’s briefcase, (2) suppressed all the Government’s evidence except for respondent’s tax return and related testimony, and (3) set aside the conviction for failure to demonstrate knowing falsification. The court held, inter alia,, that, although the illegal search did not violate respondent’s Fourth Amendment rights, the inherent supervisory power of the federal courts required it to exclude evidence tainted by the illegal search. The Court of Appeals affirmed. Held: 1. Respondent lacks standing under the Fourth Amendment to suppress the documents illegally seized from the bank officer. A defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party, and respondent possessed no privacy interest in the documents seized in this case. Cf. Hokas n. Illinois, 439 U. S. 128, United States v. Miller, 425 U. S. 435. Pp. 731—733. 2. The supervisory power of the federal courts does not authorize a court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Under the Fourth Amendment, the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. And the values assigned to the competing interests of deterring illegal searches and of furnishing the trier of fact with all relevant evidence do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. Such power does not extend so far as to confer on the judiciary discretionary power to dis 728 OCTOBER TERM, 1979 Opinion of the Court 447U.S. regard the considered limitations of the law it is charged with enforcing. Pp. 733-737. 590 F. 2d 206, reversed. Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Rehnquist, and Stevens, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 737. Marshall, J., filed a dissenting opinion, in which Brennan and Blackmun, JJ., joined, post, p. 738. Solicitor General McCree argued the cause for the United States. With him on the brief were Assistant Attorney General Ferguson, Robert E. Lindsay, and James A. Bruton. Bennet Kleinman argued the cause for respondent. With him on the brief were Bernard J. Stuplinski and Michael H. Diamant. Mr. Justice Powell delivered the opinion of the Court. The question is whether the District Court properly suppressed the fruits of an unlawful search that did not invade the respondent’s Fourth Amendment rights. I Respondent Jack Payner was indicted in September 1976 on a charge of falsifying his 1972 federal income tax return in violation of 18 U. S. C. § 1001.1 The indictment alleged that respondent denied maintaining a foreign bank account at a time when he knew that he had such an account at the Castle Bank and Trust Company of Nassau, Bahama Islands. The Government’s case rested heavily on a loan guarantee agreement dated April 28, 1972, in which respondent pledged 1 Title 18 U. S. C. § 1001 provides in relevant part: “Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . . makes any false, fictitious or fraudulent statements or representations, . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.” UNITED STATES v. PAYNER 729 727 Opinion of the Court the funds in his Castle Bank account as security for a $100,000 loan. Respondent waived his right to jury trial and moved to suppress the guarantee agreement. With the consent of the parties, the United States District Court for the Northern District of Ohio took evidence on the motion at a hearing consolidated with the trial on the merits. The court found respondent guilty as charged on the basis of all the evidence. The court also found, however, that the Government discovered the guarantee agreement by exploiting a flagrantly illegal search that occurred on January 15, 1973. The court therefore suppressed “all evidence introduced in the case by the Government with the exception of Jack Payner’s 1972 tax return . . . and the related testimony.” 434 F. Supp. 113, 136 (1977). As the tax return alone was insufficient to demonstrate knowing falsification, the District Court set aside respondent’s conviction.2 The events leading up to the 1973 search are not in dispute. In 1965, the Internal Revenue Service launched an investigation into the financial activities of American citizens in the Bahamas. The project, known as “Operation Trade Winds,” was headquartered in Jacksonville, Fla. Suspicion focused on the Castle Bank in 1972, when investigators learned that a suspected narcotics trafficker had an account there. Special Agent Richard Jaffe of the Jacksonville office asked Norman Casper, a private investigator and occasional informant, to learn what he could about the Castle Bank and its depositors. To that end, Casper cultivated his friendship with Castle 2 The unusual sequence of rulings was a byproduct of the consolidated hearing conducted by the District Court. The court initially failed to enter judgment on the merits. At the close of the evidence, it simply granted respondent’s motion to suppress. After the Court of Appeals for the Sixth Circuit dismissed the Government’s appeal for want of jurisdiction, the District Court vacated the order granting the motion to suppress and entered a verdict of guilty. The court then reinstated its suppression order and set aside the verdict. Respondent does not challenge these procedures. 730 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Bank vice president Michael Wolstencroft. Casper introduced Wolstencroft to Sybol Kennedy, a private investigator and former employee. When Casper discovered that the banker intended to spend a few days in Miami in January 1973, he devised a scheme to gain access to the bank records he knew Wolstencroft would be carrying in his briefcase. Agent Jaffe approved the basic outline of the plan. Wolstencroft arrived in Miami on January 15 and went directly to Kennedy’s apartment. At about 7:30 p. m., the two left for dinner at a Key Biscayne restaurant. Shortly thereafter, Casper entered the apartment using a key supplied by Kennedy. He removed the briefcase and delivered it to Jaffe. While the agent supervised the copying of approximately 400 documents taken from the briefcase, a “lookout” observed Kennedy and Wolstencroft at dinner. The observer notified Casper when the pair left the restaurant, and the briefcase was replaced. The documents photographed that evening included papers evidencing a close working relationship between the Castle Bank and the Bank of Perrine, Fla. Subpoenas issued to the Bank of Perrine ultimately uncovered the loan guarantee agreement at issue in this case. The District Court found that the United States, acting through Jaffe, “knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft’s briefcase....” Id., at 120. According to that court, “the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties. . . .” Id., at 132-133. The District Court also found that the documents seized from Wolstencroft provided the leads that ultimately led to the discovery of the critical loan guarantee agreement. Id., at 123.3 Although the search did not impinge upon the 3 The United States argued in the District Court and the Court of Appeals that the guarantee agreement was discovered through an independent investigation untainted by the briefcase search. The Government also UNITED STATES v. PAYNER 731 727 Opinion of the Court respondent’s Fourth Amendment rights, the District Court believed that the Due Process Clause of the Fifth Amendment and the inherent supervisory power of the federal courts required it to exclude evidence tainted by the Government’s “knowing and purposeful bad faith hostility to any person’s fundamental constitutional rights.” Id., at 129; see id., at 133, 134-135. The Court of Appeals for the Sixth Circuit affirmed in a brief order endorsing the District Court’s use of its supervisory power. 590 F. 2d 206 (1979) (per curiam). The Court of Appeals did not decide the due process question. We granted certiorari, 444 U. S. 822 (1979), and we now reverse. II This Court discussed the doctrine of “standing to invoke the [Fourth Amendment] exclusionary rule” in some detail last Term. Rakas v. Illinois, 439 U. S. 128, 138 (1978). We reaffirmed the established rule that a court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant’s own constitutional rights. Id., at 133-140. See, e. g., Brown v. United States, All U. S. 223, 229-230 (1973); Aiderman v. United States, 394 U. S. 165, 171-172 (1969); Simmons v. United States, 390 U. S. 377, 389 (1968). And the defendant’s Fourth Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Rakas v. Illinois, 439 U. S., at 143; id., at 149-152 (Powell, J., concurring); Combs v. United States, 408 U. S. 224, 227 (1972); Mancusi v. DeForte, 392 U. S. 364, 368 (1968). The foregoing authorities establish, as the District Court recognized, that respondent lacks standing under the Fourth denied that its agents willfully encouraged Casper’s illegal behavior. For purposes of this opinion, we need not question the District Court’s contrary findings on either point. 132 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Amendment to suppress the documents illegally seized from Wolstencroft. 434 F. Supp., at 126. The Court of Appeals did not disturb the District Court’s conclusion that “Jack Payner possessed no privacy interest in the Castle Bank documents that were seized from Wolstencroft.” Ibid.; see 590 F. 2d, at 207. Nor do we. United States n. Miller, 425 U. S. 435 (1976), established that a depositor has no expectation of privacy and thus no “protectable Fourth Amendment interest” in copies of checks and deposit slips retained by his bank. Id., at 437; see id., at 442. Nothing in the record supports a contrary conclusion in this case.4 4 We are not persuaded by respondent’s suggestion that the Bahamian law of bank secrecy creates an expectation of privacy not present in United States v. Miller, 425 U. S. 435 (1976). At the outset, it is not clear that secret information regarding this respondent’s account played any role in the investigation that led to the discovery of the critical loan guarantee agreement. See supra, at 730. Even if the causal link were established, however, respondent’s claim lacks merit. He cites a provision, 1909 Bah. Acts, ch. 4, that is no longer in effect. Bank secrecy is now safeguarded by § 19 of the Banks Act, Bah. Islands Rev. Laws, ch. 96 (1965), as added, 1965 Bah. Acts, No. 65, which provides in relevant part: “(1) Except for the purpose of the performance of his duties or the exercise of his functions under this Act or when lawfully required to do so by any court of competent jurisdiction within the Colony or under the provisions of any law, no person shall disclose any information relating to the affairs of . . . the customer of a bank which he has acquired in the performance of his duties or the exercise of his functions under this Act.” See also the Banks and Trust Companies Regulation Act, 1965 Bah. Acts, No. 64, § 10, as amended, 1968 Bah. Acts, No. 34, 1969 Bah. Acts, No. 20, 1971 Bah. Acts, No. 15. The statute is hardly a blanket guarantee of privacy. Its application is limited; it is hedged with exceptions; and we have been directed to no authority construing its terms. Moreover, American depositors know that their own country requires them to report relationships with foreign financial institutions. 31 U. S. C. §1121; 31 CFR §103.24 (1979). See generally California Bankers Assn. n. Shultz, 416 U. S. 21, 59-63, 71-76 (1974). We conclude that respondent lacked a reasonable expectation of privacy in the Castle Bank records that documented his account. UNITED STATES v. PAYNER 733 727 Opinion of the Court The District Court and the Court of Appeals believed, however, that a federal court should use its supervisory power to suppress evidence tainted by gross illegalities that did not infringe the defendant’s constitutional rights. The United States contends that this approach—as applied in this case— upsets the careful balance of interests embodied in the Fourth Amendment decisions of this Court. In the Government’s view, such an extension of the supervisory power would enable federal courts to exercise a standardless discretion in their application of the exclusionary rule to enforce the Fourth Amendment. We agree with the Government. Ill We certainly can understand the District Court’s commendable desire to deter deliberate intrusions into the privacy of persons who are unlikely to become defendants in a criminal prosecution. See 434 F. Supp., at 135. No court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this “briefcase caper.” 5 5 “The security of persons and property remains a fundamental value which law enforcement officers must respect. Nor should those who flout the rules escape unscathed.” Aiderman v. United States, 394 U. S. 165, 175 (1969). We note that in 1976 Congress investigated the improprieties revealed in this record. See Oversight Hearings into the Operations of the IRS before a Subcommittee of the House Committee on Government Operations (Operation Tradewinds, Project Haven, and Narcotics Traffickers Tax Program), 94th Cong., 1st Sess. (1975). As a result, the Commissioner of Internal Revenue “called off” Operation Trade Winds. Tr. of Oral Arg. 35. The Commissioner also adopted guidelines that require agents to instruct informants on the requirements of the law and to report known illegalities to a supervisory officer, who is in turn directed to notify appropriate state authorities. IR Manual §§9373.3 (3), 9373.4 (Manual Transmittal 9-21, Dec. 27, 1977). Although these measures appear on their face to be less positive than one might expect from an agency charged with upholding the law, they do indicate disapproval of the practices found to have been implemented in this case. We cannot assume that similar lawless conduct, if brought to the attention of 734 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Indeed, the decisions of this Court are replete with denunciations of willfully lawless activities undertaken in the name of law enforcement. E. g., Jackson v. Denno, 378 U. S. 368, 386 (1964); see Olmstead v. United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting). But our cases also show that these unexceptional principles do not command the exclusion of evidence in every case of illegality. Instead, they must be weighed against the considerable harm that would flow from indiscriminate application of an exclusionary rule. Thus, the exclusionary rule “has been restricted to those areas where its remedial objectives are most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974). The Court has acknowledged that the suppression of probative but tainted evidence exacts a costly toll upon the ability of courts to ascertain the truth in a criminal case. E g, Rakas v. Illinois, 439 U. S., at 137-138; United States v. Ceccolini, 435 U. S. 268, 275-279 (1978); Stone v. Powell, 428 U. S. 465, 489-491 (1976); see Michigan N. Tucker, 417 U. S. 433, 450-451 (1974)? Our cases have consistently recognized that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. E. g., Stone v. Powell, supra, at 485—489; United States v. Calandra, supra, at 348. After all, it is the defendant, and not the constable, who stands trial. The same societal interests are at risk when a criminal defendant invokes the supervisory power to suppress evidence seized in violation of a third party’s constitutional rights. The supervisory power is applied with some caution even responsible officials, would not be dealt with appropriately. To require in addition the suppression of highly probative evidence in a trial against a third party would penalize society unnecessarily. 6 See also Kaufman v. United States, 394 U. S. 217, 237-238 (1969) (Black, J., dissenting); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 736-746, 755-756 (1970). UNITED STATES v. PAYNER 735 727 Opinion of the Court when the defendant asserts a violation of his own rights.7 In United States v. Caceres, 440 U. S. 741, 754-757 (1979), we refused to exclude all evidence tainted by violations of an executive department’s rules. And in Elkins v. United States, 364 U. S. 206, 216 (1960), the Court called for a restrained application of the supervisory power. “[A]ny apparent limitation upon the process of discovering truth in a federal trial ought to be imposed only upon the basis of considerations which outweigh the genera] need for untrammeled disclosure of competent and relevant evidence in a court of justice.” Ibid. See also Nardone v. United States, 308 U. S. 338, 340 (1939). We conclude that the supervisory power does not authorize a federal court to suppress otherwise admissible evidence on the ground that it was seized unlawfully from a third party not before the court. Our Fourth Amendment decisions have established beyond any doubt that the interest in deterring illegal searches does not justify the exclusion of tainted evidence at the instance of a party who was not the victim of the challenged practices. Rakas v. Illinois, supra, at 137; Aiderman v. United States, 394 U. S., at 174-175.8 7 Federal courts may use their supervisory power in some circumstances to exclude evidence taken from the defendant by “willful disobedience of law.” McNabb v. United States, 318 U. 8. 332, 345 (1943) ; see Elkins v. United States, 364 U. 8. 206, 223 (1960); Rea v. United States, 350 U. 8. 214, 216-217 (1956); cf. Hampton v. United States, 425 U. S. 484, 495 (1976) (Powell, J., concurring in judgment). This Court has never held, however, that the supervisory power authorizes suppression of evidence obtained from third parties in violation of Constitution, statute, or rule. The supervisory power merely permits federal courts to supervise “the administration of criminal justice” among the parties before the bar. McNabb v. United States, supra, at 340. 8 “The deterrent values of preventing the incrimination of those whose rights the police have violated have been considered sufficient to justify the suppression of probative evidence even though the case against the defendant is weakened or destroyed. We adhere to that judgment. But 736 OCTOBER TERM, 1979 Opinion of the Court 447U.S. The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the Fourth Amendment. In either case, the need to deter the underlying conduct and the detrimental impact of excluding the evidence remain precisely the same. The District Court erred, therefore, when it concluded that we are not convinced that the additional benefits of extending the exclusionary rule to other defendants would justify 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., at 174-175. See also Stone v. Powell, 428 U. S. 465, 488-489 (1976); United States v. Calandra, 414 U. S. 338, 348 (1974). The dissent, post, at 746, urges that the balance of interests under the supervisory power differs from that considered in Aiderman and like cases, because the supervisory power focuses upon the “need to protect the integrity of the federal courts.” Although the District Court in this case relied upon a deterrent rationale, we agree that the supervisory power serves the “twofold” purpose of deterring illegality and protecting judicial integrity. See post, at 744. As the dissent recognizes, however, the Fourth Amendment exclusionary rule serves precisely the same purposes. Ibid., citing, inter alia, Dunaway n. New York, 442 U. S. 200, 218 (1979), and Mapp v. Ohio, 367 U. S. 643, 659-660 (1961). Thus, the Fourth Amendment exclusionary rule, like the supervisory power, is applied in part “to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant. ...” Post, at 747; see generally Stone v. Powell, supra, at 486; United States v. Calandra, supra, at 348. In this case, where the illegal conduct did not violate the respondent’s rights, the interest in preserving judicial integrity and in deterring such conduct is outweighed by the societal interest in presenting probative evidence to the trier to fact. See the first paragraph, supra; see also, e. g., Stone n. Powell, supra, at 485-486. None of the cases cited by the dissent, post, at 744-745, supports a contrary view, since none of those cases involved criminal defendants who were not themselves the victims of the challenged practices. Thus, our decision today does not limit the traditional scope of the supervisory power in any way; nor does it render that power “superfluous.” Post, at 748. We merely reject its use as a substitute for established Fourth Amendment doctrine. UNITED STATES v. PAYNER 737 727 Burger, C. J., concurring “society’s interest in deterring [bad faith] conduct by exclusion outweigh [s] society’s interest in furnishing the trier of fact with all relevant evidence.” 434 F. Supp., at 135. This reasoning, which the Court of Appeals affirmed, amounts to a substitution of individual judgment for the controlling decisions of this Court.9 Were we to accept this use of the supervisory power, we would confer on the judiciary discretionary power to disregard the considered limitations of the law it is charged with enforcing. We hold that the supervisory power does not extend so far. The judgment of the Court of Appeals is Reversed. Mr. Chief Justice Burger, concurring. I join the Court’s opinion because Payner—whose guilt is not in doubt—cannot take advantage of the Government’s violation of the constitutional rights of Wolstencroft, for he is not a party to this case. The Court’s opinion makes clear the reason for that sound rule. Orderly government under our system of separate powers calls for internal self-restraint and discipline in each Branch; this Court has no general supervisory authority over operations of the Executive Branch, as it has with respect to the federal courts. I agree fully with the Court that the exclusionary rule is inapplicable to a case of this kind, but the Court’s holding should not be read as condoning the conduct 9 The same difficulty attends respondent’s claim to the protections of the Due Process Clause of the Fifth Amendment. The Court of Appeals expressly declined to consider the Due Process Clause. But even if we assume that the unlawful briefcase search was so outrageous as to offend fundamental “ ‘canons of decency and fairness,’ ” Rochin v. California, 342 U. S. 165, 169 (1952), quoting Malins ki v. New York, 324 U. 8. 401, 417 (1945) (opinion of Frankfurter, J.), the fact remains that “[t]he limitations of the Due Process Clause . . . come into play only when the Government activity in question violates some protected right of the defendant,” Hampton n. United States, supra, at 490 (plurality opinion). 738 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. of the IRS “private investigators” disclosed by this record, or as approval of their evidence-gathering methods. Mr. Justice Marshall, with whom Mr. Justice Brennan and Mr. Justice Blackmun join, dissenting. The Court today holds that a federal court is unable to exercise its supervisory powers to prevent the use of evidence in a criminal prosecution in that court, even though that evidence was obtained through intentional illegal and unconstitutional conduct by agents of the United States, because the defendant does not satisfy the standing requirement of the Fourth Amendment. That holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person’s Fourth Amendment rights in order to obtain evidence against another person. Unlike the Court, I do not believe that the federal courts are unable to protect the integrity of the judicial system from such gross Government misconduct. I The facts as found by the District Court need to be more fully stated in order to establish the level of purposeful misconduct to which agents of the United States have sunk in this case. Operation Trade Winds was initiated by the Internal Revenue Service (IRS) in 1965 to gather information about the financial activities of American citizens in the Bahamas. The investigation was supervised by Special Agent Richard Jaffe in the Jacksonville, Fla., office. It was not until June 1972 that the investigation focused on the Castle Bank and Trust Company of the Bahamas. In late October 1972 Jaffe asked one of his informants, Norman Casper, to obtain the names and addresses of the individuals holding accounts with the Castle Bank. Casper set to work soon thereafter. He was already an acquaintance of Michael Wol- UNITED STATES v. RAYNER 739 727 Marshall, J., dissenting stencroft, vice president and trust officer of the Castle Bank. Casper knew that Wolstencroft frequently visited the United States carrying a briefcase with documents from the Castle Bank. Casper therefore introduced Wolstencroft to Sybol Kennedy, a private detective who worked for Casper. In early January 1973, Casper learned that Wolstencroft planned a business trip to the United States on January 15, 1973, and that he would have Castle Bank records with him on that trip. Plans for the “briefcase caper,” as Casper called it, began in earnest. As found by the District Court, Casper discussed the details of the plan with Jaffe on several occasions during the week before Wolstencroft’s trip.1 Casper told Jaffe that he could get the needed documents from Wolstencroft, but that Jaffe would have to supply photographic services. On January 11, Casper specifically informed Jaffe that he planned to enter an apartment and take Wolstencroft’s briefcase. Jaffe then stated that he would have to clear the operation with his superior, Troy Register, Jr., Chief of the IRS Intelligence Division in Jacksonville. Clearance was obtained, and Jaffe told Casper to proceed with the plan.2 Casper called Jaffe the following day and asked if the IRS could refer him to a locksmith who could be “trusted.” Jaffe gave him such a referral.3 1 The Court rather blandly states that “Agent Jaffe approved the basic outline of the plan,” ante, at 730. Such a characterization is misleading in light of the findings of the District Court. As is noted in the text infra, Jaffe knew explicit details of the operation in advance and helped to make the arrangements by recommending a locksmith who could be “trusted,” by providing a safe and convenient location for the photographing of the documents, and by providing a photographer from the IRS. 2 Jaffe testified in the District Court that “[w] hatever I knew, he [Register] knew.” See 434 F. Supp. 113, 121, n. 40; Tr. 513. 3 It was clear why Casper needed a locksmith who could be “trusted.” Casper testified as follows in the District Court: “Q. Isn’t it a fact, Mr. Casper, you knew you were committing an illegal 740 OCTOBER TERM, 1979 Marshall, J., dissenting 447 U. S. The plans were finalized by the time of Wolstencroft’s arrival on January 15. Wolstencroft went directly to Sybol Kennedy’s apartment. The couple eventually went to a restaurant for dinner.4 Using a key provided by Kennedy,5 Casper entered the apartment and stole Wolstencroft’s briefcase. Casper then rendezvoused with the IRS-recommended locksmith in a parking lot five blocks from the apartment; the locksmith made a key to fit the lock on the case. Casper took the briefcase and newly made key to the home of an IRS agent. Jaffe had selected that location for the photograph- act, and you wanted somebody who could be trusted to keep his mouth shut about it? “A. There is that possibility, yes. “Q. Isn’t that the fact? “A. Yes.” 434 F. Supp., at 119, n. 20; Tr. 452-453. It is interesting to note that even the locksmith who could be “trusted” refused to enter Kennedy’s apartment with Casper. Id., at 451. The Government contends that when Agent Jaffe made the referral he did not know what use Casper intended to make of such a locksmith. Brief for United States 6, n. 4. The District Court found, however, that Jaffe already knew at the time of the referral that Casper intended to enter Kennedy’s apartment and to take and open Wolstencroft’s briefcase. There were, then, only two logical alternatives why Casper would want such a locksmith: to make a key to enter the briefcase, or to make a key to enter the apartment. Either way, Jaffe must have known that Casper’s conduct was improper, and yet Jaffe made the referral anyway. 4 It was not established at trial what occurred in Kennedy’s apartment prior to the couple’s departure for dinner. Since it was peculiarly within the power of the United States to produce Kennedy as a witness and since the Government did not explain her absence from the trial, the District Court inferred that Kennedy’s testimony “would be unfavorable to the Government by further delineating the improprieties” of the “briefcase caper.” 434 F. Supp., at 119, n. 22. 5 The District Court., after hearing the testimony of both Casper and Jaffe, disbelieved Jaffe’s assertion that Casper had informed him beforehand that Kennedy had given Casper a key with which to enter the apartment. See id., at 119, n. 15, 121, n. 40. See also n. 3, supra. UNITED STATES v. PAYNER 741 727 Marshall, J., dissenting ing because it was only eight blocks from the parking lot where Casper met the locksmith and Jaffe knew there was a need to act with haste.6 The briefcase was opened in Jaffe’s presence. Jaffe, Casper, and an IRS photography expert then photographed over 400 documents.7 Casper had arranged for Kennedy and Wolstencroft to be watched on their date, and this lookout called Casper at the IRS agent’s home when the couple finished their dinner. After all the documents had been copied, Casper relocked the briefcase and returned it to Kennedy’s apartment. The entire “caper” lasted approximately one and one-half hours. The illegalities of agents of the United States did not stop even at that point, however. During the following two weeks, Jaffe told Casper that the IRS needed additional information. Casper therefore sent Kennedy to visit Wolstencroft in the Bahamas. While there, acting pursuant to Casper’s instructions, Kennedy stole a rolodex file from Wol-stencroft’s office. This file was turned over to Jaffe, who testified in the District Court that he had not cared how the rolodex file had been obtained.8 The IRS paid Casper $8,000 in cash for the services he rendered in obtaining the information about Castle Bank. Casper in turn paid approximately $1,000 of this money to Kennedy for her role in the “briefcase caper” and the theft of the rolodex file. The “briefcase caper” revealed papers which showed a close relationship between the Castle Bank and a Florida bank. 6 434 F. Supp., at 120, n. 25; Tr. 494-496. - 7 As noted previously, Casper had told Jaffe to provide the photographic equipment. Jaffe testified that one of the cameras used was a “micro-filmer” which was “much quicker” than a regular camera. This camera had been brought by the IRS because “Casper had to get the documents and the briefcase back to the apartment prior to the return of the owner.” Id., at 493-495. This testimony again shows that Jaffe was fully aware in advance that the activities of the evening were improper. 8 See 434 F. Supp., at 120, and n. 34; Tr. 501. 742 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. Subpoenas issued to that Florida bank resulted in the uncovering of the loan guarantee agreement which was the principal piece of evidence against respondent at trial. It is that loan agreement and the evidence discovered as a result of it that the District Court reluctantly9 suppressed under the Due Process Clause of the Fifth Amendment and under its supervisory powers. The District Court made several key findings concerning the level of misconduct of agents of the United States in these activities. The District Court found that “the United States, through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wol-stencroft’s briefcase, and encouraged its informant, Norman Casper, to arrange the theft of a rolodex from the offices of Castle Bank.” 434 F. Supp. 113, 120-121 (ND Ohio 1977) (footnotes omitted). The District Court concluded that “the United States was an active participant in the admittedly criminal conduct in which Casper engaged. . . .” Id., at 121. The District Court found that “the illegal conduct of the government officials involved in this case compels the conclusion that they knowingly and purposefully obtained the briefcase materials with bad faith hostility toward the strictures imposed on their activities by the Constitution.” Id., at 130 (footnote omitted) (emphasis in original). The District Court considered the actions of Jaffe and Casper “outrageous,” ibid., because they “plotted, schemed and ultimately acted in contravention of the United States Constitution and laws of Florida, knowing that their conduct was illegal.” Ibid. The most disturbing finding by the District Court, however, related to the intentional manipulation of the standing requirements of the Fourth Amendment by agents of the United States, who are, of course, supposed to uphold and 9 See 434 F. Supp., at 124, 129, 134, n. 74. UNITED STATES v. PAYNER 743 727 Marshall, J., dissenting enforce the Constitution and laws of this country. The District Court found: “It is evident that the Government and its agents, including Richard Jaffe, were, and are, well aware that under the standing requirement of the Fourth Amendment, evidence obtained from a party pursuant to an unconstitutional search is admissible against third parties who’s [sic] own privacy expectations are not subject to the search, even though the cause for the unconstitutional search was to obtain evidence incriminating those third parties. This Court finds that, in its desire to apprehend tax evaders, a desire the Court fully shares, the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel. Such governmental conduct compels the conclusion that Jaffe and Casper transacted the ‘briefcase caper’ with a purposeful, bad faith hostility toward the Fourth Amendment rights of Wolstencroft in order to obtain evidence against persons like Payner.” Id., at 131—133 (footnotes omitted). The Court of Appeals did not disturb any of these findings. 590 F. 2d 206 (CA6 1979) (per curiam). Nor does the Court today purport to set them aside. See ante, at 730-731, n. 3. But cf. ante, at 733-734, n. 5. It is in the context of these findings—intentional illegal actions by Government agents taken in bad-faith hostility toward the constitutional rights of Wolstencroft for the purpose of obtaining evidence against persons such as the respondent through manipulation of the standing requirements of the Fourth Amendment—that the suppression issue must be considered. 744 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. II This Court has on several occasions exercised its supervisory powers over the federal judicial system in order to suppress evidence that the Government obtained through misconduct. See, e. g., McNabb v. United States, 318 U. S. 332 (1943); Upshaw v. United States, 335 U. S. 410 (1948); Mesarosh v. United States, 352 U. S. 1 (1956); Mallory v. United States, 354 U. S. 449 (1957); Elkins v. United States, 364 U. S. 206 (1960). Cf. Rea v. United States, 350 U. S. 214 (1956) (supervisory powers used to enjoin federal agent from testifying in state criminal prosecution concerning illegal search and from turning over to the State evidence illegally seized). The rationale for such suppression of evidence is twofold: to deter illegal conduct by Government officials, and to protect the integrity of the federal courts. McNabb v. United States, supra, at 342, 345, 347; Mesarosh v. United States, supra, at 14; Elkins v. United States, supra, at 217, 222-223. Cf. Mapp v. Ohio, 367 U. S. 643, 659-660 (1961) (Fourth and Fourteenth Amendments); Brown v. Illinois, 422 U. S. 590, 599-600 (1975) (Fourth and Fourteenth Amendments); Dunaway v. New York, 442 U. S. 200, 218 (1979) (Fourth and Fourteenth Amendments). The Court has particularly stressed the need to use supervisory powers to prevent the federal courts from becoming accomplices to such misconduct. See, e. g., McNabb v. United States, supra, at 345 (“Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law”); Mesarosh v. United States, supra, at 14 (the Court should use its supervisory powers in federal criminal cases “to see that the waters of justice are not polluted”) ; Elkins v. United States, supra, at 223 (federal courts should not be accomplices in the willful disobedience of a Constitution they are sworn to uphold”). UNITED STATES v. PAYNER 745 727 Marshall, J., dissenting The need to use the Court’s supervisory powers to suppress evidence obtained through governmental misconduct was perhaps best expressed by Mr. Justice Brandeis in his famous dissenting opinion in Olmstead v. United States, 277 U. S. 438, 471-485 (1928): “Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Id., at 485. Mr. Justice Brandeis noted that “a court will not redress a wrong when he who invokes its aid has unclean hands,” id., at 483, and that in keeping with that principle the court should not lend its aid in the enforcement of the criminal law when the government itself was guilty of misconduct. “Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination.” Id., at 484. See also id., at 469-471 (Holmes, J., dissenting) ; id., at 488 (Stone, J., dissenting) ; Lopez v. United States, 373 U. S. 427, 453, n. 3 (1963) (Brennan, J., dissenting).10 10 The Court’s opinion inexplicably ignores this basic thrust of our prior supervisory powers cases, and instead implies that the only value served 746 OCTOBER TERM, 1979 Marshall, J., dissenting 447 U. S. The reason for this emphasis on the need to protect the integrity of the federal courts through the use of supervisory powers can be derived from the factual contexts in which supervisory powers have been exercised. In large part when supervisory powers have been invoked the Court has been faced with intentional illegal conduct. It has not been the case that “[t]he criminal is to go free because the constable has blundered,” People v. Dejore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926). In these cases there has been no “blunder” by the Government agent at all; rather, the agent has intentionally violated the law for the explicit purpose of obtaining the evidence in question. Cf. Lopez v. United States, supra, at 440 (supervisory powers should be exercised only if there has been “manifestly improper conduct by federal officials”). If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness and thereby taints its own integrity. The present case falls within that category. The District Court found, and the record establishes, a deliberate decision by Government agents to violate the constitutional rights of Wolstencroft for the explicit purpose of obtaining evidence against persons such as Payner. The actions of the Government agents—stealing the briefcase, opening it, and photographing all the documents inside—were both patently in violation of the Fourth Amendment rights of Wolstencroft11 and plainly in violation of the criminal law.12 The Govern by suppression is deterrence of future misconduct. See ante, at 736. Deterrence is one purpose behind the suppression of evidence in such situations, but it is by no means the only one. 11 The Government conceded below that Wolstencroft’s Fourth Amendment rights had been violated. 434 F. Supp., at 126. See Tr. 502. See also Brief for United States in No. 78-5278 (CA6), p. 20. Cf. Tr. of Oral Arg. 14; Brief for United States 39. The Court agrees that the conduct was unconstitutional. Ante, at 733. 12 The Court characterizes the actions of Jaffe and Casper in the brief- UNITED STATES v. PAYNER 747 727 Marshall, J., dissenting ment knew exactly what information it wanted, and it was that information which was stolen from Wolstencroft. Similarly, the Government knew that it wanted to prosecute persons such as Payner, and it made a conscious decision to forgo any opportunity to prosecute Wolstencroft in order to obtain illegally the evidence against Payner and others.13 Since the supervisory powers are exercised to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant, it is hard to see why the Court today bases its analysis entirely on Fourth Amendment standing rules. The point is that the federal judiciary should not be made accomplices to the crimes of Casper, Jaffe, and others. The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place. If the IRS is permitted to obtain a conviction in federal court based almost entirely on that illegally obtained evidence and its fruits, case incident as “possibly criminal behavior,” ibid. The District Court concluded that the actions of the IRS appeared to constitute a prima facie case of criminal larceny under Florida law, and possibly violated other criminal laws of that State as well. 434 F. Sunr>., at 130. n 66. Casper admitted in the District Court that he knew he was committing an illegal act. Tr. 452-453. The stealing of the rolodex file from Wolstencroft’s office was also both unconstitutional and criminal. That theft, however, produced no additional evidence against Payner. See 434 F. Supp., at 123, n. 56. 13 See id., at 129, n. 65, 131-133, and n. 69. See also Tr. 505. Wolstencroft in fact was indicted for aiding and abetting Payner. Brief for United States 3, n. 2. However, Wolstencroft is a Bahamian resident, and did not return to the United States to answer the indictment. Ibid. The mere fact that the Government went through the steps of indicting Wolstencroft does not in any way undermine the District Court’s finding, based on substantial evidence in the record, that Wolstencroft was never the target of the IRS investigation. In light of the Government’s concession that Wolstencroft’s Fourth Amendment rights were violated, it is hard to see how the banker could be successfully prosecuted on the aiding and abetting charge. 748 OCTOBER TERM, 1979 Marshall, J., dissenting 447U.S. then the judiciary has given full effect to the deliberate wrongdoings of the Government. The federal court does indeed become the accomplice of the Government lawbreaker, an accessory after the fact, for without judicial use of the evidence the “caper” would have been for nought. Such a pollution of the federal courts should not be permitted.14 It is particularly disturbing that the Court today chooses to allow the IRS deliberately to manipulate the standing rules of the Fourth Amendment to achieve its ends. As previously noted, the District Court found that “the Government affirm -atively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel.” 434 F. Supp., at 132-133 (emphasis supplied). Whatever role those standing limitations may play, it is clear that they were never intended to be a sword to be used by the Government in its deliberate choice to sacrifice the constitutional rights of one person in order to prosecute another. The Court’s decision to engraft the standing limitations of the Fourth Amendment onto the exercise of supervisory powers is puzzling not only because it runs contrary to the major purpose behind the exercise of the supervisory powers— to protect the integrity of the court—but also because it appears to render the supervisory powers superfluous. In order to establish that suppression of evidence under the supervisory powers would be proper, the Court would also require 14 It is simply not a sufficient cure for the Court to denounce the actions of the IRS, ante, at 734, while at the same time rewarding the Government for this conduct by permitting the IRS to use the evidence in the very manner which was the purpose of the illegal and unconstitutional activities. UNITED STATES v. PAYNER 749 727 Marshall, J., dissenting Payner to establish a violation of his Fourth or Fifth Amendment rights,15 in which case suppression would flow directly from the Constitution. This approach is totally unfaithful to our prior supervisory powers cases, which, contrary to the Court’s suggestion, are not constitutional cases in disguise. I also do not understand the basis for the Court’s assertion that this is not a case in which the District Court was supervising the administration of justice “among the parties before the bar,” ante, at 735, n. 7, and therefore supervisory powers are inapplicable. Clearly the Government is before the bar. Equally clearly, the Government embarked on this deliberate pattern of lawless behavior for the express purpose of gaining evidence against persons such as Payner, so there can be 15 The Court appears to suggest that there can be no suppression of evidence based on a violation of the Due Process Clause in this case because it was not Payner who was the immediate victim of the Government’s outrageous conduct. Ante, at 737, n. 9. Although the District Court concluded that the evidence should be suppressed under the Due Process Clause as well as under its supervisory powers, the Court of Appeals specifically did not reach that issue, 590 F. 2d 206 (CA6 1979) (per curiam), and the Government purposely did not raise the issue in this Court. See Pet. for Cert. 21, n. 13. The Court therefore should not reach out to address the issue in a footnote. In addition, the only authority cited by the Court for its suggestion is Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). Hampton was only a plurality opinion, and the issue for which the Court purports to cite it was not raised by the facts of that case. Similarly, in the Court of Appeals below the United States was able to cite only Sims v. Georgia, 389 U. S. 404, 407 (1967), a case plainly not on point, and the sentence from the Hampton plurality opinion quoted by the Court, ante, at 737, n. 9, for the proposition that Payner lacked standing to raise a due process argument. See Brief for United States in No. 78-5278 (CA6), pp. 21-22; Reply Brief for United States in No. 78-5278, p. 6. The issue whether the standing limitations this Court has imposed for challenging Fourth Amendment violations also apply for violations of the Due Process Clause based on outrageous Government conduct has not yet been settled by this Court. Cf. 434 F. Supp., at 129, n. 65, and authorities discussed therein. The due process issue should be left for consideration in the first instance by the Court of Appeals on remand. 750 447 U. S. OCTOBER TERM, 1979 Marshall, J., dissenting no legitimate claim that the illegal actions are only tangentially related to the present prosecution. Instead, the Government misconduct is at the very heart of this case; without the evidence produced by the illegal conduct, there would have been no case at all, and Payner would never have been brought before the bar. This is simply not a case in which a federal court has attempted to exercise “general supervisory authority over operations of the Executive Branch,” ante, at 737 (Burger, C. J., concurring). Rather, this is a case where the District Court refused to be made an accomplice to illegal conduct by the IRS by permitting the agency to use the proceeds of its crimes for the very purpose for which they were committed—to convict persons such as Payner. Contrary to the Court’s characterization, this is also not a case in which there has been “indiscriminate” or “unbending” application of the exclusionary rule. The District Court noted that “exclusion on the basis of supervisory power is only done as a last resort,” 434 F. Supp., at 134, n. 74. That court concluded that suppression was proper only where there had been “purposefully illegal” conduct by the Government to obtain the evidence or where the Government’s conduct was “motivated by an intentional bad faith hostility to a constitutional right.” Id., at 134-135 (footnotes omitted). In this case, both those threshold requirements were met, and the District Court in addition concluded that absent suppression there was no deterrent to continued lawless conduct undertaken by the IRS to facilitate these types of prosecutions.16 This is not “a ‘chancellor’s foot’ veto [by the District 16 There is no suggestion by the Government that any action has been taken against Casper, Jaffe, or others for the conduct exposed in this case. The Court admits that the corrective measures taken by the IRS “appear on their face to be less positive than one might expect from an agency charged with upholding the law,” ante, at 733, n. 5. The District Court specifically found that the Government agents knew they were violating the Constitution at the time, 434 F. Supp., at 135, n. 79, and that continued manipulation of the standing limitations of the Fourth Amendment UNITED STATES v. PAYNER 751 727 Marshall, J., dissenting Court] over law enforcement practices of which it did not approve,” United States v. Russell, 411 U. S. 423, 435 (1973) ; Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). As my Brother Powell noted on a prior occasion: “The fact that there is sometimes no sharply defined standard against which to make these judgments [of fundamental fairness] is not itself a sufficient reason to deny the federal judiciary’s power to make them when warranted by the circumstances. . . . Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the ‘chancellor’s’ ‘fastidious squeamishness or private sentimentalism.’” Hampton v. United States, supra, at 495, n. 6 (concurring in judgment). That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad-faith hostility to constitutional rights. I would affirm the judgment of the Court of Appeals and suppress the fruits of the Government’s illegal action under the Court’s supervisory powers.17 Accordingly, I dissent. by the 1RS could be deterred only by suppression of the evidence, id, at 133. 17 The Government argues that Rule 402 of the Federal Rules of Evidence stripped the federal judiciary of its supervisory powers to exclude evidence obtained through gross misconduct by agents of the United States. In the Court of Appeals this argument was relegated to one footnote, see Brief for United States in No. 78-5278 (CA6), p. 41, n. 27. The Court does not address the issue. I would merely note that the Government’s discussion of the legislative history behind Rule 402 fails to convince me that it was Congress’ intent to attempt such a radical curtailment of the long-established supervisory powers of the federal judiciary. See United States v. Jacobs, 547 F. 2d 772, 777 (CA2 1976), cert, dism’d as improvidently granted, 436 U. S. 31 (1978). 752 OCTOBER TERM, 1979 Syllabus 447 U.S. ROADWAY EXPRESS, INC. v. PIPER et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 79-701. Argued April 15, 1980—Decided June 23, 1980 Respondents were counsel for the plaintiffs in a civil rights class action in Federal District Court against petitioner alleging that its employment policies discriminated on the basis of race. Because respondents failed to comply with orders relating to discovery and the filing of briefs, petitioner moved to dismiss the suit and requested an award of attorney’s fees and court costs under Federal Rule of Civil Procedure 37. The District Court dismissed the action with prejudice and ordered respondents to pay petitioner’s costs and attorney’s fees for the entire lawsuit. The court found justification for its ruling in the confluence of the civil rights statutes, 42 U. S. C. §§ 1988, 2000e-5 (k), which allow the prevailing party to recover attorney’s fees “as part of the costs” of litigation, and 28 U. S. C. § 1927, which permits a court to tax the excess “costs” of a proceeding against a lawyer “who so multiplies the proceedings ... as to increase costs unreasonably and vexatiously. . . .” However, the Court of Appeals vacated and remanded, holding that respondents were not liable for attorney’s fees and rejecting the view that the civil rights statutes could be read into § 1927. Held: 1. Title 28 U. S. C. § 1927 cannot be read to support the sanction of taxing attorney’s fees against counsel who unreasonably extend court proceedings, by defining the term “costs” therein according to the civil rights statutes as including attorney’s fees. Pp. 757-763. (a) It may be assumed that when the first version of § 1927 was enacted in 1813, Congress followed the “American rule” that attorney’s fees ordinarily are not among the “costs” that a winning party may recover. In an 1853 statute Congress substantially re-enacted the provisions now codified in § 1927 as part of a uniform, comprehensive measure setting the fees and costs for all federal actions. The history of the 1853 Act suggests that § 1927 should be read together with the provisions currently codified in 28 U. S. C. § 1920 which, without including attorney’s fees, enumerate the costs that ordinarily may be taxed to a losing party. Moreover, petitioner offered no evidence that Congress intended to incorporate into § 1927 the attorney’s fee provisions of 42 U. S. C. §§ 1988, 2000e-5 (k), which do not mention attorney liability for costs and fees. Pp. 759-761. ROADWAY EXPRESS, INC. v. PIPER 753 752 Syllabus (b) The statutory interpretation proposed by petitioner could introduce into § 1927 distinctions unrelated to its goal of controlling abuses of judicial processes. The fee provisions of the civil rights laws are sensitive to the merits of the action and to antidiscrimination policy, restrict recovery to prevailing parties, and have been construed to treat plaintiffs and defendants somewhat differently. In contrast, § 1927 does not distinguish between winners and losers or between plaintiffs and defendants, and is indifferent to the equities of a dispute and to the values advanced by the substantive law. Moreover, petitioner’s statutory construction would create an unjustifiable two-tier system of attorney sanctions whereby lawyers in cases brought under statutes permitting the award of attorney’s fees would face stiffer penalties for prolonging litigation than would other attorneys. Pp. 761-763. 2. Rule 37 (b)’s sanctions for failure to comply with discovery orders, including holding parties and counsel personally liable for expenses, “including attorney’s fees,” must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, and to deter those who might be tempted to such conduct in the absence of such a deterrent. National Hockey League n. Metropolitan Hockey Club, 427 U. S. 639. On remand, the District Court will have the authority to act upon petitioner’s request for costs and attorney’s fees under Rule 37 (b). Pp. 763-764. 3. In narrowly defined circumstances federal courts have inherent power to assess attorney’s fees against counsel. The general rule is that a litigant cannot recover his counsel fees, but that rule does not apply when the opposing party has acted in bad faith, including bad faith in the conduct of the litigation. In view of a court’s power over members of its bar, if it may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. In this case, the trial court did not make a specific finding as to whether counsel’s conduct constituted or was tantamount to bad faith, a finding that should precede any sanction under the court’s inherent powers. Pp. 764-767. 599 F. 2d 1378, affirmed and remanded. Powell, J., delivered the opinion of the Court, in which Brennan, White, and Marshall, JJ., joined; in Parts I, II, and IV of which Stewart and Rehnquist, J J., joined; in all but Part II—A and the first sentence of Part IV of which Blackmun, J., joined; and in Part II-B of which Stevens, J., joined. Blackmun, J., post, p. 768, and Stevens, J., post, p. 769, filed opinions concurring in part and dissenting in part. Burger, C. J., filed a dissenting opinion, post, p. 771. 754 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. Miles Curtiss McKee argued the cause for petitioner. With him on the briefs was Armin J. Moeller, Jr. Herschel E. Richard, Jr., argued the cause and filed a brief for respondents. Harriet S. Shapiro argued the cause for the United States et al. as amici curiae urging affirmance. With her on the brief were Solicitor General McCree, Assistant Attorney General Days, Leroy D. Clark, Joseph T. Eddins, Lutz Alexander Prager, and Raymond R. Baca* Mr. Justice Powell delivered the opinion of the Court. This case presents the question whether federal courts have statutory or inherent power to tax attorney’s fees directly against counsel who have abused the processes of the courts. I In June 1975, two former employees and one unsuccessful job applicant brought a civil rights class action against petitioner Roadway Express, Inc. (Roadway). The complaint filed in the United States District Court for the Western District of Louisiana alleged that Roadway’s employment policies discriminated on the basis of race, and asked for equitable relief.1 Counsel for the plaintiffs—Robert E. Piper, Jr., Frank E. Brown, Jr., and Bobby Stromile—are the respondents in the present case. In September 1975, respondents served interrogatories on Roadway. Having secured an extension from the District Court, Roadway answered the interrogatories on January 5, 1976, and served its own set of interrogatories at the same time. Thereafter, however, the litigation was stalled by respondents’ uncooperative behavior. *Jack Greenberg and James M. Nabrit III filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging affirmance. 1 The initial complaint also named a local of the International Brotherhood of Teamsters as defendant. ROADWAY EXPRESS, INC. v. PIPER 755 752 Opinion of the Court On April 13, 1976, Roadway moved for an order compelling answers to its interrogatories. The motion was set for argument on the morning of April 21, but counsel for the plaintiffs did not appear. They did attend a rescheduled hearing that afternoon, and the Magistrate ordered that the interrogatories be answered by May 24. Respondents ignored that deadline and, in fact, never answered the interrogatories. Roadway also served notice in April that it would take depositions from all three plaintiffs in early May. One of the plaintiffs did not appear on the appointed days, however, and he never was deposed. The respondents showed no greater respect for the orders of the District Court than for the requests of their adversaries. On April 7, the court instructed counsel for both sides to file briefs evaluating the impact of a recent decision in a related case. Although respondents’ brief was due within 10 days, nothing arrived for six weeks. On May 19, the District Court gave respondents 10 additional days to file a brief or face dismissal of the action. No brief was ever submitted. On June 14, Roadway moved to dismiss the suit under Federal Rule of Civil Procedure 37.2 Roadway also requested an award of attorney’s fees and court costs. On June 30, the District Court heard argument and dismissed the action with prejudice. A second hearing, limited to the question of costs and attorney’s fees, was held in October 1976. The District Court’s opinion sharply criticized the respondents for their “deliberate inaction” in handling the case. Monk v. Roadway Express, Inc., 73 F. R .D. 411, 417 (1977). Observing that respondents apparently had not advised their 2 If a party “fails to obey an order to provide or permit discovery,” Rule 37 (b) (2) (C) allows the district court to “dismis[s] the action or proceeding or any part thereof, or rende[r] a judgment by default against the disobedient party.” Rule 37 (b)(2)(E) also permits a court to “require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees caused bv the failure. ...” 756 OCTOBER TERM, 1979 447 U. S. Opinion of the Court clients that the suit was a class action, id at 414, 417, the court concluded that the three lawyers “unprovidently enlarged and inadequately prosecuted” the action«/., at 417. Asi sanction, the court ordered them to pay^^ay s costa and attorney’s fees for the entire lawsuit. The total assess-ment exceeded $17,000. Monk v. Roadway Express, Inc., 599 F. 2d 1378,1381 (CA5 1979). . The District Court found justification for its ruling in the confluence of several statutes. The civil rights statutes allow the prevailing party to recover attorney s fees as part of the costa^of litigation See 42 U. S. C. §§ 1988, 2000^5 (k) And 28 U. S. C. § 1927 permits a court to tax the excess “costs” of a proceeding against a lawyer “who so multiplies the proceedings ... as to increase costa unreasonably and vexatiously. . . .’” Read together, the District Court concluded, the statutes authorize the assessment of costa and attorney’s fees against respondents. The United States Court of Appeals for the Fifth Circuit found no clear error in the ruling that respondents had violated § 1927. 599 F. 2d, at 1381. The appellate court held, however, that respondents were not liable for attorney s fees. It rejected the District Court’s view that the civil rights statutes can be read into § 1927. The civil rights laws, the court wrote, “provide for attorneys’ fees awards against unsuccessful parties to a suit, and they focus on actions which are frivolous, unreasonable, and baseless. ... 599 F. 2a, at 3 Section 1927 states in full: * «Any attorney or other person admitted to conduct cases m any court of the United States or any Territory thereof who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs. I the Court of Appeals pointed out, “S 1927 provides only for excess costs caused by the plaintiffs’ attorneys’ vexatious behavior and consequent multiplication of the proofings, and not for the total costs of ’the litigation.” Monk v. Roadway Express, Inc., 599 F. 2d 1378, 1383 (CA5 1979) (emphasis in original). ROADWAY EXPRESS, INC. v. PIPER 757 752 Opinion of the Court 1383 (emphasis in original). In contrast, § 1927 deals only with attorney conduct and involves taxing costs against counsel. The Court of Appeals vacated the District Court’s order and remanded for recalculation of costs under § 1927. We granted certiorari, 444 U. S. 1012 (1980). II This case involves the problem of what sanctions may be imposed on lawyers who unreasonably extend court proceedings.4 Two specific provisions have been said to be controlling in this case: 28 U. S. C. § 1927, and Federal Rule of Civil Procedure 37. This opinion considers both provisions. A Section 1927 provides that lawyers who multiply court proceedings vexatiously may be assessed the excess “costs” they create. The provision, however, does not define the critical word. Only if “costs” includes attorney’s fees can § 1927 support the sanction in this case. Courts generally have defined costs under § 1927 according to 28 U. S. C. § 1920, which enumerates the costs that ordinarily may be taxed to a losing party. E. g., United States v. Ross, 535 F. 2d 346, 350 (CA6 1976); Kief el v. Las Vegas Hacienda, Inc., 404 F. 2d 1163, 1170 (CA7 1968), cert, denied sub nom. Hubbard v. Kief el, 395 U. S. 908 (1969). 4 Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices. Cf. C. Dickens, Bleak House 2-5 (1948). A number of factors legitimately may lengthen a lawsuit, and the parties themselves may cause some of the delays. Nevertheless, many actions are extended unnecessarily by lawyers who exploit or abuse judicial procedures, especially the liberal rules for pretrial discovery. See Burger, Agenda for 2000 A. D.—A Need for Systematic Anticipation, 70 F. R. D. 83, 95-96 (1976); ABA, Report of Pound Conference Follow-Up Task Force, 74 F. R. D. 159, 191-192 (1976); U. S. Dept, of Justice, C. Ellington, A Study of Sanctions for Discovery Abuse 117 (1979). The glacial pace of much litigation breeds frustration with the federal courts and, ultimately, disrespect for the law. 758 OCTOBER TERM, 1979 Opinion of the Court 447U.S. Section 1920 lists clerk’s and marshal’s fees, court reporter charges, printing and witness fees, copying costs, interpreting costs, and the fees of court-appointed experts. Section 1920 also permits the assessment of the attorney “docket” fees set by 28 U. S. C. § 1923. In this case, that fee is $20. 28 U. S. C. § 1923 (a). Roadway insists, however, that its recovery should not be restricted to the costs listed in § 1920. It argues that since courts look to § 1920 to determine the costs taxable under § 1927, they should be equally free to define costs according to other statutes that may be involved in a lawsuit. Roadway emphasizes that the civil rights statutes allow the award of attorney’s fees “as part of the costs” of the litigation. 42 U. S. C. § 2000e-5 (k); 42 U. S. C. § 1988.5 Accordingly, Roadway asks that we reinstate the District Court’s award. This superficially appealing argument cannot survive careful consideration. 5 Section 2000e-5 (k) states: “In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity] Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or in any civil action or proceedings [to enforce] a provision of the United States Internal Revenue Code, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” For the purposes of the issues in this opinion, the two provisions may be considered to have the same substantive content. See Lopez n. Arkansas County Independent School Dist., 570 F. 2d 541, 545 (CA5 1978); Mid-Hudson Legal Services, Inc. v. G & U, Inc., 578 F. 2d 34, 37-38 (CA2 1978). They authorize fee awards in identical language, and Congress acknowledged the close connection between the two statutes when it approved §1988. S. Rep. No. 94—1011, pp. 2-6 (1976); H. R. Rep. No. 94-1558, pp. 5-8 (1976). ROADWAY EXPRESS, INC. v. PIPER 759 752 Opinion of the Court 1 Congress enacted the first version of § 1927 in 1813. It was drafted by a Senate Committee appointed “to inquire what Legislative provision is necessary to prevent multiplicity of suits or processes, where a single suit or process might suffice. . . y 26 Annals of Cong. 29 (1813). The resulting legislation provided in part that any person who “multiplied the proceedings in any cause ... so as to increase costs unreasonably and vexatiously” could be held liable for “any excess of costs so incurred.” Act of July 22, 1813, 3 Stat. 21. The sparse legislative history makes this provision difficult to interpret.6 In construing “costs,” however, we may look to the contemporaneous understanding of the term. Cf. Gilbert v. United States, 370 U. S. 650, 655 (1962). In 1796 the Court decided Arcambel v. Wiseman, 3 Dall. 306. That ruling overturned an award of counsel fees on the ground that “ [t]he general practice of the United States is in op[p]osition to it.” Ibid. Thus, the Court recognized the “American rule” that attorney’s fees ordinarily are not among the costs that a winning party may recover. See Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 717-718 (1967). We may assume that Congress followed that rule when it approved the 1813 Act. Congress returned to the problems of the federal courts in 1853, when it approved a comprehensive measure setting the fees and costs for all federal actions. Act of Feb. 26, 1853, 10 Stat. 162; see Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240, 251-253 (1975). Some of those provisions survive, largely intact, in 28 U. S. C. §§ 1920 and 1923. See 6 A letter from the Secretary of the Treasury to the House of Representatives in 1842 suggests that the provision was prompted by the practices of certain United States Attorneys. H. R. Doc. No. 25, 27th Cong., 3d Sess., 21-22 (1842). Some of those officers, who were paid on a piecework basis, apparently had filed unnecessary lawsuits to inflate their compensation. 760 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. 10 Stat 161-162, 168. The 1853 statute also substantially re-enacted the earlier provision that allows lawyers who multiply legal proceedings to be taxed with the extra “costs” they generate. That provision, now codified as § 1927, has remained basically unchanged since 1853.7 This history suggests that § 1920 and § 1927 should be read together as part of the integrated statute approved in 1853. See Erlenbaugh v. United States, 409 U. S. 239, 243-244 (1972); 2A C. Sands, Sutherland on Statutory Construction §51.03, p. 299 (4th ed. 1973). The 1853 Act specified the costs recoverable in federal litigation and also allowed the award of excess “costs” against counsel who vexatiously multiply litigation. The most reasonable construction is that the Act itself defined those costs that may be recovered from counsel. Congress, of course, may amend those provisions that derive from the 1853 Act.8 In the absence of express modification of those provisions by Congress, however, we should not look beyond the Act for the definition of costs under § 1927. The available legislative material supports this view. Congress in 1853 prescribed taxable costs for the same reasons it authorized the assessment of costs against dilatory attorneys: “[T]o prevent abuses arising from ingenious constructions ... to discourage unnecessary prolixity, old useless forms, and the multiplication of proceedings, and the prosecutions of several suits which might better be joined in one.” 7 The attorney liability portion of the 1853 Act was codified as § 982 of the Revised Statutes, while the cost-setting portions were included as §§ 823 and 824. The portions assumed their present positions at §§ 1920, 1923, and 1927 of Title 28 in the Revised Code of 1948. See 28 U. S. C. §§1920, 1923, 1927 (1946 ed., Supp. II). 8 For example, in 1978 Congress added 28 U. S. C. § 1920 (6) (1976 ed., Supp. II), providing for recovery of interpreting costs. Pub. L. 95-539, § 7, 92 Stat. 2044. Congress is now considering legislation that would expand § 1927 in all cases to include “costs, expenses and attorney’s fees. . . .” H. R. 4047, 96th Cong., 1st Sess. (1979); S. 390, 96th Cong., 1st Sess., §4 (1979). ROADWAY EXPRESS, INC. v. PIPER 761 752 Opinion of the Court H. R. Rep. No. 50, 32d Cong., 1st Sess., 6 (1852); see also Alyeska Pipeline Co. v. Wilderness Society, supra, at 251-253. Above all, Congress sought to standardize the treatment of costs in federal courts, to “make them uniform— make the law explicit and definite.” H. R. Rep. No. 50, supra, at 6. The sponsor of the legislation spoke of the need for “uniform rule[s],” Cong. Globe, 32d Cong., 2d Sess., App. 207 (1853) (Sen. Bradbury), while other Senators agreed that the legislation was designed to impose “uniformity,” id., at 584 (Sen. Bayard); see also id., at 589 (Sen. Geyer). Roadway presses us to abandon the uniform approach of the 1853 Act. Because prevailing parties now may recover counsel fees in civil rights suits, Roadway argues that the statutes authorizing those recoveries should be read to modify § 1927. But Roadway offers no evidence that Congress intended to incorporate those attorney’s fee provisions into § 1927. Neither § 1988 nor § 2000e-5 (k) makes any mention of attorney liability for costs and fees. Roadway identifies nothing in the legislative records of those provisions that suggests that Congress meant to control the conduct of litigation.9 Without any evidence that Congress wished to alter the uniform structure established by the 1853 Act, we are reluctant to disrupt it. See Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 719^-720. 2 The statutory interpretation proposed by Roadway not only runs counter to the apparent intent of Congress in 1813 and 1853, but also could introduce into the statute distinctions unrelated to its goal. Indeed, Roadway’s argument could result in virtually random application of § 1927 on the basis of other 9 The Senate Report accompanying § 1988 stated that the bill authorizes "an award of attorneys’ fees against a party. . . .” S. Rep. No. 94-1011, p. 5 (1976) (emphasis supplied). This reference reinforces the view that the statute was not intended to permit recovery from opposing counsel. 762 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. laws that do not address the problem of controlling abuses of judicial processes. The fee provisions of the civil rights laws are acutely sensitive to the merits of an action and to antidiscrimination policy. Unlike § 1927, both § 1988 and § 2000e-5 (k) restrict recovery to prevailing parties. In addition, those provisions have been construed to treat plaintiffs and defendants somewhat differently. Prevailing plaintiffs in civil rights cases win fee awards unless “special circumstances would render such an award unjust,” Newman v. Piggie Park Enterprises, 390 U. S. 400, 402 (1968) {per curiam), but a prevailing defendant may be awarded counsel fees only when the plaintiff’s underlying claim is “frivolous, unreasonable, or groundless.” Christiansburg Garment Co. v. EEOC, 434 U. S. 412, 422 (1978). This distinction advances the congressional purpose to encourage suits by victims of discrimi-nation while deterring frivolous litigation. But § 1927 does not distinguish between winners and losers, or between plaintiffs and defendants. The statute is indifferent to the equities of a dispute and to the values advanced by the substantive law. It is concerned only with limiting the abuse of court processes. Dilatory practices of civil rights plaintiffs are as objectionable as those of defendants. In order to assess counsel fees against respondents under § 1927, the Court would have to adopt one of two alternatives. It could incorporate into § 1927 the normative considerations of the civil rights laws that are foreign to the 1813 enactment. Or the Court could select on an ad hoc basis those features of § 1988 and § 2000e-5 (k) that should be read into § 1927. The first course would alter fundamentally the nature of § 1927; the second would constitute standardless judicial lawmaking. Moreover, Roadway’s statutory construction would create a two-tier system of attorney sanctions. A number of federal statutes permit the award of attorney’s fees. See Alyeska ROADWAY EXPRESS, INC. v. PIPER 763 752 Opinion of the Court Pipeline Co. v. Wilderness Society, 421 U. S., at 260, n. 33. Under Roadway’s view of § 1927, lawyers in cases brought under those statutes would face stiffer penalties for prolonging litigation than would other attorneys. There is no persuasive justification for subjecting lawyers in different areas of practice to differing sanctions for dilatory conduct. A court’s processes may be as abused in a commercial case as in a civil rights action. Without an express indication of congressional intent, we must hesitate to reach the imaginative outcome urged by Roadway, particularly when a more plausible construction flows from the original enactments in 1813 and 1853. To avoid the arbitrary results of Roadway’s argument, Commissioner v. Brown, 380 U. S. 563, 571 (1965), citing Helvering v. Hammel, 311 U. S. 504, 510-511 (1941), we must reject the claim that § 1988 and § 2000e-5 (k) may supplant the framework established by the 1853 Act. B Federal Rule of Civil Procedure 37 (b) authorizes sanctions for failure to comply with discovery orders. The District Court may bar the disobedient party from introducing certain evidence, or it may direct that certain facts shall be “taken to be established for the purposes of the action. ...” The Rule also permits the trial court to strike claims from the pleadings, and even to “dismiss the action ... or render a judgment by default against the disobedient party.” See National Hockey League v. Metropolitan Hockey Club, 427 U. S. 639 (1976) (per curiam); Dellums v. Powell, 184 U. S. App. D. C. 339, 566 F. 2d 231 (1977). Both parties and counsel may be held personally liable for expenses, “including attorney’s fees,” caused by the failure to comply with discovery orders.10 Rule 37 sanctions must be applied diligently 10 See Stanziale v. First National City Bank, 74 F. R. D. 557 (SDNY 1977) (attorneys); Charron v. Meaux, 66 F. R. D. 64 (SDNY 1975) (party); Chesa International, Ltd. v. Fashion Associates, Inc., 425 F. 764 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. both “to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent.” National Hockey League v. Metropolitan Hockey Club, supra, at 643. The respondents in this case never have complied with the District Court’s order that they answer Roadway’s interrogatories. That failure was the immediate ground for dismissing the case, 73 F. R. D., at 412, and it also exposed respondents and their clients to liability under Rule 37 (b) for the resulting costs and attorney’s fees. Indeed, Roadway’s motion for dismissal sought recovery of those expenses under Rule 37. On the remand of this action, the District Court will have the authority to act upon that request. Ill Roadway also contends that the District Court’s ruling was a proper exercise of the court’s inherent powers.11 The inherent powers of federal courts are those which “are necessary to the exercise of all others.” United States v. Hudson, 7 Cranch 32, 34 (1812). The most prominent of these is the contempt sanction, “which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court. . . .” Cooke v. United States, 267 U. S. 517, 539 (1925); see 4 W. Blackstone, Commentaries *282-*285. Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion. See Gompers n. Bucks Stove & Range Co., 221 U. S. 418, Supp. 234 (SDNY), aff’d, 573 F. 2d 1288 (CA2 1977) (joint liability of attorney and party). 11 Mr. Justice Stewart and Mr. Justice Rehnquist would not reach the inherent power question considered in Part III of the opinion. Rather, they view that question as a substantial issue that should be addressed by the District Court on remand. ROADWAY EXPRESS, INC. v. PIPER 765 752 Opinion of the Court 450-451 (1911); Green v. United States, 356 U. S. 165, 193-194 (1958) (Black, J., dissenting). There are ample grounds for recognizing, however, that in narrowly defined circumstances federal courts have inherent power to assess attorney’s fees against counsel. In Link v. Wabash R. Co., 370 U. S. 626, 632 (1962), this Court recognized the “well-acknowledged” inherent power of a court to levy sanctions in response to abusive litigation practices. The trial court had dismissed an action for failure to prosecute. Mr. Justice Harlan wrote for the Court: “The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e. g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e. g., id., at 451.” Id., at 629-630 (footnote omitted). The Court denied that Federal Rule of Civil Procedure 41 (b) limits a court’s power to dismiss for failure to prosecute to instances where a defendant moves for dismissal. The Court wrote: “The authority ... to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,’ governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs. . . 370 U. S., at 630. Since the assessment of counsel fees is a less severe sanction than outright dismissal, Link strongly supports Roadway’s contention here. Of course, the general rule in federal courts is that a litigant cannot recover his counsel fees. See Alyeska Pipeline Co. v. Wilderness Society, 421 U. S., at 257. But that rule does 766 OCTOBER TERM, 1979 Opinion of the Court 447U.S. not apply when the opposing party has acted in bad faith. In Alyeska, we acknowledged the “inherent power” of courts to “assess attorneys’ fees for the ‘willful disobedience of a court order ... as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 426-428 (1923),’ Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 718; or when the losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . .’ F. D. Rich Co. [v. United States ex rel. Industrial Lumber Co.], 417 U. S. [116], at 129 [(1974)] (citing Vaughan v. Atkinson, 369 U. S. 527 (1962)).” Id., at 25S-259. The bad-faith exception for the award of attorney’s fees is not restricted to cases where the action is filed in bad faith. ‘“[B]ad faith’ may be found, not only in the actions that led to the lawsuit, but also in the conduct of the litigation. Hall v. Cole, 412 U. S. 1, 15 (1973). See Browning Debenture Holders' Comm. n. DASA Corp., 560 F. 2d 1078, 1088 (CA2 1977). This view coincides with the ruling in Link, supra, which approved judicial power to dismiss a case not because the substantive claim was without merit, but because the plaintiff failed to pursue the litigation. The power of a court over members of its bar is at least as great as its authority over litigants.12 If a court may tax counsel fees against a party who has litigated in bad faith, it certainly may assess those expenses against counsel who willfully abuse judicial processes. See Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264, 268 12 gee generally In re Bithoney, 486 F. 2d 319 (CAI 1973); Flaksa v. Little River Marine Constr. Co., 389 F. 2d 885, 888-889 (CA5), cert, denied, 392 U. S. 928 (1968); Gamble v. Pope & Talbot, Inc., 307 F. 2d 729, 735-736 (CA3) (en banc) (Biggs, C. J., dissenting), cert, denied sub nom. United States District Court v. Mahoney, 371 U. S. 888 (1962). ROADWAY EXPRESS, INC. v. PIPER 767 752 Opinion of the Court (1979) .13 Like other sanctions, attorney’s fees certainly should not be assessed lightly or without fair notice and an opportunity for a hearing on the record.14 But in a proper case, such sanctions are within a court’s powers. IV We affirm the ruling of the Court of Appeals on § 1927. Since the District Court did not consider the costs and fees that Roadway might recover under Rule 37, that question must be addressed on remand. Similarly, the trial court did not make a specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers. The case is remanded to the Court of 13 New York courts have ordered attorneys who delay litigation to pay costs or fines to the opposing party. E. g., Moran v. Rynar, 39 App. Div. 2d 718, 332 N. Y. S. 2d 138 (1972); Kahn v. Stamp, 52 App. Div. 2d 748, 382 N. Y. 8. 2d 199 (1976); Gillet v. Beth Israel Medical Center, 99 Mise. 2d 172, 415 N. Y. S. 2d 738 (Sup. Ct. 1979). The state-court opinions cite no statutory authority for their holdings, apparently relying on the inherent powers of those courts. Moran v. Rynar, supra, noted favorable commentary on Schwarz v. United States, 384 F. 2d 833, 836 (CA2 1967), which suggested that courts faced with cases “of inexcusable neglect by counsel [should consider] imposing substantial costs and attorney’s fees payable by offending counsel personally to the opposing party. . . .” Although the New York courts have sanctioned lawyers for mere negligence, this opinion addresses only bad-faith conduct. 14 Some due process implications of sanctions for misconduct of litigation were discussed in Societe Internationale v. Rogers, 357 U. 8. 197, 208-212 (1958), which reversed the dismissal of an action for failure to comply with a pretrial discovery order. The due process concerns posed by an outright dismissal are plainly greater than those presented by assessing counsel fees against lawyers. Cf. Schwarz v. United States, supra. Moreover, Societe Internationale did not involve willful misconduct or bad faith. The Court found that the party whose claim was dismissed had been barred by a Swiss criminal statute from complying with the order. 357 U. 8., at 209, 211. 768 447 U. S. OCTOBER TERM, 1979 Opinion of Blackmun, J. Appeals with directions to return it to the District Court for proceedings consistent with this opinion. So ordered. Mr. Justice Blackmun, concurring in part and dissenting in part. I join the Court’s opinion except Part II-A thereof and except the first sentence of Part IV thereof. Essentially for the reasons stated in the first three paragraphs of the respective opinions of The Chief Justice and of Mr. Justice Stevens, I do not join Part II-A. I add to those reasons my concern that the Court’s analysis means that 28 U. S. C. § 1927 does not permit imposition on opposing counsel of “excess” attorney’s fees generated by his vexatiousness and otherwise shifted to his client under 42 U. S. C. § 2000e-5 (k), 42 U. S. C. § 1988, or any other specialized attorney’s fees provisions. See Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240, 260, n. 33 (1975) (collecting statutes). This construction of the statute penalizes the innocent client, while insulating his wrongdoing attorney. That result, in my view, clashes with common sense, basic fairness, and the plain meaning of the statute. See Owen v. City of Independence, 445 U. S. 622, 654 (1980) (“Elemental notions of fairness dictate that one who causes a loss should bear the loss”). See also 122 Cong. Rec. 31832 (1976) (regarding proposed § 1988: “Mr. ABOUREZK. So if somebody thought, some lawyer thought, he was going to make a lot of money by bringing civil rights suits he would be subject to being penalized himself; is that not correct? Mr. HATHAWAY. The Senator is correct”) (emphasis added).1 1 One point regarding the Court’s analysis of § 1927 seems to me to merit special mention. In rejecting the District Court’s reading of that statute, the Court concludes that “a prevailing defendant may be awarded counsel fees only when the plaintiff’s underlying claim is ‘frivolous, unreasonable, or groundless.’” Ante, at 762 (emphasis added), citing Christiansburg Garment Co. n. EEOC, 434 U. S. 412, 422 (1978). This state- ROADWAY EXPRESS, INC. v. PIPER Opinion of Stevens, J. 769 752 Significantly different considerations of policy and fairness bear on the inherent-power issue addressed in Part III of the Court’s opinion. I believe, however, that the opinion marshals persuasive reasons for recognizing a component of the bad-faith exception of the American Rule authorizing recovery of attorney’s fees directly from a vexatious opposing counsel.2 Mr. Justice Stevens, concurring in part and dissenting in part. By its terms, 28 U. S. C. § 1927 applies to “cases in any court of the United States” and allows the recovery of excess costs from “(a]ny attorney” who vexatiously multiplies the proceedings “in any case.”1 This language is broad enough to encompass a civil rights class action alleging racial discrim- ment has two troubling implications. First, it would seem to pretermit the § 1927 issue, which the Court goes on to consider at length. Clearly, the District Court based its attorney’s fee award on counsel’s conduct during the suit, rather than on the absence of a meritorious claim. If only the latter can support fee-shifting under §1988 or §2000e-5(k), attorney’s fees were not “reasonable” in the first place, the predicate for applying § 1927 was lacking, and this case presents no occasion to construe that provision. Second, the Court’s reading of Christiansburg Garment is a questionable one that may produce undesirable results in future cases. Christiansburg Garment simply did not present the issue whether “frivolous, unreasonable, or groundless” conduct by a plaintiff in the course of prosecuting a colorable claim might justify fee-shifting in favor of the defendant under § 1988 or § 2000e-5 (k). In my view, there are strong arguments that attorney’s fees generated by such conduct would be “reasonable” within the meaning of those statutes. I am troubled that the Court reaches the opposite conclusion without explaining why. 2 The Court does not explore the specific features of this exception. Most significantly, it does not address the permissibility of applying this new exception to award attorney’s fees beyond those actually attributable to the culpable attorney’s vexatious actions (i. e., “excess costs” under § 1927). Like the Court, I am willing to let this issue be considered in the first instance on the remand. 1 See ante, at 756, n. 3. 770 OCTOBER TERM, 1979 Opinion of Stevens, J. 447U.S. ination in employment. Two separate statutes specifically authorize the recovery of attorney’s fees “as part of the costs” in this kind of litigation.2 Of course, such fees, like any other cost items, are normally recoverable only from the losing litigant rather than from the attorney personally. But it seems to me that § 1927 gives the court the power to assess against counsel any item of cost that could be assessed against a party when that attorney unreasonably and vexatiously multiplies the proceedings. The Court seems concerned about the fact that the standards for allowing a party to recover fees differ for plaintiffs and defendants in civil rights litigation. Ante, at 762. I simply do not understand the relevance of that concern. As I read § 1927, the Sanction may be applied to an obstreperous lawyer regardless of whether his client prevails, so long as fees may be awarded as part of the costs in the litigation. The Court also states that there “is no persuasive justification” for subjecting lawyers in different areas of practice to the risk of differing sanctions. Ante, at 763. But Congress has made a legislative decision to treat lawyers in civil rights litigation differently than they are treated in most types of litigation. Because of that congressional determination, lawyers in these cases are more likely to be well paid than other lawyers and, conversely, their misconduct may subject their clients to liability for the fees of opposing counsel. A conclusion that such special treatment also subjects these lawyers to an additional risk for failing to observe the normal proprieties that obtain in litigation does not strike me as anomalous. Ironically, the Court rejects my rather straightforward approach to the statutory language because it “would constitute standardless judicial lawmaking,” ante, at 762, but then, in Part III of its opinion, embarks on a venture of its own that 2 Title 42 U. S. C. § 1988 and § 2000e-5 (k) both authorize an award of attorney’s fees to the prevailing party “as part of the costs” of the litigation. ROADWAY EXPRESS, INC. v. PIPER 771 752 Burger, C. J., dissenting surely fits that description neatly. Although a trial court has inherent contempt powers, I have the gravest doubts about its inherent power to order a lawyer to pay damages to an opposing litigant. Since it is not at all necessary to reach out to decide that issue, however, I would simply answer the statutory question presented by the certiorari petition. Although I do not disagree with the Court’s discussion of Rule 37 in Part II-B of its opinion, I respectfully dissent from its construction of § 1927 and its inherent-power holding. Mr. Chief Justice Burger, dissenting. I dissent from the Court’s holding that it was improper for the District Court to look to 42 U. S. C. §§ 1988 and 2000e-5 (k) to determine whether attorney’s fees were assessable as part of the excess costs which the respondent attorneys could be made to pay under 28 U. S. C. § 1927. Section 1927 does not itself attempt to define the costs which an attorney may be forced to pay because of vexatious, dilatory tactics and conduct, except to state that the attorney may be forced to pay only the excess costs generated by his misconduct. One must look elsewhere to determine the types of costs which are assessable. It may be correct that ordinarily a court would look to 28 U. S. C. § 1920, which does not include attorney’s fees among its enumerated items. But whether or not attorney’s fees are recoverable as costs depends on the type of action involved. In Hutto v. Finney, 437 U. S. 678, 697 (1978), the Court noted that “there are a large number of statutory and common-law situations in which allowable costs include counsel fees.” In a footnote, the Court observed: “In 1975, we listed 29 statutes allowing federal courts to award attorney’s fees in certain suits. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 IT. S., at 260-261, n. 33. Some of these statutes define attorney’s fees as an element of costs, while others separate fees from other taxable costs. Compare 42 IT. S. C. § 2000a-3 (b) with 29 U. S. C. § 216 (b) (1970 ed., Supp. V).” Id., at 697, n. 28. 772 OCTOBER TERM, 1979 Burger, C. J., dissenting 447U.S. Title 42 U. S. C. § 2000a-3 (b), in pertinent part, states that the court in its discretion “may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs . . . ,” whereas 29 U. S. C. § 216 (b) states that the court shall “allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” Comparing the language of these sections to that of 42 U. S. C. §§ 1988 and 2000e-5 (k) at issue here, it seems plain to me that §§ 1988 and 2000e-5 (k) fall within the first category—statutes which define attorney’s fees as an element of costs. The Court said this in so many words in Hutto with regard to § 1988. 437 U. S., at 695. Thus, by statute, in Title VII actions, or in actions to enforce 42 U. S. C. §§ 1981, 1983, 1985, and 1986, attorney’s fees are an element of costs. Sections 1988 and 2000e-5 (k) state that the awards may be made to the prevailing party, as was the instant award. They do not state who is to bear the costs. Normally, of course, the losing party will bear the costs. But if the court finds that the costs have been increased “unreasonably and vexatiously,” § 1927 empowers the court to make the errant attorneys themselves bear the excess costs occasioned by their misconduct. That is what happened here. Respondents correctly point out that this Court has held in Christiansburg Garment Co. v. EEOC, 434 U. S. 412 (1978), that if the award is against the plaintiff, the suit must be found to have been frivolous, unreasonable, or without foundation. But that case does not determine the standard for an award of excess costs against an attorney. Section 1927 itself provides that standard; the attorney must have so multiplied the proceedings as to have increased costs unreasonably and vexatiously. Here, both the District Court and the Court of Appeals agreed that that standard had been met. Given this disposition, I would not reach the other issues decided by the Court today. O’BANNON v, TOWN COURT NURSING CENTER 773 Syllabus O’BANNON, SECRETARY OF PUBLIC WELFARE OF PENNSYLVANIA v. TOWN COURT NURSING CENTER et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 78-1318. Argued November 6, 1979—Decided June 23, 1980 After the Department of Health, Education, and Welfare (HEW) and the Pennsylvania Department of Public Welfare (DPW) had revoked the authority of Town Court Nursing Center (a nursing home) to provide elderly residents of the home with nursing care at government expense under Medicare and Medicaid provider agreements, the home and several of its patients (respondents) brought suit in Federal District Court, alleging, inter alia, that the patients were entitled to an evidentiary hearing on the merits of the revocation before the Medicaid payments were discontinued. The District Court ultimately rejected this argument. On appeal, the Court of Appeals reversed, holding that the patients had a constitutionally protected property interest in continued residence at the nursing home that gave them a right to a pretermination hearing on whether the home’s Medicare and Medicaid provider agreements should be renewed. In so holding, the court relied on three Medicaid provisions: 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II), which gives Medicaid recipients the right to obtain services from any qualified facility, a federal regulation prohibiting certified facilities from transferring or discharging a patient except for specified reasons, and a federal regulation prohibiting the reduction or termination of financial assistance without a hearing. Held: The patients have no interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before HEW and DPW can decertify that facility. Whatever legal rights the patients may have against the nursing home for failing to maintain its status as a qualified nursing home, the enforcement by HEW and DPW of their valid regulations did not directly affect the patients’ legal rights or deprive them of any constitutionally protected interest in life, liberty, or property. Pp. 784r-790. (a) Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the nursing home of one’s choice. While 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II) by implication gives recipients the right to be free from government interference with the choice to remain in a 774 OCTOBER TERM, 1979 Syllabus 447 U. S. home that continues to be qualified, it does not confer a right to continue to receive benefits for care in a home that has been decertified. Although the regulations in question protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government’s right to make a transfer necessary by decertifying a facility. And, since decertification does not reduce or terminate a patient’s financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant. Pp. 785-786. (b) This case does not involve the withdrawal of direct benefits. Rather, it involves the Government’s attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But that impact, which is an indirect and incidental result of the Government’s enforcement action, does not amount to a deprivation of any interest in life, liberty, or property. Pp. 786-789. 586 F. 2d 280, reversed and remanded. Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in the judgment, post, p. 790. Brennan, J., filed a dissenting opinion, post, p. 805. Marshall, J., took no part in the consideration or decision of the case. Norman J. Watkins, Special Deputy Attorney General of Pennsylvania, argued the cause for petitioner. With him on the briefs was Edward G. Biester, Jr. Richard A. Allen argued the cause for the Secretary of Health, Education, and Welfare, respondent under this Court’s Rule 21 (4), in support of petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, Deputy Solicitor General Easterbrook, and William Kanter. Nathan L. Posner argued the cause for respondents. With him on the brief were William F. Coyle, Jeffrey B. Albert, and Abraham C. Reich* *Briefs of amici curiae urging affirmance were filed by Michael H. Mar- O’BANNON v. TOWN COURT NURSING CENTER 775 773 Opinion of the Court Mr. Justice Stevens delivered the opinion of the Court. The question presented is whether approximately 180 elderly residents of a nursing home operated by Town Court Nursing Center, Inc., have a constitutional right to a hearing before a state or federal agency may revoke the home’s authority to provide them with nursing care at government expense. Although we recognize that such a revocation may be harmful to some patients, we hold that they have no constitutional right to participate in the revocation proceedings. Town Court Nursing Center, Inc. (Town Court), operates a 198-bed nursing home in Philadelphia, Pa. In April 1976 it was certified by the Department of Health, Education, and Welfare (HEW) as a “skilled nursing facility,” thereby becoming eligible to receive payments from HEW and from the Pennsylvania Department of Public Welfare (DPW), for providing nursing care services to aged, disabled, and poor persons in need of medical care. After receiving its certification,1 Town Court entered into formal “provider agreements” with both HEW and DPW. In those agreements HEW and DPW agreed to reimburse Town Court for a period of one year for care provided to persons eligible for Medicare or Medicaid benefits under the Social Security Act,2 on the condition that Town Court continue to qualify as a skilled nursing facility. On May 17, 1977, HEW notified Town Court that it cus, Gary Roberts, John L. Carroll, and Morris Dees for Jill Harris et al.; by ’Kalman Finkel, John E. Kirklin, and Philip M. Gassel for the Legal Aid Society of New York City et al.; and by Toby S. Edelman and Edward C. King for the National Citizens’ Coalition for Nursing Home Reform. 1 The certification in 1976 was Town Court’s second; it had first been certified in 1967. It was decertified in 1974 as a result of substantial non-compliance with both state and federal requirements. 2 The Medicare Program, see 42 U. S. C. § 1395 et seq., which is primarily for the benefit of the aged and the disabled, is financed and administered entirely by the Federal Government (HEW); the Medicaid Program, see 42 U. S. C. § 1396 et seq., which is primarily designed for the poor, is a cooperative federal-state program. 776 OCTOBER TERM, 1979 Opinion of the Court 447U.S. no longer met the statutory and regulatory standards for skilled nursing facilities and that, consequently, its Medicare provider agreement would not be renewed.3 The HEW notice stated that no payments would be made for services rendered after July 17, 1977, explained how Town Court might request reconsideration of the decertification decision, and directed it to notify Medicare beneficiaries that payments were being discontinued. Three days later DPW notified Town Court that its Medicaid provider agreement would also not be renewed.4 3 HEW based its determination on a survey conducted by DPW, which recommended that the home be decertified. In its notice to Town Court HEW stated in part: “In order to participate in the Medicare Program, a skilled nursing facility must meet the statutory requirements contained in section 1861 (j) of the Act, 42 USC 1395 x (j), as well as all other health and safety requirements established by the Secretary in subpart J, part 405, title 20 of the Code of Federal Regulations. A participating skilled nursing facility is required to be in compliance with all of the eighteen conditions of participation for such facilities contained in subpart J. “On May 8-11, 1977, the Pennsylvania Department of Health performed a survey of your facility. That survey found that your facility does not comply with seven of the eighteen conditions of participation. The seven conditions not being complied with are : “n. Governing Body and Management (405.1121) “in. Medical Direction (405.1122) “IV. Physical Services (405.1123) “V. Nursing Services (405.1124) “VIII. Pharmaceutical Services (405.1127) “XIII. Medical Records (405.1132) “XV. Physical Environment (405.1134) “Your facility’s failure to comply with these conditions of participation precludes renewal of your agreement. Renewal is also precluded by the fact that your facility has failed to maintain compliance with numerous standards which had previously been determined to be met. Please refer to 20 CFR 405.1908 (d).” App. 295a-296a. 4 The state agency’s letter read in part: “Because the Medicare Program has terminated your participation, the Department of Public Welfare has no alternative but to likewise ter- O’BANNON v. TOWN COURT NURSING CENTER 777 773 Opinion of the Court Town Court requested HEW to reconsider its termination decision. While the request was pending, Town Court and six of its Medicaid patients5 filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that both the nursing home and the patients were entitled to an evidentiary hearing on the merits of the decertification decision before the Medicaid payments were discontinued. The complaint alleged that termination of the payments would require Town Court to close and would cause the individual plaintiffs to suffer both a loss of benefits and “immediate and irreparable psychological and physical harm.” App. Ila. minate your participation under the Medical Assistance Program. The Federal regulations, 45 C. F. R. § 249.33 (a) (9), require that a State medical assistance plan must: “ ‘Provide that in the case of skilled nursing facilities certified under the provisions of title XVIII of the Social Security Act, the term of a provider agreement shall be subject to the same terms and conditions and coterminous with the period of approval of eligibility specified by the Secretary pursuant to that title, and upon notification that an agreement with a facility under title XVIII of the Act has been terminated or cancelled, the single State agency will take appropriate action to terminate the facility’s participation under the plan. A facility whose agreement has been cancelled or otherwise terminated may not be issued another agreement until the reasons which cause the cancellation or termination have been removed and reasonable assurance provided the survey agency that they will not recur.’ (emphasis supplied) “Because of the requirements of HEW, your facility must be terminated from participation in the Medical Assistance Program effective June 18, 1977.” Id., at 291a-292a. 5 At the time the suit was filed, no Town Court residents were Medicare recipients. However, Town Court did have a Medicare provider agreement with HEW, the nonrenewal of which automatically triggered the nonrenewal of its Medicaid agreement. See n. 4, supra. Although the plaintiffs filed their action on behalf of a class of all Medicaid recipients in the home, the District Court never certified the class. Thus, the action has proceeded throughout the Court of Appeals and in this Court as an individual action on behalf of the six named plaintiffs. 778 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. The District Court granted a preliminary injunction against DPW and HEW, requiring payments to be continued for new patients as well as for patients already in the home and prohibiting any patient transfers until HEW acted on Town Court’s petition for reconsideration. After HEW denied that petition, the District Court dissolved the injunction and denied the plaintiffs any further relief, except that it required HEW and DPW to pay for services actually provided to patients. Town Court and the six patients filed separate appeals from the denial of the preliminary injunction, as well as a motion, which was subsequently granted, for reinstatement of the injunction pending appeal. The Secretary of HEW crossappealed from the portion of the District Court’s order requiring payment for services rendered after the effective date of the termination. The Secretary of DPW took no appeal and, though named as an appellee, took no position on the merits. The United States Court of Appeals for the Third Circuit, sitting en banc, unanimously held that there was no constitutional defect in the HEW procedures that denied Town Court an evidentiary hearing until after the termination had become effective and the agency had ceased paying benefits.6 The 6 Relying on this Court’s decision in Mathews v. Eldridge, 424 U. S. 319, the Court of Appeals held that Town Court’s property interests were sufficiently protected by informal pretermination procedures and by the opportunity for an administrative hearing and federal-court review after benefits had been terminated: “As was true in Eldridge, the decision not to renew a provider agreement is an easily documented, sharply focused decision in which issues of credibility and veracity play little role. It is based in most cases upon routine, standard, unbiased reports by health care professionals. Those professionals evaluate the provider in light of well-defined criteria that were developed in the administrative rule-making process. Written submissions are adequate to allow the provider to present his case. Given the extensive documentation that the provider is able to submit in response to the findings of the survey teams, the provider is unlikely to need an eviden- O’BANNON v. TOWN COURT NURSING CENTER 779 773 Opinion of the Court Court of Appeals came to a different conclusion, however, with respect to the patients’ claim to a constitutional right to a pretermination hearing. Town Court Nursing Center, Inc. v. Beal, 586 F. 2d 280 (1978).7 Relying on the reasoning of Klein v. Califano, 586 F. 2d 250 (CA3 1978) (en banc), decided the same day, a majority of the court concluded that the patients had a constitutionally protected property interest in continued residence at Town Court that gave them a right to a pretermination hearing. In Klein the court identified three Medicaid provisions—a statute giving Medicaid recipients the right to obtain services from any qualified facility,8 a regulation prohibiting certified tiary hearing in order to present his position more effectively. In any event, there is ample opportunity to expand orally upon written submis-sions during the exit interview or in discussions during the survey itself. There is opportunity to submit additional evidence after notice of deficiencies is given, and the evidence upon which the recommendation of the survey team is based is disclosed fully to the provider. Moreover, the criteria used to evaluate the provider are well known in advance to the provider, and compliance is readily proved or disproved by written submission. Finally, review by an administrative law judge, by the Appeals Council of HEW, and ultimately by the federal courts, insures that the decision of the Secretary will be thoroughly examined before becoming final. As stated in Eldridge, the public interest in preserving scarce financial and administrative resources is strong. Given the large number of providers participating in Medicare and the frequent surveys that are required, we believe that the costs of providing pre-termination hearings would be substantial. Further, the public has a strong interest in insuring that elderly and infirm nursing home patients are not required to stay in noncomplying homes longer than is necessary to assure that the provider had adequate notice and opportunity to respond to charges of deficiencies.” Town Court Nursing Center, Inc. v. Beal, 586 F. 2d 266, 277-278 (1978). Town Court did not seek further review of this determination. 7 At the time the litigation began Frank S. Beal was the Pennsylvania Secretary of Public Welfare. He has since been replaced in that position by Helen B. O’Bannon, the petitioner in this Court. 8 Title 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II) provides, in relevant part: “[A]ny individual eligible for medical assistance (including drugs) may 780 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. facilities from transferring or discharging a patient except for certain specified reasons,9 and a regulation prohibiting the reduction or termination of financial assistance without a hearing10—which, in its view, created a “legitimate entitlement to continued residency at the home of one’s choice absent specific cause for transfer.” Id., at 258. It then cited the general due process maxim that, whenever a governmental benefit may be withdrawn only for cause, the recipient is entitled to a hearing as to the existence of such cause. See Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, 11. Finally, it held that, since the inevitable consequence of decertifying a facility is the transfer of all its residents receiving Medicaid benefits, a decision to decertify should be treated as a decision to transfer, thus triggering the patients’ right to a hearing on the issue of whether there is adequate cause for the transfer.11 obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service or services required (including an organization which provides such services, or arranges for their availability, on a prepayment basis), who undertakes to provide him such services. . . .” The same “free choice of providers” is also guaranteed by 42 CFR § 431.51 (1979). 9 Title 42 CFR §405.1121 (k)(4) (1979) requires skilled nursing facilities that are licensed either as Medicaid or Medicare providers to establish written policies and procedures to ensure that each patient admitted to the facility “ [i]s transferred or discharged only for medical reasons, or for his welfare or that of other patients, or for nonpayment of his stay (except as prohibited by titles XVIII or XIX of the Social Security Act), and is given reasonable advance notice to ensure orderly transfer or discharge. . . .” 10 Title 45 CFR §205.10 (a)(5) (1979) provides, in relevant part, that an “opportunity for a hearing shall be granted to any applicant who requests a hearing because his or her claim for financial assistance . . . or medical assistance is denied, . . . and to any recipient who is aggrieved by any agency action resulting in suspension, reduction, discontinuance, or termination of assistance.” 11 “Because a decision to decertify a nursing home as an unqualified O’BANNON v. TOWN COURT NURSING CENTER 781 773 Opinion of the Court Applying this reasoning in Town Court, six judges held that the patients were entitled to a pretermination hearing on the issue of whether Town Court’s Medicare and Medicaid provider agreements should be renewed.12 The court thus reinstated that portion of the preliminary injunction that prohibited patient transfers until after the patients had been granted a hearing and affirmed that portion that required HEW and DPW to continue paying benefits on behalf of Town Court residents. It then remanded, leaving the nature of the hearing to be accorded the patients to be determined, in the first instance, by the District Court. Three judges dissented, concluding that neither the statutes nor the regulations granted provider is tantamount to an order to transfer a patient for his welfare, Medicaid residents threatened with transfer are entitled to some form of hearing on the existence of the condition or cause for transfer—whether the home is a qualified provider and whether decertification is for the patients’ welfare.” 586 F. 2d, at 258. 12 Three judges joined a brief opinion announcing the judgment of the court authored by Judge Aldisert, which disposed of the case in a summary fashion based on the reasoning of Klein v. Califano. Judge Adams wrote a concurring opinion, which was also joined by three judges (two of whom also joined Judge Aldisert), in which he attempted to explain more fully the reasoning in Klein. Referring to the three provisions relied upon in Klein, Judge Adams stated that they “. . . paint three distinct points in the landscape of a ‘legitimate claim of entitlement’ that Medicaid beneficiaries can assert. Taken alone, the interest created by each of these clauses might be dismissed as not rising to the level of a cognizable property interest. However, when viewed together, they compel the conclusion that they identify three aspects of an ‘underlying substantive interest’ that enjoys the stature of ‘property.’ ” (Footnote omitted.) 586 F. 2d, at 287. Judge Adams also relied, to some extent, on the hardship that nursing home residents might suffer if forced to transfer to another home, stating that the “health” and “home” interests the residents possess in remaining in a particular nursing home are “among those that most persons would regard as being encompassed by the protections of the due process clause.” Id., at 289. Finally, unlike Judge Aldisert, Judge Adams went on to suggest what types of procedures would be necessary before Medicaid patients could be transferred. 782 OCTOBER TERM, 1979 Opinion of the Court 447U.S. the patients any substantive interest in decertification proceedings and that they had no constitutionally protected property right in uninterrupted occupancy.13 13 Chief Judge Seitz summarized his response to the three parts of the majority’s analysis as follows: “The majority finds that continued residency in the nursing home of one’s choice absent specific cause for transfer is an underlying substantive interest created by three Medicaid provisions. Under the first, 42 U. S. C. § 1396a (a) (23), a Medicaid recipient may obtain medical care ‘from any institution . . . qualified to perform the service or services required.’ Clearly, what the majority characterizes as a recipient’s right to obtain medical care from a ‘freely selected provider’ is limited to a choice among institutions which have been determined by the Secretary to be ‘qualified.’ Next, the majority’s reliance on 45 C. F. R. §205.IQ (a)(5), ensuring a notice and hearing to a recipient whose benefits are suspended, reduced, discontinued or terminated, is obviously misplaced. As the majority itself notes, the decertification of these facilities did not reduce or suspend the residents’ rights to continued benefits. “Finally, the majority relies upon 45 C. F. R. §249.12 (a) (1) (ii) (B) (4), which establishes as one requirement for an institution’s certification that each resident admitted to that institution be ‘transferred or discharged only for medical reasons or for his welfare or that of other patients, or for nonpayment for his stay.’ The majority reads this provision as a limitation on the Secretary’s power to interrupt a recipient’s residence at a particular institution. Clearly, however, this provision is a standard of conduct imposed by the Secretary upon the provider. Violation of this standard is one of many grounds for decertifying the offending institution. See 45 C. F. R. §§249.33 (a)(2), 249.10 (b) (15). The provision creates no ‘substantive interest’ in the residents vis-a-vis the Secretary. “Moving to its minor premise, the majority postulates that a decision to decertify is tantamount to a decision to transfer individual residents. Practically, of course, this may be a consequence in most cases, at least where an institution fails to remedy its insufficiencies. Analytically, however, the two decisions are different. Decertification focuses on the institution’s noncompliance with HEW’s standards. The majority does not and cannot contend that recipients have a right to remain in an institution that the Secretary has found, by appropriate procedures, to be in substantial noncompliance with the standards. ‘Transfer trauma,’ although a legitimate concern for some residents, is necessarily subordinate to the threat posed to all residents by substandard conditions.” Id., at 295-296. O’BANNON v. TOWN COURT NURSING CENTER 783 773 Opinion of the Court The Secretary of DPW filed a petition for certiorari, which we granted.14 441 U. S. 904. We now reverse, essentially for the reasons stated by Chief Judge Seitz in his dissent. 14 The patients urge us to dismiss the petition without reaching the merits on the ground that there is no one before the Court who may properly argue the petitioner’s position. Thus, they contend that DPW is foreclosed from arguing here because, although its Secretary was formally an appellee in the Court of Appeals, it deliberately took a neutral position on the merits in that court. And they argue that HEW, which did argue the merits below, is foreclosed from arguing them here because its Secretary did not petition for certiorari. While we accept the patients’ argument with respect to the portion of the injunction requiring continued payments for Medicaid patients, we reject it insofar as the main issue presented bv the petition—the right of the patients to a pretermination hearing—is concerned. When the District Court ruled against the patients and Town Court on their right to a pretermination hearing, it nevertheless ordered HEW and DPW to continue making navments for services actuallv rendered, no doubt to ensure that there would be no break in care or benefits while the patients were being transferred. The patients appealed on the hearing issue, but the HEW Secretary alone cross-appealed on the issue of whether HEW should continue paying benefits assuming that there was no right to a pretermination hearing. The DPW Secretary did not file a cross-appeal, thus accepting the District Court’s order that DPW continue paying its share of benefits. Under these circumstances, the DPW Secretary’s petition for certiorari could not revive the issue of the propriety of that order. And, since the HEW Secretary did not file a petition for certiorari, we have no occasion to review it now. However, the patients’ jurisdictional argument fails insofar as the hearing issue is concerned. Because it contributes funds to the Medicaid program and has joint supervisory responsibilities with the Federal Government over Medicaid providers, DPW clearly has a sufficient interest in this question to give it standing to argue the merits. And, since it was victorious in the District Court on this issue, there was no need for it to file an appeal in order to keep it alive. Finally, although we would not normally allow a party to make an argument it had not raised below, the fact that the same argument was vigorously asserted by HEW and fully addressed by the Court of Appeals removes any prudential barrier to review that might otherwise exist. Because he was a party to the proceeding below, the HEW Secretary was automatically joined as a respondent when the DPW Secretary filed his petition in this Court. See this Court’s Rule 21 (4). In that capacity, he 784 OCTOBER TERM, 1979 Opinion of the Court 447U.S. At the outset, it is important to remember that this case does not involve the question whether HEW or DPW should, as a matter of administrative efficiency, consult the residents of a nursing home before making a final decision to decertify it.15 Rather, the question is whether the patients have an interest in receiving benefits for care in a particular facility that entitles them, as a matter of constitutional law, to a hearing before the Government can decertify that facility. The patients have identified two possible sources of such a right. First, they contend that the Medicaid provisions relied upon by the Court of Appeals give them a property right to remain in the home of their choice absent good cause for transfer and therefore entitle them to a hearing on whether such cause exists. Second, they argue that a transfer may have such severe physical or emotional side effects that it is tantamount to a deprivation of life or liberty, which must be preceded by a due process hearing.16 We find both arguments unpersuasive.17 may seek reversal of the judgment of the Court of Appeals on any ground urged in that court. 15 As Judge Adams pointed out in his concurring opinion, HEW and DPW would no doubt benefit from patient input on the questions whether the facility meets the applicable standards and, if not, whether decertification should be postponed pending attempts to bring the home into compliance. 586 F. 2d, at 292-293. Indeed, HEW recognizes the value of patient input, requiring patient interviews to be conducted under some circumstances as a part of the periodic review of a facility s qualifications. See 42 CFR §456.608 (1979). The fact that a person may be an important, or even critical, witness does not, however, give him a constitutional right to testify. 16 The patients cite a number of studies indicating that removal to another home may cause “transfer trauma,” increasing the possibility of death or serious illness for elderly, infirm patients. They also argue that associational interests, such as friendship among patients and staff and family ties, may be disrupted if the patients are scattered to other nursing homes, perhaps in other areas of the country. In denying the motion for a preliminary injunction, the District Court did not take evidence or make any findings on the harm that might result from a transfer. Never-[Footnote 17 is on p. 785] O’BANNON v. TOWN COURT NURSING CENTER 785 773 Opinion of the Court Whether viewed singly or in combination, the Medicaid provisions relied upon by the Court of Appeals do not confer a right to continued residence in the home of one’s choice. Title 42 U. S. C. § 1396a (a) (23) (1976 ed., Supp. II) gives recipients the right to choose among a range of qualified providers, without government interference. By implication, it also confers an absolute right to be free from government interference with the choice to remain in a home that continues to be qualified. But it clearly does not confer a right on a recipient to enter an unqualified home and demand a hearing to certify it, nor does it confer a right on a recipient to continue to receive benefits for care in a home that has been decertified. Second, although the regulations do protect patients by limiting the circumstances under which a home may transfer or discharge a Medicaid recipient, they do not purport to limit the Government’s right to make a transfer necessary by decertifying a facility.18 Finally, since decerti-theless, we assume for purposes of this decision that there is a risk that some residents may encounter severe emotional and physical hardship as a result of a transfer. 17 The patients also argue that they are third-party beneficiaries of the provider agreement between DPW and Town Court and that this status somehow entitles them to more than Town Court itself is entitled to— namely, a pretermination hearing. They also argue that a legitimate entitlement to continued care in the home of their choice arises out of Pennsylvania’s long history of providing free medical care for those who are indigent. Nothing in the cited Pennsylvania statutes or court decisions, however, purports to create the kind of broad entitlement that the patients claim. In any event, neither of these state-law arguments was advanced in the courts below and therefore neither may provide the basis for an affirmance in this Court. 18 This regulation is clearly designed to prevent abuses by providers and not to define the Government’s obligations or limit its powers in any way. Although the regulation allows a home to transfer or discharge a patient for medical reasons, we may assume that the Government could not order a patient transferred out of a qualified facility simply because it believed such a transfer was medically indicated. In other words, we assume that the statute referred to above would prohibit any such interference with the patient’s free choice among qualified providers. 786 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. fication does not reduce or terminate a patient’s financial assistance, but merely requires him to use it for care at a different facility, regulations granting recipients the right to a hearing prior to a reduction in financial benefits are irrelevant. In holding that these provisions create a substantive right to remain in the home of one’s choice absent specific cause for transfer, the Court of Appeals failed to give proper weight to the contours of the right conferred by the statutes and regulations. As indicated above, while a patient has a right to continued benefits to pay for care in the qualified institution of his choice, he has no enforceable expectation of continued benefits to pay for care in an institution that has been determined to be unqualified. The Court of Appeals also erred in treating the Government’s decision to decertify Town Court as if it were equivalent in every respect to a decision to transfer an individual patient. Although decertification will inevitably necessitate the transfer of all those patients who remain dependent on Medicaid benefits, it is not the same for purposes of due process analysis as a decision to transfer a particular patient or to deny him financial benefits, based on his individual needs or financial situation. In the Medicare and the Medicaid Programs the Government has provided needy patients with both direct benefits and indirect benefits. The direct benefits are essentially financial in character; the Government pays for certain medical services and provides procedures to determine whether and how much money should be paid for patient care. The net effect of these direct benefits is to give the patients an opportunity to obtain medical services from providers of their choice that is comparable, if not exactly equal, to the opportunity available to persons who are financially independent. The Government cannot withdraw these direct benefits with- O’BANNON v. TOWN COURT NURSING CENTER 787 773 Opinion of the Court out giving the patients notice and an opportunity for a hearing on the issue of their eligibility for benefits.19 This case does not involve the withdrawal of direct benefits. Rather, it involves the Government’s attempt to confer an indirect benefit on Medicaid patients by imposing and enforcing minimum standards of care on facilities like Town Court. When enforcement of those standards requires decertification of a facility, there may be an immediate, adverse impact on some residents. But surely that impact, which is an indirect and incidental result of the Government’s enforcement action, does not amount to a deprivation of any interest in life, liberty, or property. Medicaid patients who are forced to move because their nursing home has been decertified are in no different position for purposes of due process analysis than financially independent residents of a nursing home who are forced to move because the home’s state license has been revoked. Both groups of patients are indirect beneficiaries of government programs designed to guarantee a minimum standard of care for patients as a class. Both may be injured by the closing of a home due to revocation of its state license or its decertification as a Medicaid provider. Thus, whether they are private patients or Medicaid patients, some may have difficulty locating other homes they consider suitable or may suffer both emotional and physical harm as a result of the disruption associated with their move. Yet none of these patients would lose the ability to finance his or her continued care in a properly licensed or certified institution. And, while they might have a claim against the nursing home for damages,20 none would have any claim against the responsible governmental authorities for the deprivation of an interest in life, liberty, or prop 19 45 CFR § 205.10 (a) (5) (1079). See also Goldberg v. Kelly, 397 U. S. 254. 20 This would, of course, depend on the contract between the patients and the nursing home, if any, and the provisions of the applicable state law. 788 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. erty. Their position under these circumstances would be comparable to that of members of a family who have been dependent on an errant father; they may suffer serious trauma if he is deprived of his liberty or property as a consequence of criminal proceedings, but surely they have no constitutional right to participate in his trial or sentencing procedures. The simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally provides a sufficient answer to all of the cases on which the patients rely in this Court. Thus, Memphis Light, Gas & Water Division v. Craft, 436 U. S. 1, involved the direct relationship between a publicly owned utility and its customers; the utility had provided its customers with a legal right to receive continued service as long as they paid their bills. We held that under these circumstances the utility’s customers had a constitutional right to a hearing on a disputed bill before their service could be discontinued. But nothing m that case implies that if a public utility found it necessary to cut off service to a nursing home because of delinquent payments, it would be required to offer patients in thé home an opportunity to be heard on the merits of the credit dispute. This would be true even if the termination of utility service required the nursing home to close and caused serious inconvenience or harm to patients who would therefore have to move. As in this case, such patients might have rights against the home, and might also have direct relationships with the utility concerning their own domestic service, but they would have no constitutional right to interject themselves into the dispute between the public utility and the home. 21 Similarly, in Perry v. Sindermann, 408 U. S. 593, and Arnett y. Kennedy 416 U. S. 134, the Court was concerned with the direct relationship between a public employer and its employees. The character of that relationship determined whether the employee possessed an expectancy ot continued employment that was legally enforceable against his employer O’BANNON v. TOWN COURT NURSING CENTER 789 773 Opinion of the Court Over a century ago this Court recognized the principle that the due process provision of the Fifth Amendment does not apply to the indirect adverse effects of governmental action. Thus, in the Legal Tender Cases, 12 Wall. 457, 551, the Court stated: “That provision has always been understood as referring only to a direct appropriation, and not to consequential injuries resulting from the exercise of lawful power. It has never been supposed to have any bearing upon, or to inhibit laws that indirectly work harm and loss to individuals.” More recently, in Martinez v. California, 444 U. S. 277, we rejected the argument made by the parents of a girl murdere by a parolee that a California statute granting absolute immunity to the parole board for its release decisions deprived their daughter of her life without due process of law: “A legislative decision that has an incremental impact on the probability that death will result in any given situation—such as setting the speed limit at 55-miles-per-hour instead of 45—cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander.” Id., at 281. Similarly, the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not turn the decertification into a governmental decision to impose that harm.22 or at least could not be terminated by the employer without observing certain minimal safeguards. But those cases raised no question concernmg the right of an employee who loses his job as a result of government action directed against a third party. 22 We of course, need not and do not hold that a person may never have a right to a hearing before his interests may be indirectly affected by government action. Conceivably, for example, if the Government were acting against one person for the purpose of punishing or restraining 790 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447U.S. Whatever legal rights these patients may have against Town Court for failing to maintain its status as a qualified skilled nursing home—and we express no opinion on that subject—we hold that the enforcement by HEW and DPW of their valid regulations did not directly affect the patients’ legal rights or deprive them of any constitutionally protected interest in life, liberty, or property. 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 took no part in the consideration or decision of this case. Mr. Justice Blackmun, concurring in the judgment. Although the Court reaches the result I reach, I find its analysis simplistic and unsatisfactory. I write separately to explain why and to set forth the approach I feel should be followed. The patients rest their due process claim on two distinct foundations. First, they assert a property interest in continued residence at their home. Second, they claim life and liberty interests tied to their physical and psychological wellbeing. According to the patients, because each of these interests is threatened directly by decertification, they are constitutionally entitled to a hearing on the propriety of that action. Unlike the Court, I find it necessary to treat these distinct arguments separately. another, the indirectly affected individual might have a constitutional right to some sort of hearing. But in this case the Government is enforcing its regulations against the home for the benefit of the patients as a whole and the home itself has a strong financial incentive to contest its enforcement decision; under these circumstances the parties suffering an indirect adverse effect clearly have no constitutional right to participate in the enforcement proceedings. O’BANNON v. TOWN COURT NURSING CENTER 791 773 Blackmun, J., concurring in judgment I In my view, the Court deals far too casually with § 1902 (a) (23) of the Social Security Act, 42 U. S. C. § 1396 (a) (23) (1976 ed., Supp. II), in rejecting the patients’ “property” claim.1 That provision guarantees that a patient may receive nursing home care “from any institution . . . qualified to perform the . . . services . . . who undertakes to provide him such services.” The statute thus vests each patient with a broad right to resist governmental removal, which can be disrupted only when the Government establishes the home’s noncompliance with program participation requirements. Given this fact and our precedents, one can easily understand why seven judges of the Court of Appeals adopted the patients’ argument. It would seem that, because the Government has generated a “justifiable expectation that [the patients] would not be transferred except for misbehavior or upon the occurrence of other specified events,” Vitek v. Jones, 445 IT. S. 480, 489 (1980), they are “entitled ... to the benefits of appropriate procedures in connection with determining the conditions that warranted [their] transfer.” Id., XI agree with the Court that 45 CFR §205.10 (a)(5) (1979) does not help the patients. Even assuming that provision might otherwise be relevant, it merely prescribes procedures that must attend removal of a benefit. Thus, it has no bearing on whether a property interest exists. See Bishop v. Wood, 426 U. S. 341, 345, 347 (1976); Monaghan, Of “Liberty” and “Property,” 62 Cornell L. Rev. 405, 442-443, n. 232 (1977). I am less comfortable with the Court’s treatment of 42 CFR § 442.311 (c) (1979), restated from 45 CFR § 249.12 (a) (1) (ii) (B) (4) (1976), which limits transfers by the home. After all, “[i]t is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.” Board of Regents v. Roth, 408 U. S. 564, 577 (1972). Since reliance can be generated by inhibitions on private, as well as governmental, alteration of the status quo, I am inclined to think that this provision, if applicable to Town Court, furnishes some support to the patients’ claim of a protected expectancy. Accord, Brede v. Director for Dept, of Health for Hawaii, 616 F. 2d 407, 410-411 (CA9 1980). 792 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447U.S. at 490. Especially since the patients assert an interest in a home,2 I believe their claim to property has substantial force. I agree with Judge Adams of the Court of Appeals that it “begs the question,” Town Court Nursing Center, Inc. v. Beal, 586 F. 2d 280, 287 (1978) (concurring opinion), to counter this argument with the observation that § 1396 (a) (23) expressly gives the patients only a right to stay in qualified facilities. See ante, at 785. We have repeatedly rejected as too facile an approach that looks no further than the face of the statute to define the scope of protected expectancies. See Vitek v. Jones, 445 U. S., at 490-491, and n. 6, citing Arnett v. Kennedy, 416 U. S. 134 (1974) (concurring and dissenting opinions); The Supreme Court, 1975 Term, 90 Harv. L. Rev. 56, 99 (1976) (“six Justices in Arnett must have looked outside the statute to consider the impact of government action on citizen expectations and reliance”). Here, as in numerous cases in which we have recognized protected interests, disqualification of the home is the very condition that alone permits disruption of the status quo and that the patients wish to contest. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 11-12 (1978) (“Because petitioners may terminate service only Tor cause/ respondents assert a ‘legitimate claim of entitlement’ within the protection of the Due Process Clause”) (footnote omitted). Perhaps aware that its treatment of § 1396 (a) (23) is in some tension with our precedents, the Court launches another 2 It is well recognized that the Due Process Clauses of the United States Constitution grew out of the “law of the land” provision of Magna Carta and its later manifestations in English statutory law. That the home was at the center of those property interests historically sought to be protected by due process is underscored by the fact the phrase “due process of law” first appeared in the following codification: “No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.” 28 Edw. Ill, ch. 3 (1354) (emphasis added), as quoted in The Constitution of the United States of America, Analysis and Interpretation 1138 (Cong. Research Serv. 1973). O’BANNON v. TOWN COURT NURSING CENTER 793 US Blackmun, J., concurring in judgment line of analysis. It reasons that “decertification ... is not the same for purposes of due process analysis as a decision to transfer a particular patient.” Ante, at 786. I am left wondering why. Certainly, the “real world” effect of the two actions is the same. Thus the Court’s assertion will come as cold comfort to patients forced to relocate because of this decision. I also wonder why this analytical differentiation matters in determining whether the patients possess a constitutionally protected interest. Certainly decertification results in the loss of exactly the same interest—the ability to stay in one s home that a patient subject to an individual transfer suffers. The Court does not explain to my satisfaction why in the latter case, but not in the former, a constitutionally protected interest is affected. I have no quarrel with the Court’s observation that the Due Process Clause generally is unconcerned with “indirect” losses. I fear, however, that such platitudes often submerge analytical complexities in particular cases. Cf. Sherbert v Verner, 374 U. S. 398, 404 (1963); Braunfeld v. Brown, 366 U. S. 599, 607 (1961) (plurality opinion); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 461 (1958); American Communications Assn. v. Douds, 339 U. S. 382, 402 (1950). I also question whether that generalization has relevance here.3 Even assuming it does, the Court’s treatment of it 3 It seems to me that the indirect character of a harm at least normally has to do with whether state action has “deprived” a person of a protected interest, not with whether a protected interest exists. Thus, in Martinez v. California, 444 U. S. 277 (1980), a case relied on by the Court, there was no question that the interest destroyed, a woman’s life, was constitutionally protected. The Court concluded, however, that the loss of that life was “too remote a consequence” of government conduct to be deemed a deprivation attributable to state action. Id., at 285. I would similarly distinguish the Court’s “errant father” and “unpaid utility” hypothetical as mstances where no governmental deprivation occurred. Since the deprivation issue was neither briefed in this Court nor addressed below, I think there is a serious question whether the Court’s inquiry into the indirect character of the patient’s loss has any place in this case. 794 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447U.S. leaves me unimpressed. To say that the decertification decision directly affects the home is not to say that it “indirectly” affects the patients. Transfer is not only the “in-evitabl[e],” ante, at 786, clearly foreseeable consequences of decertification; a basic purpose of decertification is to force patients to relocate. Thus, not surprisingly, § 1396 (a) (23) specifically ties the patients’ right to continued residence in a home to qualification of the facility. Under these circumstances, I have great difficulty concluding that the patients’ loss of their home should be characterized as “indirect and incidental,” ante, at 787, “consequential,” Meyer v. Richmond, 172 U. S. 82, 94 (1898); “collateral,” see Hannah v. Larche, 363 U. S. 420, 443 (1960); or “remote and indeterminate,” Goodrich n. Detroit, 184 U. S. 432, 437 (1902).4 To be sure, decertification-induced transfers are designed to benefit patients. See ante, at 787. But so are a wide range of other governmental acts that invoke due process protections for the intended beneficiary. See, e. g., Vitek n. Jones, supra; Parham n. J. R., 442 U. S. 584 (1979). See also In re Gault, 387 U. S. 1 (1967). Indeed a basic purpose of affording a hearing in such cases is to test the Government’s judgment that its action will in fact prove to be beneficial. 4 Because the “indirectness” of a result inevitably is a question of degree, and because countervailing considerations are likely to appear, I would prefer to treat “indirectness” as, at most, but one factor in the “property interest” calculus, which carries greater or lesser significance depending on the particular case. If I were to agree that the sole question here is whether the patients’ loss must be rigidly characterized as either “indirect” or “direct,” I doubt that I would reach the result the Court does. And if I did, I would undoubtedly rely on the policy-informed factors identified hereinafter, rather than on an essentially ipse dixit judgment informed by strained analogies. This would be so whether the relevant inquiry was whether a property interest exists or whether a deprivation had occurred. Cf. Monaghan, 62 Cornell L. Rev., at 428 (existence of “deprivation . . . depends ... on such matters as the nature of the invasion, its magnitude, and the character of the justification asserted”). O’BANNON v. TOWN COURT NURSING CENTER 795 773 Blackmun, J., concurring in judgment In my view, there exists a more principled and sensible analysis of the patients’ “property” claim. Given § 1396 (a) (23), I am forced to concede that the patients have some form of property interest in continued residence at Town Court. And past decisions compel me to observe that where, as here, a substantial restriction inhibits governmental removal of a presently enjoyed benefit, a property interest normally will be recognized.5 To state a general rule, however, is not to decide a specific case. The Court never has held that any substantive restriction upon removal of any governmental benefit gives rise to a generalized property interest in its continued enjoyment. Indeed, a majority of the Justices of this Court are already on record as concluding that the term “property” sometimes incorporates limiting characterizations of statutorily bestowed interests. See Arnett v. Kennedy, 416 IT. S. 134 (1974) (plurality opinion); Goss v. Lopez, 419 IT. S. 565, 586-587, and n. 4 (1975) (dissenting opinion). See also Smith v. Organization of Foster Families, 431 IT. S. 816, 856, 860-861 (1977) (opinion concurring in judgment). See generally Van Alstyne, Cracks in 5 See Memphis Light, Gas & Water Div. v. Craft, 436 U. S. 1, 11 (1978) (receipt of services from public utility not terminable except for “good and sufficient cause”); Bishop v. Wood, 426 U. S., at 345, n. 8 (finding determinative that public employment was terminable “at will,” rather than for cause); Goss v. Lopez, 419 U. S. 565, 573-574 (1975) (public education must be continued absent “misconduct”); Board of Regents x. Roth, 408 U. S., at 578 (distinguishing situation where nonrenewal of state college professor’s employment authorized only for “sufficient cause”); Goldberg v. Kelly, 397 U. S. 254, 262 (1970) (public support payments to be continued unless recipient not qualified). See also Vitek v. Jones, 445 U. S. 480, 488-491 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 9-11 (1979); Mont any e v. Haymes, 427 U. S. 236, 242 (1976); Meacham x. Fano, 427 U. S. 215, 226-227 (1976); Wolff v. McDonnell, 418 U. S. 539, 558 (1974); Gagnon v. Scarpelli, 411 U. S. 778 (1973); Morrissey v. Brewer, 408 U. S. 471 (1972). See generally Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 276 (1856) (Fifth Amendment “cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will”). 796 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447 U. S. “The New Property” Adjudicative Due Process in the Administrative State, 62 Cornell L. Rev. 445, 460-466 (1977). Common sense and sound policy support this recognition of some measure of flexibility in defining “new property” expectancies. Public benefits are not held in fee simple. And even if we analogize the patients’ claim to “continued residence” to holdings more familiar to the law of private property—even to interests in homes, such as life tenancies—we would find that those interests are regularly subject to easements, conditions subsequent, possibilities of reverter, and other similar limitations. In short, it does not suffice to say that a litigant holds property. The inquiry also must focus on the dimensions of that interest. See Board of Regents n. Roth, 408 U.S. 564, 577 (1972). The determinative question is whether the litigant holds such a legitimate “claim of entitlement” that the Constitution, rather than the political branches, must define the procedures attending its removal. Id., at 578. Claims of entitlement spring from expectations that are “justifiable,” Vitek v. Jones, 445 U. S., at 489; “protectible,” Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 7 (1979); “sufficient,” Bishop v. Wood, 426 U. S. 341, 344 (1976); or “proper,” id., at 362 (dissenting opinion). In contrast, the Constitution does not recognize expectancies that are “unilateral,” Board of Regents n. Roth, 408 U. S., at 577, or “too ephemeral and insubstantial.” Meachum n. Fano, 427 U. S. 215, 228 (1976). To mouth these labels does not advance analysis far. We must look further to determine which set of labels applies to particular constellations of fact. Whether protected entitlements exist and how far they extend, although dependent on subconstitutional rules, see, e. g., Bishop n. Wood, supra, are ultimately questions of constitutional law. See Memphis Light, Gas & Water Div. v. Craft, 436 U. S., at 9; Monaghan, Of “Liberty” and “Property,” 62 Cornell L. Rev. 405, 435-436 (1977). Application of that law will seldom pose difficulties O’BANNON v. TOWN COURT NURSING CENTER 797 Blackmun, J., concurring in judgment when the Government has exercised its option to bestow a benefit wholly at will, see Bishop v. Wood, supra, or the litigant has identified a ufor cause” condition resembling those held to be property-creating in past cases. Cases, however, will not always fit neatly into these categories. And when such cases arise, some new analysis is needed. In my view, that inquiry should be broad-gauged. Reason and shared perceptions should be consulted to define the scope of the claimant s justifiable” expectations. Nor should constitutional policy be ignored in deciding whether constitutional protections attach. This approach not only permits sensible application of due process protections; it reflects the unremarkable reality that reasonable legal rules themselves comport with reasonable expectations. In applying this analysis to this case, four distinct considerations convince me that—even though the statutes place a significant substantive restriction on transferring patients___ their expectancy in remaining in their home is conditioned upon its status as a qualified provider. (1) The lengthy process of deciding the disqualification question has intimately involved Town Court. The home has been afforded substantial procedural protections, and, throughout the process, has shared with the patients who wish to stay there an intense interest in keeping the facility certified. These facts are functionally important. Procedural due process seeks to ensure the accurate determination of decisional facts, and informed, unbiased exercises of official discretion. See, e. g., Fuentes v. Shevin, 407 U. S. 67, 81 (1972); Morrissey v. Brewer, 408 U. S. 471, 480 (1972). ' To the extent procedural safeguards achieve these ends, they reduce the likelihood that persons will forfeit important interests without sufficient justification. In this case, since the home had the opportunity and incentive to make the very arguments the patients might make, their due process interest in accurate and informed decisionmaking already, in large measure, was satisfied. This point embodies more than 798 447 U.S. OCTOBER TERM, 1979 Blackmun, J., concurring in judgment an abstract argument of policy. “[T]he rights of parties are habitually protected in court by those who act in a representative capacity.” Voeller v. Neilston Warehouse Co., 311 U. S. 531, 537 (1941). See also New Orleans Debenture Redemption Co. v. Louisiana, 180 U. S. 320 (1901); Bern-heimer v. Converse, 206 U. S. 516, 532 (1907). Thus, not surprisingly the Court heretofore has recognized that where known rules provide procedures through which we may expect others to protect a property holder’s less directly threatened interests, that fact favors viewing compliance with those procedures as defining the outer limits of the property holder’s expectancy. See Kersh Lake Dist. v. Johnson, 309 U. S. 485 (1940); McCaughey v. Lyall, 224 U. S. 558 (1912). (2) Town Court is more than a de facto representative of the patients’ interests; it is the underlying source of the benefit they seek to retain. Again, this fact is important, for the property of a recipient of public benefits must be limited, as a general rule, by the governmental power to remove, through prescribed procedures, the underlying source of those benefits. The Constitution would not have entitled John Kelly to a fair hearing if New York had chosen to disband its public assistance programs rather than to cut off his particular award. See Goldberg v. Kelly, 397 U. S. 254 (1970). Nor would Texas have had to afford process to Professor Sindermann had it decided for budgetary reasons to close Odessa Junior College. See Perry v. Sindermann, 408 U. S. 593 (1972). And we would be surprised to learn that Dwight Lopez had a constitutional right to procedures before the Ohio Department of Education suspended classes at Columbus High School for 10 days due to the discovery of faulty electrical wiring requiring that much time for repair work. See Goss v. Lopez, 419 U. S. 565 (1975). These observations comport with common understanding and shared expectations. A farmer may sue for conversion if his upstream neighbor improperly diverts his water. But both can O-BANNON v. TOWN COURT NURSING CENTER 799 Blackmun, J., concurring in judgment only grumble if the spring rains cease and the river runs dry.8 (3) That the asserted deprivation of property extends in a nondiscnmmatory fashion to some 180 patients also figures in my calculus. See Dent v. West Virginia., 129 U. S. 114, !24 (1889) (legislation comports with due process if, among other things, “it be general in its operation upon the subjects to which it relates”). “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in town meet ’This common-sense notion is supported by the Court’s holding nearly °X T' CMnnati’ 104 U- 8. 783 (1882). Ohio had dredg^ the Mimm and Erie Canal which had one of its termini at the hio River in Cincinnati. Pursuant to statutory authority, the State entered into contracts with owners of land bordering the canal. Under tee contracts, the State provided the landowners with water to generate hydrate power in return for rents. Fox leased water from tee State ‘ 1863, the State granted Cincinnati a portion of the canal Xt fcnr t”'8 Jt“?- The * bUi“ the Street’ “d F°x. ^eging tte Stat ‘S SUed the dty- The responded tea! Fox reX th»';a y rescmdedJOT’s kase by abandoning the canal, ox replied that, if this were so, the grant was void because it deprived «^785 U‘ Pr°CeSS °f lOT “nd With°Ut iUSt comPensa- The Court perceived the issue to be “whether there is anything in the IbS 'it' JT“*8 ‘he Sta‘e fr°m mak“S “ abandonment.” th. It a"™'ered Question in the negative. The State could abandon the canal whenever the “public necessities” justified abandonment. Ibid don^f0^'”™10“ 'eaSe WaS required "becaus« the right to abandon followed necessarily from the right to build. . . . Even- lessee of power ook his lease and put up his improvements with full notice of the reserved nght of the State to discontinue its canal and stop "pply at 786‘ See K,rk v- Collide«« Mill Co., 279 U S 807 (!929); Kirk v. Maumee Valley Co., 279 U. S. 797 (1929) If a State my abandon a canal without invading the “property” of a lessee of its W U S TO ^“d°n” a r0“«6’ ^ry v. Sindermann, 408 U. S. S93 (1972), or a high school, Goss v. Lopez, 419 U. S. 565 (1975), or a nursing home Medicaid provider. 800 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447 U. S. ing or an assembly of the whole.” Bi-Metallic Investment Co. v. State Board, 239 U. S. 441, 445 (1915). See Bowles v. Willingham, 321 U. S. 503, 519-520 (1944); Goodrich v. Detroit, 184 U. 8., at 438. When governmental action affects more than a few individuals, concerns beyond economy, efficiency, and expedition tip the balance against finding that due process attaches.7 We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed procedures.8 Moreover, “the case for due 7 The need for expeditious removal of patients from unsafe and unhealthful homes surely is substantial. See Lieberman, Relocation Research and Social Policy, 14 The Gerontologist 494, 500 (1974) (“Taking individuals out of environments that were sterile and barren and putting them into environments that were more humanizing and demanding produced positive results”). And providing procedures at the usual “meaningful time and in a meaningful manner,” Armstrong n. Manzo, 380 U. S. 545, 552 (1965), will inevitably delay beneficial transfer of some nursing home residents. See Brown, An Appraisal of the Nursing Home Enforcement Process, 17 Ariz. L. Rev. 304, 337 (1975) (“While the cases granting a prior hearing [to nursing home operators] seem to reflect judicial concern for the consequences of the proposed action on the patients of the affected facility, the effect has been to allow patients to remain in seriously deficient homes undercutting enforcement activities aimed at remedying these deficiencies”); id., at 338 (“because the homes may be expected to use any available delaying tactics, the process proceeds at a snail’s pace”). 8 “General statutes within the state power are passed that affect the person or property of individuals, sometimes to the point of ruin, without giving them a chance to be heard. Their rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi-Metallic Investment Co. n. State Board, 239 IT. S. 441, 445 (1915). Of course, we cannot ignore that this generalization does not always work well in practice. Thus, the Court has recognized that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” United States v. Carotene Products Co., 304 U. S. 144, 153, n. 4 (1938). While nursing home patients may indeed make up a “minority,” they are not so much the victims of social prejudice as of physical O’BANNON v. TOWN COURT NURSING CENTER 801 773 Blackmun, J., concurring in judgment process protection grows stronger as the identity of the persons affected by a government choice becomes clearer; and the case becomes stronger still as the precise nature of the effect on each individual comes more determinately within the decisionmaker’s purview. For when government acts in a way that singles out identifiable individuals—in a way that is likely to be premised on suppositions about specific persons— it activates the special concern about being personally talked to about the decision rather than simply being dealt with.” L. Tribe, American Constitutional Law § 10-7, pp. 503-504 (1978) (emphasis in original). I agree with this general statement and find its “flipside” informative here. (4) Finally, I find it important that the patients’ interest has been jeopardized not at all because of alleged shortcomings on their part. Frequently, significant interests are subjected to adverse action upon a contested finding of fault, impropriety, or incompetence. In these contexts the Court has seldom hesitated to require that a hearing be afforded the “accused.” See, e. g., Dixon v. Love, 431 U. S. 105, 112-113 (1977); Goss v. Lopez, 419 U. S. 565 (1975); Wolff v. McDonnell, 418 U. S. 539 (1974); Arnett v. Kennedy, 416 U. S. 134 (1974). This tendency reflects due process values extending beyond the need for accurate determinations. Affording procedural protections also aims at “ ‘generating the feeling, so important to a popular government, that justice has been done.’ ” Marshall v. Jerrico, Inc., 446 U. S. 238, 242 (1980), quoting Joint Anti-Fascist Rejugee Committee v. McGrath, 341 U. S. 123, 172 (1951) (concurring opinion). It may be that patients’ participation in the decertification decision would vaguely heighten their and others’ sense of the decision’s legitimacy, even though the decision follows infirmity and social neglect. Moreover, concerned friends and relatives or organized interest groups may, and often do, step forward to protect the interests of nursing home patients. 802 447 U. S. OCTOBER TERM, 1979 Blackmun, J., concurring in judgment extensive government inspections undertaken with the very object of protecting the patients’ interests. Even so, that interest is far less discernible in this context than when a stigmatizing determination of wrongdoing or fault supplements removal of a presently enjoyed benefit. See, e. g., Goss v. Lopez, 419 IT. S., at 574r-575. See also Vitek v. Jones, 445 U. S. 480 (1980). For these reasons, I am willing to recognize in this case that “the very legislation which ‘defines’ the ‘dimension’ of the [patient’s] entitlement, while providing a right to [remain in a home] generally, does not establish this right free of [disqualification of the home] in accord with [federal statutory] law.” Goss v. Lopez, 419 U. S., at 586-587 (dissenting opinion).9 II Citing articles and empirical studies, the patients argue that the trauma of transfer so substantially exacerbates mortality rates, disease, and psychological decline that decertification deprives them of life and liberty.10 Although the 9 Although basic analytical differences divide the Court and me, I am heartened by the Court’s seeming recognition that most, if not all, of the factors I have identified and explained may figure, in future cases, in due process analysis. See ante, at 789-790, n. 22. 101 question whether the life and liberty issue decided by the Court is properly presented. The District Court refused to extend a preliminary injunction after a brief hearing. In that court, the plaintiffs only touched on the concept of transfer trauma. There was no explicit argument that the patients were threatened with a deprivation of life or liberty,* rather, the danger of transfer trauma was noted only as a circumstance raising a likelihood of irreparable injury justifying injunctive relief. See Memorandum of Law in Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction (filed July 20, 1977) (asserting only “taking of property without due process”). The transfer trauma studies cited to this Court were not cited to the District Judge. Testimony regarding transfer trauma was limited to the little-explained assertion of an expert witness that removal would subject some patients in the group to endangerment of their lives or aggravation of their ill- O’BANNON v. TOWN COURT NURSING CENTER 803 773 Blackmun, J., concurring in judgment Court assumes that “transfer trauma” exists, see ante, at 784, and n. 16, it goes on to reject this argument. By focusing solely on the “indirectness” of resulting physical and psychological trauma, the Court implies that regardless of the degree of the demonstrated risk that widespread illness or even death attends decertification-induced transfers, it is of no moment. I cannot join such a heartless holding. Earlier this Term, the Court recognized that a liberty interest emanates even from the likelihood that added stigma or harmful treatment might attend transfer from a prison to a mental hospital. Vitek v. Jones, supra; see also Parham v. J. R., 442 U. S.r at 601. For me it follows easily that a governmental decision that imposes a high risk of death or serious illness on identifiable patients must be deemed to have an impact on their liberty.11 Nor am I soothed by the palliative that this harm is “indirect”; in my view, where such drastic consequences attend governmental action, their foreseeability, at least generally, must suffice to require input by those who must endure them. See Brede v. Director for Dept, of Health for Hawaii, 616 F. 2d 407, 412 (CA9 1980).12 nesses. App. 252a-253a. In the Court of Appeals, the patients again did not contend that decertification exposed them to a deprivation of life or liberty. See Reply Brief for Appellants in No. 77-2221 et al. (CA3), p. 10 (raising only “property interest” argument). It is to be remembered that this case arises from the refusal to extend a preliminary injunction—an order preceded by limited development of the record and not guided by focused presentation of legal arguments. “[T]his Court above all others must limit its review of interlocutory orders.” Goldstein n. Cox, 396 U. S. 471, 478 (1970). 11 Blackstone, whose vision of liberty unquestionably informed the Framers of the Bill of Rights, see Gannett Co. n. DePasquale, 443 U. 8. 368, 424 (1979) (opinion concurring in part and dissenting in part), wrote that “[t]he right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.” 1 W. Blackstone, Commentaries *129 (emphasis added). 12 The Court observes that “the fact that the decertification of a home may lead to severe hardship for some of its elderly residents does not 804 OCTOBER TERM, 1979 Blackmun, J., concurring in judgment 447 U. S. The fact of the matter, however, is that the patients cannot establish that transfer trauma is so substantial a danger as to justify the conclusion that transfers deprive them of life or liberty. Substantial evidence suggests that “transfer trauma” does not exist, and many informed researchers have concluded at least that this danger is unproved.13 Recognition of a constitutional right plainly cannot rest on such an inconclusive body of research and opinion. It is for this reason, and not for that stated by the Court, that I would reject the patients’ claim of a deprivation of life and liberty. Ill Few statements are more familiar to judges than Holmes’ pithy observation that “hard cases make bad law.” I fear that the Court’s approach to this case may manifest the perhaps equally valid proposition that easy cases make bad law. Sometimes, I suspect, the intuitively sensed obviousness of a case induces a rush to judgment, in which a convenient rationale is too readily embraced without full consideration of its internal coherence or future ramifications. With re- turn the decertification into a governmental decision to impose that harm.” Ante, at 789. I question the relevance of this observation. When the government erroneously commits a person to a mental hospital, it is not “deci [ding] to impose . . . harm” either. But we have recognized that the risk that such action “may lead to severe hardship” is sufficiently great to justify a hearing for the transferee. Vitek v. Jones, 445 U. S. 480 (1980). 13 See Borup, Gallego, & Heffernan, Relocation and its Effect on Mortality, 19 The Gerontologist 135, 136 (1979) (noting that 6 previous studies found increased mortality rates, while 12 did not: “findings have been ambiguous and appear to be contradictory”); id., at 138 (concluding on basis of new study that “relocation does not increase the probability of mortality”); Bourestom & Tars, Alterations in Life Patterns Following Nursing Home Relocation, 14 The Gerontologist 506 (1974); Lieberman, Relocation Research and Social Policy, 14 The Gerontologist 494, 495 (1974). O’BANNON v. TOWN COURT NURSING CENTER 805 773 Brennan, J., dissenting spect, I express my concern that that path has been followed here. I concur in the judgment. Mr. Justice Brennan, dissenting. Respondents have a constitutionally protected property interest in their “ ‘legitimate entitlement to continued residency at the home of [their] choice absent specific cause for transfer.’ ” Town Court Nursing Center, Inc. n. Beal, 586 F. 2d 280, 286 (CA3 1978) (Adams, J., concurring), quoting Klein v. Calif ano, 586 F. 2d 250, 258 (CA3 1978). The statutory and regulatory scheme gives a patient the right to choose any qualified nursing home. 42 U. S. C. §§ 1395a and 1396a (a) (23) (1976 ed., Supp. II). Once a patient has chosen a facility, the scheme carefully protects against undesired transfers by limiting the circumstances under which a home may transfer patients. 42 CFR § 442.311 (c) (1979). And a qualified nursing home, which must have met detailed federal requirements to gain certification, 42 U. S. C. §§ 1395x (j) (1976 ed. and Supp. II) and 1396a (a) (28), cannot be decertified unless the Government can show good cause. See 42 U. S. C. § 1395cc (b) (2) (1976 ed., Supp. II). Thus the scheme is designed to enable a patient to stay in the chosen home unless there is a specific reason to justify a transfer. Respondent patients chose a home which was, at the time, qualified. They moved into the home reasonably expecting that they would not be forced to move unless, for some sufficient reason, the home became unsuitable for them. The Government’s disqualification of the home is, of course, one such reason. Respondents have no right to receive benefits if they choose to live in an unqualified home. That does not mean, however, that they have no right to be heard on the question whether the home is qualified—the answer to which will determine whether they must move to another home and suffer the allegedly great ills encompassed by the term “transfer trauma.” See ante, at 784-785, n. 16. The Government’s 806 OCTOBER TERM, 1979 Brennan, J., dissenting 447U.S. action in withdrawing the home’s certification deprives them of the expectation of continued residency created by the statutes and regulations. Under our precedents, they are certainly “entitled ... to the benefits of appropriate procedures” in connection with the decertification. Vitek v. Jones, 445 U. S. 480, 490 (1980); Perry v. Sindermann, 408 U. S. 593 (1972).* The requirements of due process, to be sure, are flexible and are meant to be practical. See Mathews v. Eldridge, 424 U. S. 319 (1976); Morrissey n. Brewer, 408 U. S. 471 (1972). Here, the provider is entitled to formal proceedings in connection with the disqualification of the home. To the extent that patients want to remain in a home, their interests very nearly coincide with the home’s own interests. The patients can count on the home to argue that it should not be disqualified. Nevertheless, the patients have some interests which are separate from the interests of the provider, and they could contribute some information relevant to the decertification decision if they were given an opportunity. See ante, at 784, n. 15. There is no indication that the patients have been accorded any opportunity to present their views on decertification. Because they were accorded no procedural protection, I dissent. *It is no answer to say that respondents’ only right is to stay in a qualified home, ante, at 785, because whether the home is qualified is precisely the issue to be determined. Nor is it an answer to say that respondents are third parties not “directly” affected by the governmental action. Ante, at 786-788. As the Court admits, the regulatory scheme operates for the direct benefit of the patients, ante, at 789-790, n. 22, and it generates expectations and reliance just as deserving of protection as other statutory entitlements. MOHASCO CORP. v. SILVER 807 Syllabus MOHASCO CORP. v. SILVER CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 79-616. Argued March 25, 1980—Decided June 23, 1980 Section 706 (c) of the Civil Rights Act of 1964 (Act) provides that in the case of an alleged unlawful employment practice occurring in a State having a law prohibiting such practices no charge may be “filed” with the Equal Employment Opportunity Commission (EEOC) before the expiration of 60 days after proceedings have been commenced in the appropriate state agency unless such proceedings have been earlier terminated. Section 706 (e) requires that an unlawful employment practice charge be “filed” in such a State within 300 days after the alleged practice occurred or within 30 days after the aggrieved person receives notice that the state agency has terminated its proceedings, whichever is earlier. Petitioner employer discharged respondent employee on August 29, 1975. On June 15, 1976—291 days later—the EEOC received a letter from respondent claiming that petitioner had discriminated against him because of his religion, and this letter was promptly referred to the appropriate New York agency, which in due course determined that there was no merit to the charge. Meanwhile, on August 20, 1976— more than 60 days after respondent’s letter had been submitted to the EEOC and 357 days after respondent’s discharge—the EEOC notified petitioner that respondent had filed an employment discrimination charge. About a year later, on August 24, 1977, the EEOC issued its determination that there was no reasonable cause to believe respondent’s charge was true and notified respondent that he had a statutory right to file a private action. Respondent then commenced such an action 91 days later in Federal District Court. Granting summary judgment for petitioner, the District Court held that § 706 (c) precluded any fifing with the EEOC until a date 60 days after June 15, 1976, and because that date was 51 days beyond §706 (e)’s 300-day time limit for filing in so-called “deferral States,” the charge was not timely filed. The Court of Appeals reversed, holding that the District Court’s literal reading of the Act did not give sufficient weight to the Act’s overriding purpose of insuring that employment discrimination is redressed, that it was necessary to conclude that a charge is “filed” for purposes of § 706 (e) when received, and “filed” as required by § 706 (c) when the state deferral period ends, and that therefore the letter received by the EEOC 808 OCTOBER TERM, 1979 Syllabus 447 U. S. on June 15, 1976, had been filed within 300 days as required by § 706 (e) but had not been filed during the 60-day deferral period for purposes of §706 (c). Held: A literal reading of §§ 706 (c) and (e) so as to give the word “filed” the same meaning in both subsections gives full effect to the several policies reflected in the Act. Under this literal reading, respondent’s charge was not timely filed, because it was “filed” on the 351st day (60 days after June 15, 1976, or the earliest date upon which the EEOC could allow the charge to be filed), by which time the applicable 300-day limitations period had run. Pp. 815-826. (a) The Act’s legislative history is entirely consistent with the wording of the Act itself, there being nothing to indicate that complainants in some States were to be allowed to proceed with less diligence than those in other States or to give deferral state complainants any advantage over nondeferral state complainants with respect to the time for filing unlawful employment practice charges. Pp. 818-824. (b) A literal reading of the statute is not unfair to victims of employment discrimination who often proceed without the assistance of counsel. P. 825. (c) There is no merit to respondent’s argument based on the EEOC’s interpretation, since that agency’s interpretation cannot supersede the language chosen by Congress. P. 825. (d) Nor is there any merit to the argument that a less literal reading of the statute allowing the EEOC to treat a letter received on the 291st day as “filed” and interpreting §706 (c)’s prohibition as merely requiring the EEOC to postpone any action on a charge for at least 60 days, would adequately effectuate the policy of deferring to state agencies. Congress clearly intended to entourage the prompt processing of all employment discrimination charges. To accept respondent’s position would add a 60-day period to the schedule mandated by Congress and would unreasonably give the word “filed” two different meanings in the same section of the Act. Pp. 825-826. 602 F. 2d 1083, reversed. Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 826. Thomas Mead Santoro argued the cause for petitioner. With him on the briefs was Francis J. Holloway. MOHASCO CORP. v. SILVER 809 807 Opinion of the Court Judith P. Viadeck argued the cause for respondent. With her on the brief was Sheldon Engelhard. Edwin S. Kneedler argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Assistant Attorney General Days, Deputy Solicitor General Claiborne, Leroy D. Clark, Joseph T. Eddins, and Lutz Alexander Prager* Mr. Justice Stevens delivered the opinion of the Court. The question in this Title VII case is whether Congress intended the word “filed” to have the same meaning in subsections (c)1 and (e)2 of § 706 of the Civil Rights Act of 1964, ^Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal. 1 “In the case of an alleged unlawful employment practice occurring in a State, or political subdivision of a State, which has a State or local law prohibiting the unlawful employment practice alleged and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated, provided that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State or local law. If any requirement for the commencement of such proceedings is imposed by a State or local authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State or local authority.” 86 Stat. 104. 2 “A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred and notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) shall be served upon the person against whom such charge is made within ten days thereafter, except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice 810 447 U. S. OCTOBER TERM, 1979 Opinion of the Court 78 Stat. 260, as amended in 1972, 86 Stat. 104-105, 42 U. S. C. §§ 2000e-5 (c) and (e). The former subsection prohibits the filing of an unfair employment practice charge with the federal Equal Employment Opportunity Commission (EEOC) until after a state fair employment practices agency has had an opportunity to consider it. The latter subsection requires that in all events the charge must be filed with the EEOC within 300 days of the occurrence. We hold that a literal reading of the two subsections gives full effect to the several policies reflected in the statute. On August 29, 1975, Mohasco Corp, discharged the respondent from his position as senior marketing economist.3 On June 15, 1976—291 days later—the EEOC received a letter from respondent asserting that Mohasco had discriminated against him because of his religion. The letter was promptly referred to the New York State Division of Human Rights. That state agency reviewed the matter4 and, in due course, determined that there was no merit in the charge.5 Meanwhile, on August 20, 1976—a date more than 60 days after respondent’s letter had been submitted to the EEOC and or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier, and a copy of such charge shall be filed by the Commission with the State or local agency.” 86 Stat. 105. 3 According to respondent’s complaint, he holds a master’s degree in economics from Columbia University. Record Item No. 1, p. 3. 4 The District Court stated that “[t]he period of limitation for filing a complaint with the New York State Division of Human Rights is one year. N. Y. Exec. Law §297 (5) (McKinney Supp. 1977).” App. to Pet. for Cert. A14. 5 The determination by the New York State Division of Human Rights that there was no probable cause to believe Mohasco had engaged in the discriminatory conduct described by respondent was issued on February 9, 1977. That determination was upheld by order of the New York State Human Rights Appeal Board on December 22, 1977. MOHASCO CORP. v. SILVER 811 807 Opinion of the Court 357 days after respondent’s discharge—the EEOC notified Mohasco that respondent had filed a charge of employment discrimination.6 About a year later, on August 24, 1977, the EEOC issued its determination that “there is not reasonable cause to believe the charge is true,” 7 and formally notified respondent that if he wished to pursue the matter further, he had a statutory right to file a private action in a federal district court within 90 days.8 Respondent commenced this litigation 91 days later9 in the United States District Court for the Northern District of New York.10 The District Court granted Mohasco’s motion for summary judgment on the ground that respondent’s failure to file a 6 The notice was on a printed form which merely advised Mohasco of the name of the charging party, the date of the alleged violation, and that the nature of the charge was an alleged discharge on the basis of religion. The notice further advised Mohasco that “[b] ecause of the Commission’s volume of pending work, we are unable to tell you when we are able to schedule investigation of this charge . . . .” App. 18. One might therefore infer that as of 1976, the EEOC had not overcome its enormous backlog as documented in 1971. See H. R. Rep. No. 92-238, p. 64 (1971), Legislative History of Equal Employment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. 124 (1972) (hereinafter 1972 Leg. Hist.); S. Rep. No. 92-415, p. 23, 1972 Leg. Hist. 432; Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 369, n. 24. 7 App. to Pet. for Cert. A49. 8 App. 19. 9 Petitioner did not assert respondent’s failure to file the action within 90 days as a defense. 10 The pro se complaint prayed for an injunction against alleged continuing unlawful employment practices, compensatory damages against Mohasco and several of its executives jointly and severally in the sum of $100,000, and punitive damages against Mohasco in the sum of $1 million and against each individual defendant in the sum of $100,000. Record Item No. 1, p. 19. The District Court dismissed the complaint against the individual defendants on the ground that they had not been named in the original charge. The validity of that dismissal is not before us. 812 OCTOBER TERM, 1979 Opinion of the Court 447U.S. timely charge with the EEOC deprived the court of subjectmatter jurisdiction. The court concluded that June 15, 1976 (the 291st day), could not be treated as the date that respondent’s charge was “filed” with the EEOC, because § 706 (c) provides that in States which have their own fair employment practice agencies—and New York is such a State—“no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .” Since no proceedings had been commenced before the New York agency prior to June 15, 1976, and since the proceedings that were commenced at that time did not terminate within 60 days, the District Court read § 706 (c) as precluding any filing with the EEOC until 60 days after June 15, 1976.11 Because that date was 51 days beyond § 706 (e)’s 300-day time limit for filing in so-called “deferral States,” the charge was not timely filed. The District Court refused to apply an EEOC regulation12 11 The District Court noted that the EEOC’s letter forwarding respondent’s charge to the state agency had stated that the EEOC would automatically file the charge “at the expiration date of the deferral period, unless the EEOC was notified of an earlier termination of proceedings by the Division of Human Rights.” App. to Pet. for Cert. A15 (emphasis in original). Thus, the Court concluded that the EEOC itself did not deem the charge filed until 60 days after June 15, 1976. Ibid. 12Title 29 CFR §1601.12 (b)(l)(v)(A) (1977) states: “In cases where the document is submitted to the Commission more than 180 days from the date of the alleged violation but within the period of limitation of the particular 706 Agency, the case shall be deferred pursuant to the procedures set forth above: Provided, however, That unless the Commission is earlier notified of the termination of the State or local proceedings, the Commission will consider the charge to be filed with the Commission on the 300th day following the alleged discrimination and will commence processing the case. Where the State or local agency terminates its proceedings prior to the 300th day following the alleged act of discrimination, without notification to the Commission of such termination, the Commission will consider the charge to be filed with the Com- MOHASCO CORP. v. SILVER 813 807 Opinion of the Court that would have treated respondent’s charge as timely because it was submitted to the EEOC within 300 days of the practice complained of and also within the applicable New York limitations period.13 The District Court held that the regulation was contrary to the plain language of the statute, and in any event, had not been followed by the EEOC itself in this case.14 Over the dissent of Judge Meskill, the Court of Appeals for the Second Circuit reversed. 602 F. 2d 1083 (1979). It recognized that the District Court had read the statute literally, but concluded that a literal reading did not give sufficient weight to the overriding purpose of the Act. In the majority’s view, in order to be faithful to “the strong federal policy in insuring that employment discrimination is redressed,” id., at 1087, it was necessary “to conclude that a charge is ‘filed’ for purposes of § 706 (e) when received, and ‘filed’ as required by § 706 (c) when the state deferral period ends.” Ibid. By giving the word “filed” two different meanings, the court concluded that the letter received by the EEOC on June 15, 1976, had been filed within 300 days as required by § 706 (e),15 but had not been filed during the 60-day deferral period for purposes of § 706 (c). Judge Meskill believed that a literal reading of the statute was not only consistent with its basic purpose, but was also warranted by the additional purpose of “requir[ing] prompt action on the part of Title VII plaintiffs.” 602 F. 2d, at 1092. He noted that Congress had imposed a general requirement of filing within 180 days, and that the exceptional period of 300 days for deferral States was merely intended to give the charging party a fair opportunity to invoke his state remedy with-mission on the date the person making the charge is notified of the termination.” A current regulation to substantially the same effect is found at 29 CFR §§1601.13 (a), (c), (d)(2)(iii) (1979). 13 See n. 4, supra. 14App. to Pet. for Cert. A15. See n. 11, supra. 15 The 300-day period expired on June 24, 1976. 814 OCTOBER TERM, 1979 Opinion of the Court 447 U. S. out jeopardizing his federal rights; the exception was not intended to allow residents of deferral States to proceed with less diligence than was generally required. Because there is a conflict among the Courts of Appeals on the proper interpretation of the word “filed” in this statute,16 16 The decision of the Court of Appeals in this case is consistent with the decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F. 2d 1222 (1972), but is in conflict with the decision of the Seventh Circuit in Moore v. Sunbeam Corp., 459 F. 2d 811 (1972). Anderson n. Methodist Evangelical Hospital, Inc., 464 F. 2d 723 (CA6 1972), cited Vigil with approval, though the court’s conclusion that the plaintiff’s filing in that case was timely would have been the same under the construction of § 706 adopted in the Moore case. The approach of the Eighth Circuit, see Olson v. Rembrandt Printing Co., 511 F. 2d 1228 (1975), also conflicts with the decision of the Second Circuit in this case, but in a way that substantially differs from that of the Seventh Circuit decision in Moore. Olson held that in order to preserve his rights under Title VII, a complainant must under all circumstances initially file his charge with either a state fair employment practices agency or the EEOC within 180 days of the discriminatory occurrence. See also Geromette v. General Motors Corp., 609 F. 2d 1200 (CA6 1979) (citing Olson with approval, thus perhaps signalling a retreat from Anderson’s endorsement of Vigil); Rodriguez n. Southern Pacific Transp. Co., 587 F. 2d 980 (CA9 1978). Cf. Ciccone n. Textron Inc., 616 F. 2d 1216 (CAI 1980) (substantially same approach under similar provisions in the Age Discrimination in Employment Act, 29 U. S. C. §§ 621-634). As indicated in n. 19, infra, we believe that the restrictive approach exemplified by Olson, is not supported by the statute. Under the Moore decision, which we adopt today, a complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300-day period. In a State with a fair employment practices agency less than one year old, however, a complainant must file within 180 days in order to be sure that his federal rights will be preserved, since the EEOC must defer consideration during MOHASCO CORP. v. SILVER 815 807 Opinion of the Court we granted certiorari. 444 U. S. 990.17 We now reverse. We first review the plain meaning of the relevant statutory language; we next examine the legislative history of the 1964 Act and the 1972 amendments for evidence that Congress intended the statute to have a different meaning; and finally we consider the policy arguments in favor of a less literal reading of the Act. I Section 706 (e) begins with the general rule that a “charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred . . . .”18 Since respondent’s letter was submitted to the EEOC 291 days after the occurrence, he plainly did not exercise the diligence required by that general rule. Nor, as we shall explain, did he have to; but it should be pointed out that had he sent his charge to either the state agency or the EEOC within 180 days, he would have had no difficulty in complying with the terms of the exception to that general rule allowing a later filing with the EEOC in deferral States. That exception allows a filing with the EEOC after 180 days if “the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant proceedings before such a new agency for up to 120 days. See 42 U. S. C. §2000e-5 (c), n. 1, supra. 17 The District Court refused to consider respondent’s allegations that discrimination in the form of blacklisting had continued beyond the date of his discharge, since in its view that allegation was not fairly comprised by respondent’s June 15, 1976, letter to the EEOC. The Court of Appeals unanimously reversed on that point, and remanded the case to the District Court. Petitioner sought review of that ruling in this Court, but we limited our grant of certiorari to the timeliness question discussed in today’s opinion. For purposes of decision, we assume that the discrimination complained of ended with respondent’s discharge on August 29, 1975. 18 Section 706 (e) is quoted in full in n. 2, supra. 816 OCTOBER TERM, 1979 Opinion of the Court 447U.S. or seek relief from such practice . . . 19 When respondent submitted his letter to the EEOC, he had not yet instituted any state proceedings. Under the literal terms of the statute, it could therefore be argued that he did not bring himself within the exception to the general 180-day requirement. But in Love v. Pullman Co., 404 U. S. 522, 525, we held that [n]othing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself .. ..” Here, state proceedings were instituted by the EEOC when it immediately forwarded his letter to the state agency on June 15, 1976. Accordingly, we treat the state proceedings as having been instituted on that date. Since the EEOC could not proceed until either state proceedings had ended or 60 days had passed, the proceedings were “initially instituted with a State . . . agency” prior to their official institution with the 19 This language has been construed to require that the filing with the state agency be made within 180 days. Olson v. Rembrandt Printing Co., see n. 16, supra. Although that construction is consistent with the general rule announced at the beginning of § 706 (e), and is supported by one Congressman’s understanding of the procedures at the time of the 1972 amendment to that section, see 1972 Leg. Hist. 1863 (remarks of Rep. Dent), Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that relates to time limitations in deferral States. Further, there are contemporaneous indications in the legislative history, which, while not authoritative, contradict Representative Dent’s views. See nn. 41-43, infra. See also Doski v. M. Goldseker Co., 539 F. 2d 1326, 1336-1332 (CA4 1976) (rejecting both Olson and its reliance on the analysis of Rep. Dent). In any event, we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include, see Occidental Life Ins. Co. n. EEOC, 432 U. S. 355, at least when dealing with a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.” Love v. Pullman Co., 404 U. S. 522, 527. In contrast to the construction of the statute we adopt today, the Olson approach, urged upon us by petitioner and amici, is not compelled by the plain meaning of the statutory language. MOHASCO CORP. v. SILVER 817 807 Opinion of the Court EEOC. Therefore, respondent came within § 706 (e)’s exception allowing a federal filing more than 180 days after the occurrence. That exception states that “such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier . . . .” Since the state proceedings did not terminate until well after the expiration of the 300-day period, see n. 5, supra, the 300-day limitations period is the one applicable to respondent’s charge. The question, then, is whether the June 15, 1976, letter was “filed” when received by the EEOC within the meaning of subsection (e) of § 706. The answer is supplied by subsection (c), which imposes a special requirement for cases arising in deferral States: “no charge may be filed under subsection [(b)] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated . . . .” Thus, in terms, the statute prohibited the EEOC from allowing the charge to be filed on the date the letter was received. Although, as the Court held in Love v. Pullman Co., supra, it was proper for the EEOC to hold respondent’s “complaint in ‘suspended animation,’ automatically filing it upon termination of the State proceedings,”20 404 U. S., at 526 (emphasis added), that means that the charge was filed on the 351st day, not the 291st. By that time, however, the 300-day period had run and the filing was therefore untimely. 20 The Court further noted that “[i]t is clear that Congress found nothing wrong, in this circumstance, with EEOC’s holding the charge in abeyance until a state agency is given a chance to act.” 404 U. S., at 526, n. 6. 818 OCTOBER TERM, 1979 Opinion of the Court 447U.S. II In contrast to this rather straightforward reading of the statute, respondent urges us to give the word “filed” two different meanings within the same statutory section in order better to effectuate Congress’ purpose underlying Title VII. Essentially, his argument is that a rule permitting filings for up to 300 days after the discriminatory occurrence—regardless of the rule against filing during the deferral period—would help further the cause of eliminating discriminatory employment practices. We therefore turn to the legislative history, but in doing so we emphasize that the words of the statute are not ambiguous. Nor does a literal reading of them lead to “absurd or futile results,” United States v. American Trucking Assns., 310 U. S. 534, 543. For time limitations are inevitably arbitrary to some extent; and the limitations at issue here are not so short21 that a plaintiff’s remedy is effectively denied for all practical purposes without an opportunity for a hearing.22 A It is unquestionably true that the 1964 statute was enacted to implement the congressional policy against discriminatory employment practices,23 and that that basic policy must inform construction of this remedial legislation. It must also be recognized, however, in light of the tempestuous legislative proceedings that produced the Act, that the ultimate product reflects other, perhaps countervailing, purposes that some Members of Congress sought to achieve. The present lan 21 Compare the 6-month limitations provision for filing complaints with the National Labor Relations Board under the Labor Management Relations Act, 29 U. S. C. § 160 (b). 22 We are not confronted with a case in which it is claimed that the plaintiff was reasonably unaware of the existence of his cause of action until after the expiration of the limitations period. Cf. United States v. Kubrick, 444 U. S. Ill (medical malpractice action). 23 See, e. g., S. Rep. No. 867, 88th Cong., 2d Sess., 1 (1964) (hereinafter 1964 Senate Report). MOHASCO CORP. v. SILVER 819 807 Opinion of the Court guage was clearly the result of a compromise. It is our task to give effect to the statute as enacted. See Toussie v. United States, 397 U. S. 112, 123-124.24 The typical time limitations provision in the numerous proposed civil rights bills required the filing of a charge with the new federal fair employment practices agency within six months of the discriminatory conduct.25 These initial proposals did not provide for mandatory deferral by the federal agency during comparable state administrative proceedings,26 though some proposals would have authorized the federal agency to enter agreements of cooperation with state agencies, under which the federal agency would refrain from processing charges in specified cases.27 On February 10, 1964, the House of Representatives passed H. R. 7152, its version of the comprehensive Civil Rights Act. Title VII of that bill contained a 6-month limitations provision for the filing of charges with the EEOC, and directed the EEOC to enter into agreements with state agencies providing for suspension of federal enforcement.28 In the Senate, H. R. 7152 met with exceptionally strong opposition. The principal opposition focused not on the details of the bill, but on its fundamental purpose. During the course of one of the longest filibusters in the history of the Senate, the bipartisan leadership of the Senate carefully forged the compromise substitute 24 See also Hodgson v. Lodge 851, Int’l Assn, of Machinists & Aerospace Workers, 454 F. 2d 545, 562 (CA7 1971) (Stevens, J., dissenting). 25 See, e. g, Hearings on Miscellaneous Proposals Regarding the Civil Rights of Persons within the Jurisdiction of the United States before Subcommittee No. 5 of the House Judiciary Committee, 88th Cong., 1st Sess., 97, 188, 899, 2294 (1963) (hereinafter 1963 House Judiciary Committee Hearings). Others contained 1-year provisions, see id., at 10, 50, and at one point the Senate Committee on Labor and Public Welfare Committee recommended a bill with a 2-year provision. See 1964 Senate Report, at 13. 26 See, e. g., 1963 House Judiciary Committee Hearings, at 9-10, 50. 27 Id., at 2296; 1964 Senate Report, at 16. 28 See 110 Cong. Rec. 2511-2512,12598 (1964). 820 447 U. S. OCTOBER TERM, 1979 Opinion of the Court (Dirksen compromise) that was ultimately to become in substantial part the Civil Rights Act of 1964. The purpose of the compromise was to attract sufficient support to achieve the two-thirds vote necessary for cloture.29 This effort was successful. Fifteen days after the Dirksen compromise was offered as an amendment, a cloture motion carried the necessary votes.30 Section 706 (d)31 of the compromise provided for a 90-day limitations period for filing discrimination claims with the EEOC in nondeferral States, the period ultimately adopted in the 1964 version of the Act. It was the first time the 90-day figure appeared in any proposed bill, and its appearance was unaccompanied by any explanation. Section 706 (b) of the compromise introduced the mandatory deferral concept for the first time, providing that during a 60-day deferral period, “no charge may be filed”—language that figures so prominently in this case. In such deferral States, § 706 (d) extended the time for filing with the EEOC to 210 days. Since the Senate did not explain why it adopted a time limitation of only half that adopted by the House, one can only speculate. But it seems clear that the 90-day provision to some must have represented a judgment that most genuine claims of discrimination would be promptly asserted and that the costs associated with processing and defending stale or dormant claims outweigh the federal interest in guaranteeing a remedy to every victim of discrimination. To others it must have represented a necessary sacrifice of the rights of some victims of discrimination in order that a civil rights bill could be enacted. Section 706 (b) was rather clearly intended to increase the role of States and localities in resolving charges 29 Id., at 12593-12594 (remarks of Sen. Clark). 30 See id., at 11926, 13327. 31 The 1972 amendment added a new subsection (a) to §706. Subsections (b) and (d) in the 1964 version with certain changes thus became the current subsections (c) and (e) in the amended 1972 version. MOHASCO CORP. v. SILVER 821 807 Opinion of the Court of employment discrimination.32 And § 706 (d)’s longer time of 210 days for filing with the EEOC in deferral States was included to prevent forfeiture of a complainant’s federal rights while participating in state proceedings.33 But neither this latter provision nor anything else in the legislative history contains any “suggestion that complainants in some States were to be allowed to proceed with less diligence than those in other states.” Moore v. Sunbeam Corp., 459 F. 2d 811, 825, n. 35 (CA7 1972). The history identifies only one reason for treating workers in deferral States differently from workers in other States: to give state agencies an opportunity to redress the evil at which the federal legislation was aimed, and to avoid federal intervention unless its need was demonstrated.34 The statutory plan was not designed to give the worker in a deferral State the option of choosing between his state remedy and his federal remedy, nor indeed simply to allow him additional time in which to obtain state relief. Had that been the plan, a simple statute prescribing a 90-day period in nondeferral States and a 210-day period in deferral States would have served the legislative purpose. Instead, Congress chose to prohibit the filing of any federal charge until after state proceedings had been completed or until 60 days had passed, whichever came sooner. To be sure, in deferral States having fair employment practices agencies over one year old, Congress in effect gave com 32See 110 Cong. Rec. 11937 (1964) (remarks of Sen. Humphrey); id., at 8193, 13087 (remarks of Sen. Dirksen): “[W]ith respect to the enforcement of the title, we undertook to keep primary, exclusive jurisdiction in the hands of the State commissions for a sufficient period of time to let them work out their own problems at the local level.” 33 See id., at 12819. 34 At the time, it was believed that 60 days was more than sufficient time for state administrative resolution of employment discrimination complaints. See id., at 13087 (remarks of Sen. Dirksen): “In the case of California, FEPC [Fair Employment Practice Commission] cases are disposed of in an average of about 5 days. In my own State [Illinois] it is approximately 14 days.” 822 OCTOBER TERM, 1979 Opinion of the Court 447U.S. plainants an additional 60 days in which initially to file a charge and still ensure preservation of their federal rights. In other words, under the 1964 Act, a complainant in such a deferral State could have filed on the 150th day, and then filed with the EEOC on the 210th day at the end of the 60-day deferral period, while a complainant in a nondeferral State had to file on the 90th day with the EEOC. But there is no reason to believe that the 1964 Congress intended deferral state complainants to have the additional advantage of being able to ignore the 210-day limitations period when they failed to invoke their rights early enough to allow the 60-day deferral period to expire within the 210-day period. In sum, the legislative history of the 1964 statute is entirely consistent with the wording of the statute itself. B In 1972, Congress amended § 706 by changing the general limitations period from 90 days to 180 days and correspondingly extended the maximum period for deferral States from 210 days to 300 days.35 The amendment did not make any change in the procedural scheme, however, although such a change was proposed and rejected. As initially introduced in the House of Representatives, the proposed 1972 amendments to Title VII would have deleted § 706 (b)’s prohibition against the filing of a federal charge until 60 days after the institution of state proceedings, and would have substituted language merely prohibiting the EEOC from taking any action on the charge until the prescribed period had elapsed.36 The House, however, concluded that no change in this aspect of the 1964 statute should be made, and deleted the amendment prior to passage.37 The Senate version of the amendments passed with 35 86 Stat. 104-105. 36 H. R. 1746, 92d Cong., 1st Sess. (Jan. 22, 1972), 1972 Leg. Hist. 4. 37 H. R. 1746, supra, 1972 Leg. Hist. 326. MOHASCO CORP. v. SILVER 823 807 Opinion of the Court the provision merely prohibiting the EEOC from taking any action on a charge in the deferral period.38 But at conference, the position of the House prevailed on the understanding that the law as interpreted in Love v. Pullman Co., 404 U. S. 522, was controlling.39 As already noted, our literal reading of the word “filed” in § 706 is fully supported by the Love opinion.40 It is true that a section-by-section analysis of the 1972 amendments filed by Senator Williams refers to the then recent decision of the Tenth Circuit in Vigil v. American Tel. & Tel. Co., 455 F. 2d 1222 (1972), see n. 16, supra, with approval, and that that case supports respondent’s reading of the Act. But we do not find that isolated reference—which was first inserted into the legislative history after the completion of the work of both the Senate Committee and House Committee, as well as after the Report of the joint conference just referred to41—to represent either a sound interpretation of the 1964 enactment42 or a conscious intention of Congress to 38 S. 2515, 92d Cong., 2d Sess. (Feb. 21, 1971), 1972 Leg. Hist. 1781. 39 S. Rep. No. 92-681, p. 17 (1972), 1972 Leg. Hist. 1815: “The Senate amendment contained two provisions allowing the Commission to defer to state and local equal employment opportunity agencies. It deleted the language of existing law providing that no charge may be filed during the 60-day period allowed for the deferral and substituted a provision prohibiting the Commission from acting on such a charge until the expiration of the 60-day period. The House bill made no change in existing law. The Senate receded with an amendment that would restate the existing law on the deferral of charges to state agencies. The conferees left existing law intact with the understanding that the decision in Love v. Pullman [Co., 404] U. S. [522 (1972)] interpreting the existing law to allow the Commission to receive a charge (but not act on it) during such deferral period is controlling.” (Emphasis added.) 40 See n. 20, supra. 41 The section-by-section analysis is dated March 6, 1972. The Conference Report quoted in n. 39, supra, is dated March 2, 1972. 42 In Oscar Mayer & Co. v. Evans, 441 U. S. 750, 758, we rejected a similar argument: “Respondent argues finally that a Committee Report 824 OCTOBER TERM, 1979 Opinion of the Court 447U.S. change existing law. The point at which it appears in the legislative history simply refutes any notion that Congress focused on the precise issue, much less adopted the approach of the Vigil case.43 To the extent that Congress focused on the issue at all in 1972, it expressly rejected the language that would have mandated the exact result that respondent urges. Ill Finally we consider the additional points advanced in support of respondent’s position: (1) that it is unfair to victims of discrimination who often proceed without the assistance of counsel; (2) that it is contrary to the interpretation of the Act by the agency charged with responsibility for its enforce- that accompanied 1978 ADEA amendments [, which made no change in the language at issue in the case,] supports his construction of § 14 (b). This Committee Report suggested that resort to state remedies should be optional under § 14 (b). See S. Rep. No. 95-493, pp. 6-7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H. R. Conf. Rep. No. 95-950, pp. 7, 12 (1978). “We are not persuaded. The Senate Report No. 95-493 was written 11 years after the ADEA was passed in 1967, and such ‘ [legislative observations . . . are in no sense part of the legislative history.’ United Airlines, Inc. v. McMann, 434 U. S. 192, 200 n. 7 (1977). ‘It is the intent of the Congress that enacted [the section] . . . that controls.’ Teamsters v. United States, 431 U. S. 324, 354 n. 39 (1977). Whatever evidence is provided by the 1978 Committee Report of the intent of Congress in 1967, it is plainly insufficient to overcome the clear and convincing evidence that Congress intended § 14 (b) to have the same meaning as § 706 (c). We therefore hold that under § 14 (b) of the ADEA, as under § 706 (c) of Title VII, resort to administrative remedies in deferral States by individual claimants is mandatory, not optional.” (Footnotes omitted.) See also Consumer Product Safety Comm’n n. GTE Sylvania, Inc., ante, at 116-120. 43 Indeed as we pointed out in n. 19, supra, Congressman Dent had an entirely different understanding of the limitations period that Congress adopted. Representative Dent’s remarks are dated March 8, 1972. MOHASCO CORP. v. SILVER 825 807 Opinion of the Court ment; and (3) that a less literal reading of the Act would adequately effectuate the policy of deferring to state agencies. The unfairness argument is based on the assumption that a lay person reading the statute would assume that he had 300 days in which to file his first complaint with either a state or federal agency. We find no merit in this argument. We believe that a lay person would be more apt to regard the general obligation of filing within 180 days as the standard of diligence he must satisfy,, and that one who carefully read the entire section would understand it to mean exactly what it says. We must also reject any suggestion that the EEOC may adopt regulations that are inconsistent with the statutory mandate. As we have held on prior occasions, its “interpretation” of the statute cannot supersede the language chosen by Congress.44 Finally, we reject the argument that the timeliness requirements would be adequately served by allowing the EEOC to treat a letter received on the 291st day as “filed” and interpreting the § 706 (c) prohibition as merely requiring it to postpone any action on the charge for at least 60 days. There are two reasons why this interpretation is unacceptable. By choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination.45 Under a literal reading of the Act, the EEOC has a duty to commence its investigation no later than 300 days after the alleged occurrence; under respondent’s “interpretation” of § 706(c), that duty might not arise for 360 days. Perhaps the addition of another 60-day delay in the work of an already seriously overburdened agency is not a matter of critical importance. But in a statutory scheme in which Congress carefully prescribed a series of deadlines measured by numbers of days rather 44 See General Electric Co. v. Gilbert, 429 U. S. 125, 140-142. 45 S. Rep. No. 92-415, p. 24 (1971), 1972 Leg. Hist. 433. 826 OCTOBER TERM, 1979 Blackmun, J., dissenting 447U.S. than months or years—we may not simply interject an additional 60-day period into the procedural scheme. We must respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes by favoring one side or the other in matters of statutory construction. In the end, we cannot accept respondent’s position without unreasonably giving the word “filed” two different meanings in the same section of the statute. Even if the interests of justice might be served in this particular case by a bifurcated construction of that word, in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law. Accordingly, the judgment of the Court of Appeals is reversed. So ordered. Mr. Justice Blackmun, with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting. This might be viewed as “one of those cases that occasionally appears in the procedural area where it is more important that it be decided (in order to dispel existing conflict. . .) than that it be decided correctly.” Oscar Mayer <& Co. v. Evans, 441 U. S. 750, 766 (1979) (concurring opinion). But I cannot concur in the result the Court reaches today. For reasons set out below, I believe that the Court’s decision neither is correct as a matter of statutory construction, nor does it dispel the existing decisional conflict, see ante, at 814-815, n. 16, in an acceptable fashion. I would affirm the holding of the Court of Appeals that, in a deferral State, a Title VII complaint is timely filed with the EEOC if it is “filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.” § 706 (e), 42 U. S. C. § 2000e-5 (e). MOHASCO CORP. v. SILVER 827 807 Blackmun, J., dissenting I The Court finds its interpretation of the interplay between §§ 706 (c) and (e) of Title VII, 42 U. S. C. §§ 2000e-5 (c) and (e), to be based upon a “rather straightforward reading of the statute.” Ante, at 818. That finding is cast into some doubt when one carefully considers the language, structure, and purpose of § 706. Moreover, the relevant legislative history leaves no room whatsoever for doubt that the Court’s perception of Congress’ intent is erroneous. The rule the Court adopts today requires a Title VII complainant residing in a deferral State to file a charge of employment discrimination within 240 days of the allegedly unlawful act, in order to be certain that his complaint is timely. Yet the numeral “240” nowhere appears in Title VII. It seems a bit odd that Congress, in enacting “a statutory scheme in which laymen, unassisted by trained lawyers initiate the process,” Love v. Pullman Co., 404 U. S. 522, 527 (1972); see ante, at 816, n. 19, would create a filing rule that a complainant could not locate by reading any single statutory provision. One commentator has observed: “A case of employment discrimination may require a party to refer to the United States Code for the first and only time in his life. An intelligent, but isolated reading of section 706 (e) could easily lead one to believe that 300 days is the time limitation for filing an initial claim with the EEOC. A complainant should not be penalized for Congressional ambiguity, or because he does not possess the reading ability of one trained in statutory interpretation. This indeed is the level of skill required to find the ‘hidden’ 240-day limitation advocated by the district court in Silver.” Comment, 55 Notre Dame Law. 396, 410 (1980). Of course, as was stated just the other day, “[o]ur compass is not to read a statute to reach what we perceive ... is a ‘sensible result.’ ” Bifulco v. United States, ante, at 401 828 OCTOBER TERM, 1979 Blackmun, J., dissenting 447 U. S. (concurring opinion); yet, where alternative meanings of Congress’ words are plausible, we should not close our eyes to those alternatives through a strong-armed invocation of the plain-meaning rule. I believe that an alternative to the Court’s interpretation of the interplay between §§ 706 (c) and (e) does exist, and that Congress intended to adopt that alternative. The Court of Appeals in this case viewed § 706 (e), standing alone, as stating the filing requirements for one who wishes to institute a charge of employment discrimination with the EEOC. It concluded that “the requirement in § 706 (c) that no charge be ‘filed’ before the deferral period ends simply means that the EEOC may not process a Title VII complaint until sixty days after it has been referred to a state agency.” 602 F. 2d 1083, 1088 (1979) (emphasis supplied). The dual meaning that the Court of Appeals gave to the word “filed” might seem strained at first blush, but that court’s interpretation is supported by the structure of Title VII. Reading the word “filed” to mean two different things in the two subsections avoids an interpretation of the statute that requires a lay person to determine the time requirements for filing a complaint through reference to two separate provisions. Moreover, the Court of Appeals’ interpretation of the meaning of the word “filed” in § 706 (c) in no way detracts from Congress’ purpose in enacting that subsection— to prevent the EEOC from taking action on a discrimination complaint until the relevant state agencies have had an opportunity to resolve the employee’s dispute with his employer. See ante, at 821. Given these considerations, I am not willing to reject the Court of Appeals’ interpretation of the statute out of hand. Furthermore, examination of Title Vil’s legislative history leads me to conclude that Congress, in 1972, adopted the interpretation of the statute that the Court of Appeals was later to espouse. In examining this legislative history, it is important to note that the EEOC, the agency charged by MOHASCO CORP. v. SILVER 829 807 Blackmun, J., dissenting Congress with administering Title VII, has always treated as timely a charge filed within the 300-day period specified in § 706 (e), without regard to the 60-day deferral period specified in § 706 (c). See 29 CFR § 1601.12 (b)(1) (v)(A) (1977); 29 CFR § 1601.13 (a) (1979). Aside from the fact that the EEOC’s consistent interpretation of the filing requirements is “ ‘entitled to great deference,’ ” Oscar Mayer A Co. v. Evans, 441 U. S., at 761, quoting from Griggs n. Duke Power Co., 401 U. S. 424, 434 (1971), that interpretation was approved by Congress expressly when it re-enacted the forerunners to the present §§ 706 (c) and (e) in 1972. Under such circumstances, this Court is bound to accept the agency’s interpretation.1 In 1971, the pertinent House and Senate Committees both reported bills to amend Title VII that would have deleted the “no charge shall be filed” language from § 706 (c), and substituted in its place a provision that “the Commission shall take no action with respect to the investigation of such charge” until the deferral period had expired. See S. Rep. No. 92-415, p. 56 (1971); H. R. Rep. No. 92-238, p. 43 (1971).2 Had either of these bills been enacted, the Court 1 It seems significant that the Court today “adopts,” ante, at 814, n. 16, the decision in Moore v. Sunbeam Corp., 459 F. 2d 811 (CA7 1972), the initial opinion in which was filed prior to the passage of the 1972 reenactment of §§706 (c) and (e). See id., at 830 (order on petition for rehearing). In Moore, the Seventh Circuit stated that the legislative history of the 1972 re-enactment was not relevant to a proper interpretation of Title Vil’s filing requirements, as they were enacted in 1964. Ibid. Today, this Court goes a step further in failing to give that legislative history appropriate weight in interpreting the 1972 re-enactment. 2 The Senate Committee on Labor and Welfare explained the need for an amendment to the forerunner of §706 (c) in the following terms: “The only change in the present law is to delete the phrase 'no charge may be filed’ with the Commission by an aggrieved person in [a deferral] State or locality. The present statute is somewhat ambiguous respecting Commission action on charges filed prior to resort to the State or local agency. The new language clarifies the present statute by permitting the 830 OCTOBER TERM, 1979 Blackmun, J., dissenting 447U.S. of Appeals’ interpretation of Title Vil’s filing requirements could not be questioned. The proposed amendments to § 706 (c) generated no controversy during the debates in either House. For reasons completely unrelated to the question presented here, however, the House of Representatives adopted a substitute bill that made no change in the language of § 706 (c). See Legislative History of the Equal Employment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), pp. 326-332 (1972).3 The Senate, on the other hand, retained the Committee on Labor and Public Welfare’s amendment to the forerunner of § 706 (c). See 118 Cong. Rec. 4945 (1972); Legislative History, p. 1781. The Conference Committee did not adopt the Senate bill’s version of § 706 (c), but its explanation for failing to do so is clear and is critical to an understanding of the effect of the 1972 amendments on the question presented here. The Conference Committee stated: “The Senate amendment contained two provisions allowing the Commission to defer to state and local equal employment opportunity agencies. It deleted the language of existing law providing that no charge may be filed during the 60-day period allowed for the deferral and substituted a provision prohibiting the Commission from acting on such a charge until the expiration of the 60-day period. The House bill made no change in existing law. The Senate receded with an amendment that charge to be filed but prohibiting the Commission from taking action with respect thereto until the prescribed period has elapsed.” S. Rep. No. 92-415, p. 36 (1971). 3 There is absolutely no support in the reports of the House debates for the Court’s implication, ante, at 822—823, that the House expressly considered the desirability of effecting a change in the forerunner to § 706 (c) and purposefully rejected the amendment that had been proposed by its Committee on Education and Labor. MOHASCO CORP. v. SILVER 831 807 Blackmun, J., dissenting would re-state the existing law on the deferral of charges to state agencies. The conferees left existing law intact with the understanding that the decision in Love v. Pullman [Co., 404] U. S. [522 (1972)] interpreting the existing law to allow the Commission to receive a charge [but not act on it) during such deferral period is controlling.” S. Conf. Rep. No. 92-681, p. 17 (1972); H. R. Conf. Rep. No. 92-899, p. 17 (1972) (emphasis supplied). In addition, a section-by-section analysis prepared by Senators Williams and Javits, and presented to both Houses along with the Conference Report, contained the following explanation of re-enacted § 706 (c): “No change . . . was deemed necessary in view of the recent Supreme Court decision of Love v. Pullman Co.... which approved the present EEOC deferral procedures as fully in compliance with the intent of the Act. That case held that the EEOC may receive and defer a charge to a State agency on behalf of a complainant and begin to process the charge in the EEOC upon lapse of the 60-day deferral period, even though the language provides that no charge can be filed under § 706 (a) by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law. Similarly, the recent circuit court decision in Vigil v. AT&T, [455] F. 2d [1222] . . . (10th Cir. 1972), which provided that in order to protect the aggrieved person’s right to file with the EEOC within the time periods specified in sections 706 (c) and (d), a charge filed with a State or local agency may also be filed with the EEOC during the 60-day deferral period, is within the intent of this Act.” 118 Cong. Rec. 7167 (1972) (Senate); id., at 7564 (House) (emphasis supplied) .4 4 The Court fails to credit the Williams-Javits section-by-section analysis as an authoritative interpretation of the 1972 re-enactment of § 706, 832 OCTOBER TERM, 1979 Blackmun, J., dissenting 447U.S. In the face of these indicia of Congress’ intent, the Court states blithely that “our literal reading of the word ‘filed’ in § 706 is fully supported by the Love opinion.” Ante, at 823. But even setting aside its questionable dismissal of the Williams-Javits section-by-section analysis, see n. 4, supra, the Court here obviously errs in interpreting the Conference Report itself. The relevant inquiry is not what this Court actually held in Love, as the Court seems to think, but what the Conference Committee, writing some six weeks after Love, thought that the Court held. The passage, quoted above, from the Conference Report makes it clear that the conferees believed the import of the Love decision was that the proposed Senate amendment to § 706 (c) was totally unneces-saiy. Congress thus believed this Court to have held that existing law permitted the EEOC to treat as timely those charges filed in a deferral State within 300 days, without regard to the “no charge may be filed” language of § 706 (c), and intended that that interpretation should continue to be considered “controlling.” The Court concludes that Congress in 1972 “expressly rejected the language that would have mandated the exact primnnly because it fails to recognize the Conference Committee’s intent that the re-enacted section be interpreted differently from the Court’s perception of what would constitute “a sound interpretation of the 1964 enactment.” Ante, at 823. It is the legislative history of the 1972 amend-ments that is of primary relevance here, and the compilation of that history prepared by the Subcommittee on Labor for use of the Senate Committee on Labor and Public Welfare (cited throughout the Court’s opinion) endorses the Williams-Javits section-by-section analysis as “a more detailed explanation of all the provisions of the bill as viewed by the sponsors and legislative leaders.” Legislative History of the Equal Em-ployment Opportunity Act of 1972 (Committee Print compiled for the Senate Committee on Labor and Public Welfare by the Subcommittee on Labor), p. xv, n. 3 (1972). The analysis of re-enacted § 706 presented to the House by Representative Dent, discussed by the Court, ante, at 816 n. 19, on the other hand, does not purport to speak for the views of the how18 and managers of the 1972 amendments. See 118 Cong. Rec. 7569 MOHASCO CORP. v. SILVER 833 807 Blackmttn, J., dissenting result that respondent urges.” Ante, at 824. But a fair analysis of the legislative history demonstrates that Congress re-enacted §§ 706 (c) and (e) with an expectation that those provisions, as re-enacted, would be interpreted to mandate the result that had long been accepted by the EEOC. The Court’s decision today not only ignores Congress’ avowed intent but it also is inconsistent with our past opinions recognizing that “[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.” United States v. Sheffield Board of Commers, 435 U. S. 110, 134 (1978); Albemarle Paper Co. v. Moody, 422 TJ. S. 405,414, n. 8 (1975) (construing 1972 amendments to Title VII). II Despite the Court’s failure to give effect to the obvious intent of Congress in enacting the 1972 amendments, one might be tempted to go along with the rule it creates today if that rule had at least the advantage of creating a fixed and settled procedure for the filing of a Title VII complaint. But measured by the standard of practicality and ease of administration, I find the Court’s rule sadly wanting. Contemplate for a moment the plight of the local EEOC officer charged with responsibility for explaining the Court’s rule to a prospective Title VII complainant in one of the Nation’s 42 deferral States.5 The prospective complainant informs the officer that he was fired from his job nine months ago, and now has reason to believe that his discharge was motivated by racial discrimination. He wants to know whether he still may file a timely charge with the EEOC. Under the Court’s rule, the EEOC officer will not be able to 5 The EEOC in its current regulations, 29 CFR § 1601.74 (a) (1979), lists 42 statewide deferral agencies, in addition to deferral agencies for the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and a substantial number of municipalities and counties. 834 447 U. S. OCTOBER TERM, 1979 Blackmun, J., dissenting answer the concerned employee with anything more than an equivocal “maybe.” He must reply (paraphrasing the words of the Court, ante, at 822): “It depends on whether you invoke your rights early enough to allow the 60-day deferral period to expire within 300 days.” In other words, if the hypothetical complainant files his charge 270 days after his discharge, and the EEOC refers the charge to the relevant state agency immediately, and that agency terminates its proceedings within 30 days, the federal charge will have been timely filed. But if the state agency does not terminate its proceedings for a year (perhaps due to backlog or, ironically, because the complaint has merit), then the EEOC cannot consider the charge to have been filed until 330 days have elapsed, and the complainant will be unable to invoke his federally protected rights. The foregoing example demonstrates that the rule the Court adopts today serves only to add more complexity to the already complex procedural provisions of Title VII. To be sure, an employee will be able to guarantee timely filing by bringing a complaint to the attention of the EEOC within 240 days (a time limitation that nowhere appears in the text of the statute), but if that employee files his charge between day 240 and day 300, he must await further developments.6 This “wait and see” rule seems out of place in the context of a federal statute designed to vindicate workers’ rights to be free from invidious discrimination in the workplace. Moreover, the Court’s rule will no doubt result in future complications that the courts or Congress will have to disentangle. One wonders whether the Court has anticipated the prob 6 The Court asserts that the prospective complainant will not be prejudiced unfairly by the adoption of its “240-day maybe” rule because “a lay person would be more apt to regard the general obligation of filing within 180 days as the standard of diligence he must satisfy.” Ante, at 825. The Court’s conclusion that the plain meaning of §706 (e), standing alone is that a charge must be filed within 180 days in a deferral State is myopic at best. ’ MOHASCO CORP. v. SILVER 835 807 Blackmun, J., dissenting lems that may arise from the indeterminancy of the “240-day maybe” rule it announces. Will complainants in deferral States be permitted to seek artifically speedy terminations of state proceedings in order to preserve their federal rights? Will employers be permitted to oppose such early terminations of state proceedings? Will state and local agencies be permitted to adopt a practice of terminating proceedings immediately whenever a complainant referred to them by the EEOC needs prompt action in order to preserve his federal remedies? These unanswered questions lead me to conclude that the Court’s “rather straightforward reading” of § 706 may indeed lead to “absurd or futile results,” despite the Court’s conclusion to the contrary. Ante, at 818. The possible problems that I pose, of course, would cause me less concern were it clear that they result from the scheme that Congress intended to enact. But for the reasons stated in Part I, supra, I believe that Congress clearly did not intend to enact the Court’s “240-day maybe” rule for judging the timeliness of a charge filed with the EEOC. It remains for Congress to restrike “the balance,” ante, at 826, it plainly intended to set when it re-enacted §§ 706 (c) and (e) in 1972. I dissent from the Court’s adoption of a rule that both alters that balance and, at the same time, serves no useful end. Reporter’s Note The next page is purposely numbered 901. The numbers between 835 and 901 were intentionally omitted, in order to make it possible to publish the orders with permanent page numbers, thus making the official citations available upon publication of the preliminary prints of the United States Reports. ORDERS FROM JUNE 9 THROUGH JUNE 23, 1980 June 9, 1980 Appeals Dismissed No. 79-1597. Keyhea v. Enomoto, Corrections Director, et al. Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. No. 79-6443. Profit v. City of Niagara Falls, New York, et al. Appeal from C. A. 2d 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: 610 F. 2d 807. No. 79-6496. Petrea v. Petrea. Appeal from Sup. Ct. Del. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 414 A. 2d 820. Vacated and Remanded on Appeal No. 79-185. Consumers Union of United States, Inc., et al. v. Virginia State Bar et al. Appeal from D. C. E. D. Va. Judgment vacated and case remanded for further consideration in light of Supreme Court of Va. v. Consumers Union of United States, Inc., 446 U. S. 719 (1980). Mr. Justice Powell took no part in the consideration or decision of this case. Reported below: 470 F. Supp. 1055. Certiorari Granted—Vacated and Remanded No. 79-5518. McShan v. Georgia. Ct. App. Ga. Motion of petitioner for leave to proceed in forma pauperis and 901 902 OCTOBER TERM, 1979 June 9, 1980 447 U.S. certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Mendenhall, 446 U. S. 544 (1980). Reported below: 150 Ga. App. 232,257 S. E. 2d 202. Miscellaneous Orders No. A-953. Noe v. United States. Application for bail, addressed to Mr. Justice Marshall and referred to the Court, denied. No. A-981. Buzzanca v. United States. Application for bail, addressed to Mr. Justice Brennan and referred to the Court, denied. No. A-1013. Walnut Properties, Inc. v. Long Beach City Council. Application to stay execution of the decision of the Long Beach City Council, dated March 9, 1978, addressed to Mr. Justice Stewart and referred to the Court, denied. No. D-194. In re Disbarment of Amos. It is ordered that Howard W. Amos, of Worthington, Ohio, 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. 83, Orig. Maryland et al. v. Louisiana. Motion of the United States for leave to intervene referred to the Special Master. Report of the Special Master received and ordered filed. Exceptions, if any, with supporting briefs to the Report of the Special Master may be filed by the parties within 30 days. Reply briefs, if any, to such exceptions may be filed within 30 days. [For earlier order herein see e a 445 U. S. 913.] ’ " ORDERS 903 447 U. S. June 9, 1980 No. 79-770. Environmental Protection Agency v. National Crushed Stone Assn, et al. ; and Costle, Administrator, Environmental Protection Agency v. Consolidation Coal Co. et al. C. A. 4th Cir. [Certiorari granted, 444 U. S. 1069.] Motion of respondents for divided argument granted. No. 79-816. Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, U. S. Department of Labor, et al. C. A. D. C. Cir. [Certiorari granted, 444 U. S. 1069.] Motion of the Solicitor General for divided argument granted. No. 79-1128. Montana et al. v. United States et al. C. A. 9th Cir. [Certiorari granted, 445 U. S. 960.] Motion of respondents for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. Motion of petitioners for additional time for oral argument granted, and 15 additional minutes allotted for that purpose. No. 79-1388. Kirchberg v. Feenstra et al. C. A. 5th Cir. [Probable jurisdiction noted, 446 U. S. 917.] Motion of Rudolph R. Schoemann, Esquire, to permit Alan F. Schoen-berger, Esquire, of New Orleans, La., to present oral argument pro hoc vice granted. No. 79-5269. Edwards v. Arizona. Sup. Ct. Ariz. [Certiorari granted, 446 U. S. 950.] Motion for appointment of counsel granted, and it is ordered that Michael J. Meehan, Esquire, of Tucson, Ariz., be appointed to serve as counsel for petitioner in this case. No. 79-6558. Paul v. United States District Court for the District of Columbia; and No. 79-6576. Rheuark v. Texas et al. Motions for leave to file petitions for writs of mandamus denied. 904 OCTOBER TERM, 1979 June 9, 1980 447U.S. Certiorari Granted No. 79-404. United States v. Cortez et al. C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. Reported below: 595 F. 2d 505. No. 79-1344. Michael M. v. Superior Court of Sonoma County (California, Real Party in Interest). Sup. Ct. Cal. Certiorari granted. Reported below: 25 Cal. 3d 608, 601 P. 2d 572. No. 79-1404. Pennhurst State School and Hospital et al. v. Halderman et al. ; No. 79-1408. Mayor of Philadelphia et al. v. Halderman et al. ; No. 79-1414. Pennsylvania Association for Retarded Citizens et al. v. Pennhurst State School and Hospital et al.; No. 79-1415. Commissioners and Mental Health/Men-tal Retardation Administrator for Bucks County et al. v. Halderman et al. ; and No. 79-1489. Pennhurst Parents-Staff Assn. v. Halderman et al. C. A. 3d Cir. Certiorari granted except as to Question 3, presented in petitions Nos. 79-1404 and 79-1489. Counsel are also requested to brief and argue the following question: Does 42 U. S. C. § 1983 provide a private remedy to enforce the provisions of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6000 et seq.? Cases consolidated and a total of two hours allotted for oral argument. Reported below: 612 F. 2d 84. Certiorari Denied. (See also Nos. 79-1597, 79-6443, and 79-6496, supra.) No. 79-1062. Markham v. Pitchess, Sheriff, et al. C. A. 9th Cir. Certiorari denied. Reported below: 605 F. 2d 436. ORDERS 905 447 U. S. June 9, 1980 No. 79-1314. 1776 K Street Associates et al. v. United States. Ct. Cl. Certiorari denied. Reported below: 221 Ct. Cl. 256,602 F. 2d 354. No. 79-1342. Klein v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 614 F. 2d 1292. No. 79-1400. Toughill et al. v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 612 F. 2d 449. No. 79-1427. Petersen et al. v. United States; No. 79-1443. Mitchell et al. v. United States; No. 79-6071. Carlson v. United States; No. 79-6234. Dixon v. United States; No. 79-6245. Leonhardt v. United States; No. 79-6254. Igo v. United States; and No. 79-6301. Miller v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 611 F. 2d 1313. No. 79-1498. Ven-Fuel, Inc. v. Duncan, Secretary of Energy, et al. C. A. 5th Cir. Certiorari denied. No. 79-1499. Weintraub v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 613 F. 2d 612. No. 79-1519. Levey et al. v. United States et al. C. A. 3d Cir. Certiorari denied. Reported below: 616 F. 2d 668. No. 79-1539. Metro Truck Body, Inc. v. National Labor Relations Board. C. A. 9th Cir. Certiorari denied. Reported below: 613 F. 2d 746. No. 79-1540. Sadlowski et al. v. Marshall, Secretary of Labor, et al. C. A. D. C. Cir. Certiorari denied. No. 79-1598. M. J. Kelley Co. v. Woods, Commissioner of Revenue of Tennessee. Sup. Ct. Tenn. Certiorari denied. Reported below: 592 S. W. 2d 567. 906 OCTOBER TERM, 1979 June 9, 1980 447U.S. No. 79-1613. Huffnagle v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. No. 79-1616. Anglin v. Indiana. Ct. App. Ind. Certiorari denied. No. 79-1622. Prevette et al. v. North Carolina. Ct. App. N. C. Certiorari denied. Reported below: 43 N. C. App. 450, 259 S. E. 2d 595. No. 79-1624. Local 450, United Furniture Workers of America, AFL-CIO v. Donn Products, Inc., et al. C. A. 6th Cir. Certiorari denied. Reported below: 613 F. 2d 162. No. 79-1626. Las Vegas Sun, Inc. v. Summa Corp., dba Castaways Casino, Frontier Hotel, and Desert Inn Hotel, et al. C. A. 9th Cir. Certiorari denied. Reported below: 610F. 2d 614. No. 79-1639. Beverly Bank et al. v. Illinois Savings & Loan Assn. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 75 Ill. App. 3d 1101, 399 N. E. 2d 1388. No. 79-1644. Canfield et ux. v. New York City; and No. 79-1668. Badgley et al. v. New York City. C. A. 2d Cir. Certiorari denied. Reported below: 606 F. 2d 358. No. 79-1650. Supreme Equipment & Systems Corp. v. Walter M. Ballard Co. C. A. D. C. Cir. Certiorari denied. Reported below: 198 U. S. App. D. C. 59, 610 F. 2d 1001. No. 79-1657. Bowe v. First of Denver Mortgage Investors et al. C. A. 10th Cir. Certiorari denied. Reported below: 613 F. 2d 798. No. 79-1662. Blackburn et al., dba Tiny Blackburn Agency v. Crum & Forster et al. C. A. 5th Cir. Certiorari denied. Reported below: 611F. 2d 102. ORDERS 907 447U.S. June 9, 1980 No. 79-1669. First Bank of Oak Park v. United California Bank. Ct. App. Cal., 1st App. Dist. Certiorari denied. Reported below: 98 Cal. App. 3d 439, 159 Cal. Rptr. 607. No. 79-1674. Kondrat v. Mitrovich et al. Ct. App. Ohio, Lake County. Certiorari denied. No. 79-1693. Terry Tuck, Inc. v. Consolidated Freightways Corporation of Delaware. C. A. 9th Cir. Certiorari denied. Reported below: 612 F. 2d 465. No. 79-1694. Hamilton v. General Motors Corp. C. A. 5th Cir. Certiorari denied. Reported below: 606 F. 2d 576. No. 79-1700. Brummitt v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 613 F. 2d 62. No. 79-1757. Artarian v. Artar et al. C. A. 4th Cir. Certiorari denied. Reported below: 610 F. 2d 809. No. 79-1766. Shuffman, Executrix v. Hartford Textile Corp, et al. C. A. 2d Cir. Certiorari denied. Reported below: 613 F. 2d 384. No. 79-1784. Bella et al., dba Dave Streiffer Co. v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 610 F. 2d 1272. No. 79-1814. Downs v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 615 F. 2d 677. No. 79-5873. Vasquez v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 612 F. 2d 1338. No. 79-6077. Cobb v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. Certiorari denied. Reported below: 609 F. 2d 754. No. 79-6143. Gristeau v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 611 F. 2d 181. 908 OCTOBER TERM, 1979 June 9, 1980 447U.S. No. 79-6211. Farias-Contreras v. Immigration and Naturalization Service. C. A. 9th Cir. Certiorari denied. Reported below: 605 F. 2d 561. No. 79-6224. Greco v. Workman, Pre-Release Center Superintendent. C. A. 1st Cir. Certiorari denied. No. 79-6300. Gindi v. Dunham, Correctional Superintendent. C. A. 2d Cir. Certiorari denied. No. 79-6306. Antonelli v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 624 F. 2d 1104. No. 79-6327. Tatasciore v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 620 F. 2d 291. No. 79-6337. Cox v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 616 F. 2d 413. No. 79-6379. Trolley v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 618 F. 2d 109. No. 79-6386. Jenkins v. New York. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 72 App. Div. 2d 974,421 N. Y. S. 2d 751. No. 79-6395. Alston v. New Jersey. Super. Ct. N. J. Certiorari denied. No. 79-6400. Pfeifer v. United States Bureau of Prisons. C. A. 9th Cir. Certiorari denied. Reported below: 615 F. 2d 873. No. 79-6404. Crooker v. U. S. Department of Justice. C. A. 2d Cir. Certiorari denied. Reported below: 622 F. 2d 573. No. 79-6429. Taylor v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. ORDERS 909 447U.S. June 9, 1980 No. 79-6438. Harrison v. Gallia County Children’s Services Board. Ct. App. Ohio, Gallia County. Certiorari denied. No. 79-6439. Maddox v. Texas. Ct. Crim. App. Tex. Certiorari denied. Reported below: 591 S. W. 2d 898. No. 79-6440. Pitts v. Redman, Warden, et al. C. A. 3d Cir. Certiorari denied. No. 79-6441. Gallimore v. Garrison. C. A. 4th Cir. Certiorari denied. Reported below: 618 F. 2d 98. No. 79-6444. Williams et al. v. Air Transport Union Local No. 504 et al. C. A. 2d Cir. Certiorari denied. Reported below: 622 F. 2d 577. No. 79-6445. Mason v. Wolfe. C. A. 4th Cir. Certiorari denied. Reported below: 610 F. 2d 812. No. 79-6451. Young v. Sharp, U. S. District Judge, et al. C. A. 7th dr. Certiorari denied. No. 79-6452. Herrington v. Griggs, Superintendent, California Institution for Men. C. A. 9th Cir. Certiorari denied. Reported below: 618 F. 2d 116. No. 79-6455. Williams v. Louisiana. C. A. 5th Cir. Certiorari denied. Reported below: 611 F. 2d 881. No. 79-6457. Johnson v. Carter, President of the United States. C. A. 6th Cir. Certiorari denied. Reported below: 612 F. 2d 581. No. 79-6459. Howell v. Wyrick, Warden. C. A. 8th Cir. Certiorari denied. No. 79-6462. Simpson v. Minick, Sheriff. C. A. 6th dr. Certiorari denied. 910 OCTOBER TERM, 1979 June 9, 1980 447U.S. No. 79-6466. Evans v. Cannon et al. Sup. Ct. Ohio. Certiorari denied. No. 79-6473. Howze v. Ohio. Sup. Ct. Ohio. Certiorari denied. No. 79-6494. Ginsburg v. Tighe. Sup. Ct. N. J. Certiorari denied. No. 79-6513. Butler v. Alexander, Secretary of the Army, et al. C. A. D. C. Certiorari denied. No. 79-6540. Proffitt v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 620 F. 2d 295. No. 79-6551. Smiley v. Corcoran, Los Angeles County Clerk, et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 79-6581. Elorduy v. United States. C. A. 5th dr. Certiorari denied. Reported below: 612 F. 2d 986. No. 79-6594. Rucker v. City of Saint Louis et al. C. A. 8th Cir. Certiorari denied. Reported below: 612 F. 2d 1102. No. 79-6598. Mizell v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 615 F. 2d 1367. No. 79-6599. Campbell v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 616 F. 2d 1151. No. 79-6602. Couch v. United States. C. A. 6th dr. Certiorari denied. Reported below: 616 F. 2d 954. No. 78-6884. Elmore v. United States. C. A. 5th dr. Certiorari denied. Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari. Reported below: 595 F. 2d 1036. ORDERS 911 447U.S. June 9, 1980 No. 79-333. Boerckel v. Illinois. App. Ct. Ill., 5th Dist. Certiorari denied. Mr. Justice Marshall would grant certiorari. Reported below: 68 Ill. App. 3d 103, 385 N. E. 2d 815. No. 79-5197. Vasquez-Santiago et al. v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall would grant certiorari. Reported below: 602 F. 2d 1069. No. 79-5926. Thorson v. California. Ct. App. Cal., 2d App. Dist. Certiorari denied. Mr. Justice Marshall would grant certiorari. No. 79-6170. Flores v. United States. C. A. 2d Cir. Certiorari denied. Mr. Justice Marshall would grant certiorari. Reported below: 620 F. 2d 286. No. 79-725. Maine Public Utilities Commission v. Central Maine Power Co. Sup. Jud. Ct. Me. Certiorari denied. Mr. Justice Blackmun would grant certiorari. Reported below: 405 A. 2d 153. No. 79-1454. Harris, Secretary of Health and Human Services v. Wright et al. C. A. 7th Cir. Motion of respondents for leave to proceed in Jorma pauperis granted. Certiorari denied. Reported below: 603 F. 2d 666. No. 79-1629. Board of Education of the Memphis City Schools et al. v. Northcross et al. ; and No. 79-1630. City of Memphis et al. v. Northcross et al. C. A. 6th Cir. Certiorari denied. Mr. Justice White would grant certiorari. Reported below: 611 F. 2d 624. No. 79-6017. Nastu v. Texas. Ct. Crim. App. Tex. Motion of petitioner to strike the supplement to the petition and certiorari denied. Reported below: 589 S. W. 2d 434. 912 OCTOBER TERM, 1979 June 9, 1980 447U.S. No. 79-6362. Dobbert v. Florida. Sup. Ct. Fla. Certiorari denied. Reported below: 375 So. 2d 1069. 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. No. 79-6383. Briggs v. Connecticut. Sup. Ct. Conn. Certiorari denied. Reported below: 179 Conn. 328, 426 A. 2d 298. Mr. Justice Marshall, with whom Mr. Justice Brennan joins, dissenting. The Due Process Clause of the Fourteenth Amendment forbids the use for impeachment purposes of evidence that a defendant remained silent after receiving the Miranda warnings at the time of his arrest. Doyle v. Ohio, 426 U. S. 610 (1976). At petitioner’s criminal trial, the prosecutor repeatedly brought before the jury the fact that petitioner had not furnished police officers with his alibi at the time of his arrest. Respondent concedes, and the Supreme Court of Connecticut agreed, that such use of petitioner’s postarrest silence violated petitioner’s constitutional rights. Nevertheless, the court sustained the conviction, over Justice Bogdanski’s dissent, on the ground that the error was harmless beyond a reasonable doubt. I share Justice Bogdanski’s “unreasonable” belief that the violation of petitioner’s rights was not constitutionally harmless. A finding of harmless error on this record, in my view, can be nothing other than a means of avoiding the requirements of the Constitution in order to sustain the conviction of a defendant the court believed was factually guilty. ORDERS 913 912 Marshall, J., dissenting Petitioner’s defense was that he was in the company of his wife and was nowhere near the scene of the alleged crimes at the time they were committed. Petitioner’s wife testified to that effect, and petitioner’s testimony corroborated hers. On cross-examination, the prosecutor repeatedly forced petitioner to admit that he had not given his story to the police after receiving Miranda warnings. The cross-examination which the Connecticut Supreme Court held to be harmless beyond a reasonable doubt was as follows: “Q. Did you ever recall telling the police officer that you had gone to court in Stamford on June 8th [the date of the alleged offense] ? “A. Yes. “Q. Did you ever tell the police officer on June 15th [the date petitioner was arrested] that you were home from 6:45 to 8:55 in the morning? “[Defense counsel’s objection was overruled.] “A. No, I never told them nothing. Not anything. “Q. Did you tell them that you were wearing red pants, red T-shirt and blue jacket, white, red and blue sneakers, at 6:15 on June— “A. I did not tell the police officer nothing. “Q. Did you ever tell them that you went to court with your wife and Kareen? “A. Pardon me? “Q. Did you ever tell them that you went to court with your wife and Kareen—the boy? “A. Well, I started—I almost started a conversation but I cut it. “Q. Did you ever tell the police officer what time you arrived at the court in Stamford? “A. I did not tell the police officer nothing.” 179 Conn. 328, 334, n. 1, 426 A. 2d 298, 302, n. 1 (1979). 914 OCTOBER TERM, 1979 447 U.S. Marshall, J., dissenting As if this colloquy did not sufficiently prejudice petitioner before the jury, the prosecutor called a police officer in rebuttal, who testified as follows: “Q. And after you advised him of his rights, did he give any information with respect to his whereabouts on June 8th of 1977? “A. The only information he would tell us was that he was in court on June 8th. “Q. Did he tell you what time he was in court? “A. No, he didn’t. “Q. Did he tell you what judge— “[Defense counsel’s objection was overruled.] “Q. [by the Court] What time did he said [sic] he arrived in court? “A. He didn’t tell me. “Q. [by the prosecutor] Did you ask him? “A. Yes. “Q. Is there anything in your report with respect to the conversation you had with her or with Mr. Briggs? “A. Yes, there is. “Q. And may I see that, please? “A. This is the accused, and what he said. Refused to give a statement.” Id., at 334-335, n. 2, 426 A. 2d, at 302, n. 2. The repeated, cumulative impermissible references to petitioner’s constitutionally protected silence were obviously designed to imply that his defense was fabricated. The prosecutor knew very well that the defendant had remained silent after receiving Miranda warnings, and his questions were designed to hammer that fact home to the jury. In holding that these repeated constitutional violations were harmless error, the Connecticut Supreme Court purported to apply a standard that has been adopted by several federal courts, namely, “‘[w]hen there is but a single reference at ORDERS 915 912 Marshall, J., dissenting trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.’ ” Id., at 336, 426 A. 2d, at 303, quoting State v. Zeko, 177 Conn. 545, 555, 418 A. 2d 917, 922 (1979). Accord, Chapman v. United States, 547 F. 2d 1240,1250 (CA5), cert, denied, 431 U. S. 908 (1977) ; Leake v. Cox, 432 F. 2d 982, 984 (CA4 1970). Even on the assumption that this was the appropriate standard, it is plain that the violations in this case were not harmless error. There were multiple references to petitioner’s silence; the references were linked—in detail—with petitioner’s exculpatory story; and petitioner’s alibi defense was not transparently frivolous.* Nevertheless, the court concluded that “the defendant’s silence was not so ‘highlighted’ by the prosecutor as to constitute prejudicial error” and that the comments had not “ ‘struck at the jugular’ of the defendant’s defense.” 179 Conn., at 337, 426 A. 2d, at 303. This case exemplifies a disturbing and increasingly widespread trend among some courts to sanction egregious violations of the constitutional rights of criminal defendants by blandly reciting the formula “harmless error” whenever it appears that the accused was factually guilty. Our limited ability to exercise our certiorari jurisdiction prevents us from effectively policing the nullification of constitutional requirements through the abuse of the harmless-error doctrine; nor is it our role to correct such factual errors. Our judicial system relies on conscientious trial and appellate courts to assure that all persons accused of criminal offenses receive the full protections guaranteed them by the Constitution. Because this case exemplifies a serious failure to accept that weighty responsibility, I would grant the petition. *Petitioner’s wife and another witness testified to his whereabouts; the fact that the State presented three witnesses who controverted petitioner’s alibi defense does not necessarily mean the defense was frivolous. 916 OCTOBER TERM, 1979 447 U.S. June 9, 10, 12, 16, 1980 Rehearing Denied No. 78-1840. City of Rome et al. v. United States et al., 446 U. S. 156; No. 78-5928. Waller v. United States, 446 U. S. 901; No. 79-1096. Pearson v. Texas, 446 U. S. 912; No. 79-1148. Sparks v. United States, 446 U. S. 908; No. 79-6161. Hohensee v. Southard et al., 446 U. S. 911; No. 79-6183. Cooper v. City of Commerce City, Colorado, 446 U. S. 912 ; and No. 79-6206. Kickasola v. Jim Wallace Oil Co., Inc., et al., 446 U. S. 921. Petitions for rehearing denied. No. 78-671. Delaware State Board of Education v. Evans et al., 446 U. S. 923; and No. 78-672. Alexis I. du Pont School District et al. v. Evans et al., 446 U. S. 923. Petitions for rehearing denied. Mr. Justice Stevens took no part in the consideration or decision of these petitions. June 10, 1980 Affirmed on Appeal. (See No. 78-60, ante, at 164-165, n. 32.) June 12, 1980 Miscellaneous Order No. A-1080. DeVingo et al. v. New Jersey. Application for stay of trial court proceedings, presented to Mr. Justice Brennan, and by him referred to the Court, denied. June 16, 1980 Appeals Dismissed No. 79-1588. Federation for American Immigration Reform et al. v. Klutznick, Secretary of Commerce, et al. Appeal from D. C. D. C. dismissed for want of jurisdiction. Reported below: 486 F. Supp. 564. ORDERS 917 447 U.S. June 16, 1980 No. 79-843. Exxon Corp. v. South Carolina Tax Commission. Appeal from Sup. Ct. S. C. dismissed for want of substantial federal question. Mr. Justice Stevens would note probable jurisdiction and set case for oral argument. Mr. Justice Stewart took no part in the consideration or decision of this case. Reported below: 273 S. C 594 258 S. E. 2d 93. No. 79—1615. Hall v. California et al. Appeal from C. A. 9th 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 614 F. 2d 776. No. 79—1678. Briggs v. California ex rel. Department of Parks and Recreation. Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Reported below: 98 Cal App 3d 190,159 Cal. Rptr. 390. No. 79-6489. Linden v. New York. Appeal from C. A. 2d 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: 622 F 2d 574. No. 79-1670. Avis Rent-A-Car Systems, Inc. v. Vining et ux. Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question. Reported below: 378 So 2d 280. Certiorari Granted—Reversed. (See No. 79-1377 ante d 404.) ■ ' Certiorari Granted—Vacated and Remanded No. 78-1531. Franzen, Correctional Superintendent, et al. v. Allen. C. A. 7th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. 918 OCTOBER TERM, 1979 June 16, 1980 447 U.S. Judgment vacated and case remanded for further consideration in light of Jenkins v. Anderson, ante, p. 231. Reported below: 591 F. 2d 391. No. 79-1435. Mahoning Women’s Center v. Hunter, Mayor of Youngstown, et al. C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of New York Gaslight Club, Inc. v. Carey, ante, p. 54, and Supreme Court of Virginia v. Consumers Union, 446 U. S. 719 (1980). Mr. Justice Stewart, Mr. Justice White, Mr. Justice Rehnquist, and Mr. Justice Stevens dissent. Reported below: 610 F. 2d 456. Miscellaneous Orders No. A-994. Machinists Non-Partisan Political League v. Federal Election Commission. Application for stay of execution and enforcement of the order of the United States District Court for the District of Columbia, entered January 30, 1980, presented to The Chief Justice, and by him referred to the Court, denied. The order entered by The Chief Justice on May 23,1980, is vacated. No. A-1053. Burlington Northern, Inc., et al. v. Missouri-Kansas-Texas Railroad Co. et al. Application for an order to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on May 30, 1980, presented to Mr. Justice Powell, and by him referred to the Court, denied. No. 79-1690. Stanton, Administrator, Indiana Department of Public Welfare v. Brown et al. C. A. 7th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States. No. A-1019 (79—1909). California v. Musante. Ct. App. Cal., 4th App. Dist. Application for stay, addressed to Mr. Justice White and referred to the Court, denied. ORDERS 919 447 U.S. June 16, 1980 No. 79-5903. H. L. v. Matheson, Governor of Utah, et al. Sup. Ct. Utah. [Probable jurisdiction noted, 445 U. S. 903.] Motion for reconsideration of motion for appointment of Alan Ernest as counsel for children unborn and bom alive denied. No. 79-6639. Harris v. Hambrick, Warden ; and No. 79-6669. Battle v. Christensen, Warden. Motions for leave to file petitions for writs of habeas corpus denied. No. 79-6546. Theriault v. Silber et al. Motion for leave to file petition for writ of mandamus denied. Probable Jurisdiction Postponed No. 79-678. San Diego Gas & Electric Co. v. City of San Diego et al. Appeal from Ct. App. Cal., 4th App. Dist. Further consideration of question of jurisdiction postponed to hearing of case on the merits. No. 79-1689. United States v. Wtl-l et al. Appeal from D. C. N. D. Ill. Further consideration of question of jurisdiction postponed to hearing of case on the merits. Motion of the Solicitor General to consolidate this case with No. 79—983, United States v. Will et al. [probable jurisdiction postponed, 444 U. S. 1068], for briefing and oral argument granted. A total of one and one-half hours allotted for oral argument. Certiorari Granted No. 79-972. Westvaco Corp, et al. v. Adams Extract Co. et al. C. A. 5th Cir. Certiorari granted and case set for oral argument in tandem with No. 79-1056, Northwest Airlines, Inc. n. Transport Workers Union of America, AFL-CIO, et al., immediately infra. Mr. Justice Powell took no part in the consideration or decision of this petition. Reported below: 606 F. 2d 319. 920 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-1056. Northwest Airlines, Inc. v. Transport Workers Union of America, AFL-CIO, et al. C. A. D. C. Cir. Motion of Chamber of Commerce of the United States for leave to file a brief as amicus curiae granted. Certiorari granted and case set for oral argument in tandem with No. 79-972, Westvaco Corp, et al. v. Adams Extract Co. et al., immediately ^upra. Mr. Justice Blackmun took no part in the consideration or decision of the motion and petition. Reported below: 196 U. S. App. D. C. 443, 606 F. 2d 1350. No. 79-1203. Lucky Me Uranium Corp. v. Geomet Exploration, Ltd. Sup. Ct. Ariz. Motion of Arizona Mining Association for leave to file a brief as amicus curiae granted. Certiorari granted. Reported below: 124 Ariz. 55, 601 P. 2d 1339. No. 79-1236. Carson et al. v. American Brands, Inc., t/a American Tobacco Co., et al. C. A. 4th Cir. Certiorari granted limited to Question 1 presented by the petition. Reported below: 606 F. 2d 420. No. 79-1764. Texas Department of Community Affairs v. Burdine. C. A. 5th Cir. Certiorari granted. Reported below: 608 F. 2d 563. Certiorari Denied. (See also Nos. 79—1615, 79—1678, and 79-6489, supra.) No. 79-1333. Rado v. Connecticut et al. C. A. 2d Cir. Certiorari denied. Reported below: 607 F. 2d 572. No. 79-1392. Gottschalk v. Alaska. Sup. Ct. Alaska. Certiorari denied. Reported below: 602 P. 2d 448. No. 79-1422. Azzarelli Construction Co. et al. v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 612 F. 2d 292. ORDERS 921 447 U.S. June 16, 1980 No. 79-1424. Chamber of Commerce of the United States of America v. Legal Aid Society of Alameda County et al. C. A. 9th Cir. Certiorari denied. Reported below: 608 F. 2d 1319. No. 79-1433. Maskeny et al. v. United States; and No. 79-1532. Darwin v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 609 F. 2d 183. No. 79-1448. Nagata Brothers Farms v. Agricultural Labor Relations Board of California (United Farm Workers of America, AFL-CIO, Real Party in Interest). Sup. Ct. Cal. Certiorari denied. No. 79-1463. Kline et al. v. Blake. C. A. 3d Cir. Certiorari denied. Reported below: 612 F. 2d 718. No. 79-1464. Willis v. Virginia. Sup. Ct. Va. Certiorari denied. No. 79-1467. Stevens v. United States. C. A. 10th Cir. Certiorari denied. Reported below: 612 F. 2d 1226. No. 79-1487. Ashworth v. Alabama. Ct. Crim. App. Ala. Certiorari denied. No. 79—1496. Association of National Advertisers, Inc., et al. v. Federal Trade Commission et al.; and No. 79-1501. Kellogg Co. v. Federal Trade Commission et al. C. A. D. C. Cir. Certiorari denied. Reported below 201 U. S. App. D. C. 165, 627 F. 2d 1151. No. 79-1509. Committee to Protect the First Amendment Rights of Employees of the Department of Agriculture y. Bergland, Secretary of Agriculture. C. A. D. C. Cir. Certiorari denied. Reported below: 200 U S App. D. C. 11, 626 F. 2d 875. 922 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-1514. Baltimore Rebuilders, Inc. v. National Labor Relations Board et al. C. A. 4th Cir. Certiorari denied. Reported below: 611 F. 2d 1372. No. 79-1523. Transcontinental Gas Pipe Line Corp. v. Federal Energy Regulatory Commission. C. A. D. C. Cir. Certiorari denied. Reported below: 196 U. S. App. D. C. 187, 606 F. 2d 1094. No. 79-1542. Andrulis et al. v. United States et al; and No. 79-1543. National Association for the Advancement of Colored People et al. v. Civiletti, Attorney General, et al. C. A. D. C. Cir. Certiorari denied. Reported below: 197 U. S. App. D. C. 259, 609 F. 2d 514. No. 79-1547. Shaufler v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 618 F. 2d 111. No. 79-1548. Hayes et al. v. Rogers. Sup. Ct. Fla. Certiorari denied. Reported below: 378 So. 2d 1212. No. 79-1550. Lane Processing, Inc. v. Marshall, Secretary of Labor. C. A. 8th Cir. Certiorari denied. Reported below: 606 F. 2d 518. No. 79-1551. Six Nations Confederacy v. Andrus, Secretary of the Interior, et al. C. A. D. C. Cir. Certiorari denied. Reported below: 198 U. S. App. D. C. 54, 610 F. 2d 996. No. 79-1561. Carpenter v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 611 F. 2d 113. No. 79-1575. DeMilia et al. v. New York et al. App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied. Reported below: 72 App. Div. 2d 536, 421 N. Y. S. 2d 70. No. 79-1577. Heilman v. United States. C. A. 7th Cir. Certiorari denied. Reported below: 614 F. 2d 1133. ORDERS 923 447 U.S. June 16, 1980 No. 79-1614. Riley, Administratrix, et al. v. Goldschmidt, Secretary of Transportation, et al. C. A. 7th Cir. Certiorari denied. Reported below: 618 F. 2d 110. No. 79-1623. Indiana & Michigan Electric Co. v. National Labor Relations Board. C. A. 4th Cir. Certiorari denied. Reported below: 610 F. 2d 811. No. 79-1642. Patterson v. Arkansas. Sup. Ct. Ark. Certiorari denied. Reported below: 267 Ark 436 591 S W 2d 356. No. 79-1649. Murray et al. v. Alexander Title Agency, Inc., et al. Ct. App. D. C. Certiorari denied. No. 79-1658. In re Walker. Sup. Jud. Ct. Me. Certiorari denied. Reported below: 411 A. 2d 1024. No. 79-1659. Desert Outdoor Advertising, Inc. v. Department of Transportation of California. Ct. App. Cal., 4th App. Dist. Certiorari denied. No. 79-1660. Kleve v. Kleve. Ct. App. Ohio, Hamilton County. Certiorari denied. No. 79-1664. Rennert v. Duckworth, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 618 F. 2d 111. No. 79-1666. Fletcher v. California Portland Cement Co., Inc. Ct. App. Cal., 2d App. Dist. Certiorari denied. Reported below: 99 Cal. App. 3d 97, 159 Cal. Rptr. 915. No. 79-1671. Warner et al. v. Sovereign News Co. et al. C. A. 6th Cir. Certiorari denied. Reported below 610 F 2d 428. No. 79-1676. White v. Arlen Realty & Development Corp. C. A. 4th Cir. Certiorari denied. Reported below 614 F. 2d 387. 924 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-1680. Gardner Bender, Inc. v. Ideal Industries, Inc. C. A. 7th Cir. Certiorari denied. Reported below: 612 F. 2d 1018. No. 79-1681. Kaplan, Trustee in Bankruptcy v. Burroughs Corp. C. A. 9th Cir. Certiorari denied. Reported below: 611 F. 2d 286. No. 79-1682. Zeccola v. Ezzo et al. Dist. Ct. App. Fla., 3d Dist. Certiorari denied. Reported below: 370 So. 2d 38. No. 79-1683. First Beverages, Inc. of Las Vegas, et al. v. Royal Crown Cola Co. et al. C. A. 9th Cir. Certiorari denied. Reported below: 612 F. 2d 1164. No. 79-1695. Electri-Flex Co. v. National Labor Relations Board. C. A. 7th Cir. Certiorari denied. Reported below: 624 F. 2d 1103. No. 79-1698. Matsis v. Matsis. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 73 App. Div. 2d 849, 422 N. Y. S. 2d 550. No. 79-1701. Hamilton v. Montana. Sup. Ct. Mont. Certiorari denied. Reported below: ---- Mont. ----, 605 P. 2d 1121. No. 79-1702. Carter v. Crown Hosiery Mills, Inc. C. A. 4th Cir. Certiorari denied. Reported below: 618 F. 2d 96. No. 79-1714. Alexander v. Los Angeles County Civil Service Commission et al. Ct. App. Cal., 2d App. Dist. Certiorari denied. No. 79-1749. United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, Local No. 68 v. Bexar Plumbing Co., Inc.’ C. A. 5th Cir. Certiorari denied. Reported below: 610 F. 2d 816. ORDERS 925 447 U.S. June 16, 1980 No. 79-1780. Fels v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 620 F. 2d 290. No. 79-1800. Laughman et al. v. United States. C. A. 4th Cir. Certiorari denied. Reported below: 618 F. 2d 1067. No. 79-1812. Liggett v. Harris, Secretary of Health and Human Services. C. A. 9th Cir. Certiorari denied. Reported below: 614 F. 2d 777. No. 72-1822. Neff v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 615 F. 2d 1235. No. 79-1826. Carcaise v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 613 F. 2d 1321. No. 79-1827. Farese v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 612 F. 2d 1376. No. 79-1832. Gross v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 614 F. 2d 365. No. 79-6192. Adderley v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. Certiorari denied. Reported below: 612 F. 2d 577. No. 79-6199. Panza v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 612 F. 2d 432. No. 79-6208. Kirk v. Illinois. App. Ct. Ill., 1st Dist. Certiorari denied. Reported below: 76 Ill. App. 3d 459, 394 N. E. 2d 1212.. No. 79-6209. Stanley et al. v. Wainwtught, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. Certiorari denied. Reported below: 604 F. 2d 379. No. 79-6216. Lane v. Connecticut. Sup. Ct. Conn. Certiorari denied. Reported below: 179 Conn. 327, 426 A. 2d 297. No. 79-6218. Carroll v. Duckworth, Warden. C. A. 7th Cir. Certiorari denied. Reported below: 614 F. 2d 774. 926 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-6220. Tates v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 612 F. 2d 432. No. 79-6231. Miller v. United States; and No. 79-6238. Miller v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 608 F. 2d 1089. No. 79-6263. Rodriguez v. Estelle, Corrections Director. C. A. 5th Cir. Certiorari denied. No. 79-6272. Mambretti v. California. Ct. App. Cal., 1st App. Dist. Certiorari denied. No. 79-6279. Stanley v. Maryland. Ct. Sp. App. Md. Certiorari denied. Reported below: 43 Md. App. 651, 406 A. 2d 693. No. 78-6286. Lawson, aka Carr v. Pennsylvania. Sup. Ct. Pa. Certiorari denied. No. 79-6295. Riggs v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 609 F. 2d 1007. No. 79-6313. Garris v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 616 F. 2d 626. No. 79-6317. Armstrong v. Illinois. App. Ct. Ill., 3d Dist. Certiorari denied. Reported below: 77 Ill. App. 3d 916, 396 N. E. 2d 845. No. 79-6329. Baumann v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 614 F. 2d 634. No. 79-6340. Dunbar v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 611 F. 2d 985 and 614 F. 2d 39. No. 79-6374. Antonelli v. Tribune Newspaper et al. C. A. 7th Cir. Certiorari denied. ORDERS 927 447 U.S. June 16, 1980 No. 79-6394. Jones v. New York. App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied. Reported below: 74 App. Div. 2d 613, 424 N. Y. S. 2d 497. No. 79-6413. Korte v. United States. C. A. 10th Cir. Certiorari denied. No. 79-6419. Brown v. United States et al. C. A. D. C. Cir. Certiorari denied. Reported below: 199 U. S. App. D. C. 9, 615 F. 2d 1368. No. 79-6425. El Fundi et ux. v. Deroche et al. C. A. 8th Cir. Certiorari denied. No. 79-6432. Duffin v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 620 F. 2d 290. No. 79-6442. Pulliam v. Balkcom, Warden. Sup. Ct. Ga. Certiorari denied. Reported below: 245 Ga. 99, 263 S. E. 2d 123. No. 79-6471. McMillan v. Mahoney, Correctional Superintendent, et al. C. A. 4th Cir. Certiorari denied. Reported below: 615 F. 2d 1357. No. 79-6476. Roberts v. Illinois. App. Ct. Ill., 4th Dist. Certiorari denied. Reported below: 75 Ill. App. 3d 1104, 399 N. E. 2d 1390. No. 79-6478. Hardy v. Illinois. App. Ct. Ill., 3d Dist. Certiorari denied. Reported below: 77 Ill. App. 3d 37, 395 N. E. 2d 743. No. 79-6479. Butler v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 618 F. 2d 411. No. 79-6485. Rosenthal v. Carr. C. A. 9th Cir. Certiorari denied. Reported below: 614 F. 2d 1219. No. 79-6487. Crisafi v. Wiethe. C. A. 3d Cir. Certiorari denied. 928 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-6488. Woodard v. Wachovia Bank & Trust Co. et al. C. A. 4th Cir. Certiorari denied. No. 79-6490. Robinson v. Parratt, Warden. C. A. 8th Cir. Certiorari denied. Reported below: 620 F. 2d 307. No. 79-6491. Collins v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 378 So. 2d 928. No. 79-6493. Griffith et al. v. Bell-Whitley Community Action Agency et al. C. A. 6th Cir. Certiorari denied. Reported below: 614 F. 2d 1102. No. 79-6502. Kines v. Butterworth. C. A. 1st Cir. Certiorari denied. Reported below: 618 F. 2d 93. No. 79-6504. In Re R. R. v. Illinois. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 75 Ill. App. 3d 494, 394 N. E. 2d 75. No. 79-6509. Snell v. National Railroad Passenger Corp, et al. C. A. 3d Cir. Certiorari denied. Reported below: 612 F. 2d 574. No. 79-6510. Taylor v. Maryland. C. A. 4th Cir. Certiorari denied. Reported below: 618 F. 2d 105. No. 79-6511. Schmoll v. Illinois. App. Ct. Ill., 2d Dist. Certiorari denied. Reported below: 77 Ill. App. 3d 762, 396 N. E. 2d 634. No. 79-6532. Bohonus v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 628 F. 2d 1167. No. 79-6537. Wilson v. Kentucky. Sup. Ct. Ky. Certiorari denied. Reported below: 592 S. W. 2d 465. No. 79-6587. Williams v. American Airlines. C. A. 5th Cir. Certiorari denied. Reported below: 609 F. 2d 1007. No. 79-6596. Leonardi v. United States. C. A. 2d Cir. Certiorari denied. Reported below: 623 F. 2d 746. ORDERS 929 447 U.S. June 16, 1980 No. 79-6604. Campos v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 620 F. 2d 311. No. 79-6605. Westover v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 605 F. 2d 565. No. 79-6611. Perez v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 620 F. 2d 306. No. 79-6612. Gray v. United States. C. A. 3d Cir. Certiorari denied. Reported below: 620 F. 2d 290. No. 79-6618. Huguley v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 617 F. 2d 187. No. 79-6625. Comeaux v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 618 F. 2d 117. No. 79-6629. Carnes v. United States. C. A. 9th Cir. Certiorari denied. Reported below: 618 F. 2d 68. No. 79-6637. Lenz v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 616 F. 2d 960. No. 79-1352. Hart Book Stores, Inc., et al. v. Edmis-ten, Attorney General of North Carolina, et al. C. A. 4th Cir. Certiorari denied. Mr. Justice Brennan and Mr. Justice Marshall would grant the petition for certiorari, reverse the judgment of the Court of Appeals, and reinstate the judgments of July 21, 1978, entered in the United States District Court for the Western District of North Carolina and of April 21, 1978, entered in the United States District Court for the Eastern District of North Carolina declaring unconstitutional N. C. Gen. Stat. §§ 14^-202.10 to 14-202.12. Reported below: 612 F. 2d 821. No. 79-1605. Moody, Assistant Correctional Superintendent v. McNamara. C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 606 F. 2d 621. 930 OCTOBER TERM, 1979 June 16, 1980 447 U.S. No. 79-1723. Sutker, dba All-State Dental Laboratory v. Illinois State Dental Society et al. App. Ct. Ill., 1st Dist. Certiorari denied. Mr. Justice Stevens took no part in the consideration or decision of this petition. Reported below: 76 Ill. App. 3d 240, 395 N. E. 2d 14. No. 79-6276. Fisher v. Reiser, Chairman of Nevada Industrial Commission, et al. C. A. 9th Cir. Certiorari denied. Mr. Justice Powell would grant certiorari. Reported below: 610 F. 2d 629. No. 79-6470. Franklin v. Georgia. Sup. Ct. Ga.; and No. 79-6614. Dobbs v. Hopper, Warden. Super. Ct. Ga., Tattnall County. Certiorari denied. Reported below: No. 79-6470, 245 Ga. 141, 263 S. E. 2d 666. 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 IT. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases. Rehearing Denied No. 9, Orig. United States v. Louisiana et al. Petition for rehearing of the order of the Court entered April 28, 1980 [446 U. S. 253], denied. Mr. Justice Marshall took no part in the consideration or decision of this petition. No. 77-6219. Baldasar v. Illinois, 446 U. S. 222; No. 79-1141. Mora v. Florida, 446 U. S. 917; No. 79-1309. Seibert v. Baptist, District Director of Internal Revenue, et al., 446 U. S. 918; No. 79-1468. Seyfarth v. Lovret, 446 U. S. 919; and No. 79-1495. Sappington v. Beckert, Judge, et al., 446 U. S. 931. Petitions for rehearing denied. ORDERS 931 447 u- S. June 16, 20, 23, 1980 No. 79-6264. Christensen v. Commissioner of Internal Revenue, 446 U. S. 943; and No. 79-6417. Turner v. Graham, Governor of Florida, et al., 446 U. S. 934. Petitions for rehearing denied. No. 79-1347. Spencer v. Greyhound Lines, Inc., et al., 446 U. S. 909. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied. June 20, 1980 Dismissal Under Rule 60 No. 79-1747. Penthouse International, Ltd. v. McAuliffe, Solicitor General of Fulton County, Georgia. C. A. 5th Cir. Certiorari dismissed under this Court’s Rule 60. Reported below: 610 F. 2d 1353. June 23, 1980 Certiorari Granted—Vacated and Remanded No. 79-5080. Willeford v. Estelle, Corrections Director. C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Hicks v. Oklahoma, ante, p. 343. No. 79-5145. Sam v. Oklahoma. Ct. Crim. App. Okla. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Hicks v. Oklahoma, ante p. 343. No. 79-5338. Bynum v. United States. C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. Reported below: 605 F. 2d 1206. 932 OCTOBER TERM, 1979 June 23, 1980 447 U. S. No. 79-5184. Laurel v. United States Court of Appeals for the Fifth Circuit. C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Treating the motion for leave to file and the petition for writ of mandamus as a petition for writ of certiorari, certiorari granted. Order vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. No. 79-5530. Meyer v. United States. C. A. 4th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. Reported below: 609 F. 2d 511. No. 79-5485. Sellers et al. v. United States. C. A. 8th Cir. Motion of petitioners for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. Reported below: 603 F. 2d 53. No. 79-5555. Cates v. United States. C. A. 5th Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. Reported below: 599 F. 2d 447. No. 79-5584. Sepulveda v. United States. C. A. 2d Cir. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Bifulco v. United States, ante, p. 381. Reported below: 607 F. 2d 998. Vacated and Remanded After Certiorari Granted No. 79-5267. Perez v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida. C. A. 5th Cir. [Certiorari granted, 444 U. S. 1070.] Judgment vacated and case remanded for further consideration in light of the decision in Cuyler v. Sullivan, 446 U. S. 335, 342-345 ORDERS 933 447 U. S. June 23, 1980 (1980), on the application of the Sixth and Fourteenth Amendments to claims arising from the conduct of retained counsel. Reported below: 594 F. 2d 159. Miscellaneous Orders No. A-980. Hampel v. Motel Properties, Inc. Application to stay the judgment of the Supreme Court of Georgia, addressed to Mr. Justice Marshall and referred to the Court, denied. No. A-1056. Delong v. United States. Application for stay of the mandate of the United States Court of Appeals for the Fourth Circuit, addressed to Mr. Justice Stevens and referred to the Court, denied. No. A—1079. Rudolf Wolff & Co., Ltd. v. Neiman, dba The London Group (1974). Application to recall and stay the mandate of the United States Court of Appeals for the Seventh Circuit, addressed to Mr. Justice White and referred to the Court, denied. No. D-185. In re Disbarment of Mitchell. Disbarment entered. [For earlier order herein, see 446 U. S. 906.] No. 79—408. City of Milwaukee et al. v. Illinois et al. C. A. 7th Cir. [Certiorari granted, 445 U. S. 926.] Motions of Mid-America Legal Foundation and National League of Cities et al. for leave to file briefs as amid curiae granted. No. 79-824. Federal Communications Commission et al. v. WNCN Listeners Guild et al.; No. 79-825. Insilco Broadcasting Corp, et al. v. WNCN Listeners Guild et al. ; No. 79-826. American Broadcasting Cos., Inc., et al. v. WNCN Listeners Guild et al. ; and No. 79—827. National Association of Broadcasters et al. v. WNCN Listeners Guild et al. C. A. D. C. Cir. [Certiorari granted, 445 U. S. 914.] Motion of Washington Legal Foundation for leave to file a brief as amicus curiae granted. 934 OCTOBER TERM, 1979 June 23, 1980 447 U. S. No. 78-1945. Universities Research Assn., Inc. v. Coutu. C. A. 7th Cir. [Certiorari granted, 445 U. S. 925.] Motion of the Solicitor General for leave to participate in oral argument as amicus curiae granted, and five additional minutes allotted for that purpose. Respondent also allotted five additional minutes for oral argument. No. 79-838. Maine et al. v. Thiboutot et vir. Sup. Jud. Ct. Me. [Certiorari granted, 444 U. S. 1042.] Motion of respondents for leave to file a supplemental brief after argument granted. No. 79-1127. Estelle, Corrections Director v. Smith. C. A. 5th Cir. [Certiorari granted, 445 U. S. 926.] Motion of American Psychiatric Association for leave to file a brief as amicus curiae granted. No. 79-1186. Dennis v. Sparks et al., dba Sidney A. Sparks, Trustee. C. A. 5th Cir. [Certiorari granted, 445 U. S. 942.] Motion of American Civil Liberties Union for leave to file a brief as amicus curiae granted. No. 79-1420. Firestone Tire & Rubber Co. v. Risjord. C. A. 8th Cir. [Certiorari granted, 446 U. S. 934.] Motion of respondent to supplement the record granted. No. A-1072 (79-1893). Freedom Institute of America et al. v. New Jersey. Application for release of Rev. Jerome Heinemann, addressed to Mr. Justice Stevens and referred to the Court, denied. No. 79-1941. Diamond, Commissioner of Patents and Trademarks v. Sherwood. C. C. P. A. Motion of respondents to expedite consideration of the petition for writ of certiorari denied. Certiorari Denied No. 79-415. United States v. Mearns et al. C. A. 3d Cir. Certiorari denied. Reported below: 599 F. 2d 1296. ORDERS 935 447U.S. June 23, 1980 No. 79-1399. Strawberry Water Users Assn, et al. v. United States. Ct. Cl. Certiorari denied. Reported below: 222 Ct. Cl. 130, 611 F. 2d 838. No. 79-1840. Scarborough v. United States. C. A. 5th Cir. Certiorari denied. Reported below: 613 F. 2d 62. No. 79-6167. Wymore v. Louisiana. Sup. Ct. La. Certiorari denied. Reported below: 377 So. 2d 283. No. 79-6227. Rosario v. United States. C. A. 6th Cir. Certiorari denied. Reported below: 615 F. 2d 1363. No. 79-6592. Wilkerson v. Wilkerson et al. Ct. App. D. C. Certiorari denied. No. 79—735. Sears, Roebuck & Co. v. San Diego County District Council of Carpenters. Sup. Ct. Cal. Certiorari denied. Mr. Justice Stewart took no part in the consideration or decision of this petition. Reported below: 25 Cal 3d 317, 599 P. 2d 676. No. 79-1308. Butterworth, Correctional Superintendent v. Lovett. C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 610 F. 2d 1002. No. 79—1576. Miller, Acting Director, Department of Public Aid of Illinois v. Dilda et al. C. A. 7th Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied. Reported below: 612 F. 2d 1055. INDEX ABUSE OF JUDICIAL PROCESS. See Attorney’s Fees. ACCOUNTING METHODS. See Constitutional Law, III, 2. ACQUITTAL OF ALLEGED PERPETRATOR AS AFFECTING PROSECUTION OF AIDER AND ABETTOR. See Criminal Law. ADMIRALTY. See Longshoremen’s and Harbor Workers’ Compensation Act. ADVERTISING BY ELECTRIC UTILITIES. See Constitutional Law, VI, 1. AGENCY RECORDS. See Consumer Product Safety Act. AIDING AND ABETTING. See Criminal Law. ALABAMA. See Constitutional Law, III, 3. APPEALS. See also Boulder Canyon Project Act; Taxes, 2. Supreme Court’s jurisdiction—Appeal from state-court decision.—An appeal from a state court’s decision that State Constitution gave appellees right to solicit at shopping center for signatures for petitions and that such result did not infringe shopping center owner’s federally protected property rights, is properly before Supreme Court under 28 U. S. C. §1257 (2). PruneYard Shopping Center v. Robins, p. 74. APPORTIONMENT OF INCOME FOR TAX PURPOSES. See Constitutional Law, III, 2. ARMED FORCES. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. ARTIFICIAL ISLANDS. See Submerged Lands Act. ASSISTANCE OF COUNSEL. See Constitutional Law, VIII. ATTEMPT TO COMMIT OFFENSE. See Comprehensive Drug Abuse Prevention and Control Act of 1970. ATTORNEY’S FEES. See also Civil Rights Act of 1964, 1. Counsel who unreasonably extend proceedings—Liability jor opposing party’s attorney’s fees.—-Title 28 U. S. C. § 1927, which permits a court to tax excess “costs” of a proceeding against a lawyer who so multiplies proceedings as to increase costs unreasonably and vexatiously, cannot be 937 938 INDEX ATTORNEY’S FEES—Continued. read to support taxing opposing party’s attorney’s fees against counsel who unreasonably extend court proceedings, by defining “costs” therein as including attorney’s fees according to civil rights statutes which allow prevailing party to recover such fees as part of costs of litigation. Roadway Express, Inc. v. Piper, p. 752. AUTOMOBILE ACCIDENTS. See Constitutional Law, II. BACTERIA AS PATENTABLE. See Patents. BANK HOLDING COMPANY ACT. See Constitutional Law, I, 1. BOULDER CANYON PROJECT ACT. Irrigation of project lands—Acreage limitation.—Provisions of Act relating to irrigation of private lands in Imperial Valley, Cal., through irrigation system constructed pursuant to Act, preclude application of general prohibition of § 46 of Omnibus Adjustment Act of 1926—which forbids delivery of reclamation project water to any irrigable land held in private ownership by one owner in excess of 160 acres—to lands under irrigation in Imperial Valley in 1929. Bryant v. Yellen, p. 352. BOUNDARIES. See also Special Masters. Dispute between States—Acquiescence in boundary.—Special Master in original action properly invoked doctrine of acquiescence in concluding that boundary between California and Nevada is that located by 1872 and 1892 federally funded surveys, since both States acquiesced in such boundary lines from time they were drawn even though an earlier joint state-commissioned survey had been adopted by both States by statute. California v. Nevada, p. 125. BRIBERY. See Criminal Law. BRIEFCASE SEARCHES. See Constitutional Law, X, 1. BURDENS ON INDIAN COMMERCE. See Taxes, 2. BURDENS ON INTERSTATE COMMERCE. See Constitutional Law, I, 1. CALIFORNIA. See Appeals; Boundaries; Constitutional Law, IV; VI, 3; Special Masters; Submerged Lands Act. CAPITAL PUNISHMENT. See Constitutional Law, III, 1. CARGO HANDLING. See National Labor Relations Act, 1. CEMENT PLANTS. See Constitutional Law, I, 2. CIGARETTE TAXES. See Taxes, 2. CITIES’ POLICE POWERS. See Constitutional Law, IV. INDEX 939 CIVIL RIGHTS ACT OF 1964. See also Attorney’s Fees. 1. Employment discrimination—State proceedings—Award of attorney's fees in federal action—Sections 706 (f) and (k) of Title VII of Act authorize a federal-court employment discrimination action to recover an award of attorney’s fees for work done by prevailing complainant in state administrative and judicial proceedings to which complainant was referred by Equal Employment Opportunity Commission pursuant to Title VII, and no special circumstances exist in instant case that would justify denial of a fee award. New York Gaslight Club, Inc. v. Carey, p. 54. 2. Unlawful employment practice—“Filing" charge with EEOC—Time limitations.—A literal interpretation must be given to Act’s provisions stating that in a State which has a law prohibiting unlawful employment practices, no charge may be “filed” with Equal Employment Opportunity Commission before 60 days after state administrative proceedings have been commenced, unless such proceedings have been terminated earlier, but that a charge must be “filed” with EEOC within 300 days after alleged unlawful practice occurred or within 30 days after complainant receives notice of termination of state proceedings, whichever is earlier; thus, respondent’s charge was not timely since it was not “filed” with EEOC until 351 days after alleged unlawful practice, where even though EEOC received respondent’s letter charging employment discrimination 291 days after alleged unlawful practice, such letter was referred to appropriate state agency and could not be considered as “filed” with EEOC until 60 days thereafter. Mohasco Corp. v. Silver, p. 807. CIVIL RIGHTS ATTORNEY’S FEES AWARDS ACT OF 1976. See Attorney’s Fees. COASTLINE. See Submerged Lands Act. COAST PROTECTIVE WORKS. See Submerged Lands Act. COLLATERAL ESTOPPEL. See Criminal Law. COLLECTIVE-BARGAINING AGREEMENTS. See National Labor Relations Act, 1; Vietnam Era Veterans’ Readjustment Assistance Act of 1974. COLORADO RIVER COMPACT. See Boulder Canyon Project Act. COMMERCE CLAUSE. See Constitutional Law, I; ITT, 2. COMMERCIAL SPEECH. See Constitutional Law, VI, 1. COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970. Attempts or conspiracies to commit offenses—Punishment.—Under § 406 of Act, which provides that any person who attempts or conspires to commit any offense under Act is punishable by “imprisonment or fine or 940 INDEX COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970—Continued. both” that may not exceed maximum punishment prescribed for target offense which was object of such attempt or conspiracy, imposition of a special parole term is not authorized even though that sanction is included within penalty provision of target offense. Bifulco v. United States, p. 38. CONCRETE DISTRIBUTORS. See Constitutional Law, I, 2. CONCURRENT JURISDICTION. See Longshoremen’s and Harbor Workers’ Compensation Act. CONDEMNATION. See Constitutional Law, IV. CONSPIRACIES. See Comprehensive Drug Abuse Prevention and Control Act of 1970. CONSTITUTIONAL LAW. See also Appeals; Civil Rights Act of 1964, 1; Federal Magistrates Act; National Labor Relations Act, 2; Taxes, 2. I. Commerce Clause. 1. Restrictions on ownership of investment advisory services—Validity of state statute.—A state statute prohibiting out-of-state banks, bank holding companies, and trust companies from owning or controlling a business within State that sells investment advisory services, directly burdens interstate commerce in violation of Commerce Clause’s implicit limitation on state power, and provisions of Bank Holding Company Act which prohibit bank holding companies from acquiring banking subsidiaries in other States without local authorization, and which reserve to States a general power to enact regulations applicable to bank holding companies, do not authorize a State to prohibit out-of-state holding companies from acquiring local investment subsidiaries. Lewis v. BT Investment Managers, Inc., p. 27. 2. State-operated cement plant—Restricting sales to residents.—South Dakota’s policy confining sale of cement produced in state-operated plant to state residents does not violate Commerce Clause. Reeves, Inc. v. Stake, p. 429. II. Double Jeopardy. Conviction of traffic offense—Subsequent manslaughter prosecution.— Double Jeopardy Clause does not prohibit Illinois from prosecuting for involuntary manslaughter driver of car involved in a fatal accident who previously was convicted for failing to reduce speed to avoid accident which resulted in victim’s death, if under Illinois law manslaughter by automobile does not always entail proof of a failure to reduce speed and if State in manslaughter prosecution does not rely on a failure to reduce INDEX 941 CONSTITUTIONAL LAW—Continued. speed as reckless act necessary to prove manslaughter. Illinois v Vitale p. 410. III. Due Process. 1. Accused s postarrest statements—State’s use for impeachment.—Cross-examination of respondent at his state murder trial as to why he told jury on direct examination a different story about stealing murder victim’s car than he told police after arrest and after receiving Miranda warnings did not violate due process, since rule prohibiting impeachment on basis of a defendant’s silence following Miranda warnings does not apply to cross-examination that merely inquires into prior inconsistent statements. Anderson v. Charles, p. 404. 2. Corporate income taxes Validity of state apportionment formula.— Due Process Clause of Fourteenth Amendment did not prevent Wisconsin, in determining state income taxes, from applying its statutory apportionment formula to total income of vertically integrated petroleum company doing business in several States, including company’s income derived from extraction of oil and gas outside Wisconsin, notwithstanding company’s use of a separate functional accounting system reflecting its income derived only from its marketing operations in Wisconsin, since such operations were integral parts of company’s unitary business ; nor did Commerce Clause require Wisconsin to allocate all income derived from company’s exploration and production function to situs State rather than include such income in apportionment formula. Exxon Corp. v. Wisconsin Dept, of Revenue, p. 207. 3. Death sentence—Consideration of lesser included offense—A death sentence may not constitutionally be imposed after a jury verdict of guilt of a capital offense where jury was not permitted to consider a verdict of guilt of a lesser included offense, since denying jury option of convicting of a lesser included offense, in addition to options of convicting of capital offense or acquitting defendant, denies defendant full benefit of reasonable-doubt standard. Beck v. Alabama, p. 625. 4. Decertification of nursing home for government assistance—Patients’ right to hearing.—Patients at nursing home which provided care at government expense under Medicare and Medicaid provider agreements had no such interest in receiving benefits for care in such home that entitled them, as a matter of constitutional law, to a hearing before home was decertified as a qualified nursing home by Department of Health, Education, and Welfare and state agency. O’Bannon v. Town Court Nursing Center, p. 773. 5. Fair trial—Defendant’s prearrest silence—Impeachment—State’s use of prearrest silence to impeach a criminal defendant’s credibility after he testifies in his own defense does not deny him fundamental fairness guaranteed by Fourteenth Amendment. Jenkins v. Anderson, p. 231. 942 INDEX CONSTITUTIONAL LAW—Continued. 6. State conviction—Sentence.—Petitioner was deprived of due process where (1) jury, upon state conviction, imposed a 40-year sentence pursuant to instructions to do so under an Oklahoma statute mandating such a sentence for a twice previously convicted felon, (2) such statute was subsequently declared unconstitutional by state appellate court in another case, (3) thereafter that court nevertheless held that petitioner was not prejudiced because his sentence was within range of punishment that could have been imposed in any event, but (4) if petitioner’s jury had been correctly instructed it could have imposed any sentence of not less than 10 years. Hicks v. Oklahoma, p. 343. IV. Eminent Domain. Land use—Validity of zoning ordinances.—City’s zoning ordinances, adopted after appellants had acquired unimproved land for residential development, which ordinances imposed certain density restrictions on land, do not on their face take appellants’ property without just compensation in violation of Fifth and Fourteenth Amendments, but instead constitute proper exercises of city’s police power to protect its residents from ill effects of urbanization. Agins v. Tiburon, p. 255. V. Equal Protection of the Laws. Prohibition against residential picketing—Validity of statute.—An Illinois statute which prohibits picketing of residences but exempts peaceful picketing of a place of employment involved in a labor dispute violates Equal Protection Clause of Fourteenth Amendment since it makes an impermissible distinction between peaceful labor picketing and other peaceful picketing. Carey v. Brown, p. 455. VI. Freedom of Speech. 1. Electric utilities—Ban on advertising.—New York Public Service Commission’s regulation completely banning electric utilities from advertising to promote use of electricity violates First and Fourteenth Amendments. Central Hudson Gas & Electric Corp. v. Public Service Comm’n, p. 557. 2. Public utilities—Ban on public policy bill inserts.—New York Public Service Commission’s order prohibiting inclusion by public utility companies in monthly bills of inserts discussing controversial issues of public policy is invalid as infringing freedom of speech protected by First and Fourteenth Amendments. Consolidated Edison Co. v. Public Service Comm’n, p. 530. 3. Shopping center—Soliciting signatures for petitions.—California’s constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights in privately owned shopping center’s courtyard by soliciting for signatures from passersby for petitions, INDEX 943 CONSTITUTIONAL LAW—Continued. do not violate shopping center owner’s free speech or property rights under First, Fifth, and Fourteenth Amendments. PruneYard Shopping Center v. Robins, p. 74. VII. Privilege Against Self-Incrimination. Prearrest silence Impeachment.—Fifth Amendment is not violated by State s use of prearrest silence to impeach a criminal defendant’s credibility after he testifies in his own defense. Jenkins v. Anderson, p. 231. VIII. Right to Counsel. Incriminating statements—Paid Government informer.—Respondent’s Sixth Amendment right to assistance of counsel was violated by admission at his federal criminal trial of incriminating statements made by him, while in jail pending trial, to another prisoner who was a paid Government informer, and respondent, who was unaware that informer was acting for Government, cannot be held to have waived his right to assistance of counsel. United States v. Henry, p. 264. IX. Right to Jury Trial. Six-person jury—Invalidity of nonunanimous verdict—Retroactivity of decision. Louisiana Supreme Court’s judgment affirming petitioner’s felony conviction and concluding that rule of Burch v. Louisiana, 441 U. S. 130—which held that provisions of Louisiana’s Constitution and statutes that sanctioned conviction of a nonpetty offense by a nonunanimous jury of six violated an accused’s right to trial by jury under Sixth and Fourteenth Amendments to Federal Constitution—should not be applied retroactively to cases tried by juries empaneled prior to date of that decision, is reversed, and case is remanded. Brown v. ILouisiana p. 323. ’ X. Searches and Seizures. 1. Illegal seizure from third party—Defendant’s standing to suppress evidence. In a prosecution for falsifying a federal income tax return, defendant lacked Fourth Amendment standing to suppress documents illegally seized from a bank officer by an illegal search of his briefcase, and supervisory power of federal courts does not authorize a court to suppress otherwise admissible evidence on ground that it was seized unlawfully from a third party not before court. United States v. Pavner p. 727. ’ 2. Obscene films—Warrantless viewing.—A Court of Appeals’ judgments affirming petitioners’ convictions of federal obscenity charges relating to interstate transportation of movie films are reversed, where, after films had been mistakenly delivered to a third party, FBI agents viewed films without attempting to obtain a warrant or to contact consignor or consignee of films. Walter v. United States, p. 649. 944 INDEX CONSUMER PRODUCT SAFETY ACT. Disclosure of information furnished by manufacturers.—Section 6 (b)(1) of Act, which prescribes procedure whereby Consumer Product Safety Commission must notify manufacturer before making public disclosure of consumer-product information obtained from manufacturer and must afford manufacturer an opportunity to submit comments regarding information, governs disclosures of records by Commission pursuant to requests under Freedom of Information Act, not just disclosures affirmatively undertaken by Commission. Consumer Product Safety Comm’n v. GTE Sylvania, Inc., p. 102. CONTAINERIZED SHIPPING. See National Labor Relations Act, 1. CONTRABAND. See Taxes, 2. CONTROLLED SUBSTANCES. See Comprehensive Drug Abuse Prevention and Control Act of 1970. CONVENTION ON THE TERRITORIAL SEA AND CONTIGUOUS ZONE. See Submerged Lands Act. CORPORATE INCOME TAXES. See Constitutional Law, III, 2. COSTS. See Attorney’s Fees. CRIMINAL LAW. See also Comprehensive Drug Abuse Prevention and Control Act of 1970; Constitutional Law, II; III, 1, 3, 5, 6; VII; VIII; IX; X; Federal Magistrates Act; Indians. Aiders and abettors—Effect of acquittal of alleged 'perpetrator.—A defendant accused of aiding and abetting in commission of a federal offense may properly be convicted despite prior acquittal of alleged actual perpetrator of offense; thus, even though Internal Revenue Service agent was acquitted of certain charges of accepting unlawful compensation, petitioner was properly convicted under 18 U. S. C. §2 for aiding and abetting agent in commission of such offenses. Standefer v. United States, p. 10. DEATH PENALTY. See Constitutional Law, III, 3. DECERTIFICATION OF NURSING HOME FOR GOVERNMENT ASSISTANCE. See Constitutional Law, III, 4. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE. See Constitutional Law, III, 4. DISCLOSURE OF INFORMATION. See Consumer Product Safety Act. DISCRIMINATION AGAINST OUT-OF-STATE BUSINESSES. See Constitutional Law, I. DISCRIMINATION IN EMPLOYMENT. See Civil Rights Act of 1964. INDEX 945 DISTRICT COURTS. See Constitutional Law, X, 1; Federal Magis-trates Act; Taxes, 2. DOCKS. See Submerged Lands Act. DOUBLE JEOPARDY. See Constitutional Law, II. DRUG OFFENSES. See Comprehensive Drug Abuse Prevention and Control Act of 1970. DUE PROCESS. See Constitutional Law, III; VI, 3; Federal Magistrates Act. EIGHTH AMENDMENT. See Constitutional Law, TIT, 3. ELECTRIC UTILITIES. See Constitutional Law, VI, 1. EMINENT DOMAIN. See Constitutional Law, IV. EMPLOYER AND EMPLOYEES. See Civil Rights Act of 1964; National Labor Relations Act; Vietnam Era Veterans’ Readjustment Assistance Act of 1974. EMPLOYMENT DISCRIMINATION. See Civil Rights Act of 1964. ENERGY CONSERVATION. See Constitutional Law, VI, 1. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. See Civil Rights Act of 1964. EQUAL PROTECTION OF THE LAWS. See Constitutional Law, V. EXCLUSIVE JURISDICTION. See Special Masters. EXEMPTION 3 OF FREEDOM OF INFORMATION ACT. See Consumer Product Safety Act. FAIR TRIAL. See Constitutional Law, HI, 5. FALSIFYING TAX RETURNS. See Constitutional Law, X, 1. FEDERAL INCOME TAXES. See Constitutional Law, X, 1. FEDERAL MAGISTRATES ACT. Suppression motion—Magistrate’s recommendation—Review by District Court.—Under Act’s provisions for reference to magistrate of motion to suppress defendant’s incriminating statements at criminal trial and for District Court’s “de novo determination” of magistrate’s recommendations upon objection thereto, District Court was not required to rehear testimony on which Magistrate based his recommendations in order to make an independent evaluation of credibility, and statute so construed strikes proper balance between due process demands under Fifth Amendment and constraints of Art. III. United States v. Raddatz, p. 667. FEDERAL RULES OF CIVIL PROCEDURE. See Attorney’s Fees. 946 INDEX FEDERAL-STATE RELATIONS. See Boulder Canyon Project Act; Civil Rights Act of 1964; Constitutional Law, I; Longshoremen’s and Harbor Workers’ Compensation Act; Submerged Lands Act. FELONY MURDER. See Constitutional Law, III, 3. FIFTH AMENDMENT. See Constitutional Law, II; IV; VI, 3; VII; Federal Magistrates Act. “FILING” CLAIM WITH EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. See Civil Rights Act of 1964, 2. FILMS. See Constitutional Law, X, 2. FIRST AMENDMENT. See Constitutional Law, V; VI; X, 2; National Labor Relations Act, 2. FLORIDA. See Constitutional Law, I, 1. FOURTEENTH AMENDMENT. See Civil Rights Act of 1964, 1; Constitutional Law, II; III, 1-3, 5, 6; IV; V; VI; VII; IX. FOURTH AMENDMENT. See Constitutional Law, X. FREEDOM OF INFORMATION ACT. See Consumer Product Safety Act. FREEDOM OF SPEECH. See Constitutional Law, V; VI; National Labor Relations Act, 2. FREEDOM TO PETITION GOVERNMENT. See Constitutional Law, VI, 3. GENETICALLY ENGINEERED BACTERIA AS PATENTABLE. See Patents. GOVERNMENT INFORMERS. See "Constitutional Law, VIII. HABITUAL CRIMINALS. See Constitutional Law, III, 6. HANDBILLS. See Constitutional Law, VI, 3. HARBORS. See Submerged Lands Act. HEALTH, EDUCATION, AND WELFARE DEPARTMENT. See Constitutional Law, III, 4. HUMAN-MADE MICRO-ORGANISMS AS PATENTABLE. See Patents. ILLINOIS. See Constitutional Law, II; V. IMPEACHING CREDIBILITY. See Constitutional Law, III, 1, 5; VII. IMPERIAL VALLEY, CAL. See Boulder Canyon Project Act. INCOME TAXES. See Constitutional Law, III, 2; X, 1. INDEX 947 INCRIMINATING STATEMENTS. See Constitutional Law, VUI; Federal Magistrates Act. INDIAN COMMERCE CLAUSE. See Taxes, 2. INDIAN FINANCING ACT OF 1974. See Taxes, 2. INDIAN REORGANIZATION ACT OF 1934. See Taxes, 2. INDIANS. See also Taxes. State jurisdiction over reservations—District Court erred in holding that Washington’s assumption of civil and criminal jurisdiction over certain Indian reservations was unlawful. Washington v. Confederated Tribes p. 134. INDIAN SELF-DETERMINATION AND EDUCATION ASSISTANCE ACT OF 1975. See Taxes, 2. INFORMERS. See Constitutional Law, VIII. INSERTS IN PUBLIC UTILITIES’ BILLS. See Constitutional Law, VI, 2. INSTRUCTIONS TO JURY. See Constitutional Law, III, 3, 6. INTERNAL REVENUE SERVICE. See Criminal Law. INTERSTATE COMMERCE. See Constitutional Law, I; III, 2. INVENTION. See Patents. INVESTMENT ADVISORY SERVICES. See Constitutional Law, I, 1. INVOLUNTARY MANSLAUGHTER. See Constitutional Law, II. IRRIGATION WATER. See Boulder Canyon Project Act. JURISDICTION. See Appeals; Indians; Longshoremen’s and Harbor Workers’ Compensation Act; Special Masters; Taxes, 2. JURY INSTRUCTIONS. See Constitutional Law, III, 3. LABOR DISPUTES. See National Labor Relations Act. LAND-BASED INJURIES. See Longshoremen’s and Harbor Workers’ Compensation Act. LAND-USE RESTRICTIONS. See Constitutional Law, IV. LESSER INCLUDED OFFENSES. See Constitutional Law, II; III, 3. LIBERTY INTERESTS. See Constitutional Law, III, 4, 6. LIMITATION PERIOD FOR FILING CLAIM WITH EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. See Civil Rights Act of 1964, 2. LIVING THINGS AS PATENTABLE. See Patents. 948 INDEX LOADING AND UNLOADING CARGO. See National Labor Relations Act, 1. LONGSHOREMEN. See Longshoremen’s and Harbor Workers’ Compensation Act; National Labor Relations Act, 1. LONGSHOREMEN’S AND HARBOR WORKERS’ COMPENSATION ACT. See also Submerged Lands Act. Land-based injuries—Applicability of state law.—A State may apply its workers’ compensation scheme to land-based injuries that fall within coverage of federal Act as amended in 1972. Sun Ship, Inc. v. Pennsylvania, p. 715. LOUISIANA. See Constitutional Law, IX. MAGISTRATES. See Federal Magistrates Act. MANSLAUGHTER. See Constitutional Law, II. MANUFACTURERS. See Consumer Product Safety Act. MARITIME INJURIES. See Longshoremen’s and Harbor Workers’ Compensation Act. MARKETING OPERATIONS AS AFFECTING CORPORATE TAXES. See Constitutional Law, III, 2. MEDICARE AND MEDICAID. See Constitutional Law, III, 4. MICHIGAN. See Constitutional Law, III, 2, 5; VII. MICRO-ORGANISMS AS PATENTABLE. See Patents. MIRANDA WARNINGS. See Constitutional Law, III, 1. MOBILE HOME, CAMPER, AND TRAILER TAXES. See Taxes, 1. MOTION PICTURES. See Constitutional Law, X, 2. MOTOR VEHICLE TAXES. See Taxes, 1. MULTIPLE OFFENDERS. See Constitutional Law, III, 6. MULTIPLE TAXATION. See Constitutional Law, III, 2. NATIONAL LABOR RELATIONS ACT. 1. Collective-bargaining agreement—Shipping industry—Validity of rules governing containerized shipping.—In determining whether rules in collective-bargaining agreement governing technological innovation of use of cargo containers in shipping industry violated Act or were a lawful work preservation agreement—such rules reserving to longshoremen’s union right to load and unload at pier only those containers that would otherwise be loaded or unloaded within 50 miles of port by anyone except cargo owner’s employees—“work in controversy” must be defined by focusing INDEX 949 NATIONAL LABOR RELATIONS ACT—Continued. on bargaining unit employees’ work, not on work of other employees who may be doing same or similar work, such as truckers and freight consolidators performing off-pier loading and unloading of containers, and relationship between work as it existed before innovation and as agreement proposed to preserve it must be examined. NLRB v. Longshoremen, p. 490. 2. Illegal secondary picketing.—Secondary picketing by a union representing the striking employees of a title insurance company at title companies that sold struck insurance company’s policies, urging customers to support strike by canceling their policies, violated § 8 (b) (4) (ii) (B) of Act as constituting secondary product picketing that reasonably could be expected to threaten neutral parties with ruin or substantial loss. NLRB v. Retail Store Employees, p. 607. NEVADA. See Boundaries; Special Masters. NEW BACTERIA AS PATENTABLE. See Patents. NEW YORK. See Civil Rights Act of 1964; Constitutional Law, VI, 1, 2. NEXUS BETWEEN TAXPAYER’S INTERSTATE ACTIVITIES AND TAXING STATE. See Constitutional Law, III, 2. NONLABOR PICKETING. See Constitutional Law, V. NONLOCAL MARITIME INJURIES. See Longshoremen’s and Harbor Workers’ Compensation Act. NONMUTUAL COLLATERAL ESTOPPEL. See Criminal Law. NONUNANIMOUS VERDICT IN CRIMINAL CASE. See Constitu- tional Law, IX. NURSING HOMES. See Constitutional Law, III, 4. OBSCENITY. See Constitutional Law, X, 2. OIL AND GAS COMPANIES. See Constitutional Law, III, 2. OKLAHOMA. See Constitutional Law, III, 6. OMNIBUS ADJUSTMENT ACT OF 1926. See Boulder Canyon Project Act. ORIGINAL ACTIONS. See Boundaries; Special Masters; Submerged Lands Act. OUT-OF-STATE BUSINESSES. See Constitutional Law, I. PAID INFORMERS. See Constitutional Law, VIII. PAMPHLETEERS. See Constitutional Law, VI, 3. 950 INDEX PAROLE. See Comprehensive Drug Abuse Prevention and Control Act of 1970. PATENTS. Human-made micro-organisms—Patentability.—A live human-made micro-organism—such as a human-made, genetically engineered bacterium capable of breaking down crude oil, a property which is possessed by no naturally occurring bacteria—is patentable subject matter as constituting a “manufacture” or “composition of matter” within meaning of 35 U. S. C. § 101. Diamond v. Chakrabarty, p. 303. PENNSYLVANIA. See Constitutional Law, III, 4; Longshoremen’s and Harbor Workers’ Compensation Act. PERQUISITES OF SENIORITY. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. PETROLEUM COMPANIES. See Constitutional Law, III, 2. PICKETING. See Constitutional Law, V; National Labor Relations Act, 2. PIERS. See Submerged Lands Act. PLANT PATENT ACT. See Patents. PLANT VARIETY PROTECTION ACT. See Patents. POLICE POWERS. See Constitutional Law, IV; VI, 3. POSTARREST SILENCE. See Constitutional Law, III, 1. PRE ARREST SILENCE. See Constitutional Law, III, 5; VII. PRE-EMPTION. See Civil Rights Act of 1964, 1; Longshoremen’s and Harbor Workers’ Compensation Act; Taxes, 2. “PRINCIPALS” IN COMMISSION OF CRIME. See Criminal Law. PRISONERS. See Constitutional Law, VTTT, PRIVACY. See Constitutional Law, V; X. PRIVATE SEARCH AS EXCUSING GOVERNMENT’S FAILURE TO OBTAIN WARRANT. See Constitutional Law, X, 1. PRIVILEGE AGAINST SELF-INCRIMINATION. See Constitutional Law, VII. PRODUCT PICKETING. See National Labor Relations Act, 2. PROPRIETARY ACTIVITIES OF STATES. See Constitutional Law, I, 2. PUBLIC DISCLOSURE OF INFORMATION. See Consumer Product Safety Act. INDEX 951 PUBLIC UTILITIES. See Constitutional Law, VI, 1, 2. PUNISHMENT FOR ATTEMPTS AND CONSPIRACIES. See Comprehensive Drug Abuse Prevention and Control Act of 1970. RACIAL DISCRIMINATION. See Attorney’s Fees. REASONABLE-DOUBT STANDARD. See Constitutional Law, III, 3. RECLAMATION PROJECTS. See Boulder Canyon Project Act. RE-EMPLOYMENT OF VETERANS. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. REFERENCES TO MAGISTRATES. See Federal Magistrates Act. RELIGIOUS DISCRIMINATION. See Civil Rights Act of 1964, 2. RESIDENTIAL LAND DEVELOPMENTS. See Constitutional Law, IV. RESIDENTIAL PICKETING. See Constitutional Law, V. RETROACTIVITY. See Constitutional Law, IX. REVIEW OF MAGISTRATES’ DETERMINATIONS. See Federal Magistrates Act. RIGHT TO COUNSEL. See Constitutional Law, VTTT- RIGHT TO FAIR TRIAL. See Constitutional Law, III, 5. RIGHT TO JURY TRIAL. See Constitutional Law, TX RIGHT TO REMAIN SILENT. See Constitutional Law, VII. RULES OF CIVIL PROCEDURE. See Attorney’s Fees. SALES OF CEMENT. See Constitutional Law, I, 2. SALES TAXES. See Taxes, 2. SCREENING OF FILMS BY GOVERNMENT AGENTS. See Constitutional Law, X, 2. SEARCHES AND SEIZURES. See Constitutional Law, X. SECONDARY ACTIVITIES OF UNIONS. See National Labor Relations Act. SECOND-DEGREE PRINCIPALS IN COMMISSION OF CRIME. See Criminal Law. SECRETARY OF THE INTERIOR. See Boulder Canyon Project Act. SELF-INCRIMINATION. See Constitutional Law, VII. SENIORITY BENEFITS. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. 952 INDEX SHIPPING. See National Labor Relations Act, 1. SHOPPING CENTERS. See Appeals; Constitutional Law, VI, 3. SHORELINE. See Submerged Lands Act. SIX-PERSON JURIES. See Constitutional Law, IX. SIXTH AMENDMENT. See Constitutional Law, VIII; IX. SOLICITING SIGNATURES FOR PETITIONS. See Appeals; Constitutional Law, VI, 3. SOUTH DAKOTA. See Constitutional Law, I, 2. SOVEREIGNTY OF INDIAN TRIBES. See Taxes. SOVEREIGNTY OF STATES. See Constitutional Law, I, 2. SPECIAL MASTERS. See also Boundaries; Submerged Lands Act. Scope of relief—State boundary suit.—In original action between States to determine boundary, Special Master’s reference will not be expanded after determination of boundary to authorize him to determine whether United States should be made a party and to make recommendations as to quieting of title on disputed borderlands, where remaining title questions would involve only one or other State and United States, or perhaps various citizens of those States, not disputes between States, such questions thus not falling within Supreme Court’s exclusive jurisdiction. California v. Nevada, p. 125. SPECIAL PAROLE. See Comprehensive Drug Abuse Prevention and Control Act of 1970. STANDING TO APPEAL. See Boulder Canyon Project Act. STANDING TO SUPPRESS EVIDENCE. See Constitutional Law, X, STATE ACTION. See Constitutional Law, VI, 2. STATE BOUNDARIES. See Boundaries; Special Masters. STATE CIGARETTE TAXES. See Taxes, 2. STATE INCOME TAXES. See Constitutional Law, ITT, 2. STATE JURISDICTION OVER INDIAN RESERVATIONS. See Indians. STATE MOBILE HOME, CAMPER, AND TRAILER TAXES, See Taxes, 1. STATE MOTOR VEHICLE TAXES. See Taxes, 1. STATE-OPERATED BUSINESSES. See Constitutional Law, I, 2. STATE SALES TAXES. See Taxes, 2. INDEX 953 STATE’S POLICE POWERS. See Constitutional Law, VI, 3. STEEL INDUSTRY COLLECTIVE-BARGAINING AGREEMENT. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. STRIKES. See National Labor Relations Act, 2. SUBMERGED LANDS ACT. California coastline—Effect of piers and artificial “island.”—For purposes of determining California’s ownership under Act of submerged lands and natural resources lying within three miles seaward of California coastline, coastline follows mean lower low-water line along natural shore, not seaward edge of certain piers and of a privately owned artificial “island” connected to mainland and used to service offshore oil facilities. United States v. California, p. 1. SUBSIDIARIES. See Constitutional Law, I, 1. SUPPLEMENTAL UNEMPLOYMENT BENEFITS. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. SUPREME COURT. See Appeals; Boundaries; Special Masters; Submerged Lands Act. SURVEY OF BOUNDARY. See Boundaries. TAKING OF PROPERTY FOR PUBLIC USE. See Constitutional Law, IV; VI, 3. TAXES. See also Constitutional Law, III, 2; X, 1. 1. Motor vehicle and trailer taxes—Indian-owned vehicles.—Washington’s motor vehicle and mobile home, camper, and trailer taxes—assessed for privilege of using such vehicles in State—cannot properly be imposed upon vehicles owned by Indian tribes or their members and used both on and off reservations. Washington v. Confederated Tribes, p. 134. 2. State cigarette and sales taxes—Stamp and recordkeeping requirements—Indian reservations—Washington’s imposition of its cigarette and sales taxes on on-reservation sales by Indian retailers to non-Indians, its requirement that tribal smokeshops affix tax stamps to cigarette packages before sales to non-Indians, and its imposition of recordkeeping requirements on tribes as to tax-exempt sales are valid even though tribes have power to also impose cigarette taxes on nontribal purchases, and State’s tax-enforcement interest is sufficient to justify its seizure of unstamped cigarettes as contraband. Washington v. Confederated Tribes, p. 134. TENTH AMENDMENT. See Civil Rights Act of 1964, 1. TERMINATION OF GOVERNMENT ASSISTANCE TO NURSING HOMES. See Constitutional Law, ITT, 4. TERRITORIAL SEA. See Submerged Lands Act. 954 INDEX TIBURON, CAL. See Constitutional Law, IV. TIMELINESS OF APPEALS. See Taxes, 2. TIMELINESS OF FILING CLAIM WITH EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. See Civil Rights Act of 1964, 2. TIME, PLACE, OR MANNER RESTRICTIONS ON FREE SPEECH. See Constitutional Law, VI, 2. TITLE INSURANCE. See National Labor Relations Act, 2. TRAFFIC OFFENSES. See Constitutional Law, II. TRIBAL SELF-GOVERNMENT. See Taxes. TRUST COMPANIES. See Constitutional Law, I, 1. UNEMPLOYMENT BENEFITS UNDER COLLECTIVE-BARGAINING AGREEMENTS. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. UNFAIR LABOR PRACTICES. See National Labor Relations Act. UNIONS. See National Labor Relations Act. UNITED STATES MAGISTRATES. See Federal Magistrates Act. UNLAWFUL EMPLOYMENT PRACTICES. See Civil Rights Act of 1964. UNSEAWORTHINESS. See Longshoremen’s and Harbor Workers’ Compensation Act. VETERANS. See Vietnam Era Veterans’ Readjustment Assistance Act of 1974. VEXATIOUS PROLONGING OF LITIGATION. See Attorney’s Fees. VIETNAM ERA VETERANS’ READJUSTMENT ASSISTANCE ACT OF 1974. Reinstatement to former job—Seniority rights—Unemployment bene-Supplemental unemployment benefits under a certain steel industry collective-bargaining agreement are perquisites of seniority to which a veteran returning to his former job is entitled under Act’s provisions as to reinstatement without loss of seniority,” and he is to be considered as returning to seniority escalator at precise point he would have occupied had he kept his position with his employer continuously during period of military service. Coffy v. Republic Steel Corp., p. 191. VOLUNTARINESS OF ACCUSED’S STATEMENTS. See Federal Magistrates Act. WAIVER OF RIGHT TO COUNSEL. See Constitutional Law, VIII. INDEX 955 WARRANTLESS SEARCHES AND SEIZURES. See Constitutional Law, X. WASHINGTON. See Indians; Taxes. WATERS. See Boulder Canyon Project Act; Submerged Lands Act. WISCONSIN. See Constitutional Law, III, 2. WITNESSES. See Constitutional Law, III, 1, 5; VII. WORDS AND PHRASES. 1. “Any action or proceeding.” §706 (k), Civil Rights Act of 1964, 42 U. S. C. § 2000e-5 (k). New York Gaslight Club, Inc. v. Carey, p. 54. 2. “Any . . . manufacture, or composition of matter.” 35 U. S. C. § 101. Diamond v. Chakrabarty, p. 303. 3. “Costs” 28 U. S. C. § 1927. Roadway Express, Inc. v. Piper, p. 752. 4. “De novo determination.” Federal Magistrates Act, 28 U. S. C. § 636 (b) (1). United States v. Raddatz, p. 667. 5. “Filed.” §§ 706 (c), (e), Civil Rights Act of 1964, 42 U. S. C. §§ 2000e-5 (c), (e). Mohasco Corp. v. Silver, p. 807. 6. “Imprisonment or fine or both.” § 406, Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U. S. C. § 846. Bifulco v. United States, p. 381. 7. “Present perfected rights.” §6, Boulder Canyon Project Act, 43 U. S. C. § 617e. Bryant v. Yellen, p. 352. 8. “Public disclosure of any information.” §6 (b)(1), Consumer Product Safety Act, 15 U. S. C. §2055 (b)(1). Consumer Product Safety Comm’n v. GTE Sylvania, Inc., p. 102. 9. “Statute” 28 U. S. C. §1257 (2). PruneYard Shopping Center v. Robins, p. 74. 10. “Without loss of seniority.” Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U. S. C. § 2021 (b)(1). Coffy v. Republic Steel Corp., p. 191. WORKERS’ COMPENSATION. See Longshoremen’s and Harbor Workers’ Compensation Act. “WORK IN CONTROVERSY” IN LABOR DISPUTE. See National Labor Relations Act, 1. WORK PRESERVATION AGREEMENTS. See National Labor Relations Act, 1. ZONING. See Constitutional Law, IV.