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Martin, a British subject, sought to recover land confiscated by the State of Virginia in 1789 pursuant to a policy of confiscating all lands belonging to British Subjects. Martin challenged the validity of the confiscation, relying on anticonfiscation clauses in treaties between the US and England. The State trial court had held in Martin's favor, but the Virginia Court of Appeals had reversed on the grounds that the State's title to the land vested before the applicable treaties or, in the alternative, that the claim was defeated by a 1796 compromise between the State and Lord Fairfax, from whom Martin had inherited the land. Without mentioning the compromise, the US Supreme Court, in Fairfax's Devisee v. Hunter's Lessee, 7 Cr. (11 US) 603 (1813), had reversed the Virginia Court of Appeals on the ground that Virginia had not perfected its title to the land before the treaties became law. On remand of that case, the Virginia Court of Appeals refused to comply with the instructions of the Supreme Court that it enter judgment in favor of the Appellant. The State Court ruled that Section 25 of the Judiciary Act of 1789, which extended federal jurisdiction over State courts, was unconstitutional. Such a provision, which placed one sovereign (Virginia) under the control of another sovereign (the United States), was repugnant to the notion of state sovereignty. Martin again appealed to the Supreme Court.

Mr. Justice Story delivered the opinion of the Court:

The third article of the [C]onstitution is that which must principally attract our attention. The first section declares, "the judicial power of the United States shall be vested in one Supreme Court, and in such other inferior courts as the Congress may, from time to time, ordain and establish." The second section declares, that "the judicial power shall extend to all cases in law or equity, arising under this [C]onstitution, the laws of the United States, and the treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under the grants of different states; and between a state or the citizens thereof, and foreign states, citizens or subjects." It then proceeds to declare, that "in all cases affecting ambassadors, or other public ministers and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." ***

*** The language of the article throughout is manifestly designed to be mandatory upon the legislature. Its obligatory force is so imperative that Congress could not, without a violation of its duty, have refused to carry it into operation. The judicial power of the United States shall be vested (not may vested) in one supreme court, and in such inferior courts as Congress may, from time to time, ordain and establish. ***

If, then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the [C]onstitution, and thereby defeat the jurisdiction as to all; for the [C]onstitution has not singled out any class on which Congress are bound to act in preference to others. ***

*** [T]he appellate power is not limited by the terms of the third article to any particular courts. The words are, "the judicial power (which includes appellate power) shall extend to all cases," &c., and "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the [C]onstitution for any qualification as to the tribunal where it depends. [I]f the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.

If the [C]onstitution meant to limit the appellate jurisdiction to cases pending in the courts of the United States, it would necessarily follow that the jurisdiction of these courts would, in all cases enumerated in the [C]onstitution, be exclusive of state tribunals. How otherwise could the jurisdiction extend to all cases arising under the [C]onstitution, laws, and treaties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the [C]onstitution without control, then the appellate jurisdiction of the United States might, as to such cases, have no real existence, contrary to the manifest intent of the [C]onstitution. Under such circumstances, to give effect to the judicial power, it must be construed to be exclusive; and this not only when the casus faederis should arise directly, but when it should arise, incidentally, in cases pending in state courts. This construction would abridge the jurisdiction of such courts far more than has been ever contemplated in any act of Congress. ***

[I]t is plain that the framers of the [C]onstitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth article declares, that "this [C]onstitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." It is obvious that this obligation is imperative upon the state judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or constitution of the state, but according to the [C]onstitution, laws and treaties of the United States ? "the supreme law of the land." ***

It has been argued that [the Supreme Court's] appellate jurisdiction over state courts is inconsistent with the genius of our governments, and the spirit of the [C]onstitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that if the power exists, it will materially impair the sovereignty of the states, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.

It is a mistake that the [C]onstitution was not designed to operate upon the states, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the states. Surely, when essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the [C]onstitution does not act upon the states. The language of the [C]onstitution is also imperative upon the states as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, place, and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well as some other cases, [C]ongress have a right to revise, amend, or supersede the laws which may be passed by state legislatures. When, therefore, the states are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the states are, in some respects, under the control of [C]ongress, and in every case are, under the [C]onstitution, bound by the paramount authority of the United States, it is certainly difficult to support the argument that the appellate power over the decisions of the state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the [C]onstitution, may declare them to be of no legal validity. Surely the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. ***

On the whole, the court are of opinion, that the appellate power of the United States does extend to cases pending in the state courts; and that the 25th section of the judiciary act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the [C]onstitution. We find no clause in the instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one.

[The decision of the Virginia Court of Appeals is REVERSED]

We proceed now to an examination of the judiciary department of the proposed government.

In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.

It is the less necessary to recapitulate the considerations there urged as the propriety of the institution in the abstract is not disputed; the only questions which have been raised being relative to the manner of constituting it, and to its extent. To these points, therefore, our observations shall be confined.

The manner of constituting it seems to embrace these several objects: 1st. The mode of appointing the judges. 2nd. The tenure by which they are to hold their places. 3rd. The partition of the judiciary authority between different courts and their relations to each other.

First. As to the mode of appointing the judges: this is the same with that of appointing the officers of the Union in general and has been so fully discussed in the two last numbers that nothing can be said here which would not be useless repetition.

Second, As to the tenure by which the judges are to hold their places: this chiefly concerns their duration in office, the provisions for their support, the precautions for their responsibility.

According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the State constitutions, and among the rest, to that of the State. Its propriety having been drawn into question by the adversaries of that plan is no light symptom of the rage for objection which disorders their imaginations and judgments. The standard of good behavior for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.

Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights o, the Constitution; because it will be least in a capacity to annoy o' injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties an rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; n direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to ha, neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that can never attack with success either of the other two; and that possible care is requisite to enable it to defend itself against theirattacks. It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quart( mean so long as the judiciary remains truly distinct from both legislature and the executive. For I agree that "there is no liberty the power of judging be not separated from the legislative and executive powers." And it proves, in the last place, that as liberty have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from pendence of the former on the latter, notwithstanding a nor and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute SO much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of' this kind call be preserved in practice no other way than through the medium Of Courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of tile Constitution void. Without this, all tile reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the rights of the Courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds oil which it rests cannot be unacceptable.

There is no position which depends on clearer principles than that ever), act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers and that tile construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. it therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from tile legislative body. If there should happen to be an irreconcilable variance between that which has the superior obligation and validity ought, of course, to be preferred: or, in other words, the Constitution to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges to be governed by the latter rather than the former. They ought to regulate their decisions by tile fundamental laws rather than those which ire not fundamental.

This exercise of judicial discretion in determining between contradictory laws is exemplified in a familiar instance. It not uncommonly happens that there are two statutes existing time, clashing in whole or in part with each other and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by fair construction be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it be matter of necessity to give effect to one in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to tile first. But this is a mere rule of construction, not from any positive law but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable that between the interfering acts of an equal authority that which was the last indication of its will should have the preference.

But in regard to the interfering acts of a superior and subordinate authority of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure for that of the legislative body. The observation, if it proved anything, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for tile permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies in questioning that fundamental, principle of republican government which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing Constitution, would, oil that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiment can warrant their representatives in a departure from it prior to such an act. But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution only that the independence of the judges may be all essential safeguard against tile effects of occasional ill humors in tire society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify attempts. This is a circumstance calculated to have more influence upon the character of our governments than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations may have disappointed, they must have commanded the eastern and applause of all the virtuous and disinterested. Consider men of every description ought to prize whatever will ten beget or fortify that temper in the courts; as no man can be s that he may not be tomorrow the victim of a spirit of injustice which he may be a gainer today. And every man must now that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and to introduce in stead universal distrust and distress.

That inflexible and uniform adherence to the rights of Constitution, and of individuals, which we perceive to be in indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever, made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature there would be danger of an proper complaisance to the branch which possessed it; if to both there would be an unwillingness to hazard the displeasure of ether; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and weighty reason for the permanency of the judicial offices which is deducible from the nature of qualifications they require. It has been frequently remarked great propriety that a voluminous code of laws is one of the in inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us that the government can have no great option between fit characters; and that a temporary duration in office which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench Would have a tendency to throw the administration of justice into hands less able and less well qualified to conduct it with utility and dignity. In the present circumstances of this country and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in the point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS [Hamilton]

... Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office.

I am reminded of that evening in March 4 years ago, when I made my first radio report to you. We were then in the midst of the great banking crisis....

In 1933 you and I knew that we must never let our economic system get completely out of joint again - that we could not afford to take the risk of another great depression.

We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint.

We then began a program of remedying those abuses and inequalities....

Today we are only part way through that program - and recovery is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within year or two.

National laws are needed to complete that I program. Individual or local or State effort alone car protect us in 1937 any better than 10 years ago.

The courts have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.

We are at a crisis in our ability to proceed with protection. It is a quiet crisis. There are no lines of depositors outside closed banks. But to the far-sighted it is far-reaching in its possibilities of injury to America.

I want to talk with you very simply about the need for present action in this crisis - the need to meet the unanswered challenge of one-third of a nation ill-nourished, ill-clad, ill-housed.

Last Thursday I described the American form of government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government -the Congress, the executive, and the courts. Two of the horses are pulling in unison today; the third is not. Those who have intimidated that the President of the United States is trying to drive that team overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.

It is the American people themselves who are in the driver's seat.

It is the American people themselves who want the furrow plowed.

It is the American people themselves who expect the third horse to pull in unison with the other two.

I hope that you have reread the Constitution of the United States. Like the Bible, it ought to be read again and again.

... in its preamble the Constitution states that it was intended to form a more perfect Union and promote the general welfare; and the powers given to the Congress to carry out those purposes can be best described by saying that they were all the powers needed to meet each and every problem which then had a national character and which could not be met by merely local action.

But the framers went further. Having in mind that in succeeding generations many other problems then undreamed of would become national, problems, they gave to the Congress the ample broad powers "to levy taxes *** and provide for the common defense and general welfare of the United States ' "

That, my friends, is what I honestly believe to have been the clear and underlying purpose of the patriots who wrote a Federal Constitution to create a National Government with national power, intended as they said, "to form a more perfect union ... for ourselves and our posterity." .. . ,

... Since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State legislatures....

In the last 4 years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body.

When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.

That is not only my accusation. It is the accusation of most distinguished justices of the present Supreme Court. I have not the time to quote to you all the language used by dissenting justices in many of these cases. But in the case holding the Railroad Retirement Act unconstitutional, for instance, Chief justice Hughes said in a dissenting opinion that the majority opinion was "a departure from sound principles," and placed "an unwarranted limitation upon the commerce clause." And three other justices agreed with him.

In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.

The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress - a superlegislature, as one of the justices has called it, "reading into the Constitution words and implications which are not there, and which were never intended to be there."

We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution - not over it. In our courts we want a government of laws and not of men.

I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written - that will refuse to amend the Constitution by the arbitrary exercise of judicial power - amendment by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts universally recognized.

How, then, could we proceed to perform the mandate given us? ...

... I came by a process of elimination to the conclusion that short of amendments the only method which was clearly constitutional, and would at the same time carry out other much needed reforms, was to infuse new blood into all our courts.... [W]e must have judges who will bring to the courts a present - day sense of the Constitution - judges who will retain in the courts the judicial functions of a Court and reject the legislative powers which the courts have today assumed....

What is my proposal? It is simply this: Whenever a judge or justice of any Federal court has reached the age of 70 and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution of the Senate of the United States.

That plan has two chief purposes: By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and therefore less costly; secondly, to bring to the decision of social and. economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our National Constitution from hardening of the judicial arteries.

The number of judges to be appointed would depend wholly on the decision of present judges now over 70 or those who would subsequently reach the age of 70.

If, for instance, any one of the six justices of the Supreme Court now over the age of 70 should retire as provided under the plan, no additional place would be created. Consequently, although there never can be more than 15, there may be only 14, or 13, or 12, and there may be only 9.

There is nothing novel or radical about this idea. it seeks to maintain the Federal bench in full vigor...

The statute would apply to all the courts in the Federal system. There is general approval so far the lower Federal Courts are concerned. The pt has met opposition only so far as the Supreme Court of the United States itself is concerned. if such a plan is good for the lower courts, it certainly ought to equally good for the highest court, from which the is no appeal.

Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking "pack" the Supreme Court and that a baneful precedent will be established.

What do they mean by the words "packing the Court?"

Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.

If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and[ would decide specific cases as I wished them to be decided, I in: this answer: That no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to Supreme Court.

But if by that phrase the charge is made that: would appoint and the Senate would confirm Justices worthy to sit beside present members of Court who understand those modern conditions that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy; that I will appoint justices who will act as justices and not as legislators - if the appointment such justices can be called "packing the Courts - then I say that I. and with me the vast majority of American people, favor doing just that thing now...

I now propose that we establish by law an assurance against any such ill-balanced Court in future. I propose that hereafter, when a judge reaches the age of 70, a new and younger judge shall added to the Court automatically. In this way I pose to enforce a sound public policy by law in instead of leaving the composition of our Federal courts, including the highest, to be determined by change or the personal decision of individuals....

Like all lawyers, like all Americans, I regret necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is ,what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building a new Constitution "a system of living law." .. .

During the past half century the balance of between the three great branches of the Federal Government has been tipped out of balance by the Courts in direct contradiction of the high purpose the framers of the Constitution.

It is my purpose to restore that balance. You know me will accept my solemn assurance that in a world in which democracy is under attack I seek make American democracy succeed.

My Dear Senator Wheeler:

In response to your inquiries, I have the honor to present the following statement with respect to the work of the Supreme Court:

1. The Supreme Court is fully abreast of its work. When we rose on March 15 (for the present recess) we have heard argument in cases in which certiorari had been granted only 4 weeks before - February 15.

During the current term, which began last October and which we call "October term, 1936," we have heard argument on merits in 150 cases (180 numbers) and we have 28 cases (30 numbers) awaiting argument. We shall be able to hear all these cases, and such others as may come up for argument, before our adjournment for the term. There is no congestion of cases upon our calendar.

This gratifying condition has obtained for several years. We have been able for several terms to adjourn after disposing of all cases which are ready to be heard.

2. The cases on our docket are classified as original and appellate. Our original jurisdiction is defined by the Constitution and embraces cases to which States are parties. There are not many of these.. At the present time they number 13 and are in various stages of progress to submission for determination.

Our appellate jurisdiction covers those cases in which appeal is allowed by statute as a matter of right and cases which come to us on writs of certiorari....

3. The statute relating to our appellate jurisdiction is the act of February 13, 1925. *** That act limits to certain cases the appeals which come to Supreme Court as a matter of right. Review in other cases is made to depend upon the allowance by the Supreme Court of a writ of certiorari.

Where the appeal purports to lie as a matter right, the rules of the Supreme Court (rule 12) require the appellant to submit a jurisdictional statement showing that the case falls within that class of appeals and that a substantial question is involved. We examine that statement, and the supporting opposing briefs, and decide whether the Court had jurisdiction. As a result, many frivolous appeals are forthwith dismissed and the way is open for appeals which disclose substantial questions.

4. The act of 1925, limiting appeals as a matter of right and enlarging the provisions for review through certiorari was most carefully considered by Congress. I call attention to the reports of the Judiciary Committees of the Senate and House of Representatives. *** That legislation was deemed essential to enable the Supreme Court to perform its proper function. No single court of last resort, whatever the number of judges, could dispose of cases which arise in this vast country and which litigants would seek to bring up if the right of appeal were unrestricted. Hosts of litigants will take appeals so long as there is a tribunal accessible. In protracted litigation, the advantage is with those who command a long purse. Unmeritorious appeals cause intolerable delays. Such appeals clog the calendar and get in the way of those that have merit.

Under Our Federal system, when litigants have had their cases heard in the courts of first instance, and the trier of the facts, jury or judge, as the case may require, has spoken and the case on the facts and law has been decided, and when the dissatisfied party has been accorded an appeal to the circuit court of appeals, the litigants, so far as mere private interests are concerned, have had their day in court. If further review is to be had by the Supreme Court it must be because of the public interest in the questions involved. That review, for example, should be for the purpose of resolving conflicts in judicial decisions between different circuit courts of appeals or between circuit courts of appeals and State courts where the question is one of State law; or for the purpose of determining constitutional questions or settling the interpretation of statutes; or because of the importance of the questions of law that are involved. Review by the Supreme Court is thus in the interest of the law, its appropriate exposition and enforcement, not in the mere interest of the litigants.

It is obvious that if appeal as a matter of right is restricted to certain described cases, the question whether review should be allowed in other cases must necessarily be confided to some tribunal for determination, and, of course, with respect to review by the Supreme Court, that Court should decide.

5. Granting certiorari is not a matter of favor but of sound judicial discretion. It is not the importance of the parties or the amount of money involved that is in any sense controlling. The action of the Court is governed by its rules....

I should add that petitions of certiorari are not apportioned among the Justices. In all matters before the Court except in the more routine of administration, all the Justices-unless for some reason a Justice is disqualified or unable to act in a particular case- participate in the decision. This applies to the grant or refusal of petitions for certiorari. Further more, petitions for certiorari are granted if four Justices think they should be. A vote by a majority is not required in such cases. Even if two or three of the Justices are strongly of the opinion that certiorari should be allowed, frequently the other Justices will acquiesce in their view, but the petition is always granted if four or so vote.

6. The work of passing upon these applications for certiorari is laborious but the Court is able to perform it adequately, Observations have been made as to the vast number of pages of records and briefs that are submitted in the course of a term. The total is imposing but the suggested conclusion is hasty and rests on an illusory basis. Records are replete with testimony and evidence of facts. But the questions on certiorari are questions of law. So many cases turn on facts, principles of law not being in controversy. It is only when the facts are interwoven with the question of law which we should review that the evidence must be examined and then only to the extent that it is necessary to decide the questions of law.

This at once disposes of a vast number of factual controversies where the parties have been fully heard in the courts below and have no right to burden the Supreme Court with the dispute which interests no one but themselves.

This is also true of controversies over contracts and documents of all sorts which involve only questions of concern to the immediate parties. The applicant for certiorari is required to state in his petition the grounds for his application and in a host cases that disclosure itself disposes of his request. So that the number of pages of records and briefs afford no satisfactory criterion of the actual work involved. It must also be remembered that justices who been dealing with such matters for years have the aid of a long and varied experience in separating chaff from the wheat.

I think that it is safe to say that about 60 percent of the applications for certiorari are wholly without merit and ought never to have been made. The probably about 20 percent or so in addition which have a fair degree of plausibility but which fail to survive critical examination. The remainder, falling short, I believe, of 20 percent, show substantial grounds and are granted. I think that it is the view of the members of the Court that if any error is made in dealing with these applications it is on the side of liberality.

7. An increase in the number of justices Supreme Court, apart from any question of policy which I do not discuss, would not promote the efficiency of the Court. It is believed that it would impair that efficiency so long as the Court acts as a unit, There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the Court is concerned. As I have said, I do not speak of any considerations in view of the appropriate attitude of the Court in relation to questions of policy

I understand that it has been suggested that with more justices the Court could hear cases in divisions. It is believed that such a plan would be impracticable. A large proportion of the cases we hear are important and a decision by a part of. the Court ,would be unsatisfactory.

I may also call attention to the provisions Article III, Section 1, of the Constitution that the power of the United States shall be vested "in one Supreme Court" and in such inferior courts Congress may from time to time ordain and establish. The Constitution does not appear to authorize two or more Supreme Courts or two more of a supreme court functioning in effect as separate courts.

O account of the shortness of time I have been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. justice Van Devanter and Mr. justice Brandeis, and I am at liberty to say that the statement is approved by them.
 
 

The Committee on the judiciary, to whom was referred the bill (S. 1392) to reorganize the judicial branch of the Government, after full consideration, having unanimously amended the measure, hereby reports the bill adversely with the recommendation that it does not pass....

THE ARGUMENT

The committee recommends that the measure be rejected for the following primary reasons:

The measure was sent to the Congress by the President on February 5, 1937, with a message setting forth the objectives sought to be attained.

It should be pointed out here that a substantial portion of the message was devoted to a discussion of the evils of conflicting decisions by inferior courts on constitutional questions and to the alleged abuse of the power of injunction by some of the Federal courts. These matters, however, have no bearing on the bill before us, for it contains neither a line nor a sentence dealing with either of those problems.

Nothing in this measure attempts to control, regulate, or prohibit the power of any Federal court to pass upon the Constitutionality of any law-State or National.

Nothing in this measure attempts to control, regulate, or prohibit the issuance of injunctions by any Court, in any case, whether or not the Government is a party to it.

If it were to be conceded that there is need of reform in these respects, it must be understood that this bill does not deal with these problems.

OBJECTIVES AS ORIGINALLY STATED

As offered to the Congress, this bill was designed to effectuate only three objectives, described as follows in the President's message:

The first two objectives were to be attained by the provisions authorizing the appointment of not to exceed 50 additional judges when sitting judges of retirement age, as defined in the bill, failed to retire or resign. How totally inadequate the measure is to achieve either of the named objectives, the most cursory examination of the facts reveals.

BILL FAILS OF ITS PURPOSE

In the first place, as already pointed out, the bill does not provide for any increase of personnel unless judges of retirement age fail to resign or whether or not there is to be in increase of the number of judges, and the extent of the increase if there is to be one, is dependent wholly upon judges themselves and not at all upon the accumulation of litigation in any Court. To state it another way the increase of the number of judges is provided, not in relation to the increase of work in any district or circuit, but in relation to the age of the judges and their unwillingness to retire.

In the second place, as pointed out in the client's message, only 25 of the 237 judges serving in the Federal Courts on February 5, 1937, were 70 years of age. Six of these were members Supreme Court at the time the bill was introduced. At the present time there are 24 judges 70 years of age or over distributed among the 10 circuit courts and the 84 district courts, and the 4 Courts in the District of Columbia and of that 24, only 10 are serving in the 84 district Courts, so that the remaining 14 be found in 4 special courts and in the 10 circuit courts. Moreover, the facts indicate that the courts with the oldest judges have the best records in the disposition of business. It follows, there for since there are comparatively few aged justices in service and these are among the most efficient on the bench, the age of sitting judges does not make necessary an increase of personnel to hand business of the courts.

There was submitted with the President's message a report from the Attorney General to the effect that in recent years the number of cases has greatly increased and that delay in the administration of justice is interminable. It is manifest, however, that this condition cannot be remedied by the contingent appointment of new judges to sit beside the judges over 70 years of age, most of whom are either altogether equal to their duties or are commission in courts in which congestion of business does exist. It must be obvious that the way to attack congestion and delay in the courts is directly by legislation which will increase the number of judges in districts where the accumulation exists, not indirectly by the contingent appointment of new judges to courts where the need does not exist, but where it may happen that the sitting judge is over 70 of age....

QUESTION OF AGE NOT SOLVED

The next question is to determine to what extent ,"the persistent infusion of new blood" may be expected from this bill.

It will be observed that the bill before us does not and cannot compel the retirement of any judge, whether on the Supreme Court or any other court, when he becomes 70 years of age. it will be remembered that the mere attainment of three score and ten by a particular judge does not, under this bill, require the appointment of another. The man on the bench may be 80 years of age, but this bill will not authorize the President to appoint a new judge to sit beside him unless he has served as a judge for 10 years. In other words, age itself is not penalized; the penalty falls only when age is attended with experience.

No one should over look the fact that under this bill the President, whoever he may be and whether or not he believes in the constant infusion of young blood in the courts, may nominate a man 69 years and 11 months of age to the Supreme Court, or to any court, and, if confirmed, such nominee, if he never had served as a judge, would continue to sit upon the bench unmolested by this law until he had attained the ripe age of 79 years and 11 months.

We are told that "modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business." Does this bill provide for such? The answer is obviously no. As has been just demonstrated, the introduction of old and inexperienced blood into the courts is not prevented by this bill.

More than that, the measure, by its own terms, makes impossible the "constant" or "persistent" infusion of new blood. It is to be observed that the word is "new," not "young." ...

It thus appears that the bill before us does not with certainty provide for increasing the personnel of the Federal judiciary, does not remedy the law's delay, does not serve the interest of the "poorer litigant" and does not provide for the "constant" or "persistent infusion of new blood" into the judiciary. What, then, does it do?

THE BILL APPLIES FORCE 10 THE JUDICIARY

The answer is clear. It applies force to the judiciary. It is an attempt to impose upon the courts a course of action, a line of decision which, without that force without that imposition, the judiciary might not adopt.

Can there be any doubt that this is the purpose of the bill? Increasing the personnel is not the object of this measure; infusing young blood is not the object; for if either one of these purposes had been in the minds of the proponents, the drafters would have written the following clause to be found on page 2, lines 1 to 4, inclusive:

"Provided, That no additional judge shall be pointed hereunder if the judge who is of retirement age dies, resigns, or retires prior to the nomination, of such additional judge."

Let it also be borne in mind that the President's message submitting this measure contains the lowing sentence:

"If, on the other hand, any judge eligible for retirement should feel that his Court would suffer because of an increase of its membership, he may retire or resign under already existing provisions of law if he wishes to do so."

Moreover, the Attorney General in testifying before the committee *** said:

"If the Supreme Court feels that the addition of six judges would be harmful to that Court, it can avoid that result by resigning."

Three invitations to the members of the Supreme Court over 70 years of age to get out despite a. talk about increasing personnel to expedite the position of cases and remedy the law's delay. One the bill. One by the President's message. One h Attorney General.

Can reasonable men by any possibility differ, the constitutional impropriety of such a course?

Those of us who hold office in this Government, however humble or exalted it may be, are creatures of the Constitution. To it we owe all the power and authority we possess. Outside of it we have none. We are bound by it in every official act.

We know that this instrument, without which we would not be able to call ourselves presidents, judges or legislators, was carefully planned and deliberately framed to establish three coordinate branches of government, every one of them to be independent of the others. For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the Government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people's servants and no one branch could overawe or subjugate the others. That is the American system. It is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial....

A PRECEDENT OF LOYALTY TO THE CONSTITUTION

Shall we now, after 150 years of loyalty to the constitutional ideal of an untrammeled judiciary, duty bound to protect the constitutional rights of the humblest citizen even against the Government itself, create the vicious precedent which must necessarily undermine our system? The only argument for the increase which survives analysis is that Congress should enlarge the Court so as to make the policies of this administration effective.

We are told that a reactionary oligarchy defies the will of the majority, that this is a bill to "unpack" the Court and give effect to the desires of the majority; that is to say, a bill to increase the number of Justices for the express purpose of neutralizing the views of some of the present members. In justification we are told, but without authority, by those who would rationalize this program, that Congress was given the power to determine the size of the Court so that the legislative branch would be able to impose its will upon the judiciary. This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!

This, then is the dangerous precedent we are asked to establish. When proponents of the bill assert, as they have done, that Congress in the past has altered the number of justices upon the Supreme Court and that this is reason enough for our doing it now, they show how important precedents are and prove that we should now refrain from any that would seem to establish one which could be followed hereafter whenever a Congress and executive should become dissatisfied with the decisions of the Supreme Court.

This is the first time in the history of our country that a proposal to alter the decisions of the court by enlarging its personnel has been so boldly made. Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an in independent Court, a fearless Court, a Court that will announce its honest opinions in what it believe the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution.

Even if every charge brought against the so-called "reactionary" members of this Court be true, better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members. Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the in dent American judiciary from attack as long Government stands....

Paul and Pauline Poe, a married couple, and Jane Doe, a housewife, filed suits in federal court against the Connecticut state's attorney general, seeking a declaratory judgment as to the constitutionality of a Connecticut law forbidding the use of contraceptives.

Mr. Justice Frankfurter announced the judgment of the court and an opinion in which The Chief Justice [Warren], Mr. Justice Clark and Mr. Justice Whittaker join.

These appeals challenge the constitutionality, Under the Fourteenth Amendment, of Connecticut statutes which, as authoritatively construed by the Connecticut Supreme Court of Errors, prohibit the use of contraceptive devices and the giving of medical advice in the use of such devices. In proceedings seeking declarations of law, not on review of convictions for violation of the statutes, that Court has ruled that these statutes would be applicable in the case of married couples and even under claim that conception would constitute a serious threat to the health or life of the female spouse.

... The [first] complaint ... alleges that the plaintiffs, Paul and Pauline Poe, are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton's opinion that the cause of the infants' abnormalities is genetic, although the underlying "mechanism" is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely "disturbing to the physical and mental health of both husband and wife.... It is Dr. Buxton's opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these vices is indicated as the best and safest preventative measure necessary for the protection of plain health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State's Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State's Attorney ... claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn. Gen. Stat. Rev. 1958, Sections 53-32 and 54-196.

... [Paul and Pauline Poe] ask a declaratory judgment that sections 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life liberty without due process of law.

The second action ... is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children. Mrs. Doe recently under-went a pregnancy which induced in her a critical physical illness-two weeks' unconsciousness and a total of nine weeks' acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe's complaint, and the relief sought , are similar to those in the case of Mr. and Mrs. Poe.

Appellants' complaints in these declaratory judgment proceedings do not clearly, and certainly do not in terms, allege that appellee Ullman threatens to prosecute them for use of, or for giving advice concerning, contraceptive devices. The allegations merely that, in the course of his public duty, he intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses. The lack of immediacy, of the threat described by these allegations might alone raise serious questions of non-justiciability of appellants' claims. *** But even were we to read the allegations to convey a clear threat of imminent prosecutions, we are not bound to accept as true all that is alleged on the face of the complaint and admitted, technically, by demurrer, any more than the Court is bound by stipulation of the parties. *** Formal agreement between parties that collides with plausibility is too fragile a foundation for indulging in constitutional adjudication.

The Connecticut law prohibiting the use of contraceptives has been on the State's books since 1879. *** During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson. *** The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researchers have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process. The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite attention of enforcement officials than the conduct in which the present appellants wish to engage-the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anticontraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here." Deeply embedded traditional ways of carrying out state policy" *** - or not carrying it out - are often tougher and truer than the dead words of the written text."

The restriction of our jurisdiction to case controversies, within the meaning of Article III Constitution, see Muskrat v. United States, *** is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional powers. The policy reflected in numerous case over a long period was thus summarized in the quoted statement of Mr. Justice Brandeis: "The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon decision.- *** In part the rules summarized in Ashwander opinion had derived from the historically defined, limited nature and function of courts and from the recognition that, within the frame our adversary system, the adjudicatory process most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity.*** In part they derive from the fundamental federal and tripartite character of our National Government from the role-restricted by its very responsibility-of the federal courts, and particularly this Court, within that structure. ***

These considerations press with special urgency in cases challenging legislative action or state judicial action as repugnant to the Constitution. "The best teaching of this Court's experience admonishes us not to entertain constitutional questions in advance of the strictest necessity." *** . . . "This can have no right to pronounce an abstract opinion upon the constitutionality of a State law. Such law must be brought into actual or threatened operation upon rights properly falling under judicial cognizance, or a remedy is not to be had here." *** "The party who invokes the power [to annul legislation on grounds of its unconstitutionality] must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as the result enforcement." ***

Insofar as appellants seek to justify the exercise of our declaratory power by the threat of prosecution, facts which they can no more negative by complaint and demurrer than they could by stipulation preclude our determining their appeals on the merits.*** It is clear that the mere existence of a state penal statute would constitute insufficient grounds to support a federal court's adjudication of its constitutionality in proceedings brought against the State's prosecuting officials if real threat of enforcement is wanting.*** If the prosecutor expressly agrees not to prosecute, a suit against him for declaratory and injunctive relief is not such an adversary case as will be reviewed here. Eighty years of Connecticut history demonstrate a similar, albeit tacit agreement. The fact that Connecticut has not chosen to press to enforcement of this ,statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication. This Court cannot be umpire to debates concerning harmless, empty shadows. To find it necessary to pass on these statutes now, in order to protect appellants from the hazards of prosecution, would be to close our eyes for reality.

Nor does the allegation by the Poes and Doe that they are able to obtain information concerning devices from Dr. Buxton, "for the sole reason that the delivery and use of such information and advice may or will be claimed by the defendant State's Attorney to constitute offenses;' disclose a necessity for present constitutional decision. It is true that tills Court has several times passed upon criminal statutes challenged by persons who claimed that the effects of the statutes were to deter others from maintaining profitable or advantageous relations with the complainants. *** But in these cases the ,deterrent effect complained of was one which was grounded in a realistic fear of prosecution. We can not agree that if Dr. Buxton's compliance with these statutes uncoerced by the risk of their enforcement, his patients are entitled to a declaratory judgment concerning the statutes' validity. And, with due regard to Dr. Buxton's standing as a physician and to his personal sensitiveness, we cannot accept, as the chimerical of Constitutional adjudication, other than as chimerical the fear of enforcement of provisions that have during so many years gone uniformly and with out exception unenforced.

Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the result of many subtle pressures, including the appropriateness of the issues for decision by this Court and the actual hardship to the litigants of denying them the relief sought. Both these factors justify withholding adjudication of the constitutional issue raised under the circumstances and in the manner in which they are now before the Court.

Dismissed.

Mr. Justice Black dissents because lie believes the constitutional questions should be reached and decided.

Mr. Justice Brennan, concurring in the judgment.

I agree that this appeal must be dismissed failure to present a real and substantial controversy which unequivocally calls for adjudication of the rights claimed in advance of any attempt by the State to curtail them by criminal prosecution. I a convinced, on this skimpy record, that these appellants as individuals are truly caught in an inescapable dilemma. The true controversy in this case is the opening of birth-control clinics on a large scale; it is that which the State has prevented in past, not the not the use of contraceptives by isolated and individual married couples. It will be time enough to decide the constitutional questions urged up when, if ever, that real controversy flares up again, Until it does, or until the State makes a definite concrete threat to enforce these laws against in individual married couples-a threat which it has made in the past except under the provocation of the litigation-this Court may not be compelled to exercise its most delicate power of constitutional adjudication.

Mr. Justice Stewart, dissenting ....

Mr. Justice Douglas, dissenting.

These cases are dismissed because a majority of the members of this Court conclude, for varying reasons, that this controversy does not present a justiciable question. That question is too transparent to require an extended reply...

Mr. Justice Harlan, dissenting.

I am compelled, with all respect, to dissent from the dismissal of these appeals. In my view the course which the Court has taken does violence to established concepts of "justiciability," and unjustifiably leaves these appellants under the threat of unconstitutional prosecution.... Between them these suits seek declaratory relief against the threatened enforcement of Connecticut's antibirth-control laws making criminal the use of contraceptives, insofar as such laws relate to the use of contraceptives by married persons and the giving of advice to married persons, in their use. The appellants, a married couple, a married woman, and a doctor, ask that it be adjudged, contrary to what the Connecticut courts have held, that such laws, as threatened to be applied to them in circumstances described in the opinion announcing the judgment of the Court violate the Fourteenth Amendment, in that they deprive appellants of life, liberty, or property without due process.

The plurality opinion of the Court gives, as the basis for dismissing the appeals, the reason that, as to the two married appellants, the lack of demonstrated enforcement of the Connecticut statute bespeak an absence of exigent adversity which is posited as a condition for evoking adjudication from us, and as to the, doctor, that his compliance with the state s uncoerced by any "realistic fear of prosecution," giving due recognition to his "standing as a physician and to his personal sensitiveness." With these it appears that the concurring opinion agrees.

... In my view of these cases a present determination of the Constitutional issues is the only course which will advance justice, and I can find no sound reason born of considerations as to the possible adequacy or ineffectiveness of the judgment that might be rendered which justifies the Court's contrary disposition....

This case raises the issue of standing to sue in the context of a dispute over the 1st Amendment principle of separation of church and state. The essential facts are contained in Justice Rehnquist's majority opinion.

Justice Rehnquist delivered the opinion of the Court.

... Article IV, Sec. 3, cl. 2, of the Constitution vests Congress with the "Power to dispose of and make all needful Rules and Regulations respecting the ... Property belonging to the United States." Shortly after the termination of hostilities in the Second World War, Congress enacted the Federal Property and Administrative Services Act of 1949. *** The Act was designed, in part, to provide "an economical and efficient system for ... the disposal of surplus property" *** In furtherance of this policy, federal agencies are directed to maintain adequate inventories of the property under their control and to identify excess property for transfer to other agencies, able to use it. *** Property that has outlived its usefulness to the Federal Government is declared surplus" and may be transferred to private or public entities. ***

The Act authorizes the Secretary of Health, Education, and Welfare (now the Secretary of Education) to assume responsibility for disposing of surplus property "for school, classroom, or other educational use." *** Subject to the disapproval of the Administrator of General Services, the Secretary may sell or lease the property to non-profit, tax educational institutions for consideration that takes into account "any benefit which has accrued or may accrue to the United States" from the transferee's use of the property.*** By regulation, the Secretary has provided for the computation of a "public benefit allowance," which discounts the transfer price of the property "on the basis of benefits to the United States from the use of such property for educational purposes." ***

The property which spawned this litigation was acquired by the Department of the Army in 1942, as part of a larger tract of approximately 181 acres of land northwest of Philadelphia. The Army built on that land the Valley Forge General Hospital, and for 30 years thereafter, that hospital provided medical care for members of the Armed Forces. In April 1973, as part of a plan to reduce the number of military installations in the United States, the Secretary of Defense proposed to close the hospital, and the General Services Administration declared it to be "surplus property."

The Department of Health, Education, and Welfare (HEW) eventually assumed responsibility for disposing of portions of the property, and in August 1976, it conveyed a 77-acre tract to petitioner, the Valley Forge Christian College. The appraised value of the property at the time of conveyance was $577,500. This appraised value was discounted, however, by the Secretary's computation of a 100% public benefit allowance, which permitted petitioner to acquire the property without making any financial payment for it....

In September 1976, respondents Americans United Separation of Church and State, Inc. (Americans United), and four of its employees, learned of the conveyance through a news release. Two months later, they brought suit in the United States District Court for the District of Columbia, later transferred to the Eastern District of Pennsylvania, to challenge the conveyance on the ground that it violated the Establishment Clause of the First Amendment. *** In its amended complaint, Americans United described it as nonprofit organization composed of 90,000 taxpayer members." The complaint asserted that each member "would be deprived of the fair and constitutional use of his (her) tax, dollar for constitutional purposes in violation of his (her) rights under the First Amendment of the United States Constitution." Respondents sought a declaration that the conveyance was null and void, and an order compelling petitioner to transfer the property back to the United States. ***

On petitioner's motion, the District Court granted summary judgment and dismissed the complaint. *** The court found that respondents lacked standing to sue as taxpayers under Flast v. Cohen *** (1968), and had "failed to allege that they have suffered any actual or concrete injury beyond a generalized grievance common to all taxpayers." ***

Respondents appealed to the Court of Appeals for the Third Circuit, which reversed the judgment of the District Court by a divided Court. *** All members of the court agreed that respondents lacked standing as taxpayers to challenge the conveyance under Flast v. Cohen *** since that case extended standing to taxpayers qua taxpayers only to challenge congressional exercises of the power to tax and spend conferred by Art I., Sec. 8, of the Constitution, and this conveyance was authorized by legislation enacted under the authority of the Property Clause, Art. IV, Sec. 3, cl. 2. Notwithstanding this significant factual difference from Flast, the majority of the Court of Appeals found that respondents also had standing merely as "citizens," claiming injury in fact to their shared individuated right to a government that 'shall make no law respecting the establishment of religion.' " *** In the majority's view, this "citizen standing" was sufficient to satisfy the "case or controversy" requirement of Art. III....

Because of the unusually broad and novel view of standing to litigate a substantive question in the federal courts adopted by the Court of Appeals, we granted certiorari, *** and we now reverse....

Article III of the Constitution limits the "judicial power` of the United States to the resolution of "cases" and "controversies." The constitutional power of federal courts cannot be defined, and indeed has no substance, without reference to the necessity to adjudge the legal rights of litigants in actual controversies." *** The requirements of Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights, and has couched that request for forms of relief historically associated with courts of law in terms that have a familiar ring to those trained in the legal process. The judicial power of the United States defined by Art. III is not an unconditioned authority to determine the constitutionality of legislative or executive acts. The power to declare the rights of individuals and to measure the authority of governments, this Court said 90 years ago, "is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy." *** Otherwise, the power "is not judicial ... in the sense in which judicial power is granted by the Constitution to the courts of the United States." ***

As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have "standing" to challenge the action sought to be adjudicated in the lawsuit....

... [A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant;' *** and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision." *** In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process." ***

We need not mince words when we say that the concept of "Art, III standing" has not been defined with complete consistency in all of the various cases decided by this Court which have discussed it, nor when we say that this very fact is probably proof that the concept cannot be reduced to a one-sentence or one-paragraph definition. But of one thing we may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States. Article III, which is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power, is not merely a troublesome hurdle to be overcome if possible so as to reach the "merits" of a lawsuit which a party desires to have adjudicated; it is a part of the basic charter promulgated by the Framers of the Constitution at Philadelphia in 1787, a charter which created a general government, provided for the interaction between the government and the governments of the several States, and was later amended so as to either enhance or limits its authority with respect to both States and individuals....

Unlike the plaintiffs in Flast, respondents fail the first prong of the test for taxpayer standing. Their claim

is deficient in two respects. First, the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property. Flast limited taxpayer standing to challenges directed "only [at] exercises of congressional power." ***

Second, and perhaps redundantly, the property transfer about which respondents complain was not an exercise of authority conferred by the Taxing an Spending Clause of Art. 1, Sec. 8. The authorizing legislation, the Federal Property and Administrative Services Act of 1949, was an evident exercise of Congress' power under the Property Clause, Art. I; Sec. cl. 2. Respondents do not dispute this conclusion, *** and it is decisive of any claim of taxpayer standing under the Flast precedent....

Respondents, therefore, are plainly without standing to sue as taxpayers.... It remains to be see whether respondents have alleged any other basis for standing to bring this suit....

... It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy.

... Their claim that the Government has violated the Establishment Clause does not provide a special license to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. The federal courts were simply not constituted as ombudsmen of the general welfare.

Were we to accept respondents' claim of standing in this case. There would be no principled basis for confining our exception to litigants relying on the Establishment Clause. Ultimately, that exception derives from the idea that the judicial power requires nothing more for its invocation than important issues and able litigants. The existence of injured parties who might not wish to bring suit becomes irrelevant. Because we are unwilling to countenance such a departure from the limits on judicial power contained in Art. III, the judgment of the Court of Appeals is reversed....

Justice Brennan with whom Justice Marshall and Justice Blackmun join, dissenting.

The opinion of the Court is a stark example of this unfortunate trend of resolving cases at the threshold" while obscuring the nature of the underlying rights and interests at stake. The Court waxes eloquent on the blend of prudential and constitutional considerations that combine to create our misguided "standing" jurisprudence. But not one word is said about the Establishment Clause right that the plaintiff seeks to enforce. And despite its pat recitation of our standing decisions, the opinion utterly fails ... to explain why this case is unlike Flast v. Cohen, *** and is controlled instead by Frothingham v. Mellon *** (1923).

It may of course happen that a person believing himself injured in some obscure manner by government action will be held to have no legal right under the constitutional or statutory provision upon which he relies, and will not be permitted to complain of .the invasion of another person's "rights." It is quite another matter to employ the rhetoric of "standing" to deprive a person, whose interest is clearly protected by the law, of the opportunity to prove that his own rights have been violated. It is in precisely that dissembling enterprise that the Court indulges today....

In 1947, nine Justices of this Court recognized that the Establishment Clause does impose a very definite restriction on the power to tax. The Court held in Everson v. Board Of Education *** that the "'establishment of religion' clause of the First Amendment means at least this:"

It may be that Congress can tax for almost any reason, or for no reason at all. There is, so far as I have been able to discern, but one constitutionally imposed limit on that authority. Congress cannot use tax money to support a church, or to encourage religion. That is "the forbidden exaction." In absolute terms the history of the Establishment Clause of the First Amendment makes this clear....

Blind to history, the Court attempts to distinguish: this case from Flast by wrenching snippets of language from our opinions, and by perfunctorily applying that language under color of the first prong of Flast's two-part nexus test. The tortuous distinctions thus produced are specious, at best: at worst, they are pernicious to our constitutional heritage.

Plainly hostile to the Framer's understanding of the Establishment Clause, and Flast's enforcement of that understanding, the Court vents that hostility under the guise of standing, "to slam the courthouse door against the plaintiffs who [as the Framers intend intended] are entitled to full consideration of their [Establishment Clause] claims on the merits." *** Therefore I dissent

Justice Stevens, dissenting....
 
 

This is the first case in which the Supreme Court is asked to rule on the constitutionality of a state affirmative action program. The pertinent facts are supplied in the Court's opinion.

Per Curiam.

In 1971 the petitioner Marco DeFunis, Jr., applied for admission as a first year student at the University of Washington Law School, a state-operated institution. The size of the incoming first-year class was to be limited to 150 persons, and the law School received some 1,600 applications for these 150 places. DeFunis was eventually notified that he had been denied admission. He thereupon commenced this Suit in a Washington trial court, contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

DeFunis brought the suit on behalf of himself alone, and not as the representative of any class, against the various respondents, who are officers, faculty members, and members of the Board of Regents of the University of Washington. He asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class entering in September 1971, on the ground that the Law School admissions policy had resulted in the unconstitutional denial of his application for admission. The trial court agreed with his claim and granted the requested relief.

DeFunis was, accordingly, admitted to the Law School and began his legal studies there in the fall of 1971. On appeal, the Washington Supreme Court reversed the judgment of the trial court and held that the Law School admissions policy did not violate the constitution. By this time DeFunis was in his second year at the Law School. He then petitioned this Court for a writ of certiorari, and Mr. Justice Douglas, as Circuit Justice, stayed the judgment of the Washington Supreme Court pending the "final disposition of the case by this Court." By virtue of this stay, DeFunis has remained in law school, and was in the first term of his third and final year when this Court first considered his certiorari petition in the fall of 1973. Because of our concern that DeFunis' third-year standing in the Law School might have rendered this case moot, we requested, the parties to brief the question of mootness before we acted on the petition. In response, both sides contended that the case was not moot. The respondents indicated that, if the decision of the Washington Supreme Court were permitted to stand, the petitioner could complete the term for which he was then enrolled but would have to apply to the faculty for permission to continue in the school before he could register for another term.

We granted the petition for certiorari on November 19, 1973. *** The case was in due course argued on Feb. 26, 1974.

In response to questions raised from the bench during the oral argument, counsel for the petitioner has informed the Court that DeFunis has now registered "for his final quarter in law school." Counsel for the respondents have made clear that the School will not in any way seek to abrogate registration. In light of DeFunis' recent registration for the last quarter of his final law school year the Law School's assurance that his registration is fully effective, the insistent question again rises whether this case is not moot, and to that question we now turn.

The starting point for analysis is the familiar position that "federal courts are without power to decide questions that cannot affect the rights of litigants in this case before them." *** The inability of the federal judiciary "to review most cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy *** Although as a matter of Washington state law it appears that this case would be saved from mootness by "the great public interest in the continuing issues raised by this appeal:' *** the fact remains under Art III "[e]ven in cases arising in the courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction." ***

The respondents have represented that, without regard to the ultimate resolution of the issues in this case, DeFunis will remain a student in the Law School for the duration of any term in which he has already enrolled. Since he has now registered for his final term, it is evident that will be given an opportunity to complete all academic and other requirements for graduation, and, if he does so, will receive his diploma regardless of any decision this Court might reach on the merits of this case. In short, all parties agree that DeFunis is now, to complete his legal studies at the University of Washington and to receive his degree from that institution. A determination by this Court of the legal issues tendered by the parties is no longer necessary tocompel that result, and could not serve to prevent it. DeFunis did not cast his suit as a class action, and the only remedy he requested was an injunction commanding admission to the Law School. He was not only accorded that remedy, but he now has also been irrevocably admitted to the final term ofthe final year of the Law School course. The controversy between the parties has thus clearly ceased to be "definite and concrete" and no longer "touch[es] the legal relations of parties having adverse legal interests."

It matters not that these circumstances partially stem from a policy decision on the part of the respondent Law School authorities. The respondents, through their counsel, the Attorney General of the State, have professionally represented that in no event will the status of DeFunis now be affected by any view this court might express on the merits of this controversy. And it has been the settled practice of the Court, in contexts no less significant, fully to accept representations such as these as parameters for decision. ***

There is a line of decisions in this Court standing for the proposition that the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot. *** These decisions and the doctrine they reflect would be quite relevant if the question of mootness here had arisen by reason of a unilateral change in the admissions procedures of the Law School. For it was the admissions procedures that were the target of this litigation, and a voluntary cessation of the admissions practices complained of could make this case moot only if it could be said with assurance "that 'there is no reasonable expectation that the wrong will be repeated ' '" *** Otherwise, "[t]he defendant is free to return to his old ways;" *** and this fact would be enough to prevent mootness because of the "public interest in having the legality of the practices settled."

But mootness in the present case depends not at all upon a "voluntary cessation" of the admissions practices that were the subject of this litigation. It depends, instead, upon the simple fact that DeFunis is now in the final quarter of the final year of his course of study, and the settled and unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled.

It might also be suggested that this case presents a question that is "capable of repetition, yet evading review," *** and is thus amenable to federal adjudication even though it might otherwise be considered moot. But DeFunis will never again be required to run the gauntlet of the Law School admission process, and so the question is certainly not "capable of repetition" so far as he is concerned. Moreover, just because this particular case did not reach the Court until the eve of the petitioner's graduation from Law School, it hardly follows that the issue he raises will in the future evade review. If the admissions procedures of the School remain unchanged, there is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this Court, now that the Supreme Court of Washington has spoken. This case, therefore, in no way presents the exceptional Situation ... [that] might permit a departure from [t]he usual rule in a federal case, that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated." ***

Because the petitioner will complete his school studies at the end of the term for which he has now registered regardless of any decision the Court might reach on the merits of this litigation, we conclude that the Court cannot, consistently with the limitations of Art III of the Constitution, consider the substantive constitutional issues tendered by the parties. Accordingly, the judgment of the Supreme Court of Washington is vacated, and the cause is remanded for such proceedings as by that Court may be deemed appropriate.

It is so ordered.

Mr. Justice Brennan, dissenting....

Mr. Justice Douglas, dissenting.

I agree with Mr. justice Brennan that this case is not moot, and because of the issues raised I think it is important to reach the merits....

Maria-Kelly F. Yniguez, an Arizona state employee at the time, sued the State and its Governor, Attorney General, and Director of the Department of Administration under 42 U. S. C. §1983, alleging that State Constitution Article XXVIII - key provisions of which declare English "the official language of the State," require the State to "act in English and in no other language," and authorize state residents and businesses "to bring [state-court] suit[s] to enforce th[e] Article" - violated, inter alia, the Free Speech Clause of the First Amendment. Yniguez used both English and Spanish in her work and feared that Article XXVIII, if read broadly, would require her to face discharge or other discipline if she did not refrain from speaking Spanish while serving the State. She requested injunctive and declaratory relief, counsel fees, and "all other relief that the Court deems just and proper." During the early phases of the suit, the State Attorney General released an Opinion expressing his view that Article XXVIII is constitutional in that, although it requires the expression of "official acts" in English, it allows government employees to use other languages to facilitate the delivery of governmental services. The Federal District Court heard testimony and, among its rulings, determined that only the Governor, in her official capacity, was a proper defendant. The court, at the same time, dismissed the State because of its Eleventh Amendment immunity, the State Attorney General because he had no authority to enforce Article XXVIII against state employees, and the Director because there was no showing that she had undertaken or threatened any action adverse to Yniguez; rejected the Attorney General's interpretation of the Article on the ground that it conflicted with the measure's plain language; declared the Article fatally overbroad after reading it to impose a sweeping ban on the use of any language other than English by all of Arizona officialdom; and declined to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII. Following the Governor's announcement that she would not appeal, the District Court denied the State Attorney General's request to certify the pivotal state-law question "the Article's correct construction" to the Arizona Supreme Court. The District Court also denied the State Attorney General's motion to intervene on behalf of the State, under 28 U. S. C. §2403(b), to contest on appeal the court's holding that the Article is unconstitutional. In addition, the court denied the motion of newcomers Arizonans for Official English Committee (AOE) and its Chairman Park, sponsors of the ballot initiative that became Article XXVIII, to intervene to support the Article's constitutionality. The day after AOE, Park, and the State Attorney General filed their notices of appeal, Yniguez resigned from state employment to accept a job in the private sector. The Ninth Circuit then concluded that AOE and Park met standing requirements under Article III of the Federal Constitution and could proceed as party appellants, and that the Attorney General, having successfully obtained dismissal below, could not reenter as a party, but could present an argument, pursuant to §2403(b), regarding the constitutionality of Article XXVIII. Thereafter, the State Attorney General informed the Ninth Circuit of Yniguez's resignation and suggested that, for lack of a viable plaintiff, the case was moot. The court disagreed, holding that a plea for nominal damages could be read into the complaint's "all other relief" clause to save the case. The en banc Ninth Circuit ultimately affirmed the District Court's ruling that Article XXVIII was unconstitutional, and announced that Yniguez was entitled to nominal damages from the State. Finding the Article's "plain language" dispositive, and noting that the State Attorney General had never conceded that the Article would be unconstitutional if construed as Yniguez asserted it should be, the Court of Appeals also rejected the Attorney General's limiting construction of the Article and declined to certify the matter to the State Supreme Court. Finally, the Ninth Circuit acknowledged a state-court challenge to Article XXVIII's constitutionality, Ruiz v. State, but found that litigation no cause to stay the federal proceedings.

Held:  Because the case was moot and should not have been retained for adjudication on the merits, the Court vacates the Ninth Circuit's judgment and remands the case with directions that the action be dismissed by the District Court. This Court expresses no view on the correct interpretation of Article XXVIII or on the measure's constitutionality.

(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case-or-controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U. S. 54, 62. Petitioners' primary argument "that, as initiative proponents, they have a quasi-legislative interest in defending the measure they successfully sponsored" is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U. S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article-III-qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U. S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII's state-court citizen-suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article's constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez's departure from state employment. See, e.g., Burke v. Barnes, 479 U. S. 361, 363, 364, n.

(b) Because Yniguez no longer satisfies the case-or-controversy requirement, this case is moot. To qualify as a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. E.g., Preiser v. Newkirk, 422 U. S. 395, 401. Although Yniguez had a viable claim at the outset of this litigation, her resignation from public sector employment to pursue work in the private sector, where her speech was not governed by Article XXVIII, mooted the case stated in her complaint. Cf. Boyle v. Landry, 401 U. S. 77, 78, 80-81. Contrary to the Ninth Circuit's ruling, her implied plea for nominal damages, which the Ninth Circuit approved as against the State of Arizona, could not revive the case, as ?1983 actions do not lie against a State, Will v. Michigan Dept. of State Police, 491 U. S. 58, 71; Arizona was permitted to participate in the appeal only as an intervenor, through its Attorney General, not as a party subject to an obligation to pay damages; and the State's cooperation with Yniguez in waiving Eleventh Amendment immunity did not recreate a live case or controversy fit for federal court adjudication, cf., e.g., United States v. Johnson, 319 U. S. 302, 304.

(c) When a civil case becomes moot pending appellate adjudication, the established practice in the federal system is to reverse or vacate the judgment below and remand with a direction to dismiss. United States v. Munsingwear, Inc., 340 U. S. 36, 39. This Court is not disarmed from that course by the State Attorney General's failure to petition for certiorari. The Court has an obligation to inquire not only into its own authority to decide the questions presented, but to consider also the authority of the lower courts to proceed, even though the parties are prepared to concede it. E.g., Bender v. Williamsport Area School Dist., 475 U. S. 534, 541. Because the Ninth Circuit refused to stop the adjudication when it learned of the mooting event - Yniguez's departure from public employment - its unwarranted en banc judgment must be set aside. Nor is the District Court's judgment saved by its entry before the occurrence of the mooting event or by the Governor's refusal to appeal from it. AOE and Park had an arguable basis for seeking appellate review; moreover, the State Attorney General's renewed certification plea and his motion to intervene in this litigation demonstrate that he was pursuing his §2403(b) right to defend Article XXVIII's constitutionality when the mooting event occurred. His disclosure of that event to the Ninth Circuit warranted a mootness disposition, which would have stopped his §2403(b) endeavor and justified vacation of the District Court's judgment. The extraordinary course of this litigation and the federalism concern next considered lead to the conclusion that vacatur down the line is the equitable solution.

(d) Taking into account the novelty of the question of Article XXVIII's meaning, its potential importance to the conduct of Arizona's business, the State Attorney General's views on the subject, and the at-least-partial agreement with those views by the Article's sponsors, more respectful consideration should have been given to the Attorney General's requests to seek, through certification, an authoritative construction of the Article from the State Supreme Court. When anticipatory relief is sought in federal court against a state statute, respect for the place of the States in our federal system calls for close consideration of the question whether conflict is avoidable. Federal courts are not well-equipped to rule on a state statute's constitutionality without a controlling interpretation of the statute's meaning and effect by the state courts. See, e.g., Poe v. Ullman, 367 U. S. 497, 526 (Harlan, J., dissenting). Certification saves time, energy, and resources and helps build a cooperative judicial federalism. See e.g., Lehman Brothers v. Schein, 416 U. S. 386, 391. Contrary to the Ninth Circuit's suggestion, this Court's decisions do not require as a condition precedent to certification a concession by the Attorney General that Article XXVIII would be unconstitutional if construed as Yniguez contended it should be. Moreover, that court improperly blended abstention with certification when it found that "unique circumstances," rather than simply a novel or unsettled state-law question, are necessary before federal courts may employ certification. The Arizona Supreme Court has before it, in Ruiz v. State, the question: What does Article XXVIII mean? Once that court has spoken, adjudication of any remaining federal constitutional question may be "greatly simplifie[d]." See Bellotti v. Baird, 428 U. S. 132, 151.

69 F. 3d 920, vacated and remanded.

Ginsburg, J., delivered the opinion for a unanimous Court.

This case arose out of the Dorr Rebellion in Rhode Island in 1842. Essentially, the conflict involved rival government competing for sovereignty-an established-government founded on a character issued by the government founded on a charter issued by the English king prior to the American Revolution and a rival government based on a new constitution that had been approved by popular referendum. The charter government declared martial law, called out the state militia, and appealed to President John Ty1er for aid in putting down the rebellion. The president agreed to provide assistance, thus in effect recognizing the charter government, but the insurrection collapsed before federal troops were mobilized. Thomas Dorr, the leader of the rebellion, was captured, convicted of treason, and sentenced to life imprisonment. Dorr unsuccessfully sought relief on a writ of habeas corpus (see Ex Parte Dorr, 1845), although be was later pardoned and released During the fracas, Borden, a member of the state militia under the charter government, broke into the home of Luther, a supporter of the Dorr movement. Luther brought suit for trespass against Borden in the U.S. Circuit Court for the District of Rhode Island. Borden defended on the ground that he was acting pursuant to martial law. Luther countered that the act of the state legislature declaring martial law was invalid, since the charter government was no longer the legitimate government of the state. After a jury trial, the circuit court returned a verdict in favor of Borden, the defendant. Luther appealed to the Supreme Court on a writ of error Daniel Webster, the most famous lawyer of his time, argued the case on behalf of Luther in the Supreme Court. Nevertheless, the Supreme Court affirmed the Circuit Court's decision for Borden.

Mr. Chief Justice Taney delivered the opinion of the court.

... The Constitution of the United States, as far as it has provided for an emergency of this kind, and authorized the general government to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of that department.

The fourth section of the fourth article of the Constitution of the United States provides that the United States shall guarantee to every state in the Union a republican form of government, and shall protect each of them against invasion; and on the application of the legislature or of the executive (when the legislature cannot be convened) against domestic violence.

Under this article of the Constitution it rests with Congress to decide what government is the established one in a State. For as the United States guarantees to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the actors and representatives of a State are admitted into councils of the Union, the authority of the government under which they are appointed, as well republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and senators or representatives were elected under the authority of the government of which Mr. Dorr was the head, Congress was not called upon to decide the controversy. Yet the right to decide is placed there, and not in the courts.

So, too, as relates to the clause in the a mentioned article of the Constitution, providing cases of domestic violence. It rested with Congress too, to determine upon the means proper to be adopted to fulfill this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which required the federal government to interfere. But Congress though otherwise, and no doubt wisely; and by the act of February 28, 1795, provided, that, "in case of an insurrection in any State against the government therefore it shall be lawful for the President of the United States, on application of the legislature of such or of the executive, when the legislature cannot be convened, to call forth such number of the militia of any other State or States, as may be applied for, as he may judge sufficient to suppress such insurrection."

By this act, the power of deciding whether the exigency had risen upon which the government of the United States is bound to interfere, is given to the President. He is to act upon the application of the legislature, or of the executive, and consequently must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government, cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be insurrection against the lawful government. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress....

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would, be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a willful abuse of power as human prudence and foresight could well provide....

Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States.

This tribunal, therefore, should be the last to step the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution , it is equally its duty not to pass beyond its appropriated sphere of action, and to take care not to involve itself in discussions which properly belong to other forums. No one, we believe, has ever doubted the proposition, that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure. But whether they have changed it or not, abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision and to follow it....

Mr. Justice Woodbury, dissenting....

After petitioner Nixon, the Chief Judge of a Federal District Court, was convicted of federal crimes and sentenced to prison, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. Following proceedings pursuant to Senate Rule XI - which allows a committee of Senators to hear evidence against an impeached individual and to report that evidence to the full Senate , the Senate voted to convict Nixon, and the presiding officer entered judgment removing him from his judgeship. He then commenced the present suit for a declaratory judgment and reinstatement of his judicial salary and privileges, arguing that, because Senate Rule XI prohibits the whole Senate from taking part in the evidentiary hearings, it violates the first sentence of the Constitution's Impeachment Trial Clause, Art. I, § 3, cl. 6, which provides that the "Senate shall have the sole Power to try all Impeachments." The District Court held that his claim was nonjusticiable, i.e., involved a political question that could not be resolved by the courts. The Court of Appeals affirmed.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Walter L. Nixon, Jr., asks this court to decide whether Senate Rule XI, which allows a committee of Senators to hear evidence against an individual who has been impeached and to report that evidence to the full Senate, violates the Impeachment Trial Clause, Art. I, § 3, cl. 6. That Clause provides that the "Senate shall have the sole Power to try all Impeachments." But before we reach the merits of such a claim, we must decide whether it is "justiciable," that is, whether it is a claim that may be resolved by the courts. We conclude that it is not.

Nixon, a former Chief Judge of the United States District Court for the Southern District of Mississippi, was convicted by a jury of two counts of making false statements before a federal grand jury, and sentenced to prison. See United States v. Nixon, 816 F.2d 1022 (CA5 1987). The grand jury investigation stemmed from reports that Nixon had accepted a gratuity from a Mississippi businessman in exchange for asking a local district attorney to halt the prosecution of the businessman's son. Because Nixon refused to resign from his office as a United States District Judge, he continued to collect his judicial salary while serving out his prison sentence. * * *

On May 10, 1989, the House of Representatives adopted three articles of impeachment for high crimes and misdemeanors. The first two articles charged Nixon with giving false testimony before the grand jury, and the third article charged him with bringing disrepute on the Federal Judiciary. * * *

After the House presented the articles to the Senate, the Senate voted to invoke its own Impeachment Rule XI, under which the presiding officer appoints a committee of Senators to "receive evidence and take testimony." * * * Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a report stating the uncontested facts and summarizing the evidence on the contested facts. * * * Nixon and the House impeachment managers submitted extensive final briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. Nixon himself gave a personal appeal, and several Senators posed questions directly to both parties. * * * The Senate voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles. * * * The presiding officer then entered judgment removing Nixon from his office as United States District Judge.

Nixon thereafter commenced the present suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to "try" all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings. See Art. I, § 3, cl. 6. Nixon sought a declaratory judgment that his impeachment conviction was void, and that his judicial salary and privileges should be reinstated. The District Court held that his claim was nonjusticiable ... and the Court of Appeals for the District of Columbia Circuit agreed. * * *

A controversy is nonjusticiable ... i.e., involves a political question ... where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it. . . ." * * * But the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed. * * * As the discussion that follows makes clear, the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.

In this case, we must examine Art. I, § 3, cl. 6, to determine the scope of authority conferred upon the Senate by the Framers regarding impeachment. It provides:
 
 

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, ... the Chief Justice shall preside: And no Person shall be convicted ... without the Concurrence of two thirds of the Members present."

The language and structure of this Clause are revealing. The first sentence is a grant of authority to the Senate, and the word "sole" indicates that this authority is reposed in the Senate, and nowhere else. The next two sentences specify requirements to which the Senate proceedings shall conform: the Senate shall be on oath or affirmation, a two-thirds vote is required to convict, and when the President is tried the Chief Justice shall preside.

Petitioner argues that the word "try" in the first sentence imposes by implication an additional requirement on the Senate, in that the proceedings must be in the nature of a judicial trial. From there petitioner goes on to argue that this limitation precludes the Senate from delegating to a select committee the task of hearing the testimony of witnesses, as was done pursuant to Senate Rule XI. "[T]ry" means more than simply "vote on" or "review" or "judge." In 1787 and today, trying a case means hearing the evidence, not scanning a cold record. * * * Petitioner concludes from this that courts may review whether or not the Senate "tried" him before convicting him.

There are several difficulties with this position which lead us ultimately to reject it. The word "try," both in 1787 and later, has considerably broader meanings than those to which petitioner would limit it. Older dictionaries define try as "[t]o examine" or "[t]o examine as a judge." See 2 S. Johnson, A Dictionary of the English Language (1785). In more modern usage, the term has various meanings. For example, try can mean "to examine or investigate judicially," "to conduct the trial of," or "to put to the test by experiment, investigation, or trial." Webster's Third New International Dictionary 2457 (1971). Petitioner submits that "try," as contained in T. Sheridan, Dictionary of the English Language (1796), means "to examine as a judge; to bring before a judicial tribunal." Based on the variety of definitions, however, we cannot say that the Framers used the word "try" as an implied limitation on the method by which the Senate might proceed in trying impeachments. "As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require. . . ."

The conclusion that the use of the word "try" in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate's actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: the members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word "try" in the first sentence.

Petitioner devotes only two pages in his brief to negating the significance of the word "sole" in the first sentence of Clause 6. As noted above, that sentence provides that "[t]he Senate shall have the sole Power to try all Impeachments." We think that the word "sole" is of considerable significance. Indeed, the word "sole" appears only one other time in the Constitution ... with respect to the House of Representatives' "sole Power of Impeachment." Art. I, § 2, cl. 5 (emphasis added). The common sense meaning of the word "sole" is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted. The dictionary definition bears this out. "Sole" is defined as "having no companion," "solitary," "being the only one," and "functioning . . . independently and without assistance or interference." * * * If the courts may review the actions of the Senate in order to determine whether that body "tried" an impeached official, it is difficult to see how the Senate would be "functioning . . . independently and without assistance or interference."

Nixon asserts that the word "sole" has no substantive meaning. To support this contention, he argues that the word is nothing more than a mere "cosmetic edit" added by the Committee of Style after the delegates had approved the substance of the Impeachment Trial Clause. There are two difficulties with this argument. First, accepting as we must the proposition that the Committee of Style had no authority from the Convention to alter the meaning of the Clause, * * * we must presume that the Committee's reorganization or rephrasing accurately captured what the Framers meant in their unadorned language. * * * That is, we must presume that the Committee did its job. This presumption is buttressed by the fact that the Constitutional Convention voted on, and accepted, the Committee of Style's linguistic version. * * * We agree with the Government that "the word `sole' is entitled to no less weight than any other word of the text, because the Committee revision perfected what `had been agreed to.'" * * * Second, carrying Nixon's argument to its logical conclusion would constrain us to say that the second to last draft would govern in every instance where the Committee of Style added an arguably substantive word. Such a result is at odds with the fact that the Convention passed the Committee's version, and with the well established rule that the plain language of the enacted text is the best indicator of intent.

Petitioner also contends that the word "sole" should not bear on the question of justiciability because Art. II, § 2, cl. 1, of the Constitution grants the President pardon authority "except in Cases of Impeachment." He argues that such a limitation on the President's pardon power would not have been necessary if the Framers thought that the Senate alone had authority to deal with such questions. But the granting of a pardon is in no sense an overturning of a judgment of conviction by some other tribunal; it is "[a]n executive action that mitigates or sets aside punishment for a crime." * * * Authority in the Senate to determine procedures for trying an impeached official, unreviewable by the courts, is therefore not at all inconsistent with authority in the President to grant a pardon to the convicted official. The exception from the President's pardon authority of cases of impeachment was a separate determination by the Framers that executive clemency should not be available in such cases.

Petitioner finally argues that, even if significance be attributed to the word "sole" in the first sentence of the clause, the authority granted is to the Senate, and this means that "the Senate - not the courts, not a lay jury, not a Senate Committee - shall try impeachments." * * * It would be possible to read the first sentence of the Clause this way, but it is not a natural reading. Petitioner's interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the conclusion that the word "Senate" has imposed by implication limitations on procedures which the Senate might adopt. Such limitations would be inconsistent with the construction of the Clause as a whole, which, as we have noted, sets out three express limitations in separate sentences.

The history and contemporary understanding of the impeachment provisions support our reading of the constitutional language. The parties do not offer evidence of a single word in the history of the Constitutional Convention or in contemporary commentary that even alludes to the possibility of judicial review in the context of the impeachment powers. * * * This silence is quite meaningful in light of the several explicit references to the availability of judicial review as a check on the Legislature's power with respect to bills of attainder, ex post facto laws, and statutes.

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios, the power was placed with the Federal Judiciary. * * * Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. * * * Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to Try all Impeachments." Art. I, § 3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depository of this important trust" because its members are representatives of the people. * * * The Supreme Court was not the proper body, because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature - the people's representative. * * * In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses - the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments:

"Would it be proper that the persons who had disposed of his fame and his most valuable rights as a citizen in one trial should, in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?"

* * *

Certainly judicial review of the Senate's "trial" would introduce the same risk of bias as would participation in the trial itself.

Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. * * *

Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive, because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. * * * Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that, if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. * * * This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that, "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." * * *

In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. * * * We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." * * * This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim?

Petitioner finally contends that a holding of nonjusticiability cannot be reconciled with our opinion in Powell v. McCormack, 395 U.S. 486 (1969). The relevant issue in Powell was whether courts could review the House of Representatives' conclusion that Powell was "unqualified" to sit as a Member because he had been accused of misappropriating public funds and abusing the process of the New York courts. We stated that the question of justiciability turned on whether the Constitution committed authority to the House to judge its members' qualifications, and if so, the extent of that commitment. * * * Article I, § 5 provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." In turn, Art. I, § 2 specifies three requirements for membership in the House: the candidate must be at least 25 years of age, a citizen of the United States for no less than seven years, and an inhabitant of the State he is chosen to represent. We held that, in light of the three requirements specified in the Constitution, the word "qualifications" - of which the House was to be the Judge - was of a precise, limited nature. * * *

Our conclusion in Powell was based on the fixed meaning of "[q]ualifications" set forth in Art. I, ? 2. The claim by the House that its power to "be the Judge of the Elections, Returns and Qualifications of its own Members" was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not.

In the case before us, there is no separate provision of the Constitution which could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in the Impeachment Trial Clause. We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, "whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution." * * * But we conclude, after exercising that delicate responsibility, that the word "try" in the Impeachment Clause does not provide an identifiable textual limit on the authority which is committed to the Senate.

For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.

The plaintiff, the Commonwealth of Massachusetts, attempted to bring suit against Melvin Laird, the Secretary of defense during the Nixon administration, seeking to challenge the constitutionality, of the Vietnam War. At issue before the Court is whether to grant the Commonwealth's motion to file a complaint. Students should note that this case comes under the original, as opposed to the appellate, jurisdiction of the Supreme Court. Although the Court denies the motion to file a complaint, Justice Douglas's dissenting opinion is noteworthy for its activist approach to constitutional adjudication.

Memorandum.

The motion for leave to file a bill of complaint is denied.

Mr. Justice Douglas, dissenting.

This motion was filed by the Commonwealth of Massachusetts against the Secretary of Defense, a citizen of another State. It is brought pursuant to a mandate contained in an act of the Massachusetts Legislature. *** Massachusetts seeks to obtain an adjudication of the constitutionality of the United States' participation in the Indochina war. It requests that the United States' participation be declared "unconstitutional in that it was not initially authorized or subsequently ratified by Congressional declaration"; it asks that the Secretary of Defense be enjoined "from carrying out, issuing, or causing to be issued any further orders which would increase the present level of United States troops in Indochina" and it asks that, if appropriate congressional action is not forthcoming within 90 days of this Court's decree, that the Secretary of Defense be enjoined "from carrying out, issuing, or causing to be issued any further order directing any inhabitant of the Commonwealth of Massachusetts to Indochina for the purpose of participating in combat or supporting combat troops in the Vietnam war." Today this Court denies leave to file the complaint. I dissent.

The threshold issues for granting leave to file a complaint in this case are standing and justiciability. At the very least, however, it is apparent that the issues are not so clearly foreclosed as to justify a summary denial of leave to file.

STANDING

In Massachusetts v. Mellon [ 1923], *** the Court held a State lacked standing to challenge, as parens patriate [guardian of its citizens], a federal grant-in-aid program under which the Federal Government was allegedly usurping powers reserved to the States ...

... [The ruling of the Court in that case is not dispositive of this one. The opinion states "we need not go so far as to say that a state may never intervene by suit to protect its citizen's against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here." *** Thus the case did not announce a per se rule to bar all suits against the Federal Government as parens patriae....

Mellon relates to an Act of Congress signed by the Executive, a distinction noted in other original actions. ***

Massachusetts attacks no federal statute. In fact, the basis of Massachusetts' complaint is the absence of congressional action.

It is said that the Federal Government "represents" the citizens, Here the complaint is that only one representative of the people, the Executive, acted and the other representatives of the citizens have not acted, although, it is argued, the Constitution provides that they must act before an overseas "war" can be conducted....

In South Carolina v Katzenbach, [1965] *** we denied standing to South Carolina to assert claims under the Bill of Attainder Clause of Article I and principle of separation of powers which were regarded "only as protections for individual persons and private groups who are particularly vulnerable to nonjudicial determinations of guilt." *** Yet we went on to allow South Carolina to challenge the Voting Rights Act of 1965 as beyond congressional power under the Fifteenth Amendment.

The main interest of South Carolina was in the continuing operation of her election laws. Massachusetts' claim to standing in this case is certainly as strong as South Carolina's was in the Katzenbach case.

Massachusetts complains, as parens patriae, that her citizens are drafted and sent to fight in an unconstitutional overseas war. Their lives are in jeopardy. Liberty is impaired.... The allegation in .. Mellon... was that Congress had exceeded the general powers delegated to it by Art 1, § 8, and invaded the reserved powers of the States under the Tenth Amendment claim was not specific.... Here Massachusetts points to.; a specific provision of the Constitution. Congress by Art 1, § 8, has the power "To declare War." ...

... [It] has been settled at least since 1901 that if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them." *** Those cases involved, injury to inhabitants of one State by water pollution of another State, by interference with navigation, by economic losses caused by an out-of-state agency, and the like. The harm of citizens of Massachusetts suffered by being drafted for a war are certainly of no less a magnitude. Massachusetts clearly seems to have standing as parens patriae to represent, as alleged in its complaint, its male citizens being drafted for overseas combat in Indochina.

JUSTICIABILITY

A question that is "political" is opposed to one that is "justiciable". In reviewing the dimensions of the "political" question we said in Baker v Carr, ***

... Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a counts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department. At issue here is the phrase in Art I, § 8, cl 11: "To declare War." Congress definitely has that power. The Solicitor General argues that only Congress can determine whether it has that power. The Solicitor General argues that only Congress can determine whether it has declared war. He states, "'To declare War" includes a power to determine, free of judicial interference, the form which its authorization of hostilities will take." This may be correct. But as we stated in Powell v McCormack [ 1969], *** the question of a textually demonstrable commitment and "what is the scope of such commitment are question [this Court] ... must resolve." *** It may well be that it is for Congress, and Congress alone, to determine the form of its authorization, but if that is the case we should only make that determination after full briefs on the merits and oral argument.

2. A lack of judicially discoverable and manageable standards for resolving the issue. The standards that are applicable are not elusive. The case is not one where the Executive is repelling a sudden attack. The present Indochina "war" has gone on for six years. The question is whether the Gulf of Tonkin Resolution was a declaration of war or whether other acts of Congress were its equivalent.

3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. In Ex parte Milligan [1866] *** (concurring opinion), it was stated that "neither can the President, in war more than in peace, intrude upon the proper authority of Congress. . . ." That issue in this case is not whether we ought to fight a war in Indochina but whether the Executive can authorize it without congressional authorization. This is not a case where we would have to determine the wisdom of any policy.

4. The impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government. The Solicitor General argues it show would disrespect of the Executive to go behind his statements and determine his authority to act in these circumstances. Both Powell and the Steel Seizure Case [1952], *** however, demonstrate that the duty of this Court is to interpret the Constitution, and in the latter case we go behind an executive order to determine authority. ***

It is far more important to be respectful to the Constitution than to a coordinate branch of government.

5. An unusual need for unquestioning adherence to a political decision already made. This test is essentially a reference to a commitment problem and its solution to a coordinate branch of government.

6. The potentiality of embarrassment from multifarious pronouncements by various departments of government on one question. Once again this relates back to whether the problem and its solution are committed to a given branch of government.

We have never ruled, I believe, that when the federal Government takes a person by the neck and submits him to punishment, imprisonment, taxation, or submission to some ordeal, the complaining person may not be heard in court. The rationale in cases such as the present is that government cannot take life, liberty, or property of the individual and escape adjudication by the courts of the legality of its action.

That is the heart of this case. It does not concern the wisdom of fighting in Southeast Asia. Likewise no question of whether the conflict is either just or necessary is present. We are asked instead whether the Executive has power, absent a congressional declaration of war, to commit Massachusetts citizens in armed hostilities on foreign soil. Another way of putting the question is whether under our Constitution presidential wars are permissible. Should that question be answered in the negative we would then have to determine whether Congress has declared war. That question which Massachusetts presents is in my view justiciable....

"The war power of the United States like its other powers ... is subject to constitutional limitations." *** No less than the war power - the greatest leveler of them all - is the power of the Commander-in-Chief subject to constitutional limitations....

This Court has previously faced issues of presidential war making. The legality of Lincoln's blockade was considered in the Prize Cases [1863] *** and although the Court narrowly split in supporting the President's position, the split was on the merits, not on whether the claim was justiciable. And even though that war was the Civil War and not one involving an overseas expedition, the decision was 5 to 4.

In the Steel Seizure Case, members of this Court wrote seven opinions and each reached the merits of the Executive's seizure. In that case, as here, the issue related to the President's powers as Commander-in-Chief and the fact that all nine justices decided the case on the merits and construed the powers of a coordinate branch at a time of extreme emergency should be instructive....

If we determine that the Indochina conflict is unconstitutional because it lacks a congressional declaration of war, the Chief Executive is free to see one, as was President Truman free to seek congressional approval after our Steel Seizure decision.

There is, of course, a difference between this case and the Prize Cases and the Steel Seizure Case. In those cases a private party was asserting a wrong to him: his property was being taken and he demanded a determination of the legality of the taking. Here lives and liberties of Massachusetts citizens are in jeopardy. Certainly the Constitution gives no greater protection to property than to life and liberty. It might be argued that the authority in the Steel Seizure Case was not textually apparent in the Constitution, while the power of the Commander-in-Chief to commit troops is obvious and therefore a different determination on justiciability is needed. The Cases, however, involved Lincoln's exercise of power in ordering a blockade by virtue of his powers as the Commander-in-Chief.

Since private parties - represented by Massachusetts as parens patriae - are involved in this case, the teaching of the Prize Cases and the Steel Seizure Case is that their claims are justiciable....

Today we deny a hearing to a State which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war.... The question of constitutional war is neither academic nor political." .. . it should be settled here and now.

I would set the motion for leave to file down for argument and decide the merits only after full argument.

Mr. Justice Harlan and Mr. Justice Stewart dissent. They would set this motion for argument on the questions of standing and justiciability.

Stockholders in the Alabama Power Company brought suit to block the sale of electric power by the Tennessee Valley Authority (M) to the Alabama Power Company. As part of their effort the stockholders challenged the constitutionality of the federal government's building the dam generating the electric power and the constitutionality of contracting to dispose of that power. The Court sustained the government on both counts. The excerpt reproduced below, referred to as the Ashwander Rules, is part of Justice Brandeis's concurring opinion pointing out opinion pointing out the importance of judicial restraint.

Mr. Justice Brandeis, concurring.

The Court has frequently called attention to "great gravity and delicacy" of its function in passing upon the validity of an act of Congress; and has restricted exercise of this function by rigid insist that the jurisdiction of federal courts is limited to actual cases and controversies; and that they have no power to give advisory opinions....

The Court developed, for its own government the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:

This case stems from a Senate investigation into allegations of misconduct in the Department of Justice.

As part of the investigation, a Senate special commit" subpoenaed Mally S. Daugherty, a bank president and brother of Attorney General Harry M Daugherty who had resigned as the investigation was beginning The witness failed to appear and was held in contempt of Congress. Daugherty sought relief on a writ of habeas corpus, challenging the authority of the Senate to compel his testimony.

Mr. Justice Van Devanter delivered the opinion of the court

The first of the principle questions, the one the Witness particularly presses on our attention, is ... whether the Senate - or the House of Representatives, both being on the same plane in this regard-has power, through its own process, compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.

The Constitution provides for a Congress, consisting of a Senate and House of Representatives, invests it with "all legislative powers" granted to United States, and with power "to make all I which shall be necessary and proper" for carrying into execution these powers and "all other powers vested by the Constitution in the United States or in any department or officer thereof. ... Other provisions show that, while bills can become laws only after being considered and passed by both houses of Congress, each house is to be distinct from the other, to have its own officers and rules, and to exercise its legislative function independently ... But there is no provision expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied.

In actual legislative practice, power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the [Gen. Arthur] St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry... [T]he Senate ... inquiry ordered in 1859 respecting the raid by John Brown and his adherents on the armory and arsenal of the United States at Harper's Ferry is of special significance. The resolution directing the inquiry authorized the committee to send for persons and papers, to inquire into the facts pertaining to the raid and the means by which it was organized and supported, and to report what legislation, if any, was necessary to preserve the peace of the country and protect the public property. The resolution was briefly discussed and adopted without opposition....

The state courts quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the purpose....

We have referred to the practice of the two houses of Congress, and we now shall notice some significant congressional enactments.... They show very plainly that Congress intended thereby (a) to recognize the power of either house to institute inquiries and evidence touching subjects within its jurisdiction on which it was disposed to act, (b) to recognize such inquiries may be conducted through committees; (c) to subject defaulting and contumacious to indictment and punishment in the courts and thereby to enable either house to exert the power of inquiry "more effectually"; and (d) to open the way for obtaining evidence in such an inquiry, which otherwise could not be obtained, by exempting witnesses required to give evidence therein from criminal and penal prosecutions in respect of matters disclosed by their evidence....

... [I]n Kilbourn v. Thompson *** (1880)... [t]he question there was whether the House of Representatives had exceeded its power in directing one of its committees to make a particular investigation. The decision was that it had. The principles announced and applied in the case are-that neither house of Congress possesses a "general power of making inquiry into the private affairs of the citizen"; that the power actually possessed is limited to inquiries relating to matters of which the particular house "has jurisdiction" and in respect of which it rightfully may take other action; that if the inquiry relates to "a matter wherein relief or redress could be had only by a judicial proceeding" it is not within the range of power, but must be left to the courts, conformably to the constitutional separation of governmental powers; and that for the purpose of determining the essential character of the inquiry recourse may be had to the resolution or order under which it is made....

... [In] In re Chapman *** (1896) . .. [t]he inquiry there in question was conducted under a resolution of the Senate and related to charges, published in the press, that Senators were yielding to corrupt influences in considering a tariff bill then before the Senate and were speculating in stocks the value of which would be affected by pending amendments bill. Chapman appeared before the committee in response to a subpoena, but refused to answer questions pertinent to the inquiry, and was indicted and convicted under the act of 1857 for his refusal. The court sustained the constitutional validity of the act of 1857, and, after referring to the constitutional vision empowering either house to punish its members for disorderly behavior and by a vote of two- thirds to expel a member, held that the inquiry related to the integrity and fidelity of Senators in the discharge of their duties, and therefore to a matter "within the range of the constitutional powers of the Senate" and in respect of which it could compel witnesses to appear and testify...

The latest case is Marshall v. Gordon *** (1916). The question there was whether the House of Representatives exceeded its power in punishing, as for a contempt of its authority, a person-not a member-who had written, published, and sent to the chairman of one of its committees an ill-tempered and irritating letter respecting the action and purposes of the committee. Power to make inquiries and obtain evidence by compulsory process was not involved. The court recognized distinctly that the House of Representatives has implied power to punish a person not a member for contempt, as was ruled in Anderson v Dunn, supra, but held that its action in this instance was without constitutional justification.

While these cases are not decisive of the question we are considering, they definitely settle two propositions which we recognize as entirely sound and having a bearing on its solution: One, that the two houses of Congress, in their separate relations, possess, not only such powers as are expressly granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express powers effective; and the other, that neither house is invested with "general" power to inquire into private affairs and compel disclosures, but only with such limited power of inquiry as is shown to exist when the rule of constitutional interpretation just stated is rightly applied....

We are of opinion that the power of inquiry - with process to enforce it - is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history...

We come now to the question whether it sufficiently appears that the purpose for which the witness's testimony was sought was to obtain information in aid of the legislative function. The court below answered the question in the negative and put its decision largely on this ground....

We are of opinion that the court's ruling on this question was wrong, and that it sufficiently appears, when the proceedings are rightly interpreted the object of the investigation and of the e secure the witness's testimony was to obtain information for legislative purposes.

It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show the subject to be investigated was the administration of the Department of Justice - whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrong doers; specific instances of alleged neglect being cited. Plainly the Subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under appropriations as in the judgment of Congress needed from year to year.

The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject-matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better, but in view of the particular subject-matter was not indispensable....

We conclude that the investigation was ordered for a legitimate object; that the witness wrongfully refused to appear and testify before the committee was lawfully attached; that the Senate is entitled to have him give testimony pertinent to the inquiry, either at its bar or before the committee; and the district court erred in discharging him from custody under the attachment....

What has been said requires that the final order in the district court discharging the witness from custody be reversed.

Mr. Justice Stone did not participate in the consideration or decision of the case.
 

Justice Jackson delivered the opinion of the Court.

...[Roscoe C. Filburn] for many years past has owned and operated a small farm in Montgomery County Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

In July of 1940, pursuant to the Agricultural Adjustment Act of 1938, as then amended, there were established for [Filburn's] 1941 crop a wheat acreage allotment of 11.1 acres and a normal yield of 20.1 bushels of wheat an acre. He was given notice of Such allotment in July of 1940 before the Fall planting of his 1941 crop of wheat, and again in July of 1941, before it was harvested. He sowed, however, 23 acres, and harvested from his 11.9 acres of excess acreage 239 bushels, which under the terms of the Act ... constituted farm marketing excess, subject to a penalty of 49 cents a bushel, or $117.11 in all. [Filburn] has not paid the penalty and he has not postponed or avoided it by storing the excess under regulations of the Secretary of Agriculture....

The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. Within prescribed limits and by prescribed standards the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms. Loans and payments to wheat farmers are authorized in stated circumstances.

The Act provides further that whenever it appears that the total supply of wheat as of the beginning of any marketing year ... will exceed a normal year's domestic consumption and export ... a compulsory national marketing quota shall be in effect with respect to the marketing of wheat.... [T]he Secretary must ... conduct a referendum of farmers who will be subject to the quota to determine whether they favor or oppose it; and if more than one third of the farmers voting in the referendum do oppose, the Secretary must prior to the effective date of the quota by proclamation suspend its operation....

Pursuant to the Act, the referendum of wheat growers was held on May 31, 1941. According to the required published statement of the Secretary of Agriculture, 81 per cent of those voting favored the marketing quota, with 19 per cent opposed....

It is urged that under the Commerce Clause of the Constitution, Article I, Sec. 8, clause 3, Congress does not possess the power it has in this instance to exercise. The question would merit little consideration since our decision in United States v Darby*** sustaining the federal power to regulate production of goods for commerce except for the this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm. The Act includes definition of "market" and its derivatives so that as related to wheat in addition to its conventional meaning also means to dispose of "by feeding (in any form) to poultry or livestock which are sold, or the products are sold, bartered, or exchanged, or to be so disposed of." Hence, marketing quotas not only embrace all that may be sold without penalty but also what may be consumed on the premises. Wheat produced on excess acreage is designated as "for marketing" as so defined and the penalty posed thereon. Penalties do not depend upon whether any part of the wheat either within or without the quota is sold or intended to be sold. The sum of this is that the Federal Government fixes a quota including all that the farmer may harvest for his own farm needs, and declares that wheat produced on excess acreage may neither be disposed of nor used except upon payment of the penalty or except it is stored as required by the Act or to the Secretary of Agriculture.

[Filburn] says that this is a regulation of production and consumption of wheat. Such activities he urges are, beyond the reach of congressional power under the Commerce Clause, since they are local in character, and their effects upon interstate commerce are at most "indirect." In answer the government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond regulation of marketing it is sustainable as "necessary and proper" implementation of the power of Congress over interstate commerce.

The Government's concern lest the Act to be held to a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions which might be understood to lay it down that activities such as "production," "manufacturing" and "mining" are strictly "local" and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as a matter of law, only "indirect." Even today when this power has been held to have great latitude there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with subjects thereof. We believe that a review of the course decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference ;or any formula which would give controlling force to nomenclature such as "production" and "indirect" and foreclose consideration of the actual effects of the activity in question upon interstate commerce.

,At the beginning Chief justice Marshall described -the federal commerce power with a breadth never yet exceeded. *** He made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes. ***

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. In discussion and decision the point of reference, instead of being what was "necessary and proper" to the exercise by Congress of its granted power, was often some concept of sovereignty thought to be implicit in the status of statehood. Certain activities such as "production;' "manufacturing," and "mining" were occasionally to be within the province of state governments and beyond the power of Congress under Commerce Clause.

It was not until 1887 with the enactment of Interstate Commerce Act that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the Court to approach the interpretation of the Commerce Clause in the light of an actual exercise by Congress of its power thereunder.

When it first dealt with this new legislation, the Court adhered to its earlier pronouncements, and all but little scope to the power of Congress. *** ...

Even while important opinions in this line of restrictive authority were being written, how other cases called forth broader interpretation of the Commerce Clause destined to supersede the earlier ones,-and to bring about a return to the principles first enunciated by Chief Justice Marsh Gibbons v. Ogden. *** ...

The Court's recognition of the relevance of economic effects in the application of the Commerce Clause ... has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be "production" nor can consideration of its economic effects be closed by calling them "indirect."...

Whether the subject of the regulation in question was "production," "consumption;' or "marketing" is therefore, not material for purposes of deciding the question of federal power before us. That an activity is of local character may help in a doubtful case to determine whether Congress intended to reach it. The same consideration might help in determining whether in the absence of congressional action it would be permissible for the state to exert its power on the subject matter, even though in so doing to some degree affected interstate commerce. But if [Filburn's] activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, an irrespective of whether such effect is what at some earlier time have been defined as "direct" or indirect."

The wheat industry has been a problem industry for some years.... The decline in the export trade has left a large surplus in production which in connection with an abnormally large supply of wheat and other grains in recent years caused congestion in a number of markets; tied up railroad cars; and caused elevators in some instances to turn away grains, and railroads to institute embargoes to prevent further congestion....

In the absence of regulation the price of wheat in the United States would be much affected by world conditions....

The effect of consumption of home-grown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. Consumption on the farm where grown appears to vary in an amount greater than 20 per cent of average production. The total amount of wheat consumed as food varies but relatively little, and use as seed is relatively constant.

The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply. The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That [Filburn's] own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial, ***

It is well established by decisions of this Court that the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices. One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on and market conditions. This may arise because being in marketable condition such wheat overhangs the market and if induced by rising prices tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm grown if wholly outside the scheme of regulation would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices.

It is said, however, that this Act, forcing farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process. Such conflicts rarely lend themselves to judicial determination. And with the wisdom, workability, or fairness, of the plan of regulation we have nothing to do....

During the Civil War, Congress adopted an income tax that was upheld by the Supreme Court in Springer v. United States, 102 US 586 (1881). In 1894. Congress passed another income tax measure, levying a tax of two percent on income in excess of $4,000. Charles Pollock, a stockholder in Farmers' Loan & Trust Co., filed suit to enjoin the bank from paying the tax on the grounds that it was a direct taxation, prohibited by Article 1, Section 9 of the US Constitution, and that it was a denial of his property rights under the due process clause of the Fifth Amendment. When the case was originally heard, one Justice was absent with an illness. Six of the eight remaining Justices agreed that the income tax levied on land violated Article 1, Section 9. But, they were evenly divided over the question whether income from personal property was a direct tax. After the ruling was handed down, Pollock's attorney petitioned for a rehearing. Upon rehearing, a 5-4 majority invalidated the Federal system of income taxes as unconstitutional.

Mr. Chief Justice Fuller delivered the opinion of the Court:

Whenever this court is required to pass upon the validity of an act of Congress as tested by the fundamental law enacted by the people, the duty imposed demands in its discharge the utmost deliberation and care, and invokes the deepest sense of responsibility. And this is especially so when the question involves the exercise of a great governmental power, and brings into consideration, as vitally affected by the decision, that complex system of government, so sagaciously framed to secure and perpetuate "an indestructible Union, composed of indestructible States."

* * * The very nature of the Constitution, as observed by Chief Justice Marshall, in one of his greatest judgments, "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves." "In considering this question, then, we must never forget, that it is a Constitution that we are expounding." * * *

[T]he Constitution divided Federal taxation into two great classes, the class of direct taxes, and the class of duties, imposts, and excises; and prescribed two rules which qualified the grant of power to each class.

The power to lay direct taxes apportioned among the several states in proportion to their representation in the popular branch of Congress, a representation based on population as ascertained by the census, was plenary and absolute; but to lay direct taxes without apportionment was forbidden. The power to lay duties, imposts, and excises was subject to the qualification that the imposition must be uniform throughout the United States.

* * * The words of the Constitution are to be taken in their obvious sense, and to have a reasonable construction. In Gibbons v. Ogden, Mr. Chief Justice Marshall, with his usual felicity, said: "As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it must have understood to have employed words in their natural sense, and to have intended what they said." * * * And in Rhode Island v. Massachusetts, where the question was whether a controversy between two States over the boundary between them was within the grant of judicial power, Mr. Justice Baldwin, speaking for the court, observed: "The solution of this question must necessarily depend on the words of the Constitution; the meaning and intention of the convention which framed and proposed it for adoption and ratification to the conventions of the people of and in the several States; together with a reference to such sources of judicial information as are resorted to by all courts in construing statutes, and to which this court has always resorted in construing the Constitution." * * *

We know of no reason for holding otherwise than that the words "direct taxes," on the one hand, and "duties, imposts and excises," on the other, were used in the Constitution in their natural and obvious sense. Nor, in arriving at what those terms embrace, do we perceive any ground for enlarging them beyond, or narrowing them within, their natural and obvious import at the time the Constitution was framed and ratified.

And, passing from the text, we regard the conclusion reached as inevitable, when the circumstances which surrounded the convention and controlled its action and the views of those who framed and those who adopted the Constitution are considered.

* * * In the light of the struggle in the convention as to whether or not the new Nation should be empowered to levy taxes directly on the individual until after the States had failed to respond to requisitions - a struggle which did not terminate until the amendment to that effect, proposed by Massachusetts and concurred in by South Carolina, New Hampshire, New York, and Rhode Island, had been rejected - it would seem beyond reasonable question that direct taxation, taking the place as it did of requisitions, was purposely restrained to apportionment according to representation, in order that the former system as to ratio might be retained, while the mode of collection was changed.

* * * The reasons for the clauses of the Constitution in respect of direct taxation are not far to seek. The States, respectively, possessed plenary powers of taxation. They could tax the property of their citizens in such manner and to such extent as they saw fit; they had unrestricted powers to impose duties or imposts on imports from abroad, and excises on manufactures, consumable commodities, or otherwise. They gave up the great sources of revenue derived from commerce; they retained the concurrent power or levying excises, and duties if covering anything other than excises; but in respect of them the range of taxation was narrowed by the power granted over interstate commerce, and by the danger of being put at disadvantage in dealing with excises on manufactures. They retained the power of direct taxation, and to that they looked as their chief resource; but even in respect of that, they granted the concurrent power, and if the tax were placed by both governments on the same subject, the claim of the United States had preference. Therefore, they did not grant the power of direct taxation without regard to their own condition and resources as States; but they granted the power of apportioned direct taxation, a power just as efficacious to serve the needs of the general government, but securing to the States the opportunity to pay the amount apportioned, and to recoup from their own citizens in the most feasible way, and in harmony with their systems of local self-government.

The founders anticipated that the expenditures of the States, their counties, cities, and towns, would chiefly be met by direct taxation on accumulated property, while they expected that those of the Federal government would be for the most part met by indirect taxes. And in order that the power of direct taxation by the general government should not be exercised, except on necessity; and, when the necessity arose, should be so exercised as to leave the States at liberty to discharge their respective obligations, and should not be so exercised, unfairly and discriminately, as to particular States or otherwise, by a mere majority vote, possibly of those whose constituents were intentionally not subjected to any part of the burden, the qualified grant was made. Those who made it knew that the power to tax involved the power to destroy, and that, in the language of Chief Justice Marshall, in McCulloch v. Maryland, "the only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient way against erroneous and oppressive taxation." * * * They retained this security by providing that direct taxation and representation in the lower house of Congress should be adjusted on the same measure.

Moreover, whatever the reasons for the constitutional provisions, there they are, and they appear to us to speak in plain language.

It is said that a direct tax on the whole income of property is not a direct tax in the meaning of the Constitution, but a duty, and, as a duty, leviable without apportionment, whether direct or indirect. We do not think so. Direct taxation was not restricted in one breath, and the restriction blown to the winds in another. * * * In the Constitution, the words "duties, imposts and excises" are put in antithesis to direct taxes. * * *

Our conclusions may, therefore, be summed up as follows:

First. We adhere to the opinion already announced, that, taxes on real estate being indisputably direct taxes, taxes on the rents or income of real estate are equally direct taxes.

Second. We are of the opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes.

Third. The tax [at issue], so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitutional and void because not apportioned according to representation ... are necessarily invalid. * * *

Chief Justice Burger delivered the opinion of the Court.

The question presented by these appeals is whether the assignment by Congress to the Comptroller General of the United States of certain functions under the Balanced Budget and Emergency Deficit Control Act of 1985 violates the doctrine of separation of powers.

On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, *** popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maximum deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to non-defense programs. The Act exempts certain priority programs from these cuts. ***

These "automatic" reductions are accomplished through a rather complicated procedure, spelled out in Sec. 251, the so-called "reporting provisions" of the Act. Each year, the Director of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) independently estimate the amount of the federal budget deficit for the upcoming fiscal year. If that deficit exceeds the maximum target deficit amount for that fiscal year by more than a specified amount, the Directors of OBM and CBO independently calculate, on a program-by-program basis, the budget reductions necessary to ensure the deficit does not exceed the maximum amount. The Act then requires the Directors to report jointly their deficit estimates and budget reduction calculations to the Comptroller General.

The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. *** The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General.*** There follows a period during which Congress may by legislation reduce spending to obviate in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made....

Within hours of the President's signing of the Act, Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that the members had been injured as a result of the Act=s automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members....

The District Court rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in Yakus v. United States***(1944), this court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities.@ Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate 'intelligible principle' to guide and confine administrative decision-making." ***

Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States*** (1926) and Humphrey's Executor v. United States *** (1935). Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. *** The District Court therefore held that "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are central cannot be implemented." ***

Appeals were taken directly to this Court.... We noted probable jurisdiction and expedited consideration of the appeals. *** We affirm.

We noted recently that A[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial.*** The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power better to secure liberty." ***

That this system of division and separation of powers produces conflicts, confusion, and discordance at times is inherent, but it was deliberately so structured to assure full, vigorous and open debate on the great issues affecting the people and to provide avenues for the operation of checks on the exercise of governmental power.

The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States@ with the advice and Consent of the Senate. *** Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Article II, Sec. 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers....

This Court first directly addressed this issue in Myers v. United States *** (1925). At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power ... would be ... to infringe the constitutional principle of the separation of governmental powers." ***

A decade later, in Humphrey's Executor v. United States *** (1935), relied upon heavily by appellants, Federal Trade Commissioner who had been removed by the President sought back pay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case - i.e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." *** The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional....

In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed, "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.

To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory to Congress. This kind of congressional control over the execution of the laws, Chadha makes clear, is constitutionally impermissible.

The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." *** Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." *** With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress.

Appellants urge that the Comptroller General performs his duties independently and is not subservient to Congress. We agree with the District Court that this contention does not bear close scrutiny.

The critical factor lies in the provisions of the statute defining the Comptroller General's Office relating to removability. Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, *** and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint Resolution of Congress....

Although the President could veto such a joint resolution, the veto could be overridden by a two-thirds vote of both Houses of Congress. Thus, the Comptroller General could be removed in the face of Presidential opposition. Like the District Court, we therefore read the removal provision as authorizing removal by Congress alone....

It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." *** Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." ***

Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch....

Against this background, we see no escape from the conclusion that, because Congress had retained removal authority over the Comptroller General, he may not be entrusted with executive powers. The remaining question is whether the Comptroller General has been assigned such powers in the Balanced Budget and Emergency Deficit Control Act of 1985.

The primary responsibility of the Comptroller General under the instant Act is the preparation of a "report." This report must contain detailed estimates of projected federal revenues and expenditures. The report must also specify the reductions, if any, necessary, to reduce the deficit to the target for the appropriate fiscal year. The reductions must be set forth on a program-by-program basis.

In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Directory of CBO and the Director of OMB, the President's fiscal and budgetary advisor. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." ***

...[T]he Act ... gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the director of the Comptroller General as to the budget reductions:

The [Presidential] order must provide for reductions in the manner specified, *** must incorporate the provisions of [Comptroller General's] report, and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under Sec. 251 (b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account....***

Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly- by passing new legislation. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion....

Because we conclude that the Comptroller General, as an officer removable by Congress, may not exercise the powers conferred upon him by the Act, we have no occasion for considering appellees= other challenges to the Act, including their argument that the assignment of powers to the Comptroller General ... violates the delegation doctrine.***

No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives-or the hallmarks-of democratic government...."

We conclude the District Court correctly held that the powers vested in the Comptroller General under Sec. 251 violate the command of the Constitution that the Congress play no direct role in the execution of the laws. Accordingly, the judgment and order of the District Court are affirmed....
 
 

Justice Stevens, with whom Justice Marshall joins, concurring in the judgment.

When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons. I agree with the Court that the "Gramm-Rudman-Hollings@ Act contains a constitutional infirmity so severe that the flawed provision may not stand. I disagree with Court, however, on the reasons why the Constitution prohibits the Comptroller General from exercising the powers assigned to him by . .. the Act. It is not the dormant, carefully circumscribed congressional removal power represents the primary constitutional evil. Nor do I agree with the conclusion of both the majority and the dissent that the analysis depends on a labeling of the functions assigned to the Comptroller General as "executive powers." *** Rather, I am convinced that the Comptroller General must be characterized as an agent of Congress because of his longstanding statutory responsibilities; that the powers assigned to him under the Gramm-Rudman-Hollings Act require him to make policy that will bind the Nation; and that, when Congress, or a component or an agent of Congress, seeks to make policy that will bind the Nation, it must follow the procedures mandated by Article I of the Constitution - through passage by both Houses and presentment to the President. In short, Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of the Congress such as the Speaker of the House of Representatives, the Sergeant at Arms of the Senate, or the Director of the Congressional Budget Office. ***That principle, I believe, is applicable to the Comptroller General....

Justice White, dissenting.

The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal. The basis of the Court's action is a solitary provision of another statute that was passed over sixty years ago and has lain dormant since that time. I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers have rested on untenable constitutional propositions leading to regrettable results. *** Today's result is even more misguided. As I will explain, the Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers....

The majority's ... conclusion rests on the rigid dogma that, outside of the impeachment process, any "direct congressional role in the removal of officers charged with the execution of the laws ... is inconsistent with separation of powers." *** Reliance on such an unyielding principle to strike down a statute posing no real danger of aggrandizement of congressional power is extremely misguided and insensitive to our constitutional role. The wisdom of vesting "executive" powers in an officer removable by joint resolution may indeed by debatable - as may be the wisdom of the entire scheme of permitting an unelected official to revise the budget enacted by Congress-but such matters are for the most part to be worked out between the Congress and President through the legislative process, which affords each branch ample opportunity to defend its interests. The Act vesting budget-cutting authority in the Comptroller General represents Congress' judgement that the delegation of such authority to counteract ever-mounting deficits is "necessary and proper" to the exercise of the powers granted the Federal Government by the Constitution; and the President's approval of the statute signifies his unwillingness to reject the choice made by Congress. *** Under such circumstances, the role of this Court should be limited to determining whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law. Because I see no such threat, I cannot join the Court in striking down the Act.

I dissent. I

Justice Blackmun, dissenting.

The Court may be correct when it says that Congress cannot constitutionally exercise removal authority over an official vested with the budget-reduction powers that Sec. 251 of the Balanced Budget and Emergency Deficit Control Act of 1985 gives to the Comptroller General. This, however, is not because A[t]he removal powers over the Comptroller General's office dictate that he will be subservient to Congress." *** I agree with Justice White that any such claim is unrealistic. Furthermore, I think it is clear under Humphrey's Executor v. United States*** (1935), that "executive" powers of the kind delegated to the Comptroller General under the Deficit Control Act need not be exercised by an officer who serves at the President's pleasure; Congress certainly could prescribe the standards and procedures for removing the Comptroller General. But it seems to me that an attempt by Congress to participate directly in the removal of an executive officer - other than through the constitutionally prescribed procedure of impeachment - might well violate the principle of separation of powers by assuming for Congress part of the President's constitutional responsibility to carry out the laws.

In my view, however, that important and difficult question need not be decided in this case, because matter how it is resolved the plaintiffs, now appellees, are not entitled to the relief they have requested. Appellees have not sought invalidation of the 1921 provision that authorizes Congress to remove the Comptroller General by joint resolution; indeed, it is far from clear they would have standing to request such a judgment. The only relief sought in this case is nullification of the automatic budget-reduction provisions of the Deficit Control Act, and that relief should not be awarded even if the Court is correct that those provisions are constitutionally incompatible with Congress' authority to remove the Comptroller General by joint resolution. Any incompatibility, I feel, should be cured by refusing to allow congressional removal -if it ever is attempted - and not by striking down the central provisions of the Deficit Control Act. However wise or foolish it may be, that statute unquestionably ranks among the most important federal enactments of the past several decades. I cannot see the sense of

invalidating legislation of this magnitude in order to preserve a cumbersome, 65-year-old removal power that has never been exercised and appears to have been all but forgotten until this litigation....

JUSTICE STEVENS delivered the opinion of the Court.

The Line Item Veto Act (Act) ... was enacted in April 1996 and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. ... . In obedience to the statutory direction to allow a direct, expedited appeal to this Court, ... we promptly noted probable jurisdiction and expedited review. ... We determined, however, that the Members of Congress did not have standing to sue because they had not "alleged a sufficiently concrete injury to have established Article III standing. ***

Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, ... and two provisions in the Taxpayer Relief Act of 1997. ... Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, ... and we again expedited our review. ... We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. 1, §7, cl. 2, of the Constitution.

I

We begin by reviewing the canceled items that are at issue in these cases. Section 4722(c) of the Balanced Budget Act

Title XIX of the Social Security Act, ... as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. ... Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.

In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. ***

Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief On August 5, 1997, Congress enacted a law that resolved the issue in New York's favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they "are deemed to be permissible health care related taxes and in compliance with the requirements" of the relevant provisions of the 1991 statute.

On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling "one item of new direct spending," specifying §4722(c) as that item, and stating that he had determined that "this cancellation will reduce the Federal budget deficit." He explained that §4722(c) would have permitted New York "to continue relying upon impermissible provider taxes to finance its Medicaid program" and that " [t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment." 3 Section 968 of the Taxpayer Relief Act, a person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller; ... the seller's tax payment, therefore, is deferred. If, however, the purchaser is a farmers' cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members; ... thus, a seller dealing with a farmers' cooperative cannot obtain the benefits of tax deferral.

In § 968 of the Taxpayer Relief Act of 1997, Congress amended § 1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers' cooperatives. ...

The purpose of the amendment, ... was "to facilitate the transfer of refiners and processors to farmers' cooperatives." ...

The amendment to § 1042 was one of the 79 "limited tax benefits" authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as " subject to [the] line item veto. " ...

On the same date that he canceled the "item of new direct spending" involving New York's health care pro- grams, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging "value-added farming through the purchase by farmers' cooperatives of refiners or processors of agricultural goods," ... but concluded that the provision lacked safeguards and also "failed to target its benefits to small-and-medium-size cooperatives." ...

II

Appellees filed two separate actions against the President ... and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers' cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one of the plaintiffs in each had standing under Article III of the Constitution.

On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations "were different from those consented to by both Houses of Congress." ...

Moreover, the President violated Article I "when he unilaterally canceled provisions of duly enacted statutes." ...

As a separate basis for its decision, the District Court also held that the Act "impermissibly disrupts the balance of powers among the three branches of government

IV

The Line Item Veto Act gives the President the power to "cancel in whole" three types of provisions that have been signed into law: "(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit. " 2 U. S.C. § 691(a). ... It is undisputed that the New York case involves an "item of new direct spending" and that the Snake River case involves a "limited tax benefit" as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article 1, §7, of the Constitution before it was canceled

The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. ... He must determine, with respect to each cancellation, that it will "(i) reduce the Federal budget deficit, (ii) not impair any essential Government functions; and (iii) not harm the national interest." ... Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. ... It is undisputed that the President meticulously followed these procedures in these cases.

A cancellation takes effect upon receipt by Congress of the special message from the President. ... If, however, a "disapproval bill" pertaining to a special message is enacted into law, the cancellations set forth in that message become "null and void." ... The Act sets forth a detailed expedited procedure for the consideration of a "disapproval bill," ... but no such bill was passed for either of the cancellations involved in these cases. ...

A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, ... but he does, of course, retain his constitutional authority to veto such a bill. ...

The effect of a cancellation is plainly stated in §69 1 e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item "from having legal force or effect. " ...

Thus, under the plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 "from having legal force or effect." The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.

In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. " [R] epeal of statutes, no less than enactment, must conform with Art. 1. " INS v. Chadha, 462 U.S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article 11 assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. *** Thus, he may initiate and influence legislative proposals. ... Moreover, after a bill has passed both Houses of Congress, but "before it become[s] a Law," it must be presented to the President. If he approves it, "he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." ...

His "return" of a bill, which is usually described as a "veto," ... is subject to being overridden by a two-thirds vote in each House.

There are important differences between the President's "return" of a bill pursuant to Article 1, §7, and the exercise of the President's cancellation authority pursuant to the Line Item Veto Act. The constitutional return takes place before the bill becomes law; the statutory cancellation occurs after the bill becomes law. The constitutional return is of the entire bill; the statutory cancellation is of only a part. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral Presidential action that either repeals or amends parts of duly enacted statutes.

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, procedure. " ... Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto. " ...

What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed. ***

V

The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, ... the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items "is, in practical effect, no more and no less than the power to 'decline to spend' specified sums of money, or to 'decline to implement' specified tax measures." ... Neither argument is persuasive. ***

The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article 1, §7. The fact that Congress intended such a result is of no moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article 1, §7, without amending the Constitution. ...

Neither are we persuaded by the Government's contention that the President's authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. *** In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act's predecessors could even arguably have been construed to authorize such a change.

VI

Although they are implicit in what we have already written, the profound importance of these cases makes it appropriate to emphasize three points.

First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of "ensur[ing] greater fiscal accountability in Washington." ...

The text of the Act was itself the product of much debate and deliberation in both Houses of Congress *** and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution. ...

We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.

Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the "finely wrought" procedure commanded by the Constitution. ... We have been favored with extensive debate about the scope of Congress' power to delegate law-making authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act's cancellation provisions violate Article 1, §7, of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act "impermissibly disrupts the balance of powers among the three branches of government." ...

Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. ***

If there is to be a new procedure in which the President will play a different role in determining the final text of what may "become a law," such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. ...

The judgment of the District Court is affirmed.

Concerning the war powers of Congress and the President.

Resolved by the Senate and the House of Representatives of the United States of American in Congress Assembled.

Short Title

Section 1. This joint resolution may be cited as "War Powers Resolution."

Purpose and Policy

Sec. 2.(a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under Article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or by any department or officers thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Consultation

Sec. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

Reporting

Sec. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced -

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.

The President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth -

(A) the circumstances necessitating the introduction of United States Armed Forces;

(B) the constitutional and legislative authority under which such introduction took place; and

(C) the estimated scope and duration of the hostilities or involvement.

(b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad.

(c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continued to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months.

Congressional Action

Sec. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section.

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section (4)(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of the United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

(c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the Untied States, it possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Congressional Priority Procedures for Joint Resolution or Bill

Sec. 6 (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty-day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report on such joint resolution or bill, together with its recommendations, not later than twenty-four calendar days before the expiration of the sixty-day period specified in such section, unless such House shall otherwise determine by the yeas and nays.

(b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays.

Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty-day period specified in 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays.

(d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of the conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty-day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty-day period.

* * *

[Washington National and Dulles International are the only two major commercial airports owned by the U.S. Government. Because of its location near the center of the Washington, D.C., metropolitan area, National is far more convenient and heavily used than Dulles. Flight paths over densely populated areas around these airports have caused many local residents to become concerned about aircraft safety, noise, and air pollution. In 1986, Congress passed a law transferring control of National and Dulles from the Department of Transportation to the Metropolitan Washington Airports Authority (MWAA). This entity, created by a compact between Virginia and the District of Columbia, was established to facilitate the financing and capital improvements at both airports through the sale of tax-exempt bonds. The MWAA as to be governed by an 11-member Board of Directors. Fearing that the relinquishment of federal control would result in the transfer of many commercial routes from National to Dulles, Congress added provisions to the 1986 act calling for the creation of a 9-member Board of Review consisting of Members of Congress who purportedly would serve on the Board in their "individual capacities." Among the powers vested in the Board of Review was the authority to veto decisions of the MWAA Board of Directors. In due course, the Board of Directors adopted a master plan providing for extensive new facilities at National. The Board of Review decided not to veto the plan. Local residents, including Citizens for the Abatement of Aircraft Noise (CAAN) brought suit in Federal court, alleging that the Board of Review's veto power was unconstitutional. The District Court ruled against CAAN, but the Court of Appeals reversed. The Supreme Court granted MWAA's Petition for Certiorari.]

Justice Stevens delivered the Opinion of the Court.

* * * [T]here is no question about federal power to operate airports. The question is whether the maintenance of the federal control over the airports by means of the Board of Review, which is allegedly a federal instrumentality, is invalid, not because it invades any state power, but because Congress' continued control violated the separation of powers principle. ... We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress.

Because National and Dulles are the property of the Federal Government and their operations directly affect interstate commerce, there is no doubt concerning the ultimate power of Congress to enact legislation defining the policies that govern those operations. Congress itself can formulate the details, or it can enact general standards and assign to the Executive Branch the responsibility for making necessary managerial decisions in conformance with those standards. The question presented is only whether the Legislature has followed a constitutionally acceptably procedure in delegating decisionmaking authority to the Board of Review.

The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches - the Legislative, the Executive, and the Judicial - placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed.

Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensitive to its responsibility to enforce the principle when necessary. [The Court now quotes from its decision in Morrison v. Olson (1988)]:

It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

The founders of our republic ... seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate, supported and fortified by an hereditary branch of the legislative authority. They seem never for a moment to have recollected the danger from legislative usurpations; which by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpation. ... [I]t is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.

The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not infrequently a question of real necessity in legislative bodies, whether the operation of a particular measure will, or will not extend beyond the legislative sphere. * * *

To forestall the danger of encroachment "beyond the legislative sphere," the Constitution imposes two basic and related constraints on the Congress. It may not "invest itself or its Members with either executive or judicial power." * * * And, when it exercises its legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified in Article I.
* * *

The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands ... (1928) and Bowsher v. Synar * * * (1986). Springer involved the validity of acts of the Philippine legislature that authorized a committee of three - two legislators and one executive - to vote corporate stock owned by the Philippine Government. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers principle, and because the challenged statute authorized two legislators to perform the executive function of controlling the management of the government-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher involved a delegation of authority to the Comptroller General to revise the federal budget. After concluding that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers. * * *

The second constraint is illustrated by our decision in [INS v]. Chadha. This case involved the validity of a statute that authorized either House of Congress by resolution to invalidate a decision by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same reason, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality because Congress many not delegate the power to legislate to its own agents or to its own Members.

Respondents [CAAN] rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint because the court was satisfied that the power exercised by the Board of Review over "key operational decisions is quintessentially executive." * * * We need not agree or disagree with this characterization by the Court of Appeals to conclude that the Board of Review's power is constitutionally impermissible. If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7. In short, when Congress "[takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and relations of persons ... outside the Legislative Branch," it must take that action by the procedures authorized in the Constitution. * * *

One might argue that the provision for a Board of Review is the kind of practical accommodation between the Legislature and the Executive that should be permitted in a "workable government." Admittedly, Congress imposed its will on the regional authority created by the District of Columbia and the Commonwealth of Virginia by means that are unique and that might prove to be innocuous. However, the statutory scheme challenged today provides a blue-print for extensive expansion of the legislative power beyond its constitutionally confined role. Given the scope of the federal power to dispense benefits to the States in a variety of forms and subject to a host of statutory conditions, Congress could, if this Board of Review were valid, use similar expedients to enable its Members or its agents to retain control, outside the ordinary legislative process, of the activities of state grant recipients charged with executing virtually every aspect of national policy. As James Madison presciently observed, the legislature "can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments." Heeding his warning that legislative "power is of an encroaching nature," we conclude that the Board of Review is an impermissible encroachment.

The Judgment of the Court of Appeals is affirmed.

Justice White, with whom The Chief Justice and Justice Marshall join, dissenting.

Today the Court strikes down yet another innovative and otherwise lawful governmental experiment in the name of separation of powers. To reach this result, the majority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Executive argue for the constitutionality of the arrangement which the Court invalidates. These efforts are untenable because they violate the "'cardinal principle that this Court will first ascertain whether a construction of [a] statute is fairly possible by which the [constitutional] question may be avoided.'" * * * They are also untenable because the Court's separation-of-powers cases in no way compel the decision the majority reaches.

I

For the first time in its history, the Court employs separation-of-powers doctrine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review "exercises sufficient federal power ... to mandate separation-of-powers scrutiny." This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986. * * * This unprecedented rationale is insufficient on at least two counts. The Court's reasoning fails first because it ignores the plain terms of every instrument relevant to this case. The Court further errs because it also misapprehends the nature of the Transfer Act as a lawful exercise of congressional authority under the Property Clause, U.S. Const. Art IV, sec. 3, cl. 2. ...

II

Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today's result whether the Board exercises executive or legislative power. * * * Yet never before has the Court struck down a body on separation-of-powers grounds that neither Congress nor the Executive oppose. It is absurd to suggest that the Board's power represents the type of "legislative usurpation ... which, by assembling all power in the same hands ... must lead to the same tyranny" than concerned the Framers. * * * More to the point, it is clear that the Board does not offend separation-of-powers principles either under our cases dealing with executive power or our decisions concerning legislative authority. * * *

III

The majority claims not to retreat from our settled rule that "'[w]hen this Court is asked to invalidate statutory provision that has been approved by both Houses of the congress and signed by the President, ... it should only do so for the most compelling constitutional reasons.'" * * * This rule should apply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state executives.

Since the "compelling constitutional reasons" on which we have relied in our past separation-of-powers decisions are insufficient to strike down the board, the Court has had to inflate those reasons needlessly to defend today's decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still less does it provide a "blueprint for extensive expansion of the legislative power beyond its constitutionally confined role." * * * This view utterly ignores the Executive's ability to protect itself through, among other things, the ample power of the veto. Should Congress ever undertake such improbable projects as transferring national parklands to the States on the condition that its agents control oversight ... there is little doubt that the President would be equal to the task of safeguarding his or her interests. Least of all, finally, can it be said that the Boar reflects "[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other department," that the Framers feared. * * * According, I dissent.

In 1967, after conducting public hearings pursuant to the Administrative Procedure Act, the Atomic Energy Commission (AEC) [now called the Nuclear Regulatory Commission] granted a license to Vermont Yankee Nuclear Power Corporation to operate a nuclear power plant. Over the objection of the Natural Resources Defense Council (NRDC), the licensing hearing did not consider the issue of the environmental effects of reprocessing spent nuclear fuel. In 1972, after conducting another hearing, the AEC issued a rule dealing with the issue of spent nuclear fuel. NRDC filed suit, challenging the adequacy of procedures that were followed in the AEC rule-making hearing. Specifically, NRDC argued that the hearing was inadequate in that it lacked full adjudicatory procedures, such as cross-examination of witnesses and discovery of evidence. The Court of Appeals for the District of Columbia Circuit agreed, holding that the procedures of the rule-making hearings did not constitute due process of law.

Mr. Justice Rehnquist delivered the Opinion of the Court.

In 1946, Congress enacted the Administrative Procedure Act, which as we have noted elsewhere was not only "a new basic and comprehensive regulation of procedures in many agencies ... but also a legislative enactment which settled "long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest." Section 553 of the Act, dealing with rulemaking, requires that "... notice of proposed rulemaking shall be published in the Federal Register ...," describes the contents of that notice, and goes on to require in subsection (c) that after the notice the agency "shall give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose," * * * Interpreting this provision of the Act in United States v. Allegheny-Ludlum Steel Corp. ... (1972), and United States v. Florida East Coast Railroad Co. ... (1973), we held that generally speaking this section of the Act established the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rulemaking procedures. Agencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them. This is not to say necessarily that there are no circumstances which would ever justify a court in overturning agency actions because of a failure to employ procedures beyond those required by the statute. But, such circumstances, if they exist, are extremely rare ...

It is in the light of this background of statutory and decisional law that we grated certiorari to review two judgments of the Court of Appeals for the District of Columbia Circuit because of our concern that they had seriously misread or misapplied this statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedure upon agencies entrusted with substantive functions of Congress ...

... [B]efore determining whether the Court of Appeals reached a permissible result, we must determine exactly what result it did reach, and in this case that is no mean feat. Vermont Yankee argues that the court invalidated the rule because of the inadequacy of the procedures employed in the proceedings. Respondent NRDC, on the other hand, labeling petitioner's view of the decision a "straw man," argues to this Court that the court merely held that the record was inadequate to enable the reviewing court to determine whether the agency had fulfilled its statutory obligation ...

After a thorough examination of the opinion itself, we conclude that while the matter is not entirely free from doubt, the majority of the Court of Appeals struck down the rule because of the perceived inadequacies of the procedures employed in the rulemaking proceedings. This Court first determined the intevenors' primary argument to be "that the decision to preclude 'a discovery or cross-examination' denied them a meaningful opportunity to participate in the proceedings as guaranteed by due process." * * * ... The court also refrained from actually ordering the agency to follow any specific procedures, but there is little doubt in our minds that the ineluctable mandate of the court's decision is that the procedures afforded during the hearings were inadequate. This conclusion is particularly buttressed by the fact that after the court examined the record, ... and declared it insufficient, the court proceeded to discuss at some length the necessity for further procedural devices or a more "sensitive" application of those devices employed during the proceedings. * * *

In prior opinions we have intimated that even in a rulemaking proceeding when an agency is making a "quasi-judicial" determination by which a very small number of persons are "'exceptionally affected, in each case upon individual grounds,'" in some circumstances additional procedures may be required in order to afford the aggrieved individuals due process. * * * It might also be true, although we do not think the issue is presented in this case, and accordingly do not decide it, that a totally unjustified departure from well settled agency procedures of long standing might require judicial correction.

But this much is absolutely clear. Absent constitutional constraints or extremely compelling circumstances, "the administrative agencies should be free to fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.": * * *

... NRDC argues that Section 553 of the Administrative Procedure Act merely establishes lower procedural bounds and that a court may routinely require more than the minimum when a agency'' proposed "issues of great public import." * * * We have, however, previously shown that our decisions reject this view.

We also think the legislative history, even the part which it cites, does not bear out its contention ... Congress intended that the discretion of the agencies and not that of the courts be exercised in determining when extra procedural devices would be employed.

There are compelling reasons for construing Sec. 553 in this manner. In the first place, if courts continually review agency proceedings to determine whether the agency employed procedures which were, in the court's opinion, perfectly tailored to reach what the court perceives to be the "best" or "correct" result, judicial view would be totally unpredictable. And the agencies, operating under this vague injunction to employ the "best" procedures and facing the threat of reversal if they did not, would undoubtedly adopt full adjudicatory procedures in every instance. Not only would this totally disrupt the statutory scheme, through which Congress enacted "a formula upon which opposing social and political forces have come to rest," * * * but all the inherent advantages of informal rulemaking would be totally lost.

Secondly, it is obvious that the court in this case reviewed the agency's choice of procedures on the basis of the record actually produced at the hearing, and not on the basis of the information available to the agency when it made the decision to structure the proceedings in a certain way. This sort of Monday morning quarterbacking not only encourages but almost compels the agency to conduct all rulemaking proceedings with the full panoply of procedural devices normally associated only with adjudicatory hearings.

Finally, and perhaps more importantly, this sort of review fundamentally misconceives the nature of the standard for judicial review of an agency rule. The court below uncritically assumed that additional procedures will automatically result in a more adequate record because it will give interested parties more of an opportunity to participate and contribute to the proceedings. But informal rulemaking need not be based solely on the transcript of a hearing before an agency. Indeed, the agency need not even hold a formal hearing. * * * Thus, the adequacy of the "record" in this type of proceeding is not correlated directly to the type of procedural devices employed, but rather turns on whether the agency has followed the statutory mandate of the Administrative Procedure Act or other relevant statutes. If the agency is compelled to support the rule which it ultimately adopts with he type of record produced only after a full adjudicatory hearing, it simply will have no choice but to conduct a full adjudicatory hearing prior to promulgating every rule. In sum, this sort of unwarranted judicial examination of perceived procedural shortcomings of a rulemaking proceeding can do nothing but seriously interfere with that process prescribed by Congress. * * *

Reversed and remanded.

After this Court decided, in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, that Congress lacks power under Article I to abrogate the States' sovereign immunity in federal court, the Federal District Court dismissed a Fair Labor Standards Act of 1938 suit filed by petitioners against their employer, respondent Maine. Subsequently, petitioners filed the same action in state court. Although the FLSA purports to authorize private actions against States in their own courts, the trial court dismissed the suit on the ground of sovereign immunity. The Maine Supreme Judicial Court affirmed.

Held:

1. The Constitution's structure and history and this Court's authoritative interpretations make clear that the States' immunity from suit is a fundamental aspect of the sovereignty they enjoyed before the Constitution's ratification and retain today except as altered by the plan of the Convention or certain constitutional Amendments. Under the federal system established by the Constitution, the States retain a "residuary and inviolable sovereignty." The Federalist No. 39, p. 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty. The founding generation considered immunity from private suits central to this dignity. The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity. This was also the understanding of those state conventions that addressed state sovereign immunity in their ratification documents. When, just five years after the Constitution's adoption, this Court held that Article III authorized a private citizen of another State to sue Georgia without its consent, Chisholm v. Georgia, 2 Dall. 419, the Eleventh Amendment was ratified. An examination of Chisholm indicates that the case, not the Amendment, deviated from the original understanding, which was to preserve States' traditional immunity from suit. The Amendment's text and history also suggest that Congress acted not to change but to restore the original constitutional design. Finally, the swiftness and near unanimity with which the Amendment was adopted indicate that the Court had not captured the original understanding. This Court's subsequent decisions reflect a settled doctrinal understanding that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution. Since the Amendment confirmed rather than established sovereign immunity as a constitutional principal, it follows that that immunity's scope is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design.

2. The States' immunity from private suit in their own courts is beyond congressional power to abrogate by Article I legislation.

       (a)  Congress may exercise its Article I powers to subject States to private suits in their own courts only if there is compelling evidence that States were required to surrender this power to Congress pursuant to the constitutional design. Blatchford v. Native Village of Noatak, 501 U.S. 775, 781.

       (b)  Neither the Constitution's text nor the Court's recent sovereign immunity decisions establish that States were required to relinquish this portion of their sovereignty.

           (1)  The Constitution, by delegating to Congress the power to establish the supreme law of the land when acting within its enumerated powers, does not foreclose a State from asserting immunity to claims arising under federal law merely because that law derives not from the State itself but from the national power. See, e.g., Hans v. Louisiana, 134 U.S. 1. Moreover, the specific Article I powers delegated to Congress do not necessarily include the incidental authority to subject States to private suits as a means of achieving objectives otherwise within the enumerated powers' scope. Those decisions that have endorsed this contention, see, e.g., Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184, 190-194, have been overruled, see, e.g., College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., ante, at ___.

           (2)  Isolated statements in some of this Court's cases suggest that the Eleventh Amendment is inapplicable in state courts. This is a truism as to the Amendment's literal terms. However, the Amendment's bare text is not an exhaustive description of States' constitutional immunity, and the cases do not decide the question whether States retain immunity in their own courts notwithstanding an attempted abrogation by Congress.

       (c)  Whether Congress has the authority under Article I to abrogate a State's immunity in its own courts is, then, a question of first impression. History, practice, precedent, and the Constitution's structure show no compelling evidence that this derogation of the States' sovereignty is inherent in the constitutional compact.

           (1)  Turning first to evidence of the original understanding of the Constitution: The founders silence regarding the States' immunity from suit in their own courts, despite the controversy regarding state sovereign immunity in federal court, suggests the sovereign's right to assert immunity from suit in its own courts was so well established that no one conceived the new Constitution would alter it. The arguments raised for and against the Constitution during ratification confirm this strong inference. Similarly, nothing in Chisholm, the catalyst for the Eleventh Amendment, suggested the States were not immune from suits in their own courts. The Amendment's language, furthermore, was directed toward Article III, the only constitutional provision believed to call state sovereign immunity into question; and nothing in that Article suggested the States could not assert immunity in their own courts or that Congress had the power to abrogate such immunity. Finally, implicit in a proposal rejected by Congress-which would have limited the Amendment's scope to cases where States had made available a remedy in their own courts-was the premise that States retained their immunity and the concomitant authority to decide whether to allow private suits against the sovereign in their own courts.

           (2)  The historical analysis is supported by early congressional practice. Early Congresses enacted no statutes purporting to authorize suits against nonconsenting States in state court, and statutes purporting to authorize such suits in any forum are all but absent in the Nation's historical experience. Even recent statutes provide no evidence of an understanding that Congress has a greater power to subject States to suit in their own courts than in federal courts.

           (3)  The theory and reasoning of this Court's earlier cases also suggest that States retain constitutional immunity from suit in their own courts. The States' immunity has been described in sweeping terms, without reference to whether a suit was prosecuted in state or federal court. See, e.g., Briscoe v. Bank of Kentucky, 11 Pet. 257, 321-322. The Court has said on many occasions that the States retain their immunity in their own courts, see, e.g., Beers v. Arkansas, 20 How. 527, 529, and has relied on that as a premise in its Eleventh Amendment rulings, see, e.g., Hans v. Louisiana, supra, at 10.

           (4)  A review of the essential principles of federalism and the state courts' special role in the constitutional design leads to the conclusion that a congressional power to subject nonconsenting States to private suits in their own courts is inconsistent with the Constitution's structure.

                Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation's governance. Immunity from suit in federal courts is not enough to preserve that dignity, for the indignity of subjecting a nonconsenting State to the coercive process of judicial tribunals at the instance of private parties exists regardless of the forum. In some ways, a congressional power to authorize suits against States in their own courts would be even more offensive to state sovereignty than a power to authorize suits in a federal forum, since a sovereign's immunity in its own courts has always been understood to be within the sole control of the sovereign itself. Further, because the Federal Government retains its own immunity from suit in state and federal court, this Court is reluctant to conclude that States are not entitled to a reciprocal privilege. Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States may threaten their financial integrity, and the surrender of immunity carries with it substantial costs to the autonomy, decisionmaking ability, and sovereign capacity of the States. A general federal power to authorize private suits for money damages would also strain States' ability to govern in accordance with their citizens' will, for judgment creditors compete with other important needs and worthwhile ends for access to the public fisc, necessitating difficult decisions involving the most sensitive and political of judgments. A national power to remove these decisions regarding the allocation of scarce resources from the political processes established by the citizens of the States and commit their resolution to judicial decrees mandated by the Federal Government and invoked by the private citizen would blur not only the State and National Governments' distinct responsibilities but also the separate duties of the state government's judicial and political branches.

                Congress cannot abrogate States' sovereign immunity in federal court; were the rule different here, the National Government would wield greater power in state courts than in federal courts. This anomaly cannot be explained by reference to the state courts' special role in the constitutional design. It would be unprecedented to infer from the fact that Congress may declare federal law binding and enforceable in state courts the further principle that Congress' authority to pursue federal objectives through state courts exceeds not only its power to press other branches of the State into its service but also its control over federal courts. The constitutional provisions upon which this Court has relied in finding state courts peculiarly amendable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. No constitutional precept would admit of a congressional power to require state courts to entertain federal suits which are not within the United States' judicial power and could not be heard in federal courts.

3.  A State's constitutional privilege to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. States and their officers are bound by obligations imposed by the Constitution and federal statutes that comport with the constitutional design. Limits implicit in the constitutional principle of sovereign immunity strike the proper balance between the supremacy of federal law and the separate sovereignty of the States. The first limit is that sovereign immunity bars suits only in the absence of consent. Many States have enacted statutes consenting to suits and have consented to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments. The second important limit is that sovereign immunity bars suits against States but not against lesser entities, such as municipal corporations, or against state officers for injunctive or declaratory relief or for money damages when sued in their individual capacities.

4.  Maine has not waived its immunity. It adheres to the general rule that a specific legislative enactment is required to waive sovereign immunity. Although petitioners contend that Maine discriminated against federal rights by claiming immunity from this suit, there is no evidence that it has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty.

715 A. 2d 172, affirmed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.

Karen Silkwood, a laboratory analyst at Kerr-McGee's Cimarron, Oklahoma, nuclear plant, was contaminated by plutonium at the work site. On November 13, 1974, eight days after the contamination was first detected, Karen was killed in an automobile accident. Her father, Bill Silkwood, as administrator of Karen's estate, brought a diversity of citizenship action in a federal district court, seeking to recover damages for injuries resulting from the plutonium contamination. This lawsuit was based on common law tort principles embodied in Oklahoma law. The jury decided in Silkwood=s favor, awarding $505,000 in compensatory damages and $10 million in punitive damages. The Court of Appeals for the Tenth Circuit reversed, holding, among other things, the punitive damages award was preempted by federal law. The Supreme Court granted Silkwood's petition for certiorari.

Justice White delivered the opinion of the Court.

... As we recently observed in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm=n, *** state law can be preempted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. *** Even where Congress has not entirely displaced state regulation in the field in question, state law is still preempted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, *** or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. ** Kerr-McGee contends that the award in this case is invalid under either analysis. We consider each of the contentions in turn....

Kerr-McGee argues that our ruling in Pacific Gas & Electric is dispositive of the issue in this case. Kerr-McGee submits that because the state-authorized award of punitive damages in this case punishes and deters conduct related to radiation hazards, it falls within the prohibited field. However, a review of the same legislative history which prompted our holding in Pacific Gas & Electric, coupled with an examination of Congress' actions with respect to other portions of the Atomic Energy Act, convinces us that the pre-empted field does not extend as far as Kerr-McGee would have it....

... If there were nothing more, this concern over the States' inability to formulate effective standards and the foreclosure of the States from conditioning the operation of nuclear plants on compliance with state-imposed safety standards arguably would disallow resort to state-law remedies by those suffering injuries from radiation in a nuclear plant. There is, however, ample evidence that Congress had no intention of forbidding the States to provide such remedies.

Indeed, there is no indication that Congress even seriously considered precluding the use of such remedies either when it enacted the Atomic Energy Act in 1954 or when it amended it in 1959. This silence takes on added significance in light of Congress' failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct. ***

More importantly, the only congressional discussion concerning the relationship between the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available. After the 1954 law was enacted, private companies contemplating entry into the nuclear industry expressed concern over potentially bankrupting state-law suits arising out of a nuclear incident. As a result, in 1957 Congress passed the Price-Anderson Act, an amendment to the Atomic Energy Act. *** That Act established an indemnification scheme under which operators of licensed nuclear facilities could be required to obtain up to $60 million in private financial protection against such suits. The Government would then provide indemnification for the next $500 million of liability, and the resulting $560 million would be the limit of liability for any one nuclear incident.

Although the Price-Anderson Act does not apply to the present situation, the discussion preceding its enactment and subsequent amendment indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies.

Congress clearly began working on the Price-Anderson legislation with the assumption that in the absence of some subsequent legislative action, state tort law would apply This was true even though Congress was fully aware of the exclusive regulatory authority over safety matters.

When it enacted the Price-Anderson Act, Congress was well aware of the need for effective national safety regulation. In fact, it intended to encourage such regulation. But, at the same time, "the right of the State courts to establish the liability of the persons involved in the normal way [was] maintained.***

The belief that the NRC's (Nuclear Regulatory Commission] exclusive authority to set safety standards did not foreclose the use of state tort remedies was reaffirmed when the Price-Anderson Act was amended in 1966. The 1966 amendment was designed to respond to concerns about the adequacy of state-law remedies. *** It provided that in the event of an "extraordinary nuclear occurrence," licensees could be required to waive any issue of fault, any charitable or governmental immunity defense, and any statute of limitations defense of less than 10 years. *** Again, however, the importance of the legislation for present purposes is not so much in its substance, as in the assumptions on which it was based. .. ."Absent ... a determination [that the incident is an "extraordinary nuclear occurrence"], a claimant would have exactly the same rights that he has today under existing law - including, perhaps, benefit of a rule of strict liability if applicable State law so provides." *** Indeed, the entire discussion surrounding the 1966 amendment was premised on the assumption that state remedies were available notwithstanding the NRC's exclusive regulatory authority...

Kerr-McGee focuses on the differences between compensatory and punitive damages awards and asserts that, at most, Congress intended to allow the former. This argument, however, is misdirected because our inquiry is not whether Congress expressly allowed punitive damages awards. Punitive damages have long been a part of traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee=s burden to show that Congress intended to preclude such awards. *** Yet, the company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed. To the contrary, the regulations issued implementing the insurance provisions of the Price-Anderson Act themselves contemplate that punitive damages might be awarded under state law.

In sum, it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NRC's exclusive authority to regulate safety matters.

No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.

We do not suggest that there could never be an instance in which the federal law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, preemption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case.

The United States, as amicus curiae, contends that the award of punitive damages in this case is pre-empted because it conflicts with the federal remedial scheme, noting that the NRC is authorized to impose civil penalties on licensees when federal standards have been violated. *** However, the award of punitive damages in the present case does not conflict with that scheme. Paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible. Nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme.

Kerr-McGee contends that the award is pre-empted because it frustrates Congress' express desire "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes." [However] Congress ... disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are inured by exposure to hazardous nuclear materials.

We also reject Kerr-McGee's submission that the punitive damages award in this case conflicts with Congress' express intent to preclude dual regulation of radiation hazards. Congress did not believe that it was inconsistent to vest the NRC with exclusive regulatory authority over the safety aspects of nuclear development while at the same time allowing plaintiffs like Silkwood to recover for injuries caused by nuclear hazards. We are not authorized to second-guess that conclusion.

We conclude that the award of punitive damages in this case is not pre-empted by federal law. The judgment of the Court of Appeals with respect to punitive damages is therefore reversed, and the case is remanded to that court for proceedings consistent with this opinion.

It is so ordered.

Justice Blackmun, with whom Justice Marshall joins, dissenting.

I join Justice Powell's opinion in dissent and add comments of my own that, I believe, demonstrate (a) the incompatibility between the Court's opinion last Term in Pacific Gas & Electric Co. v State Energy Resources Conservation & Development Comm=n*** (1983), and its opinion in the present case, and (b) the fact that the Court is by no means compelled to reach the result it espouses today.

Justice Powell's dissent well explains the fundamental incongruity of the Court's result. The Court acknowledges that Congress pre-empted state regulation of safety aspects of nuclear operations largely out of concern that States were without the technological expertise necessary to regulate them. Yet the Court concludes that Congress intended to allow a jury to impose substantial penalties upon a nuclear licensee for failure to follow what the jury regards as adequate safety procedures. The Court recognizes the paradox of its disposition, but blames the irrationality on Congress. Then, with humility, the Court explains that it is duty-bound to follow the dictates of Congress. But such institutional modesty cannot transfer the blame for the tension that today's decision injects into the regulation of nuclear power. The Court, in my view, tortures its earlier decisions and, more importantly, wreaks havoc with the regulatory structure that Congress carefully created....

Justice Powell, with whom the Chief Justice and Justice Blackmun join, dissenting.

The Court's decision, in effect, authorizes lay juries and judges in each of the States to make regulatory judgments as to whether a federally licensed nuclear facility is being operated safely. Such judgments then become the predicate to imposing heavy punitive damages. This authority is approved in this case even though the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission [AEC]) - the agency authorized by Congress to assure the safety of nuclear facilities - found no relevant violation of its stringent safety requirements worthy of punishment. The decision today also comes less than a year after we explicitly held that federal law has "pre-empted" all "state safety regulation" except certain limited powers "expressly ceded to the States." There is no express authorization in federal law of the authority the Court today finds in a state's common law of torts.

Punitive damages, unrelated to compensation for any injury or damage sustained by a plaintiff, are "regulatory" in nature rather than compensatory. The Court of Appeals for the Tenth Circuit so found in this case - prior even to our decision in Pacific Gas & Electric Co. *** It also concluded that punitive damages are "no less intrusive than direct legislative acts of the state." *** I agree with the Court of Appeals....

In sum, the Court's decision will leave this area of the law in disarray. No longer can the operators of nuclear facilities rely on the regulations and oversight of the NRC. Juries unfamiliar with nuclear technology may be competent to determine and assess compensatory damages on the basis of liability without fault. They are unlikely, however, to have even the most rudimentary comprehension of what reasonably must be done to assure the safety of employees and the public. The District Court, in this case, by instructing the jury that it could infer malice, fraud, or gross negligence (see ibid.), in effect authorized the jury to impose punitive damages without fault. And, to make sure that the jury understood its standardless freedom in this respect, the Court also instructed the jury that it could ignore the regulations prescribed by the AEC if in its opinion they defied "human credence" or "can be shown not to accomplish their intended purpose." ***

We hardly could have spoken more clearly in Pacific Gas & Electric Co. on April 20, 1983, on the issue of preemption.... This left no doubt whatever as to the sole responsibility for nuclear safety regulation under the governance of the NRC and its large staff - experts in the technology and safety controls of nuclear energy. This case makes clear the correctness of the Court's holding in Pacific Gas & Electric Co. Today, the Court opens a wide and inviting door to indirect regulation by juries authorized to impose damages to punish and deter on the basis of inferences even when a plant has taken the utmost precautions provided by law. Not only is this unfair, it also could discourage investment needed to further the acknowledged national need for this alternative source of energy. I would affirm the judgement of the Court of Appeals.

In Hughes v, Oklahoma (1979), the Supreme Court said that once a state law is shown to discriminate against interstate commerce "either on its face or in practical effect", the burden falls on the state to demonstrate both that the statute "serves a legitimate local purpose" and that this purpose could not be served as well by available nondiscriminatory means. In the instant case, the Court applies this test to a Maine law banning the importation of live bait fish. The facts are contained in Justice Blackmun's majority opinion.
 
 

Justice Blackmun delivered the opinion of the Court.

Once again, a little fish has caused a commotion. *** The fish in this case is the golden shiner, a species of minnow commonly used as live bait in sport fishing.

Appellee Robert J. Taylor (hereafter Taylor or appellee) operates a bait business in Maine. Despite a Maine statute prohibiting the importation of live baitfish, he arranged to have 158,000 live golden shiners delivered to him from outside the State. The shipment was intercepted, and a federal grand jury in the District of Maine indicted Taylor for violating and conspiring to violate the Lacey Act Amendments of 1981, *** [which make] it a federal crime "to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce ... any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any State or in violation of any foreign law."

Taylor moved to dismiss the indictment on the ground that Maine's import ban unconstitutionally burdens interstate commerce and therefore may not form the basis for a federal prosecution under the Lacey Act. Maine *** intervened to defend the validity of its statute, arguing that the ban legitimately protects the State's fisheries from parasites and nonnative species that might be included in shipments of live baitfish. The District Court found the statute constitutional and denied the motion to dismiss. *** Taylor then entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2) reserving the right to appeal the District Court's ruling on the constitutional question. The Court of Appeals for the First Circuit reversed, agreeing with Taylor that the underlying state statute impermissibly restricts interstate trade. *** Maine appealed...

The Commerce Clause of the Constitution grants Congress the power A[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." ***@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." *** Maine's statute restricts interstate trade in the most direct manner possible, blocking all inward shipments of live baitfish at the State's border...

In determining whether a State has overstepped its role in regulating interstate commerce, this Court has distinguished between state statutes that burden interstate transactions only incidentally, and those that affirmatively discriminate against such transactions. While statutes in the first group violate the Commerce Clause only if the burdens they impose on interstate trade are "clearly excessive in relation to the putative local benefits," *** statutes in the second group are subject to more demanding scrutiny...The District Court and the Court of Appeals both reasoned correctly that, since Maine's import ban discriminates on its face against interstate trade, it should be subject to the strict requirements of Hughes v Oklahoma ... The District Court found after an evidentiary hearing that both parts of the Hughes test were satisfied, but the Court of Appeals disagreed. We conclude that the Court of Appeals erred in setting aside the findings of the District Court. To explain why, we need to discuss the proceedings below in some detail.

A

The evidentiary hearing on which the District Court based its conclusions was one before a Magistrate. Three scientific experts testified for the prosecution and one for the defense. The prosecution experts testified that live baitfish imported into the State posed two significant threats to Maine's unique and fragile fisheries. First, Maine's population of wild fish - including its own indigenous golden shiners - would be placed at risk by three types of parasites prevalent in out-of-state baitfish, but not common to wild fish in Maine. *** Second, non-native species inadvertently included in shipments of live baitfish could disturb Maine's aquatic ecology to an unpredictable extent by competing with native fish for food or habitat, by preying on native species, or by disrupting the environment in more subtle ways. ***

The prosecution experts further testified that there was no satisfactory way to inspect shipments of live baitfish for parasites or commingled species. According to their testimony, the small size of baitfish and the large quantities in which they are shipped made inspection for commingled species "a physical impossibility." *** Parasite inspection posed a separate set of difficulties because the examination procedure required destruction of the fish. *** Although statistical sampling and inspection techniques had been developed for salmonids (i.e., salmon and trout), so that a shipment could be certified parasite-free based on a standardized examination of only some of the fish, no scientifically accepted procedures of this sort were available for baitfish. ***

Appellee's expert denied that any scientific justification supported Maine's total ban on the importation of baitfish. He testified that none of the three parasites discussed by the prosecution witnesses posed any significant threat to fish in the wild, and that sampling techniques had not been developed for baitfish precisely because there was no need for them. He further testified that professional baitfish farmers raise their fish in ponds that have been freshly drained to ensure that no other species is inadvertently collected.

Weighing all the testimony, the Magistrate concluded that both prongs of the Hughes test were satisfied, and accordingly that appellee's motion to dismiss the indictment should be denied. Appellee filed objections, but the District Court, after an independent review of the evidence, reached the same conclusions. First, the court found that Maine "clearly has a legitimate and substantial purpose in prohibiting the importation of live bait fish," because "substantial uncertainties" surrounded the effects that baitfish parasites would have on the State's unique population of wild fish, and the consequences of introducing non-native species were similarly unpredictable. Second, the court concluded that less discriminatory means of protecting against these threats were currently unavailable, and tat, in particular, testing procedures for baitfish parasites had not yet been devised. *** Even if procedures of this sort could be effective, the court found that their development probably would take a considerable amount of time. ***

Although the Court of Appeals did not expressly set aside the District Court's finding of a legitimate local purpose, it noted that several factors "cast doubt" on that finding. First, Maine was apparently the only State to bar all importation of live baitfish *** Second, Maine accepted interstate shipments of other freshwater fish, subject to an inspection requirement. Third, "an aura of economic protectionism" surrounded statements made in 1981 buy the Maine Department of Inland Fisheries and Wildlife in opposition to a proposal by appellee himself to repeal the ban. Finally, the court noted that parasites and non-native species could be transported into Maine in shipments of nonbaitfish, and that nothing prevented fish from simply swimming into the State from New Hampshire.

Despite these indications of protectionist intent, the Court of Appeals rested its invalidation of Maine's import ban on a different basis, concluding that Maine had not demonstrated that any legitimate local purpose served by the ban could not be promoted equally well without discriminating so heavily against interstate commerce. Specifically, the Court found it "difficult to reconcile" Maine's claim that it could not rely on sampling and inspection with the State's reliance on similar procedures in the case of other freshwater fish. ***

Following the reversal of appellee's conviction, Maine and the United States petitioned for rehearing on the ground that the Court of Appeals had improperly disregarded the District Court's findings of fact. The court denied the petitions, concluding that, since the unavailability of a less discriminatory alternative "was a mixed finding of law and fact" a reviewing court "was free to examine carefully the factual record and to draw its own conclusions." ***

B

Although the proffered justification for any local discrimination against interstate commerce must be subjected to "the strictest scrutiny," *** the empirical content of that scrutiny, like any other form of fact-finding, "'is the basic responsibility of district courts, rather than appellate courts.'" *** As this Court frequently has emphasized, appellate courts are not to decide factual questions de novo, reversing any findings they would have made differently. *** The Federal Rules of Criminal Procedure contain no counterpart to Federal Rule of Civil Procedure 52(a), which expressly provides that findings of fact made by the trial judge "shall not be set aside unless clearly erroneous." But the considerations underlying Rule 52(a) - the demands of judicial efficiency, the expertise developed by trial judges, and the importance of first-hand observation - all apply with full force in the criminal context, at least with respect to factual questions having nothing to do with guilt. Accordingly, the "clearly erroneous" standard of review long has been applied to nonguilt findings of fact by district courts in criminal cases. *** We need not decide now whether all such findings should be reviewed under the "clearly erroneous" standard, because appellee concedes that the standard applies to the factual findings made by the District Court in this case. We note, however, that no broader review is authorized here simply because this is a constitutional case, or because the factual findings at issue may determine the outcome of the case. ***

No matter how one describes the abstract issue whether "alternative means could promote this local purpose as well without discriminating against inter-state commerce..." *** the more specific question whether scientifically accepted techniques exist for the sampling and inspection of live baitfish is one of fact, and the District Court's finding that such techniques have not been devised cannot be characterized as clearly erroneous. Indeed, the record probably could not support a contrary finding. Two prosecution witnesses testified to the lack of such procedures, and appellee's expert conceded the point, although he disagreed about the need for such tests. That Maine has allowed the importation of other freshwater fish after inspection hardly demonstrates that the District Court clearly erred in crediting the corroborated and uncontradicted expert testimony that standardized inspection techniques had not yet been developed for baitfish. This is particularly so because the text of the permit statute suggests that it was designed specifically to regulate importation of salmonids, for which, the experts testified, testing procedures had been developed.

Before this Court, appellee does not argue that sampling and inspection procedures already exist for baitfish; he contends only that such procedures "could be easily developed." *** Perhaps this is also what the Court of Appeals meant to suggest. Unlike the proposition that the techniques already exist, the contention that they could readily be devised enjoys some support in the record. Appellee's expert testified that developing the techniques "would just require that those experts in the field ... get together and do it." He gave no estimate of the time and expense that would be involved, however, and one of the prosecution experts testified that development of the testing procedures for salmonids had required years of heavily financed research. In light of this testimony, we cannot say that the District Court clearly erred in concluding that the development of sampling and inspection techniques for baitfish could be expected to take a significant amount of time.

More importantly, we agree with the District Court that the "abstract possibility" of developing acceptable testing procedures, particularly when there is no assurance as to their effectiveness, does not make those procedures an "[a]vailabl[e] ... nondiscriminatory alternativ[e]" *** for purposes of the Commerce Clause. A State must make reasonable efforts to avoid restraining the free flow of commerce across its borders, but it is not required to develop new and unproven means of protection at an uncertain cost. Appellee, of course, is free to work on his own conjunction with other bait dealers to develop scientifically acceptable sampling and inspection procedures for golden shiners; if and when such procedures are developed, Maine no longer may be able to justify its import ban. The State need not join in those efforts, however, and it need not pretend they have already succeeded.

C

Although the Court of Appeals did not expressly overturn the District Court's finding that Maine's import ban serves a legitimate local purpose, appellee argues as an alternative ground for affirmance that this finding should be rejected. After reviewing the expert testimony presented to the Magistrate, however, we cannot say that the District Court clearly erred in finding that substantial scientific uncertainty surrounds the effect that baitfish parasites and nonnative species could have on Maine's fisheries. Moreover, we agree with the District Court that Maine has a legitimate interest in guarding against imperfectly understood environmental risks, despite the possibility that they may ultimately prove to be negligible. "[T]he Constitutional principles underlying the commerce clause cannot be read as requiring the State of Maine to sit idly by and wait until potentially irreversible environmental damage has occurred or until the scientific community agrees on what disease organisms are or are not dangerous before it acts to avoid such consequences." ***

Nor do we think that much doubt is cast on the legitimacy of Maine's purposes by what the Court of Appeals took to be signs of protectionist intent. Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to "simple economic protectionism" consequently have been subject to a "virtually per se rule of invalidity." *** But there is little reason in this case to believe that the legitimate justifications the State has put forward for its statute are merely a sham or a "post hoc rationalization. " *** In suggesting to the contrary, the Court of Appeals relied heavily on a 3-sentence passage near the end of a 2,000-word statement submitted in 1981 by the Maine Department of Inland Fisheries and Wildlife in opposition to appellee's proposed repeal of the State's ban on the importation of live baitfish:

"'[W]e can't help asking why we should spend our money in Arkansas when it is far better spent at home? It is very clear that much more can be done here in Maine to provide our sportsmen with safe, home-grown bait. There is also the possibility that such an industry could develop a lucrative export market in neighboring states."' ***

We fully agree with the Magistrate that "[t]hese three sentences do not convert the Maine statute into an economic protectionism measure." *** As the Magistrate pointed out, the context of the statements cited by appellee "reveals [they] are advanced not in direct support of the statute, but to counter the argument that inadequate bait supplies in Maine require acceptance of the environmental risks of imports. Instead, the Department argues, Maine's own bait supplies can be increased." *** Furthermore, the comments were made by a state administrative agency long after the statute's enactment, and thus constitute weak evidence of legislative intent in any event. ***

The other evidence of protectionism identified by the Court of Appeals is no more persuasive. The fact that Maine allows importation of salmonids, for which standardized sampling and inspection procedures are available, hardly demonstrates that Maine has no legitimate interest in prohibiting the importation of baitfish, for which such procedures have not yet been devised. Nor is this demonstrated by the fact that other States may not have enacted similar bans, especially given the testimony that Maine's fisheries are unique and unusually fragile. Finally, it is of little relevance that fish can swim directly into Maine from New Hampshire. As the Magistrate explained: "The impediments to complete success ... cannot be a ground for preventing a state from using its best efforts to limit [an environmental] risk." ***

The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to "place itself in a position of economic isolation," *** it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources. The evidence in this case amply supports the District Court's findings that Maine's ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Maine has legitimate reasons, "apart from their origin, to treat [out-of-state baitfish] differently." *** The judgement of the Court of Appeals setting aside appellee=s, conviction is therefore reversed.

It is so ordered.

Justice Stevens, dissenting.

There is something fishy about this case. Maine is the only State in the Union that blatantly discriminates against out-of-state baitfish by flatly prohibiting their importation. Although golden shiners are already present and thriving in Maine (and, perhaps not coincidentally, the subject of a flourishing domestic industry), Maine excludes golden shiners grown and harvested (and, perhaps not coincidentally, sold) in other States. This kind of stark discrimination against out-of-state articles of commerce requires rigorous justification by the discriminating State. "When discrimination against commerce of the type we have found is demonstrated, the burden falls on the State to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake." ***

Like the District Court, the Court concludes that uncertainty about possible ecological effects from the possible presence of parasites and nonnative species in shipments of out-of-state shiners suffices to carry the State's burden of proving a legitimate public purpose. *** The Court similarly concludes that the State has no obligation to develop feasible inspection procedures that would make a total ban unnecessary. *** It seems clear, however, that the presumption should run the other way. Since the State engages in obvious discrimination against out-of-state commerce, it should be put to its proof. Ambiguity about dangers and alternatives should actually defeat, rather than sustain, the discriminatory measure.

This is not to derogate the State's interest in ecological purity. But the invocation of environmental protection or public health has never been thought to confer some kind of special dispensation from the general principle of nondiscrimination in interstate commerce. AA different view, that the ordinance is valid simply because it professes to be a health measure, would mean that the Commerce Clause of itself imposes no restraints on state action other those laid down by the Due Process Clause, save for the rare instance where a state artlessly discloses an avowed purpose to discriminate against interstate goods." *** If Maine wishes to rely on its interest in ecological preservation, it must show that interest, and the infeasibility of other alternatives, with far greater specificity. Otherwise, it must further that asserted interest in a manner far less offensive to the notions of comity and cooperation that underlie the Commerce Clause.

Significantly, the Court of Appeals, which is more familiar with Maine's natural resources and with its legislation than we are, was concerned by the uniqueness of Maine's ban. That court felt, as I do, that Maine's unquestionable natural splendor notwithstanding, the State has not carried its substantial burden of proving why it cannot meet its environmental concerns in the same manner as other States with the same interest in the health of their fish ecology. ***

The general question arising upon this appeal involves the constitutionality of the 1st section of the act of Congress of March 2nd, 1895, entitled >An Act for the Suppression of Lottery Traffic through National and Interstate Commerce and the Postal Service, Subject to the Jurisdiction and Laws of the United States.'

The appeal was from an order of the circuit court of the United States for the northern district of Illinois dismissing a writ of habeas corpus sued out by the appellant Champion, who in his application complained that he was restrained of his liberty by the Marshal of the United States in violation of the Constitution and laws of the United States. It appears that the accused was under indictment in the district court of the United States for the northern district of Texas for a conspiracy under 5440 of the Revised Statutes, providing that >if two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years.'

***

The 1st section of the act of 1895, upon which the indictment was based, is as follows:

It thus appears that the carrying on this case was by the incorporated express company, engaged in transporting freight and packages from one state to another.

***

Mr. Justice Harlan delivered the opinion of the court:

The appellant insists that the carrying of lottery tickets from one state to another state by an express company engaged in carrying freight and packages from state to state, although such tickets may be contained in a box or package, does not constitute, and cannot by any act of Congress be legally made to constitute, commerce among the states within the meaning of the clause of the Constitution of the United States providing that Congress shall have power >to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;' consequently, that Congress cannot make it an offense to cause such tickets to be carried from one state to another.

The government insists that express companies, when engaged, for hire, in the business of transportation from one state to another, are instrumentalities of commerce among the states; that the carrying of lottery tickets from one state to another is commerce which Congress may regulate; and that as a means of executing the power to regulate interstate commerce Congress may make it an offense against the United States to cause lottery tickets to be carried from one state to another.

The questions presented by these opposing contentions are of great moment, and are entitled to receive, as they have received, the most careful consideration.

What is the import of the word 'commerce' as used in the Constitution? It is not defined by that instrument. Undoubtedly, the carrying from one state to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce. But does not commerce among the several states include something more? Does not the carrying from one state to another, by independent carriers, of lottery tickets that entitle the holder to the payment of a certain amount of money therein specified, also constitute commerce among the states?

It is contended by the parties that these questions are answered in the former decisions of this court, the government insisting that the principles heretofore announced support its position, while the contrary is confidently asserted by the appellant. This makes it necessary to ascertain the import of such decisions.

***

The leading case under the commerce clause of the Constitution is Gibbons v. Ogden. Referring to that clause, Chief Justice Marshall said: > The subject to be regulated is commerce; and our Constitution being, as was aptly said at the bar, one of enumeration, and not of definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations and parts of nations, in all its branches., and it is regulated by prescribing rules for carrying on that intercourse...It has been truly said that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word, in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it. The subject to which the power is next applied is to commerce 'among the several states.' The word 'among' means intermingled with. A thing which is among others is intermingled with them. Commerce among the states cannot stop at the external boundary line of each state, but may be introduced to the interior. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one...

***

Again; >We are now arrived at the inquiry, - What is this power? It is the power to regulate; that is , to prescribe the rule by which commerce is to be governed. This by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.

***

The principles announced in Gibbons v. Ogden were reaffirmed in Brown v. Maryland. After expressing doubt whether any of the evils proceeding from the feebleness of the Federal government contributed more to the establishing of the present constitutional system than the deep and general conviction that commerce ought to be regulated by Congress, Chief Justice Marshall, speaking for the court, said: 'It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce, and all commerce among the states.' Considering the question as to the just extent of the power to regulate commerce with foreign nations and among the several states, the court reaffirmed the doctrine that the power was 'complete in itself, and to acknowledge no limitations other than are prescribed by the Constitution...Commerce is intercourse; one of its most ordinary ingredients is traffic.'

In the Passenger Cases, the court adjudged certain statutes of New York and Massachusetts, imposing taxes upon alien passengers arriving in ports of those states, to be in violation of the Constitution and laws of the United States. In the separate opinions delivered by the justices there will not be found any expression of doubt as to the doctrines announced in Gibbons v. Ogden. Mr. Justice McLean said: 'Commerce is defined to be >an exchange of commodities.' But this definition does not convey the full meaning of the term. It includes 'navigation and intercourse.' That the transportation of passengers is a part of commerce is not now an open question.' Mr. Justice Grier said: 'Commerce, as defined by this court, means something more than traffic, - it is intercourse; and the power committed to Congress to regulate commerce is exercised by prescribing rules for carrying on that intercourse.'

***

At the present term of the court we said that 'transportation for others, as an independent business, is commerce, irrespective of the purpose to sell or retain the goods which the owner may entertain with regard to them after they shall have been delivered.' Hanley v. Kansas City Southern R. Co.

This reference to prior adjudications could be extended if it were necessary to do so. The cases cited, however, sufficiently indicate the grounds upon which this court has proceeded when determining the meaning and scope of the commerce clause. They show that commerce among the states embraces navigation, intercourse, communication, traffic, the transit of persons, and the transmission of messages by telegraph. They also show that the power to regulate commerce among the several states is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States; that such power is plenary, complete in itself, and may be exerted by Congress to its utmost extent, subject only to such limitations as the Constitution imposes upon the exercise of the powers granted by it; and that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be controlled by the courts, simply because, in their opinion, such regulations may not be the best or most effective that could be employed.

We come, then, to inquire whether there is any solid foundation upon which to rest the contention that Congress may not regulate the carrying of lottery tickets from one state to another, at least by corporations or companies whose business it is, for hire, to carry tangible property from one state to another.

It was said in argument that lottery tickets are not of any real or substantial value in themselves, and therefore are not subjects of commerce. If that were conceded to be the only legal test as to what are to be deemed subjects of the commerce that may be regulated by Congress, we cannot accept as accurate the broad statement that such tickets are of no value. Upon their face they showed that the lottery company offered a large capital prize, to be paid to the holder of the ticket winning the prize at the drawing advertised to be held at Asuncion, Paraguay. Money was placed on deposit in different banks in the United States to be applied by the agents representing the lottery company to the prompt payment of prizes. These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn. That the holder might not have been able to enforce his claim in the courts of any country making the drawing of lotteries illegal, and forbidding the circulation of lottery tickets, did not change the fact that the tickets issued by the foreign company represented so much money payable to the person holding them and who might draw the prizes affixed to them. Even if a holder did not draw a prize, the tickets, before the drawing, had a money value in the market among those who chose to sell or but lottery tickets. In short, a lottery ticket is a subject of traffic, and is so designated in the act of 1895. That fact is not without significance in view of what this court has said.

***

We are of opinion that lottery tickets are subjects of traffic, and therefore are subjects of commerce, and the regulation of the carriage of such tickets from state to state, at least by independent carriers, is a regulation of commerce among the several states.

But it is said that the statute in question does not regulate the carrying of lottery tickets from state to state, but by punishing those who cause them to be so carried Congress in effect prohibits in such carrying; that in the respect of the carrying from one state to another of articles or things that are, in fact, or according to usage in business, the subjects of commerce, the authority given Congress was not to prohibit, but only to regulate. This view was earnestly pressed at the bar by learned counsel, and must be examined.

It is to be remarked that the Constitution does not define what is to be deemed a legitimate regulation of interstate commerce. In Gibbons v. Ogden it was said that the power to regulate such commerce is the power to prescribe the rule by which it is to be governed. But this general observation leaves it to be determined, when the question comes before the court, whether Congress, in prescribing a particular rule, has exceeded its power under the Constitution. While our government must be acknowledged by all to be one of enumerated powers, the Constitution does not attempt to set forth all the means by which such powers may be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional. (CitingMcColluch v. Maryland)

We have said that the carrying from state to state of lottery tickets constitutes interstate commerce, and that the regulation of such commerce is within the power of Congress under the Constitution. Are we prepared to say that a provision which is, in effect, a prohibition of the carriage of such articles from state to state is not a fit or appropriate mode for the regulation of that particular kind of commerce? If lottery traffic, carried on through interstate commerce, is a matter of which Congress may take cognizance and over which its power may be exerted, can it be possible that it must tolerate the traffic, and simply regulate the manner in which it may be carried on? Or may not Congress, for the protection of the people of all the states, and under the power to regulate interstate commerce, devise such means, within the scope of the Constitution, and not prohibited by it, as will drive that traffic out of commerce among the states?

***

If it be said that the act of 1894 is inconsistent with the 10th Amendment, reserving to the states respectively, or to the people, the powers not delegated to the United States, the answer is that the power to regulate commerce among the states has been expressly delegated to Congress.

Besides, Congress, by that act, does not assume to interfere with traffic or commerce in lottery tickets carried on exclusively within the limits of any state, but has in view only commerce of that kind among the several states. It has not assumed to interfere with the completely internal affairs of any state, and has only legislated in respect of a matter which concerns the people of the United States. As a state may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the 'widespread pestilence of lotteries' and to protect the commerce which concerns all the states, may prohibit the carrying of lottery tickets from one state to another. In legislating upon the subject of the traffic in lottery tickets, as carried on through interstate commerce, Congress only supplemented the action of those states - perhaps all of them - which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the states, which sought to protect their people against the mischiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce. We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce. What was said by this court upon a former occasion may well be here repeated: 'The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject-matter specifically committed to its charge.'

***

It is said, however, that if, in order to suppress lotteries carried on through interstate commerce, Congress may exclude lottery tickets from such commerce, that principle leads necessarily to the conclusion that Congress may arbitrarily exclude from Congress among the states any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one state to another. It will be time enough to consider the constitutionality of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the states. We may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress to regulate commerce among the states, although plenary, cannot be deemed arbitrary, since it is subject to such limitations or restrictions as a re prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument.

***

The judgement is affirmed.

In 1933, the Minnesota legislature adopted an act designed to prevent the foreclosure of mortgages on real estate during the economic emergency produced by the Great Depression. The Mortgage Moratorium Act authorized courts to extend the redemption periods of mortgages in order to prevent foreclosures. The act was to remain in effect only during the emergency period and in no case beyond May 1, 1935.

Mr. Chief Justice Hughes delivered the opinion of the Court.

... The state court Upheld the statute as an emergency measure. Although conceding that the obligations of the mortgage contract were impaired, the court decided that what it thus described as an impairment was, notwithstanding the contract clause of the Federal Constitution, within the police power of the state as that power was called into exercise by the public economic emergency which the legislature had found to exist. Attention is thus directed to the preamble and first section of the statute which described the existing emergency in terms that were deemed to justify the temporary relief which the statute affords. The state court, declaring that it could not say that this legislative finding was without basis, supplemented that finding by its own statement of conditions of which it took judicial notice. The court said:

In addition to the weight to be given the determination of the Legislature that an economic emergency exists which demands relief, the court must take notice of other considerations. The members of the Legislature come from every community of the state and from all the walks of life. They are familiar with conditions generally in every calling, occupation, profession, and business in the state. Not only they, but the courts must be guided by what is common knowledge. It is common knowledge that in the last few years land values have shrunk enormously Loans made a few years ago upon the basis of the then going values cannot possibly be replaced on the basis of present values. We all know that when this law was enacted the large financial companies which had made it their business to invest in mortgages, had ceased to do so. No bank would directly or indirectly loan on real estate mortgages. Life insurance companies, large investors on such mortgages, had even declared a moratorium as to the loan provisions of their policy contracts. The President had closed banks temporarily. The Congress, in addition to many extraordinary measures looking to the relief of the economic emergency, had passed an act to supply funds whereby mortgagors may be able within a reasonable time to refinance their mortgagors or redeem from sales where the redemption has not expired. With this knowledge the court cannot well hold that the Legislature had no basis in fact for the conclusion that an economic emergency existed which called for the exercise of the police power to grant relief...

We approach the questions thus presented upon the assumption made below, as required by the law of the state, that the mortgage contained a valid power of sale to be exercised in case of default; that this power was validly exercised; that under the law then applicable the period of redemption from the sale was one year, and that it has been extended by the judgment of the court over the opposition of the mortgagee-purchaser; and that, during the period thus extended, and unless the order for extension is modified, the mortgagee-purchaser will be unable to obtain possession, or to obtain or convey title in fee, as he would have been able to do had the statute not been enacted. The statute does not impair the integrity of the mortgage indebtedness. The obligation for interest remains. The statute does not affect validity of the sale of the right of a mortgagee-purchaser to title in fee, or his right to obtain a deficiency judgement, if the mortgagor fails to redeem within the prescribed period. Aside from the extension of time, the other conditions of redemption are unaltered. While the mortgagor remains in possession, he must pay the rental value as that value has been determined, upon notice and hearing, by the court. The rental value so paid is devoted to the carrying of the property by the application of the required payments to taxes, insurance, and interest on the mortgage indebtedness. While the mortgagee-purchaser is debarred from actual possession, he has, so far as rental value is concerned, the equivalent of possession during the extended period.

In determining whether the provision for this temporary and conditional relief exceeds the power of the state by reason of the clause in the Federal Constitution prohibiting impairment of the obligations of contracts, we must consider the relation of emergency to constitutional power, the historical setting of the contract clause, the development of the jurisdiction of this Court in the construction of that clause, and the principles of construction which we may consider to be established.

Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the Federal Government and its limitations of the power of the states were determined in the light of emergency, and they are not altered by emergency. What power was thus granted and what limitations were thus imposed are questions which have always been, and always will be, the subject of close examination under our constitutional system.

While emergency does not create power, emergency may furnish the occasion for the exercise of power. "Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed." *** The constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions. Thus, the war power of the federal government is not created by the emergency of war, but it is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme co-operative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties. When the provisions of the Constitution, in grant or restriction, are specific, so particularized as not to admit a state to have more than two Senators in the Congress, or permit the election of a President by a general popular vote without regard to the number of electors to which the states are respectively entitled, or permit the states to "coin money" or to "make anything but gold and silver coin a tender in payment of debts." But, where constitutional grants and limitations of power are set forth in general clauses, which afford a broad outline, the process of construction is essential to fill in the details. That is true of the Contract Clause....

In the construction of the Contract Clause, the debates in the Constitutional Convention are of little aid. But the reasons which led to the adoption of that clause, and of the other prohibitions of Section 10 of Article I, are not left in doubt, and have frequently been described with eloquent emphasis. The widespread distress following the revolutionary period, and the plight of debtors had called forth in the state an ignoble array of legislative schemes for the defeat of creditors and the invasion of contractual obligations. Legislative interferences had been so numerous and extreme that the confidence essential to prosperous trade had been undermined and the utter destruction of credit was threatened. "The sober people of America" were convinced that some "thorough reform" was needed which would "inspire a general prudence and industry, and give a regular course to the business of society." *** ...

The inescapable problems of construction have been: What is a contract? What are the obligations of contracts? What constitutes impairment of these obligations? What residuum of power is there still in the states, in relation to the operation of contracts, to protect the vital interests of the community? Questions of this character, "of no small nicety and intricacy, have vexed the legislative halls, as well as the judicial tribunals, with an uncounted variety and frequency of litigation and speculation." ***

It is manifest ... that there has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare.... Pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected; and that the question is no longer merely that of one party to a contract as against another, but of the use of reasonable means to safeguard the economic structure upon which the good of all depends.

It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means to-day, in is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: "We must never forget, that it is a constitution we are expounding"; *** "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. " *** When we are dealing with the words of the Constitution, ..."we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.... The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." ***

Nor is it helpful to attempt to draw a fine distinction between the intended meaning of the words of the Constitution and their intended application. When we consider the contract clause and the decisions which have expounded it in harmony with the essential reserved power of the states to protect the security of their peoples, we find no warrant for the conclusion that the clause has been warped by these decisions from its proper significance or that the founders of our government would have interpreted the clause differently had they had occasion to assume that responsibility in the conditions of the later day. The vast body of law which has been developed was unknown to the fathers, but it is believed to have preserved the essential content and the spirit of the Constitution. With a growing recognition of public needs and the relation of individual right to public security, the Court has sought to prevent the perversion of the clause through its use as an instrument to throttle the capacity of the states to protect their fundamental interests....

We are of the opinion that the Minnesota statute as here applied does not violate the Contract Clause of the Federal Constitution. Whether the legislation is wise or unwise as matter of policy is a question with which we are not concerned....

Mr. Justice Sutherland, dissenting.

Few questions of greater moment than that just decided have been submitted for judicial inquiry during this generation. He simply closes his eyes to the necessary implications of the decision who fails to see in it the potentiality of future gradual but ever-advancing encroachments upon the sanctity of private and public contracts. The effect of the Minnesota legislation, though serious enough in itself, is of trivial significance compared with the far more serious and dangerous inroads upon the limitations of the Constitution which are almost certain to ensue as a consequence naturally following any step beyond the boundaries fixed by that instrument. And those of us who are thus apprehensive of the effect of this decision would, in a matter so important, be neglectful of our duty should we fail to spread upon the permanent records of the court the which move us to the opposite view.

A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. If the Contract Impairment Clause, when framed and adopted, meant that the terms of a contract payment of money could not be altered ... by a state statute enacted for the relief of hardly pressed debtors to the end and with the effect of postponing payment or enforcement during and because of an economic or financial emergency, it is but to state the obvious to say that it means the same now. This view, at once so rational in its application to the written word, and so necessary to the stability of constitutional principles, though from time to time challenged, has never, unless recently, been put within the realm of doubt by the decisions of this Court...

The provisions of the federal Constitution, undoubtedly, are pliable in the sense that in appropriate cases they have the capacity of bringing within their grasp every new condition which falls within their meaning. But their meaning is changeless; it is only their application which is extensible. *** Constitutional grants of power and restrictions upon the exercise of power are not flexible as the doctrines of the common law are flexible. These doctrines, upon the principles of the common law itself, modify or abrogate themselves whenever they are or whenever they become plainly unsuited to different or changed conditions....

The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it.... *** And if the meaning be at all doubtful, the doubt should be resolved, wherever reasonably possible to do so, in a way to forward the evident purpose with which the provision was adopted....

An application of these principles to the question under review removes any doubt, if otherwise there would be any, that the Contract Impairment Clause denies to the several states the power to mitigate hard consequences resulting to debtors from financial or economic exigencies by an impairment of the obligation of contracts of indebtedness. A candid consideration of the history and circumstances which led up to and accompanied the framing and adoption of this clause will demonstrate conclusively that it was framed and adopted with the specific and studied purpose of preventing legislation designed to relieve debtors especially in time of financial distress. Indeed, it is not probable that any other purpose was definitely in the minds of those who composed the framers' convention or the ratifying state conventions which followed, although the restriction has been given a wider application upon principles clearly stated by Chief Justice Marshall in the Dartmouth College Case. *** ...

The present exigency is nothing new. From the beginning of our existence as a nation, periods of depression, of industrial failure, of financial distress, of unpaid and unpayable. indebtedness, have alternated with years of plenty. The vital lesson that expenditure beyond income begets poverty, that public or private extravagance, financed by promises to pay, either must end in complete or partial repudiation or the promises be fulfilled by self-denial and painful effort, though constantly taught by bitter experience, seems never to be learned; and the attempt by legislative devices to shift the misfortune of debtor the shoulders of the creditor without coming into conflict with the Contract Impairment Clause been persistent and oft-repeated.

The defense of the Minnesota law is made upon grounds which were discountenanced by the markers of the Constitution and have many time rejected by this Court. That defense should not now succeed, because it constitutes an effort to overthrow the constitutional provision by an appeal to facts and circumstances identical with those which brought it into existence. With due regard for the process of logical thinking, it legitimately cannot be urged that conditions which produced the rule may now be invoked to destroy it.

... The opinion concedes that emergency does not create power, or increase granted power, or remove or diminish restrictions upon power granted or reserved. It then proceeds to say, however, that while emergency does not create power, it may furnish the occasion for the exercise of power. I can only interpret what is said on that subject as meaning that while an emergency does not diminish a restriction upon power it furnishes an occasion for diminishing it; and this, as it seems to me, is merely to say the same thing by the use of another set of words, with the effect of affirming that which has just been denied.

It is quite true that an emergency may supply the occasion for the exercise of power, depending upon the nature of the power and the intent of the Constitution with respect thereto. The emergency of war furnishes an occasion for the exercise of certain of the war powers. This the Constitution contemplates, since they cannot be exercised upon any other occasion. The existence of another kind of emergency authorizes the United States to protect each of the states of the Union against domestic violence. *** But we are here dealing not with a power granted by the federal Constitution, but with the state policy power, which exists in its own right. Hence the question is not whether an emergency furnishes the occasion for the exercise of that state power, but whether an emergency furnishes an occasion for the relaxation of the restrictions upon the power imposed by the Contract Impairment Clause, and the difficulty is that the Contract Impairment Clause forbids state action under any circumstances, if it have the effect of impairing the obligation of contracts. That clause restricts every state power in the particular specified, no matter what may be the occasion. It does not contemplate that an emergency shall furnish an occasion for softening the restriction or making it any the less a restriction upon state action in that contingency than it is under strictly normal conditions.

The Minnesota statute either impairs the obligation of contracts or it does not. If it does not, the occasion to which it relates becomes immaterial, since then the passage of the statute is the exercise of a normal, unrestricted, state power and requires no special occasion to render it effective. If it does, the emergency no more furnishes a proper occasion for its exercise than if the emergency were nonexistent. And so, while, in form, the suggested distinction seems to put us forward in a straight line, in reality it simply carries us back in a circle, like bewildered travelers lost in a wood, to the point where we parted company with the view of the state court...

I quite agree with the opinion of the Court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned. Being unable to reach any other conclusion than that the Minnesota statute infringes the constitutional restrictions under review, I have no choice but to say so.

I am authorized to say that Mr. Justice Va Devanter, Mr. Justice McReynolds and Mr. Justice Butler concur in this opinion.

The factual background of this case vividly illustrates how a trivial incident can result in a landmark constitutional decision. In 1933, the New York legislature bad established a milk control board with the power to "fix minimum and maximum ... retail prices to be charged... to consumers." The board set the price of milk at nine cents a quart, but Leo Nebbia, a Rochester grocer, violated this order by selling two quarts of milk and a nickel loaf of bread for eighteen cents. At his trial, Nebbia asserted that the statute and order contravened the Due Process Clause of the Fourteenth Amendment. Following his misdemeanor conviction, Nebbia renewed this contention unsuccessfully in appeals to the county court and the New York Court of Appeals. He then petitioned the U.S. Supreme Court for review.

Mr. Justice Roberts delivered the opinion of the Court.

... Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest....

The milk industry in New York has been the subject of long-standing and drastic regulations in the public interest. The legislative investigation of 1932 was persuasive of the fact that for this and other reasons unrestricted competition aggravated existing evils and the normal law of supply and demand was insufficient to correct maladjustments detrimental to the community. The inquiry disclosed destructive and demoralizing competitive conditions and unfair trade practices which resulted in retail price cutting and reduced the income of the farmer below the cost of production. We do not understand the appellant to deny that in these circumstances the legislature might reasonably consider further regulation and control desirable for protection of the industry and the consuming public. That body believed conditions could be improved by preventing destructive price-cutting by stores which, due to the flood of surplus milk, were able to buy at much lower prices than the larger distributors and to sell without incurring the delivery costs of the latter. In the order of which complaint is made the Milk Control Board fixed a price of ten cents per quart for sales by a distributor to a consumer, and nine cents by a store to a consumer, thus recognizing the lower costs of the store, and endeavoring to establish a differential which would be just to both. In the light of the facts the order appears not to be unreasonable or arbitrary, or without relation to the purpose to prevent ruthless competition from destroying the wholesale price structure on which the farmer depends for his livelihood, and the community for an assured supply of milk.

But we are told that because the law essays to control prices it denies due process. Notwithstanding the admitted power to correct existing economic ills by appropriate regulation of business, even though an indirect result may be a restriction of the freedom of contract or a modification of charges for services or the price of commodities, the appellant urges that direct fixation of prices is a type of regulation absolutely forbidden. His position is that the Fourteenth Amendment requires us to hold the challenged statute void for this reason alone. The argument runs that the public control of rates or prices is per se unreasonable and unconstitutional, save as applied to businesses affected with a public interest; that a business so affected is one in which property is devoted to an enterprise of a sort which the public itself might appropriately undertake, or one whose owner relies on a public grant or franchise for the right to conduct the business, or in which he is bound to serve all who apply; in short, such as is commonly called a public utility; or a business in its nature a monopoly. The milk industry, it is said , possesses none of these characteristics, and , therefore, not being affected with a public interest, its charges may not be controlled by the state. Upon the soundness of this contention the appellant's case against the statute depends.

We may as well say at once that the dairy industry is not, in the accepted sense of the phrase, a public utility. We think the appellant is also right in asserting that there is in this case no suggestion of any monopoly or monopolistic practice. It goes without saying that those engaged in the business are in no way dependent upon public grants or franchises for the privilege of conducting their activities. But is, as must be conceded, the industry is subject to regulation in the public interest, what constitutional principle bars the state from correcting existing maladjustments by legislation from touching prices? We think there is no such principle. The Due Process Clause makes no mention of sales or of prices any more than it speaks of business or contracts or buildings or other incidents of property. The thought seems nevertheless to have persisted that there is something peculiarly sacrosanct about the price one may charge for what he makes or sells, and that, however able to regulate other elements of manufacture or trade, with incidental effect upon price, the state is incapable of directly controlling the price itself. This view was negatived many years ago. *** ...

It is clear that there is no closed class or category of businesses affected with a public interest, and the function of courts in the application of the Fifth and Fourteenth Amendments is to determine in each case whether circumstances vindicate the challenged regulation as a reasonable exertion of governmental authority or condemn it as arbitrary or discriminatory .*** The phrase "affected with a public interest" can, in the nature of things, mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions of this court wherein the expressions "affected with a public interest," and "clothed with a public use," have been brought forward as the criteria of the validity of price control, it has been admitted that they are not susceptible of definition and form an unsatisfactory test of the constitutionality of legislation directed at business practices or prices. These decisions must rest, finally, upon the basis that the requirements of due process were not met because the laws were found arbitrary in their operation and effect. But there can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects, including the prices to be charged for the products or commodities it sells.

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...

... The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. Price control, like any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty.

Tested by these considerations we find no basis in the Due Process Clause of the Fourteenth Amendment for condemning the provisions of the Agriculture and Markets Law here drawn into question.

The judgment is affirmed.

Mr. Justice McReynolds [joined by Justices Van Devanter, Sutherland and Butler, dissenting]

... Regulation to prevent recognized evils in business has long been upheld as permissible legislative action. But fixation of the price at which AA," engaged in an ordinary business, may sell, in order to enable "B,@ a producer, to improve his condition, has not been regarded as within legislative power. This is not regulation, but management, control, dictation - it amounts to the deprivation of the fundamental right which one has to conduct his own affairs honestly and along customary lines. The argument advanced here would support general prescription of prices for farm products, groceries, shoes, clothing, all the necessities of modern civilization, as well as labor, when some legislature finds and declares such action advisable and for the public good. This Court has declared that a State may not by legislative fiat convert a private business into a public utility. ***And if it be now ruled that one dedicates his property to public use whenever he embarks on an enterprise which the Legislature may think it desirable to bring under control, this is but to declare that rights guaranteed by the Constitution exist only so long as posed public interest does not require their extinction. To adopt such a view, of course, would put an end to liberty under the Constitution....

James and Marilyn Nollan leased with an option to purchase a small bungalow situated on a beachfront lot in Ventura County, California. Their option to buy was conditioned on their promise to demolish the bungalow, which had fallen into disrepair, and replace it with a new structure. In order to do so, they had to obtain a development permit from the California Coastal Commission. The Commission informed the Nollans that it would grant the permit only on the condition that they grant an easement allowing for public access to the beach across their property. The Nollans filed sit it in the superior court, which invalidated the easement condition and ordered that it be stricken from the permit. The California Coastal Commission appealed to the California Court of Appeals, which reversed the superior court. The Nollans appealed to the US. Supreme Court.

Justice Scalia delivered the Opinion of the Court.

... Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does constitute a taking of a property interest but rather (as Justice Brennan contends) "a mere restriction on its use," *** is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that government be able to require conveyance of such interests, so long as it pays for them. *** Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effects of other governmental action lead us to the same conclusion....

Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not Aden[y] an owner economically viable use of his land." *** Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter. They have made clear, however, that a broad range of governmental purposes and regulations satisfies these requirements. *** The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so - in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction) would substantially impede these purposes, unless the denial would interfere so drastically with the Nollans use of their property as to constitute a taking. ***

The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree.... Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not.

The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "out-and-out plan of extortion." ***

... It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them caused by the construction of the Nollans' new house. We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land use power for any of these purposes. Our conclusion on this point is consistent with the approach of every other court that has considered the question, with the exception of the California state courts. ***

Justice Brennan argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach and that a person looking from the road would not be able to see it at all....

We are left, then, with the Commission's justification for the access requirement unrelated to land use regulation:

"Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." ***

That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for the "public purpose," see U.S. Const., Amdt. V; but if it wants an easement across the Nollans' property, it must pay for it.

Reversed.

Justice Brennan, with whom Justice Marshall joins, dissenting.

.. .The Court's conclusion that the permit rendition imposed on appellants is unreasonable cannot withstand analysis. First, the Court demands a degree of exactitude that is inconsistent with our standard for reviewing the rationality of a state's exercise of its police power for the welfare of its citizens. Second, even if the nature of the public access condition imposed must be identical to the precise burden on access created by appellants, this requirement is plainly satisfied....

Imposition of the permit condition in this case represents the State's reasonable exercise of its police power. The Coastal Commission has drawn on its expertise to preserve the balance between private development and public access, by requiring that any project that intensifies development on the increasingly crowded California coast must be offset by gains in public access. Under the normal standard for review of the police power, this provision is eminently reasonable. Even accepting the Court's novel insistence on a precise quid pro quo of burdens and benefits, there is a reasonable relationship between the public benefit and the burden created by appellants' development. The movement of development closer to the ocean creates the prospect of encroachment on public tidelands, because of fluctuation in the mean high tide line. The deed restriction ensures that disputes about the boundary between private and public property will not deter the public from exercising its right to have access to the sea.

Furthermore, consideration of the Commission's action under traditional takings analysis underscores the absence of any viable takings claim. The deed restriction permits the public only to pass and repass along a narrow strip of beach, a few feet closer to a seawall at the periphery of appellants' property. Appellants almost surely have enjoyed in increase in the value of their property even with the restriction, because they have been allowed to build a significantly larger new home with garage on their lot...

... State agencies ... require considerable flexibility in responding to private desires for development in a way that guarantees public access to the coast. They should be encouraged to regulate development in the context of the overall balance of competing uses of the shoreline. The Court today precisely the opposite, overruling an eminently reasonable exercise of an expert state agency's judgment, substituting its own narrow view of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the 20th century. I can only hope that today's decision is an aberration, and that a broader vision ultimately prevails.

I dissent.

Justice Blackmun, dissenting.

... I disagree with the Court's rigid interpretation of the necessary correlation between a burden created by development and a condition imposed pursuant to the State's police power to mitigate that burden. The land-use problems this country faces require creative solutions. These are not advanced by an "eye for an eye" mentality. The close nexus between benefits and burdens that the Court now imposes on permit conditions creates an anomaly in the ordinary requirement that a State's exercise of its police power need be no more than rationally based. In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public access to the beach. Coastal development by its very nature makes public access to the shore generally more difficult. Appellants' structure is part of that general development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants' construction permitting public passage that ensures access along the beach.

Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, has a nonexistent economic effect on the value of appellants' property. No investment-backed expectations were diminished. It is significant that the Nollans had notice of the easement before they purchased the property and that public use of the beach had been permitted for decades.

For these reasons, I respectfully, dissent.

Justice Stevens, with whom Justice Blackmun joins, dissenting....

In this case The Court considers whether state constitutional provisions allowing individuals to exercise free speech rights on the premises of privately owned shopping centers violate the shopping center owners' rights under the Fourteenth Amendment. The facts are given in Justice Rehnquist's majority opinion.

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...

I.

Appellant PruneYard 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...

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 immediately left the premises and later filed this lawsuit.... 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 their asserted rights on the shopping center property. ***It concluded that there were "adequate channels of communication for [appellees] other than soliciting on the private property of the [PruneYardl." *** 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 centers are privately owned." *** It concluded that appellees are 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:

Part II is deleted.

III.

Appellants first contend that Lloyd Corp. v. Tanner *** (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. *** 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. ***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. *** In rejecting this claim we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza [1968], ***, which was later overruled in Hudgens v. NLRB [1976], ***We stated that property does not "lose its private character merely because the public is generally invited to use it for designed 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 modern shopping center." ***

Our reasoning in Lloyd, however, does not ex proprio vigore [of its own force] 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. *** In Lloyd, 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 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. *** 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. ***

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. It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. *** 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. 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." *** Rather, the determination whether a state law unlawfully infringes a landowner's property in violation of the Taking Clause requires an examination of whether "the restriction on private property forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." *** 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. *** When "regulation goes too far it will be recognized as a taking." ***

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 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 [ 19791. *** 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." *** 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..." *** 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, *** 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."...

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. They state that in Wooley v. Maynard *** (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological 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 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...

We conclude that neither appellants' federally recognized property 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 Supreme Court of California is therefore affirmed.

Mr. Justice Marshall, concurring....

Mr. Justice White, concurring in part and concurring in the judgment.

... 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... 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 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, free-standing 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 of 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 just compensation or contravene any other federal constitutional provision." *** 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." *** 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....

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 speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would Support a holding in their favor.. . .

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. *** Appellees are high school students who set up their card table in one corner of a center courtyard known as the "Grand Plaza." 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 of 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.