437 U.S. 153 (1978)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

[155] Attorney General Bell argued the cause for petitioner. On the briefs were Acting Solicitor General Friedman, Deputy Solicitor General Barnett, Herbert S. Sanger, Jr., Richard A. Allen, Charles A. Wagner III, Thomas A. Pedersen, and Nicholas A. Della Volpe.

Zygmunt J. B. Plater argued the cause for respondents. With him on the brief was W. P. Boone Dougherty.^[1]

Briefs of amici curiae urging affirmance were filed by Ben Oshel Bridgers for the Eastern Band of Cherokee Indians; by William A. Butler for the Environmental Defense Fund et al.; and by Howell H. Sherrod, Jr., for the East Tennessee Valley Landowners' Assn.

Ben B. Blackburn and Wayne T. Elliott filed a brief for the Southeastern Legal Foundation as amicus curiae.

[156] MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

The questions presented in this case are (a) whether the Endangered Species Act of 1973 requires a court to enjoin the operation of a virtually completed federal dam—which had been authorized prior to 1973—when, pursuant to authority vested in him by Congress, the Secretary of the Interior has determined that operation of the dam would eradicate an endangered species; and (b) whether continued congressional appropriations for the dam after 1973 constituted an implied repeal of the Endangered Species Act, at least as to the particular dam.

I

The Little Tennessee River originates in the mountains of northern Georgia and flows through the national forest lands of North Carolina into Tennessee, where it converges with the Big Tennessee River near Knoxville. The lower 33 miles of the Little Tennessee takes the river's clear, free-flowing waters through an area of great natural beauty. Among other environmental amenities, this stretch of river is said to contain abundant trout. Considerable historical importance attaches to the areas immediately adjacent to this portion of the Little Tennessee's banks. To the south of the river's edge lies Fort Loudon, established in 1756 as England's southwestern outpost in the French and Indian War. Nearby are also the ancient sites of several native American villages, the archeological stores of which are to a large extent unexplored.^[2] These include the Cherokee towns of Echota and Tennase, the former [157] being the sacred capital of the Cherokee Nation as early as the 16th century and the latter providing the linguistic basis from which the State of Tennessee derives its name.^[3]

In this area of the Little Tennessee River the Tennessee Valley Authority, a wholly owned public corporation of the United States, began constructing the Tellico Dam and Reservoir Project in 1967, shortly after Congress appropriated initial funds for its development.^[4] Tellico is a multipurpose regional development project designed principally to stimulate shoreline development, generate sufficient electric current to heat 20,000 homes,^[5] and provide flatwater recreation and flood control, as well as improve economic conditions in "an area characterized by underutilization of human resources and outmigration of young people." Hearings on Public Works for Power and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of particular relevance to this case is one aspect of the project, a dam which TVA determined to place on the Little Tennessee, a short distance from where the river's waters meet with the Big Tennessee. When fully operational, the dam would impound water covering some 16,500 acres—much of which represents valuable and productive farmland—thereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30 miles in length.

The Tellico Dam has never opened, however, despite the fact that construction has been virtually completed and the [158] dam is essentially ready for operation. Although Congress has appropriated monies for Tellico every year since 1967, progress was delayed, and ultimately stopped, by a tangle of lawsuits and administrative proceedings. After unsuccessfully urging TVA to consider alternatives to damming the Little Tennessee, local citizens and national conservation groups brought suit in the District Court, claiming that the project did not conform to the requirements of the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U. S. C. § 4321 et seq. After finding TVA to be in violation of NEPA, the District Court enjoined the dam's completion pending the filing of an appropriate environmental impact statement. Environmental Defense Fund v. TVA, 339 F. Supp. 806 (ED Tenn.), aff'd, 468 F. 2d 1164 (CA6 1972). The injunction remained in effect until late 1973, when the District Court concluded that TVA's final environmental impact statement for Tellico was in compliance with the law. Environmental Defense Fund v. TVA, 371 F. Supp. 1004 (ED Tenn. 1973), aff'd, 492 F. 2d 466 (CA6 1974).^[6]

A few months prior to the District Court's decision dissolving the NEPA injunction, a discovery was made in the waters of the Little Tennessee which would profoundly affect the Tellico Project. Exploring the area around Coytee Springs, which is about seven miles from the mouth of the river, a University of Tennessee ichthyologist, Dr. David A. Etnier, found a previously unknown species of perch, the snail darter, or Percina (Imostoma) tanasi.^[7] This three-inch, tannish-colored fish, [159] whose numbers are estimated to be in the range of 10,000 to 15,000, would soon engage the attention of environmentalists, the TVA, the Department of the Interior, the Congress of the United States, and ultimately the federal courts, as a new and additional basis to halt construction of the dam.

Until recently the finding of a new species of animal life would hardly generate a cause celebre. This is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10 of these having been identified only in the last five years.^[8] The moving force behind the snail darter's sudden fame came some four months after its discovery, when the Congress passed the Endangered Species Act of 1973 (Act), 87 Stat. 884, 16 U. S. C. § 1531 et seq. (1976 ed.). This legislation, among other things, authorizes the Secretary of the Interior to declare species of animal life "endangered"^[9] and to [160] identify the "critical habitat"^[10] of these creatures. When a species or its habitat is so listed, the following portion of the Act—relevant here—becomes effective:

"The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical." 16 U. S. C. § 1536 (1976 ed.) (emphasis added).

[161] In January 1975, the respondents in this case^[11] and others petitioned the Secretary of the Interior^[12] to list the snail darter as an endangered species. After receiving comments from various interested parties, including TVA and the State of Tennessee, the Secretary formally listed the snail darter as an endangered species on October 8, 1975. 40 Fed. Reg. 47505-47506; see 50 CFR § 17.11 (i) (1976). In so acting, it was noted that "the snail darter is a living entity which is genetically distinct and reproductively isolated from other fishes." 40 Fed. Reg. 47505. More important for the purposes of this case, the Secretary determined that the snail darter apparently lives only in that portion of the Little Tennessee River which would be completely inundated by the reservoir created as a consequence of the Tellico Dam's completion. Id., at 47506.^[13] [162] The Secretary went on to explain the significance of the dam to the habitat of the snail darter:

"[T]he snail darter occurs only in the swifter portions of shoals over clean gravel substrate in cool, low-turbidity water. Food of the snail darter is almost exclusively snails which require a clean gravel substrate for their survival. The proposed impoundment of water behind the proposed Tellico Dam would result in total destruction of the snail darter's habitat." Ibid. (emphasis added).

Subsequent to this determination, the Secretary declared the area of the Little Tennessee which would be affected by the Tellico Dam to be the "critical habitat" of the snail darter. 41 Fed. Reg. 13926-13928 (1976) (to be codified as 50 CFR § 17.81). Using these determinations as a predicate, and notwithstanding the near completion of the dam, the Secretary declared that pursuant to § 7 of the Act, "all Federal agencies must take such action as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area." 41 Fed. Reg. 13928 (1976) (to be codified as 50 CFR § 17.81 (b)). This notice, of course, was pointedly directed at TVA and clearly aimed at halting completion or operation of the dam.

During the pendency of these administrative actions, other developments of relevance to the snail darter issue were transpiring. Communication was occurring between the Department of the Interior's Fish and Wildlife Service and TVA with a view toward settling the issue informally. These negotiations were to no avail, however, since TVA consistently took the position that the only available alternative was to attempt relocating the snail darter population to another suitable location. To this end, TVA conducted a search of alternative sites which might sustain the fish, culminating in the experimental transplantation of a number of snail darters to the nearby Hiwassee River. However, the Secretary of the Interior was [163] not satisfied with the results of these efforts, finding that TVA had presented "little evidence that they have carefully studied the Hiwassee to determine whether or not" there were "biological and other factors in this river that [would] negate a successful transplant."^[14] 40 Fed. Reg. 47506 (1975).

Meanwhile, Congress had also become involved in the fate of the snail darter. Appearing before a Subcommittee of the House Committee on Appropriations in April 1975—some seven months before the snail darter was listed as endangered— TVA representatives described the discovery of the fish and the relevance of the Endangered Species Act to the Tellico Project. Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1976, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 1st Sess., pt. 7, pp. 466-467 (1975); Hearings on H. R. 8122, Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1976, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975). At that time TVA presented a position which it would advance in successive forums thereafter, namely, that the Act did not prohibit the completion of a project authorized, funded, and substantially constructed before the Act was passed. TVA also described its efforts to transplant the snail darter, but contended that the dam should be finished regardless of the [164] experiment's success. Thereafter, the House Committee on Appropriations, in its June 20, 1975, Report, stated the following in the course of recommending that an additional $29 million be appropriated for Tellico:

"The Committee directs that the project, for which an environmental impact statement has been completed and provided the Committee, should be completed as promptly as possible . . . ." H. R. Rep. No. 94-319, p. 76 (1975). (Emphasis added.)

Congress then approved the TVA general budget, which contained funds for continued construction of the Tellico Project.^[15] In December 1975, one month after the snail darter was declared an endangered species, the President signed the bill into law. Public Works for Water and Power Development and Energy Research Appropriation Act, 1976, 89 Stat. 1035, 1047.

In February 1976, pursuant to § 11 (g) of the Endangered Species Act, 87 Stat. 900, 16 U. S. C. § 1540 (g) (1976 ed.),^[16] respondents filed the case now under review, seeking to enjoin completion of the dam and impoundment of the reservoir on the ground that those actions would violate the Act by directly causing the extinction of the species Percina (Imostoma) tanasi. The District Court denied respondents' request for a preliminary injunction and set the matter for trial. Shortly thereafter the House and Senate held appropriations hearings which would include discussions of the Tellico budget.

[165] At these hearings, TVA Chairman Wagner reiterated the agency's position that the Act did not apply to a project which was over 50% finished by the time the Act became effective and some 70% to 80% complete when the snail darter was officially listed as endangered. It also notified the Committees of the recently filed lawsuit's status and reported that TVA's efforts to transplant the snail darter had "been very encouraging." Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976).

Trial was held in the District Court on April 29 and 30, 1976, and on May 25, 1976, the court entered its memorandum opinion and order denying respondents their requested relief and dismissing the complaint. The District Court found that closure of the dam and the consequent impoundment of the reservoir would "result in the adverse modification, if not complete destruction, of the snail darter's critical habitat,"^[17] [166] making it "highly probable" that "the continued existence of the snail darter" would be "jeopardize[d]." 419 F. Supp. 753, 757 (ED Tenn.). Despite these findings, the District Court declined to embrace the plaintiffs' position on the merits: that once a federal project was shown to jeopardize an endangered species, a court of equity is compelled to issue an injunction restraining violation of the Endangered Species Act.

In reaching this result, the District Court stressed that the entire project was then about 80% complete and, based on available evidence, "there [were] no alternatives to impoundment of the reservoir, short of scrapping the entire project." Id., at 758. The District Court also found that if the Tellico Project was permanently enjoined, "some $53 million would be lost in nonrecoverable obligations," id., at 759, meaning that a large portion of the $78 million already expended would be wasted. The court also noted that the Endangered Species Act of 1973 was passed some seven years after construction on the dam commenced and that Congress had continued appropriations for Tellico, with full awareness of the snail darter problem. Assessing these various factors, the District Court concluded:

"At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. . . . Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection." Id., at 760.

To accept the plaintiffs' position, the District Court argued, would inexorably lead to what it characterized as the absurd result of requiring "a court to halt impoundment of water [167] behind a fully completed dam if an endangered species were discovered in the river on the day before such impoundment was scheduled to take place. We cannot conceive that Congress intended such a result." Id., at 763.

Less than a month after the District Court decision, the Senate and House Appropriations Committees recommended the full budget request of $9 million for continued work on Tellico. See S. Rep. No. 94-960, p. 96 (1976); H. R. Rep. No. 94-1223, p. 83 (1976). In its Report accompanying the appropriations bill, the Senate Committee stated:

"During subcommittee hearings, TVA was questioned about the relationship between the Tellico project's completion and the November 1975 listing of the snail darter (a small 3-inch fish which was discovered in 1973) as an endangered species under the Endangered Species Act. TVA informed the Committee that it was continuing its efforts to preserve the darter, while working towards the scheduled 1977 completion date. TVA repeated its view that the Endangered Species Act did not prevent the completion of the Tellico project, which has been under construction for nearly a decade. The subcommittee brought this matter, as well as the recent U. S. District Court's decision upholding TVA's decision to complete the project, to the attention of the full Committee. The Committee does not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage and directs that this project be completed as promptly as possible in the public interest." S. Rep. No. 94-960, supra, at 96. (Emphasis added.)

On June 29, 1976, both Houses of Congress passed TVA's general budget, which included funds for Tellico; the President signed the bill on July 12, 1976. Public Works for Water and Power Development and Energy Research Appropriation Act, 1977, 90 Stat. 889, 899.

[168] Thereafter, in the Court of Appeals, respondents argued that the District Court had abused its discretion by not issuing an injunction in the face of "a blatant statutory violation." 549 F. 2d 1064, 1069 (CA6 1977). The Court of Appeals agreed, and on January 31, 1977, it reversed, remanding "with instructions that a permanent injunction issue halting all activities incident to the Tellico Project which may destroy or modify the critical habitat of the snail darter." Id., at 1075. The Court of Appeals directed that the injunction "remain in effect until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined." Ibid.

The Court of Appeals accepted the District Court's finding that closure of the dam would result in the known population of snail darters being "significantly reduced if not completely extirpated." Id., at 1069. TVA, in fact, had conceded as much in the Court of Appeals, but argued that "closure of the Tellico Dam, as the last stage of a ten-year project, falls outside the legitimate purview of the Act if it is rationally construed." Id., at 1070. Disagreeing, the Court of Appeals held that the record revealed a prima facie violation of § 7 of the Act, namely that TVA had failed to take "such action . . . necessary to insure" that its "actions" did not jeopardize the snail darter or its critical habitat.

The reviewing court thus rejected TVA's contention that the word "actions" in § 7 of the Act was not intended by Congress to encompass the terminal phases of ongoing projects. Not only could the court find no "positive reinforcement" for TVA's argument in the Act's legislative history, but also such an interpretation was seen as being "inimical to . . . its objectives." 549 F. 2d, at 1070. By way of illustration, that court pointed out that "the detrimental impact of a project upon an endangered species may not always be clearly perceived before construction is well underway." Id., at 1071. Given such a [169] likelihood, the Court of Appeals was of the opinion that TVA's position would require the District Court, sitting as a chancellor, to balance the worth of an endangered species against the value of an ongoing public works measure, a result which the appellate court was not willing to accept. Emphasizing the limits on judicial power in this setting, the court stated:

"Current project status cannot be translated into a workable standard of judicial review. Whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must be invested before the value of a dam exceeds that of the endangered species. Our responsibility under § 1540 (g) (1) (A) is merely to preserve the status quo where endangered species are threatened, thereby guaranteeing the legislative or executive branches sufficient opportunity to grapple with the alternatives." Ibid.

As far as the Court of Appeals was concerned, it made no difference that Congress had repeatedly approved appropriations for Tellico, referring to such legislative approval as an "advisory opinio[n]" concerning the proper application of an existing statute. In that court's view, the only relevant legislation was the Act itself, "[t]he meaning and spirit" of which was "clear on its face." Id., at 1072.

Turning to the question of an appropriate remedy, the Court of Appeals ruled that the District Court had erred by not issuing an injunction. While recognizing the irretrievable loss of millions of dollars of public funds which would accompany injunctive relief, the court nonetheless decided that the Act explicitly commanded precisely that result:

"It is conceivable that the welfare of an endangered species may weigh more heavily upon the public conscience, as expressed by the final will of Congress, than the writeoff of those millions of dollars already expended [170] for Tellico in excess of its present salvageable value." Id., at 1074.

Following the issuance of the permanent injunction, members of TVA's Board of Directors appeared before Subcommittees of the House and Senate Appropriations Committees to testify in support of continued appropriations for Tellico. The Subcommittees were apprised of all aspects of Tellico's status, including the Court of Appeals' decision. TVA reported that the dam stood "ready for the gates to be closed and the reservoir filled," Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, p. 234 (1977), and requested funds for completion of certain ancillary parts of the project, such as public use areas, roads, and bridges. As to the snail darter itself, TVA commented optimistically on its transplantation efforts, expressing the opinion that the relocated fish were "doing well and ha[d] reproduced." Id., at 235, 261-262.

Both Appropriations Committees subsequently recommended the full amount requested for completion of the Tellico Project. In its June 2, 1977, Report, the House Appropriations Committee stated:

"It is the Committee's view that the Endangered Species Act was not intended to halt projects such as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act." H. R. Rep. No. 95-379, p. 104. (Emphasis added.)

As a solution to the problem, the House Committee advised that TVA should cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." Id., at 11. Toward this end, the Committee recommended [171] a special appropriation of $2 million to facilitate relocation of the snail darter and other endangered species which threatened to delay or stop TVA projects. Much the same occurred on the Senate side, with its Appropriations Committee recommending both the amount requested to complete Tellico and the special appropriation for transplantation of endangered species. Reporting to the Senate on these measures, the Appropriations Committee took a particularly strong stand on the snail darter issue:

"This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding." S. Rep. No. 95-301, p. 99 (1977). (Emphasis added.)

TVA's budget, including funds for completion of Tellico and relocation of the snail darter, passed both Houses of Congress and was signed into law on August 7, 1977. Public Works for Water and Power Development and Energy Research Appropriation Act, 1978, 91 Stat. 797.

We granted certiorari, 434 U. S. 954 (1977), to review the judgment of the Court of Appeals.

II

We begin with the premise that operation of the Tellico Dam will either eradicate the known population of snail darters or destroy their critical habitat. Petitioner does not now seriously dispute this fact.^[18] In any event, under § 4 (a) (1) [172] of the Act, 87 Stat. 886, 16 U. S. C. § 1533 (a) (1) (1976 ed.), the Secretary of the Interior is vested with exclusive authority to determine whether a species such as the snail darter is "endangered" or "threatened" and to ascertain the factors which have led to such a precarious existence. By § 4 (d) Congress has authorized—indeed commanded—the Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U. S. C. § 1533 (d) (1976 ed.). As we have seen, the Secretary promulgated regulations which declared the snail darter an endangered species whose critical habitat would be destroyed by creation of the Tellico Reservoir. Doubtless petitioner would prefer not to have these regulations on the books, but there is no suggestion that the Secretary exceeded his authority or abused his discretion in issuing the regulations. Indeed, no judicial review of the Secretary's determinations has ever been sought and hence the validity of his actions are not open to review in this Court.

Starting from the above premise, two questions are presented: (a) would TVA be in violation of the Act if it completed and operated the Tellico Dam as planned? (b) if TVA's actions would offend the Act, is an injunction the appropriate remedy for the violation? For the reasons stated hereinafter, we hold that both questions must be answered in the affirmative.

(A)

It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, [173] however, that the explicit provisions of the Endangered Species Act require precisely that result.

One would be hard pressed to find a statutory provision whose terms were any plainer than those in § 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species . . . ." 16 U. S. C. § 1536 (1976 ed.). (Emphasis added.) This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as applying to a federal project which was well under way when Congress passed the Endangered Species Act of 1973. To sustain that position, however, we would be forced to ignore the ordinary meaning of plain language. It has not been shown, for example, how TVA can close the gates of the Tellico Dam without "carrying out" an action that has been "authorized" and "funded" by a federal agency. Nor can we understand how such action will "insure" that the snail darter's habitat is not disrupted.^[19] Accepting the Secretary's determinations, as [174] we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species.

Concededly, this view of the Act will produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.^[20] But examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.

When Congress passed the Act in 1973, it was not legislating on a clean slate. The first major congressional concern for the preservation of the endangered species had come with passage of the Endangered Species Act of 1966, 80 Stat. 926, repealed, 87 Stat. 903.^[21] In that legislation Congress gave the [175] Secretary power to identify "the names of the species of native fish and wildlife found to be threatened with extinction," § 1 (c), 80 Stat. 926, as well as authorization to purchase land for the conservation, protection, restoration, and propagation of "selected species" of "native fish and wildlife" threatened with extinction. §§ 2 (a)-(c), 80 Stat. 926-927. Declaring the preservation of endangered species a national policy, the 1966 Act directed all federal agencies both to protect these species and "insofar as is practicable and consistent with the[ir] primary purposes," § 1 (b), 80 Stat. 926, "preserve the habitats of such threatened species on lands under their jurisdiction." Ibid. (Emphasis added.) The 1966 statute was not a sweeping prohibition on the taking of endangered species, however, except on federal lands, § 4 (c), 80 Stat. 928, and even in those federal areas the Secretary was authorized to allow the hunting and fishing of endangered species. § 4 (d) (1), 80 Stat. 928.

In 1969 Congress enacted the Endangered Species Conservation Act, 83 Stat. 275, repealed, 87 Stat. 903, which continued the provisions of the 1966 Act while at the same time broadening federal involvement in the preservation of endangered species. Under the 1969 legislation, the Secretary was empowered to list species "threatened with worldwide extinction," § 3 (a), 83 Stat. 275; in addition, the importation of any species so recognized into the United States was prohibited. § 2, 83 Stat. 275. An indirect approach to the taking of [176] endangered species was also adopted in the Conservation Act by way of a ban on the transportation and sale of wildlife taken in violation of any federal, state, or foreign law. §§ 7 (a)-(b), 83 Stat. 279.^[22]

Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type to be enacted by any nation"^[23] up to that time, Congress was soon persuaded that a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized. By 1973, when Congress held hearings on what would later become the Endangered Species Act of 1973, it was informed that species were still being lost at the rate of about one per year, 1973 House Hearings 306 (statement of Stephen R. Seater, for Defenders of Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H. R. Rep. No. 93-412, p. 4 (1973). Moreover, Congress was also told that the primary cause of this trend was something other than the normal process of natural selection:

"[M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period." 1973 House Hearings 202 (statement of Assistant Secretary of the Interior).

[177] That Congress did not view these developments lightly was stressed by one commentator:

"The dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of 1973] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings and much debate was devoted to the biological problem of extinction. Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear." Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N. D. L. Rev. 315, 321 (1975). (Emphasis added.)

The legislative proceedings in 1973 are, in fact, replete with expressions of concern over the risk that might lie in the loss of any endangered species.^[24] Typifying these sentiments is the Report of the House Committee on Merchant Marine and [178] Fisheries on H. R. 37, a bill which contained the essential features of the subsequently enacted Act of 1973; in explaining the need for the legislation, the Report stated:

"As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten their—and our own—genetic heritage.

"The value of this genetic heritage is, quite literally, incalculable.

.....

"From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.

"To take a homely, but apt, example: one of the critical chemicals in the regulation of ovulations in humans was found in a common plant. Once discovered, and analyzed, humans could duplicate it synthetically, but had it never existed—or had it been driven out of existence before we knew its potentialities—we would never have tried to synthesize it in the first place.

"Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? . . . Sheer self-interest impels us to be cautious.

"The institutionalization of that caution lies at the heart of H. R. 37 . . . ." H. R. Rep. No. 93-412, pp. 4-5 (1973). (Emphasis added.)

As the examples cited here demonstrate, Congress was concerned about the unknown uses that endangered species might [179] have and about the unforeseeable place such creatures may have in the chain of life on this planet.

In shaping legislation to deal with the problem thus presented, Congress started from the finding that "[t]he two major causes of extinction are hunting and destruction of natural habitat." S. Rep. No. 93-307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of natural habitats; see 1973 House Hearings 236 (statement of Associate Deputy Chief for National Forest System, Dept. of Agriculture); id., at 241 (statement of Director of Mich. Dept. of Natural Resources); id., at 306 (statement of Stephen R. Seater, Defenders of Wildlife); Lachenmeier, The Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Environ. Law 29, 31 (1974). Witnesses recommended, among other things, that Congress require all land-managing agencies "to avoid damaging critical habitat for endangered species and to take positive steps to improve such habitat." 1973 House Hearings 241 (statement of Director of Mich. Dept. of Natural Resources). Virtually every bill introduced in Congress during the 1973 session responded to this concern by incorporating language similar, if not identical, to that found in the present § 7 of the Act.^[25] These provisions were designed, in the words of an administration witness, "for the first time [to] prohibit [a] federal agency from taking action which does jeopardize the status of endangered species," Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 68 (1973) (statement of [180] Deputy Assistant Secretary of the Interior) (emphasis added); furthermore, the proposed bills would "direc[t] all . . . Federal agencies to utilize their authorities for carrying out programs for the protection of endangered animals." 1973 House Hearings 205 (statement of Assistant Secretary of the Interior). (Emphasis added.)

As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such . . . species . . . ." 16 U. S. C. § 1531 (b) (1976 ed.). In furtherance of these goals, Congress expressly stated in § 2 (c) that "all Federal departments and agencies shall seek to conserve endangered species and threatened species . . . ." 16 U. S. C. § 1531 (c) (1976 ed.). (Emphasis added.) Lest there be any ambiguity as to the meaning of this statutory directive, the Act specifically defined "conserve" as meaning "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." § 1532 (2). (Emphasis added.) Aside from § 7, other provisions indicated the seriousness with which Congress viewed this issue: Virtually all dealings with endangered species, including taking, possession, transportation, and sale, were prohibited, 16 U. S. C. § 1538 (1976 ed.), except in extremely narrow circumstances, see § 1539 (b). The Secretary was also given extensive power to develop regulations and programs for the preservation of endangered and threatened species.^[26] § 1533 (d). Citizen [181] involvement was encouraged by the Act, with provisions allowing interested persons to petition the Secretary to list a species as endangered or threatened, § 1533 (c) (2), see n. 11, supra, and bring civil suits in United States district courts to force compliance with any provision of the Act, §§ 1540 (c) and (g).

Section 7 of the Act, which of course is relied upon by respondents in this case, provides a particularly good gauge of congressional intent. As we have seen, this provision had its genesis in the Endangered Species Act of 1966, but that legislation qualified the obligation of federal agencies by stating that they should seek to preserve endangered species only "insofar as is practicable and consistent with the[ir] primary purposes . . . ." Likewise, every bill introduced in 1973 contained a qualification similar to that found in the earlier statutes.^[27] Exemplary of these was the administration bill, H. R. 4758, which in § 2 (b) would direct federal agencies to use their authorities to further the ends of the Act "insofar as is practicable and consistent with the[ir] primary purposes. . . ." (Emphasis added.) Explaining the idea behind this language, an administration spokesman told Congress that it "would further signal to all . . . agencies of the Government that this is the first priority, consistent with their primary objectives." 1973 House Hearings 213 (statement of Deputy Assistant Secretary of the Interior). (Emphasis added.) This type of language did not go unnoticed by those advocating strong endangered species legislation. A representative of the [182] Sierra Club, for example, attacked the use of the phrase "consistent with the primary purpose" in proposed H. R. 4758, cautioning that the qualification "could be construed to be a declaration of congressional policy that other agency purposes are necessarily more important than protection of endangered species and would always prevail if conflict were to occur." 1973 House Hearings 335 (statement of the chairman of the Sierra Club's National Wildlife Committee); see id., at 251 (statement for the National Audubon Society).

What is very significant in this sequence is that the final version of the 1973 Act carefully omitted all of the reservations described above. In the bill which the Senate initially approved (S. 1983), however, the version of the current § 7 merely required federal agencies to "carry out such programs as are practicable for the protection of species listed . . . ."^[28] S. 1983, § 7 (a). (Emphasis added.) By way of contrast, the bill that originally passed the House, H. R. 37, contained a provision which was essentially a mirror image of the subsequently passed § 7—indeed all phrases which might have qualified an agency's responsibilities had been omitted from the bill.^[29] In explaining the expected impact of this provision in H. R. 37 on federal agencies, the House Committee's Report states:

"This subsection requires the Secretary and the heads of all other Federal departments and agencies to use their authorities in order to carry out programs for the protection [183] of endangered species, and it further requires that those agencies take the necessary action that will not jeopardize the continuing existence of endangered species or result in the destruction of critical habitat of those species." H. R. Rep. No. 93-412, p. 14 (1973). (Emphasis added.)

Resolution of this difference in statutory language, as well as other variations between the House and Senate bills, was the task of a Conference Committee. See 119 Cong. Rec. 30174-30175, 31183 (1973). The Conference Report, H. R. Conf. Rep. No. 93-740 (1973), basically adopted the Senate bill, S. 1983; but the conferees rejected the Senate version of § 7 and adopted the stringent, mandatory language in H. R. 37. While the Conference Report made no specific reference to this choice of provisions, the House manager of the bill, Representative Dingell, provided an interpretation of what the Conference bill would require, making it clear that the mandatory provisions of § 7 were not casually or inadvertently included:

"[Section 7] substantially amplifie[s] the obligation of [federal agencies] to take steps within their power to carry out the purposes of this act. A recent article . . . illustrates the problem which might occur absent this new language in the bill. It appears that the whooping cranes of this country, perhaps the best known of our endangered species, are being threatened by Air Force bombing activities along the gulf coast of Texas. Under existing law, the Secretary of Defense has some discretion as to whether or not he will take the necessary action to see that this threat disappears . . . . [O]nce the bill is enacted, [the Secretary of Defense] would be required to take the proper steps. . . .

"Another example . . . [has] to do with the continental population of grizzly bears which may or may not be endangered, but which is surely threatened. . . . Once this [184] bill is enacted, the appropriate Secretary, whether of Interior, Agriculture or whatever, will have to take action to see that this situation is not permitted to worsen, and that these bears are not driven to extinction. The purposes of the bill included the conservation of the species and of the ecosystems upon which they depend, and every agency of government is committed to see that those purposes are carried out. . . . [T]he agencies of Government can no longer plead that they can do nothing about it. They can, and they must. The law is clear." 119 Cong. Rec. 42913 (1973). (Emphasis added.)

It is against this legislative background^[30] that we must measure TVA's claim that the Act was not intended to stop operation of a project which, like Tellico Dam, was near completion when an endangered species was discovered in its path. While there is no discussion in the legislative history of precisely this problem, the totality of congressional action makes it abundantly clear that the result we reach today is wholly in accord with both the words of the statute and the intent of Congress. The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to "take" endangered species, meaning that no one is "to harass, harm,^[31] pursue, hunt, shoot, [185] wound, kill, trap, capture, or collect" such life forms. 16 U. S. C. §§ 1532 (14), 1538 (a) (1) (B) (1976 ed.). Agencies in particular are directed by §§ 2 (c) and 3 (2) of the Act to "use . . . all methods and procedures which are necessary" to preserve endangered species. 16 U. S. C. §§ 1531 (c), 1532 (2) (1976 ed.) (emphasis added). In addition, the legislative history undergirding § 7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the "primary missions" of federal agencies.

It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated. In any event, we discern no hint in the deliberations of Congress relating to the 1973 Act that would compel a different result than we reach here.^[32] [186] Indeed, the repeated expressions of congressional concern over what it saw as the potentially enormous danger presented by the eradication of any endangered species suggest how the balance would have been struck had the issue been presented to Congress in 1973.

Furthermore, it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to fulfill the goals of the Act.^[33] Congressman Dingell's discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activity—intimately related to [187] the national defense—which a major federal department would be obliged to alter in deference to the strictures of § 7. A similar example is provided by the House Committee Report:

"Under the authority of [§ 7], the Director of the Park Service would be required to conform the practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within Yellowstone Park. These bears, which may be endangered, and are undeniably threatened, should at least be protected by supplying them with carcasses from excess elk within the park, by curtailing the destruction of habitat by clearcutting National Forests surrounding the Park, and by preventing hunting until their numbers have recovered sufficiently to withstand these pressures." H. R. Rep. No. 93-412, p. 14 (1973). (Emphasis added.)

One might dispute the applicability of these examples to the Tellico Dam by saying that in this case the burden on the public through the loss of millions of unrecoverable dollars would greatly outweigh the loss of the snail darter.^[34] But neither the Endangered Species Act nor Art. III of the Constitution provides federal courts with authority to make such fine utilitarian calculations. On the contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that Congress viewed the value of endangered species as "incalculable." Quite obviously, it would be difficult for [188] a court to balance the loss of a sum certain—even $100 million—against a congressionally declared "incalculable" value, even assuming we had the power to engage in such a weighing process, which we emphatically do not.

In passing the Endangered Species Act of 1973, Congress was also aware of certain instances in which exceptions to the statute's broad sweep would be necessary. Thus, § 10, 16 U. S. C. § 1539 (1976 ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to the Tellico Project. In fact, there are no exemptions in the Endangered Species Act for federal agencies, meaning that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt. Cf. National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453, 458 (1974).^[35]

[189] Notwithstanding Congress' expression of intent in 1973, we are urged to find that the continuing appropriations for Tellico Dam constitute an implied repeal of the 1973 Act, at least insofar as it applies to the Tellico Project. In support of this view, TVA points to the statements found in various House and Senate Appropriations Committees' Reports; as described in Part I. supra, those Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico or that the dam should be completed regardless of the provisions of the Act. Since we are unwilling to assume that these latter Committee statements constituted advice to ignore the provisions of a duly enacted law, we assume that these Committees believed that the Act simply was not applicable in this situation. But even under this interpretation of the Committees' actions, we are unable to conclude that the Act has been in any respect amended or repealed.

There is nothing in the appropriations measures, as passed, which states that the Tellico Project was to be completed irrespective of the requirements of the Endangered Species Act. These appropriations, in fact, represented relatively minor components of the lump-sum amounts for the entire TVA budget.^[36] To find a repeal of the Endangered Species Act under these circumstances would surely do violence to the "`cardinal rule . . . that repeals by implication are not favored.'" Morton v. Mancari, 417 U. S. 535, 549 (1974). quoting Posadas v. National City Bank, 296 U. S. 497, 503 (1936). In Posadas this Court held, in no uncertain terms, that "the intention of the legislature to repeal must be clear and manifest." Ibid. See Georgia v. Pennsylvania R. Co., [190] 324 U. S. 439, 456-457 (1945) ("Only a clear repugnancy between the old . . . and the new [law] results in the former giving way . . ."); United States v. Borden Co., 308 U. S. 188, 198-199 (1939) ("[I]ntention of the legislature to repeal `must be clear and manifest'. . . . `[A] positive repugnancy [between the old and the new laws]'"); Wood v. United States, 16 Pet. 342, 363 (1842) ("[T]here must be a positive repugnancy . . ."). In practical terms, this "cardinal rule" means that "[i]n the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable." Mancari, supra, at 550.

The doctrine disfavoring repeals by implication "applies with full vigor when . . . the subsequent legislation is an appropriations measure." Committee for Nuclear Responsibility v. Seaborg, 149 U. S. App. D. C. 380, 382, 463 F. 2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F. 2d 346, 355 (CA8 1972). This is perhaps an understatement since it would be more accurate to say that the policy applies with even greater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are "Acts of Congress," but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to operate under the assumption that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid [191] this need. House Rule XXI (2), for instance, specifically provides:

"No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order." (Emphasis added.)

See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner's position, we would be obliged to assume that Congress meant to repeal pro tanto § 7 of the Act by means of a procedure expressly prohibited under the rules of Congress.

Perhaps mindful of the fact that it is "swimming upstream" against a strong current of well-established precedent, TVA argues for an exception to the rule against implied repealers in a circumstance where, as here, Appropriations Committees have expressly stated their "understanding" that the earlier legislation would not prohibit the proposed expenditure. We cannot accept such a proposition. Expressions of committees dealing with requests for appropriations cannot be equated with statutes enacted by Congress, particularly not in the circumstances presented by this case. First, the Appropriations Committees had no jurisdiction over the subject of endangered species, much less did they conduct the type of extensive hearings which preceded passage of the earlier Endangered Species Acts, especially the 1973 Act. We venture to suggest that the House Committee on Merchant Marine and Fisheries and the Senate Committee on Commerce would be somewhat surprised to learn that their careful work on the substantive legislation had been undone by the simple—and brief— insertion of some inconsistent language in Appropriations Committees' Reports.

[192] Second, there is no indication that Congress as a whole was aware of TVA's position, although the Appropriations Committees apparently agreed with petitioner's views. Only recently, in SEC v. Sloan, 436 U. S. 103 (1978), we declined to presume general congressional acquiescence in a 34-year-old practice of the Securities and Exchange Commission, despite the fact that the Senate Committee having jurisdiction over the Commission's activities had long expressed approval of the practice. MR. JUSTICE REHNQUIST, speaking for the Court, observed that we should be "extremely hesitant to presume general congressional awareness of the Commission's construction based only upon a few isolated statements in the thousands of pages of legislative documents." Id., at 121. A fortiori, we should not assume that petitioner's views—and the Appropriations Committees' acceptance of them—were any better known, especially when the TVA is not the agency with primary responsibility for administering the Endangered Species Act.

Quite apart from the foregoing factors, we would still be unable to find that in this case "the earlier and later statutes are irreconcilable," Mancari, 417 U. S., at 550; here it is entirely possible "to regard each as effective." Id., at 551. The starting point in this analysis must be the legislative proceedings leading to the 1977 appropriations since the earlier funding of the dam occurred prior to the listing of the snail darter as an endangered species. In all successive years, TVA confidently reported to the Appropriations Committees that efforts to transplant the snail darter appeared to be successful; this surely gave those Committees some basis for the impression that there was no direct conflict between the Tellico Project and the Endangered Species Act. Indeed, the special appropriation for 1978 of $2 million for transplantation of endangered species supports the view that the Committees saw such relocation as the means whereby collision between Tellico and the Endangered Species Act could be avoided. It should also [193] be noted that the Reports issued by the Senate and House Appropriations Committees in 1976 came within a month of the District Court's decision in this case, which hardly could have given the Members cause for concern over the possible applicability of the Act. This leaves only the 1978 appropriations, the Reports for which issued after the Court of Appeals' decision now before us. At that point very little remained to be accomplished on the project; the Committees understandably advised TVA to cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." H. R. Rep. No. 95-379, p. 11 (1977). It is true that the Committees repeated their earlier expressed "view" that the Act did not prevent completion of the Tellico Project. Considering these statements in context, however, it is evident that they "`represent only the personal views of these legislators,'" and "however explicit, [they] cannot serve to change the legislative intent of Congress expressed before the Act's passage." Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974).

(B)

Having determined that there is an irreconcilable conflict between operation of the Tellico Dam and the explicit provisions of § 7 of the Endangered Species Act, we must now consider what remedy, if any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not mechanically obligated to grant an injunction for every violation of law. This Court made plain in Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944), that "[a] grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances." As a general matter it may be said that "[s]ince all or almost all equitable remedies are discretionary, the balancing of equities and hardships is appropriate in almost any case as a guide to the chancellor's discretion." D. Dobbs, Remedies 52 (1973). Thus, in Hecht [194] Co. the Court refused to grant an injunction when it appeared from the District Court findings that "the issuance of an injunction would have `no effect by way of insuring better compliance in the future' and would [have been] `unjust' to [the] petitioner and not `in the public interest.' " 321 U. S., at 326.

But these principles take a court only so far. Our system of government is, after all, a tripartite one, with each branch having certain defined functions delegated to it by the Constitution. While "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 1 Cranch 137, 177 (1803), it is equally—and emphatically— the exclusive province of the Congress not only to formulate legislative policies and mandate programs and projects, but also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.

Here we are urged to view the Endangered Species Act "reasonably," and hence shape a remedy "that accords with some modicum of common sense and the public weal." Post, at 196. But is that our function? We have no expert knowledge on the subject of endangered species, much less do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam. Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as "institutionalized caution."

Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not [195] sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir Thomas More by Robert Bolt are not without relevance here:

"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . . I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? . . . This country's planted thick with laws from coast to coast—Man's laws, not God's—and if you cut them down . . . d'you really think you could stand upright in the winds that would blow them? . . . Yes, I'd give the Devil benefit of law, for my own safety's sake." R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed. 1967).

We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with "common sense and the public weal." Our Constitution vests such responsibilities in the political branches.

Affirmed.

MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, dissenting.

The Court today holds that § 7 of the Endangered Species Act requires a federal court, for the purpose of protecting an endangered species or its habitat, to enjoin permanently the operation of any federal project, whether completed or substantially completed. This decision casts a long shadow over the operation of even the most important projects, serving [196] vital needs of society and national defense, whenever it is determined that continued operation would threaten extinction of an endangered species or its habitat. This result is said to be required by the "plain intent of Congress" as well as by the language of the statute.

In my view § 7 cannot reasonably be interpreted as applying to a project that is completed or substantially completed^[37] when its threat to an endangered species is discovered. Nor can I believe that Congress could have intended this Act to produce the "absurd result"—in the words of the District Court—of this case. If it were clear from the language of the Act and its legislative history that Congress intended to authorize this result, this Court would be compelled to enforce it. It is not our province to rectify policy or political judgments by the Legislative Branch, however egregiously they may disserve the public interest. But where the statutory language and legislative history, as in this case, need not be construed to reach such a result, I view it as the duty of this Court to adopt a permissible construction that accords with some modicum of common sense and the public weal.

I

Although the Court has stated the facts fully, and fairly presented the testimony and action of the Appropriations Committees relevant to this case, I now repeat some of what has been said. I do so because I read the total record as compelling rejection of the Court's conclusion that Congress intended the Endangered Species Act to apply to completed or substantially completed projects such as the dam and reservoir project that today's opinion brings to an end—absent relief by Congress itself.

[197] In 1966, Congress authorized and appropriated initial funds for the construction by the Tennessee Valley Authority (TVA) of the Tellico Dam and Reservoir Project on the Little Tennessee River in eastern Tennessee. The Project is a comprehensive water resource and regional development project designed to control flooding, provide water supply, promote industrial and recreational development, generate some additional electric power within the TVA system, and generally improve economic conditions in an economically depressed area "characterized by underutilization of human resources and outmigration of young people."^[38]

Construction began in 1967, and Congress has voted funds for the Project in every year since. In August 1973, when the Tellico Project was half completed, a new species of fish known as the snail darter^[39] was discovered in the portion of the Little Tennessee River that would be impounded behind Tellico Dam. The Endangered Species Act was passed the following December. 87 Stat. 884, 16 U. S. C. § 1531 et seq. (1976 ed.). More than a year later, in January 1975, respondents joined others in petitioning the Secretary of the Interior to list the snail darter as an endangered species. On November 10, 1975, when the Tellico Project was 75% completed, the Secretary placed the snail darter on the endangered list and concluded that the "proposed impoundment of water behind [198] the proposed Tellico Dam would result in total destruction of the snail darter's habitat." 40 Fed. Reg. 47506 (1975). In respondents' view, the Secretary's action meant that completion of the Tellico Project would violate § 7 of the Act, 16 U. S. C. § 1536 (1976 ed.):

"All . . . Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species . . . listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary . . . to be critical."

TVA nevertheless determined to continue with the Tellico Project in accordance with the prior authorization by Congress. In February 1976, respondents filed the instant suit to enjoin its completion. By that time the Project was 80% completed.

In March 1976, TVA informed the House and Senate Appropriations Committees about the Project's threat to the snail darter and about respondents' lawsuit. Both Committees were advised that TVA was attempting to preserve the fish by relocating them in the Hiwassee River, which closely resembles the Little Tennessee. It stated explicitly, however, that the success of those efforts could not be guaranteed.^[40]

[199] In a decision of May 25, 1976, the District Court for the Eastern District of Tennessee held that "the Act should not be construed as preventing completion of the project."^[41] 419 F. Supp. 753, 755 n. 2. An opposite construction, said the District Court, would be unreasonable:

"At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323, 1331-32 (4th Cir.), cert. den. 409 U. S. 1000 . . . (1972). Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection." Id., at 760.

Observing that respondents' argument, carried to its logical extreme, would require a court to enjoin the impoundment of [200] water behind a fully completed dam if an endangered species were discovered in the river on the day before the scheduled impoundment, the District Court concluded that Congress could not have intended such a result.^[42] Accordingly, it denied the prayer for an injunction and dismissed the action.

In 1975, 1976, and 1977, Congress, with full knowledge of the Tellico Project's effect on the snail darter and the alleged violation of the Endangered Species Act, continued to appropriate money for the completion of the Project. In doing so, the Appropriations Committees expressly stated that the Act did not prohibit the Project's completion, a view that Congress presumably accepted in approving the appropriations each year. For example, in June 1976, the Senate Committee on Appropriations released a report noting the District Court decision and recommending approval of TVA's full budget request for the Tellico Project. The Committee observed further that it did "not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage," and it directed "that this project be completed as promptly as possible in the public interest."^[43] The appropriations bill was passed by Congress and approved by the President.

The Court of Appeals for the Sixth Circuit nevertheless reversed the District Court in January 1977. It held that the Act was intended to create precisely the sort of dramatic conflict presented in this case: "Where a project is on-going and substantial resources have already been expended, the conflict between national incentives to conserve living things and the pragmatic momentum to complete the project on schedule is most incisive." 549 F. 2d 1064, 1071. Judicial resolution [201] of that conflict, the Court of Appeals reasoned, would represent usurpation of legislative power. It quoted the District Court's statement that respondents' reading of the Act, taken to its logical extreme, would compel a court to halt impoundment of water behind a dam if an endangered species were discovered in the river on the day before the scheduled impoundment. The Court of Appeals, however, rejected the District Court's conclusion that such a reading was unreasonable and contrary to congressional intent, holding instead that "[c]onscientious enforcement of the Act requires that it be taken to its logical extreme." Ibid. It remanded with instructions to issue a permanent injunction halting all activities incident to the Tellico Project that would modify the critical habitat of the snail darter.

In June 1977, and after being informed of the decision of the Court of Appeals, the Appropriations Committees in both Houses of Congress again recommended approval of TVA's full budget request for the Tellico Project. Both Committees again stated unequivocally that the Endangered Species Act was not intended to halt projects at an advanced stage of completion:

"[The Senate] Committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding."^[44]

"It is the [House] Committee's view that the Endangered Species Act was not intended to halt projects such [202] as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act."^[45]

Once again, the appropriations bill was passed by both Houses and signed into law.

II

Today the Court, like the Court of Appeals below, adopts a reading of § 7 of the Act that gives it a retroactive effect and disregards 12 years of consistently expressed congressional intent to complete the Tellico Project. With all due respect, I view this result as an extreme example of a literalist^[46] construction, not required by the language of the Act and adopted without regard to its manifest purpose. Moreover, it ignores established canons of statutory construction.

A

The starting point in statutory construction is, of course, the language of § 7 itself. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (POWELL, J., concurring). I agree that it can be viewed as a textbook example of fuzzy language, which can be read according to the "eye of the beholder."^[47] The critical words direct all federal agencies to take "such action [as may be] necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of . . . endangered species . . . or result in the destruction or modification of [a critical] habitat of such species . . . ." Respondents—as did [203] the Sixth Circuit—read these words as sweepingly as possible to include all "actions" that any federal agency ever may take with respect to any federal project, whether completed or not.

The Court today embraces this sweeping construction. Ante, at 184-188. Under the Court's reasoning, the Act covers every existing federal installation, including great hydroelectric projects and reservoirs, every river and harbor project, and every national defense installation—however essential to the Nation's economic health and safety. The "actions" that an agency would be prohibited from "carrying out" would include the continued operation of such projects or any change necessary to preserve their continued usefulness.^[48] The only precondition, according to respondents, to thus destroying the usefulness of even the most important federal project in our country would be a finding by the Secretary of the Interior [204] that a continuation of the project would threaten the survival or critical habitat of a newly discovered species of water spider or amoeba.^[49]

"[F]requently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act." Church of the Holy Trinity v. United States, 143 U. S. 457, 459 (1892).^[50] The [205] result that will follow in this case by virtue of the Court's reading of § 7 makes it unreasonable to believe that Congress intended that reading. Moreover, § 7 may be construed in a way that avoids an "absurd result" without doing violence to its language.

The critical word in § 7 is "actions" and its meaning is far from "plain." It is part of the phrase: "actions authorized, funded or carried out." In terms of planning and executing various activities, it seems evident that the "actions" referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out. In short, these words reasonably may be read as applying only to prospective actions, i. e., actions with respect to which the agency has reasonable decision-making alternatives still available, actions not yet carried out. At the time respondents brought this lawsuit, the Tellico Project was 80% complete at a cost of more than $78 million. The Court concedes that as of this time and for the purpose of deciding this case, the Tellico Dam Project is "completed" or "virtually completed and the dam is essentially ready for operation," ante, at 156, 157-158. See n. 1, supra. Thus, under a prospective reading of § 7, the action already had been "carried out" in terms of any remaining reasonable decision-making power. Cf. National Wildlife Federation v. Coleman, 529 F. 2d 359, 363, and n. 5 (CA5), cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U. S. 979 (1976).

This is a reasonable construction of the language and also is supported by the presumption against construing statutes to give them a retroactive effect. As this Court stated in [206] United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U. S. 306, 314 (1908), the "presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other." This is particularly true where a statute enacts a new regime of regulation. For example, the presumption has been recognized in cases under the National Environmental Policy Act, 42 U. S. C. § 4321 et seq., holding that the requirement of filing an environmental impact statement cannot reasonably be applied to projects substantially completed. E. g., Pizitz, Inc. v. Volpe, 467 F. 2d 208 (CA5 1972); Ragland v. Mueller, 460 F. 2d 1196 (CA5 1972); Greene County Planning Board v. FPC, 455 F. 2d 412, 424 (CA2), cert. denied, 409 U. S. 849 (1972). The Court of Appeals for the Fourth Circuit explained these holdings.

"Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be `possible' to change the project in accordance with Section 102. At some stage, federal action may be so `complete' that applying the Act could be considered a `retroactive' application not intended by the Congress." Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323, 1331, cert. denied sub nom. Fugate v. Arlington Coalition on Transportation, 409 U. S. 1000 (1972).

Similarly under § 7 of the Endangered Species Act, at some stage of a federal project, and certainly where a project has been completed, the agency no longer has a reasonable choice simply to abandon it. When that point is reached, as it was in this case, the presumption against retrospective interpretation is at its strongest. The Court today gives no weight to that presumption.

[207] B

The Court recognizes that the first purpose of statutory construction is to ascertain the intent of the legislature. E. g., United States v. American Trucking Assns., 310 U. S. 534, 542 (1940).^[51] The Court's opinion reviews at length the legislative history, with quotations from Committee Reports and statements by Members of Congress. The Court then ends this discussion with curiously conflicting conclusions.

It finds that the "totality of congressional action makes it abundantly clear that the result we reach today [justifying the termination or abandonment of any federal project] is wholly in accord with both the words of the statute and the intent of Congress." Ante, at 184. Yet, in the same paragraph, the Court acknowledges that "there is no discussion in the legislative history of precisely this problem." The opinion nowhere makes clear how the result it reaches can be "abundantly" self-evident from the legislative history when the result was never discussed. While the Court's review of the legislative history establishes that Congress intended to require governmental agencies to take endangered species into account in the planning and execution of their programs,^[52] there is not [208] even a hint in the legislative history that Congress intended to compel the undoing or abandonment of any project or program later found to threaten a newly discovered species.^[53]

If the relevant Committees that considered the Act, and the Members of Congress who voted on it, had been aware that the Act could be used to terminate major federal projects authorized years earlier and nearly completed, or to require the abandonment of essential and long-completed federal installations [209] and edifices,^[54] we can be certain that there would have been hearings, testimony, and debate concerning consequences so wasteful, so inimical to purposes previously deemed important, and so likely to arouse public outrage. The absence of any such consideration by the Committees or in the floor debates indicates quite clearly that no one participating in the legislative process considered these consequences as within the intendment of the Act.

As indicated above, this view of legislative intent at the time of enactment is abundantly confirmed by the subsequent congressional actions and expressions. We have held, properly, that post-enactment statements by individual Members of Congress as to the meaning of a statute are entitled to little or no weight. See, e. g., Regional Rail Reorganization Act Cases, 419 U. S. 102, 132 (1974). The Court also has recognized that subsequent Appropriations Acts themselves are not necessarily entitled to significant weight in determining whether a prior statute has been superseded. See United States v. Langston, 118 U. S. 389, 393 (1886). But these precedents are inapposite. There was no effort here to "bootstrap" a post-enactment view of prior legislation by isolated statements of individual Congressmen. Nor is this a case where Congress, without explanation or comment upon the statute in question, merely has voted apparently inconsistent financial [210] support in subsequent Appropriations Acts. Testimony on this precise issue was presented before congressional committees, and the Committee Reports for three consecutive years addressed the problem and affirmed their understanding of the original congressional intent. We cannot assume—as the Court suggests—that Congress, when it continued each year to approve the recommended appropriations, was unaware of the contents of the supporting Committee Reports. All this amounts to strong corroborative evidence that the interpretation of § 7 as not applying to completed or substantally completed projects reflects the initial legislative intent. See, e. g., Fleming v. Mohawk Wrecking & Lumber Co., 331 U. S. 111, 116 (1947); Brooks v. Dewar, 313 U. S. 354 (1941).

III

I have little doubt that Congress will amend the Endangered Species Act to prevent the grave consequences made possible by today's decision. Few, if any, Members of that body will wish to defend an interpretation of the Act that requires the waste of at least $53 million, see n. 6, supra, and denies the people of the Tennessee Valley area the benefits of the reservoir that Congress intended to confer.^[55] There will be little sentiment to leave this dam standing before an empty reservoir, serving no purpose other than a conversation piece for incredulous tourists.

But more far reaching than the adverse effect on the people of this economically depressed area is the continuing threat to the operation of every federal project, no matter how important to the Nation. If Congress acts expeditiously, as may be anticipated, the Court's decision probably will have no lasting adverse consequences. But I had not thought it to be the province of this Court to force Congress into otherwise [211] unnecessary action by interpreting a statute to produce a result no one intended.

MR. JUSTICE REHNQUIST, dissenting.

In the light of my Brother POWELL'S dissenting opinion, I am far less convinced than is the Court that the Endangered Species Act of 1973, 16 U. S. C. § 1531 et seq. (1976 ed.), was intended to prohibit the completion of the Tellico Dam. But the very difficulty and doubtfulness of the correct answer to this legal question convinces me that the Act did not prohibit the District Court from refusing, in the exercise of its traditional equitable powers, to enjoin petitioner from completing the Dam. Section 11 (g) (1) of the Act, 16 U. S. C. § 1540 (g) (1) (1976 ed.), merely provides that "any person may commence a civil suit on his own behalf . . . to enjoin any person, including the United States and any other governmental instrumentality or agency . . . , who is alleged to be in violation of any provision of this chapter." It also grants the district courts "jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce any such provision."

This Court had occasion in Hecht Co. v. Bowles, 321 U. S. 321 (1944), to construe language in an Act of Congress that lent far greater support to a conclusion that Congress intended an injunction to issue as a matter of right than does the language just quoted. There the Emergency Price Control Act of 1942 provided that

"[u]pon a showing by the Administrator that [a] person has engaged or is about to engage in any [acts or practices violative of this Act] a permanent or temporary injunction, restraining order, or other order shall be granted without bond." 56 Stat. 33 (emphasis added).

But in Hecht this Court refused to find even in such language an intent on the part of Congress to require that a [212] district court issue an injunction as a matter of course without regard to established equitable considerations, saying:

"Only the other day we stated that `An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity.' . . . The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied. . . . [I]f Congress desired to make such an abrupt departure from traditional equity practice as is suggested, it would have made its desire plain." 321 U. S., at 329-330.

Only by sharply retreating from the principle of statutory construction announced in Hecht Co. could I agree with the Court of Appeals' holding in this case that the judicial enforcement provisions contained in § 11 (g) (1) of the Act require automatic issuance of an injunction by the district courts once a violation is found. I choose to adhere to Hecht Co.'s teaching:

"A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under any and all circumstances. We cannot but think that if Congress had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made." 321 U. S., at 329.

Since the District Court possessed discretion to refuse injunctive relief even though it had found a violation of the Act, the [213] only remaining question is whether this discretion was abused in denying respondents' prayer for an injunction. Locomotive Engineers v. Missouri, K. & T. R. Co., 363 U. S. 528, 535 (1960). The District Court denied respondents injunctive relief because of the significant public and social harms that would flow from such relief and because of the demonstrated good faith of petitioner. As the Court recognizes, ante, at 193, such factors traditionally have played a central role in the decisions of equity courts whether to deny an injunction. See also 7 J. Moore, Federal Practice ¶ 65.18 [3] (1972); Yakus v. United States, 321 U. S. 414, 440-441 (1944). This Court has specifically held that a federal court can refuse to order a federal official to take specific action, even though the action might be required by law, if such an order "would work a public injury or embarrassment" or otherwise "be prejudicial to the public interest." United States ex rel. Greathouse v. Dern, 289 U. S. 352, 360 (1933). Here the District Court, confronted with conflicting evidence of congressional purpose, was on even stronger ground in refusing the injunction.

Since equity is "the instrument for nice adjustment and reconciliation between the public interest and private needs," Hecht Co., supra, at 329-330, a decree in one case will seldom be the exact counterpart of a decree in another. See, e. g., Eccles v. People's Bank, 333 U. S. 426 (1948); Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685 (1898). Here the District Court recognized that Congress, when it enacted the Endangered Species Act, made the preservation of the habitat of the snail darter an important public concern. But it concluded that this interest on one side of the balance was more than outweighed by other equally significant factors. These factors, further elaborated in the dissent of my Brother POWELL, satisfy me that the District Court's refusal to issue an injunction was not an abuse of its discretion. I therefore dissent from the Court's opinion holding otherwise.

[1] Briefs of amici curiae urging reversal were filed by Robert J. Pennington for Monroe County et al.; and by Ronald A. Zumbrun, Raymond M. Momboisse, Robert K. Best, Albert Ferri, Jr., Donald C. Simpson, and W. Hugh O'Riordan for the Pacific Legal Foundation.

[2] This description is taken from the opinion of the District Judge in the first litigation involving the Tellico Dam and Reservoir Project. Environmental Defense Fund v. TVA, 339 F. Supp. 806, 808 (ED Tenn. 1972). In his opinion, "all of these benefits of the present Little Tennessee River Valley will be destroyed by impoundment of the river . . . ." Ibid. The District Judge noted that "[t]he free-flowing river is the likely habitat of one or more of seven rare or endangered fish species." Ibid.

[3] See Brief for the Eastern Band of Cherokee Indians as Amicus Curiae 2. See also Mooney, Myths of the Cherokee, 19 Bureau of American Ethnology Ann. Rep. 11 (1900); H. Timberlake, Memoirs, 1756-1765 (Watauga Press 1927); A. Brewer & C. Brewer, Valley So Wild: A Folk History (East Tenn. Historical Soc. 1975).

[4] Public Works Appropriation Act, 1967, 80 Stat. 1002, 1014.

[5] Tellico Dam itself will contain no electric generators; however, an interreservoir canal connecting Tellico Reservoir with a nearby hydroelectric plant will augment the latter's capacity.

[6] The NEPA injunction was in effect some 21 months; when it was entered TVA had spent some $29 million on the project. Most of these funds have gone to purchase land, construct the concrete portions of the dam, and build a four-lane steel-span bridge to carry a state highway over the proposed reservoir. 339 F. Supp., at 808.

[7] The snail darter was scientifically described by Dr. Etnier in the Proceedings of the Biological Society of Washington, Vol. 88, No. 44, pp. 469-488 (Jan. 22, 1976). The scientific merit and content of Dr. Etnier's paper on the snail darter were checked by a panel from the Smithsonian Institution prior to publication. See App. 111.

[8] In Tennessee alone there are 85 to 90 species of darters, id., at 131, of which upward to 45 live in the Tennessee River system. Id., at 130. New species of darters are being constantly discovered and classified—at the rate of about one per year. Id., at 131. This is a difficult task for even trained ichthyologists since species of darters are often hard to differentiate from one another. Ibid.

[9] An "endangered species" is defined by the Act to mean "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." 16 U. S. C. § 1532 (4) (1976 ed.).

"`The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them—some 200,000—may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.'" Keith Shreiner, Associate Director and Endangered Species Program Manager of the U. S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978).

[10] The Act does not define "critical habitat," but the Secretary of the Interior has administratively construed the term:

"`Critical habitat' means any air, land, or water area (exclusive of those existing man-made structures or settlements which are not necessary to the survival and recovery of a listed species) and constituent elements thereof, the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a distinct segment of its population. The constituent elements of critical habitat include, but are not limited to: physical structures and topography, biota, climate, human activity, and the quality and chemical content of land, water, and air. Critical habitat may represent any portion of the present habitat of a listed species and may include additional areas for reasonable population expansion." 43 Fed. Reg. 874 (1978) (to be codified as 50 CFR § 402.02).

[11] Respondents are a regional association of biological scientists, a Tennessee conservation group, and individuals who are citizens or users of the Little Tennessee Valley area which would be affected by the Tellico Project.

[12] The Act authorizes "interested person[s]" to petition the Secretary of the Interior to list a species as endangered. 16 U. S. C. § 1533 (c) (2) (1976 ed.); see 5 U. S. C. § 553 (e) (1976 ed.).

[13] Searches by TVA in more than 60 watercourses have failed to find other populations of snail darters. App. 36, 410-412. The Secretary has noted that "more than 1,000 collections in recent years and additional earlier collections from central and east Tennessee have not revealed the presence of the snail darter outside the Little Tennessee River." 40 Fed. Reg. 47505 (1975). It is estimated, however, that the snail darter's range once extended throughout the upper main Tennessee River and the lower portions of its major tributaries above Chattanooga—all of which are now the sites of dam impoundments. See Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, pp. 240-241 (1977) (statement of witness for TVA); Hearings on Endangered Species Act Oversight, before the Subcommittee on Resource Protection of the Senate Committee on Environment and Public Works, 95th Cong., 1st Sess., 291 (1977); App. 139.

[14] The Fish and Wildlife Service and Dr. Etnier have stated that it may take from 5 to 15 years for scientists to determine whether the snail darter can successfully survive and reproduce in this new environment. See General Accounting Office, The Tennessee Valley Authority's Tellico Dam Project—Costs, Alternatives, and Benefits 4 (Oct. 14, 1977). In expressing doubt over the long-term future of the Hiwassee transplant, the Secretary noted: "That the snail darter does not already inhabit the Hiwassee River, despite the fact that the fish has had access to it in the past, is a strong indication that there may be biological and other factors in this river that negate a successful transplant." 40 Fed. Reg. 47506 (1975).

[15] TVA projects generally are authorized by the Authority itself and are funded—without the need for specific congressional authorization—from lump-sum appropriations provided in yearly budget grants. See 16 U. S. C. §§ 831c (j) and 831z (1976 ed.).

[16] Section 11 (g) allows "any person" to commence a civil action in a United States District Court to, inter alia, "enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision" of the Act "or regulation issued under the authority thereof . . . ."

[17] The District Court made the following findings with respect to the dam's effect on the ecology of the snail darter:

"The evidence introduced at trial showed that the snail darter requires for its survival a clear, gravel substrate, in a large-to-medium, flowing river. The snail darter has a fairly high requirement for oxygen and since it tends to exist in the bottom of the river, the flowing water provides the necessary oxygen at greater depths. Reservoirs, unlike flowing rivers, tend to have a low oxygen content at greater depths.

"Reservoirs also tend to have more silt on the bottom than flowing rivers, and this factor, combined with the lower oxygen content, would make it highly probable that snail darter eggs would smother in such an environment. Furthermore, the adult snail darters would probably find this type of reservoir environment unsuitable for spawning.

"Another factor that would tend to make a reservoir habitat unsuitable for snail darters is that their primary source of food, snails, probably would not survive in such an environment." 419 F. Supp. 753, 756 (ED Tenn. 1976).

[18] The District Court findings are to the same effect and are unchallenged here.

[19] In dissent, MR. JUSTICE POWELL argues that the meaning of "actions" in § 7 is "far from `plain,'" and that "it seems evident that the `actions' referred to are not all actions that an agency can ever take, but rather actions that the agency is deciding whether to authorize, to fund, or to carry out." Post, at 205. Aside from this bare assertion, however, no explanation is given to support the proffered interpretation. This recalls Lewis Carroll's classic advice on the construction of language:

"`When I use a word,' Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean—neither more nor less.'" Through the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939).

Aside from being unexplicated, the dissent's reading of § 7 is flawed on several counts. First, under its view, the words "or carry out" in § 7 would be superfluous since all prospective actions of an agency remain to be "authorized" or "funded." Second, the dissent's position logically means that an agency would be obligated to comply with § 7 only when a project is in the planning stage. But if Congress had meant to so limit the Act, it surely would have used words to that effect, as it did in the National Environmental Policy Act, 42 U. S. C. §§ 4332 (2) (A), (C).

[20] The District Court determined that failure to complete the Tellico Dam would result in the loss of some $53 million in nonrecoverable obligations; see supra, at 166. Respondents dispute this figure, and point to a recent study by the General Accounting Office, which suggests that the figure could be considerably less. See GAO Study, n. 13, supra, at 5-14; see also Cook, Cook, & Gove, The Snail Darter & the Dam, 51 National Parks & Conservation Magazine 10 (1977); Conservation Foundation Letter 1-2 (Apr. 1978). The GAO study also concludes that TVA and Congress should explore alternatives to impoundment of the reservoir, such as the creation of a regional development program based on a free-flowing river. None of these considerations are relevant to our decision, however; they are properly addressed to the Executive and Congress.

[21] Prior federal involvement with endangered species had been quite limited. For example, the Lacey Act of 1900, 31 Stat. 187, partially codified in 16 U. S. C. §§ 667e and 701 (1976 ed.), and the Black Bass Act of 1926, 44 Stat. 576, as amended, 16 U. S. C. § 851 et seq. (1976 ed.), prohibited the transportation in interstate commerce of fish or wildlife taken in violation of national, state, or foreign law. The effect of both of these statutes was constrained, however, by the fact that prior to passage of the Endangered Species Act of 1973, there were few laws regulating these creatures. See Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N. D. L. Rev. 315, 317-318 (1975). The Migratory Bird Treaty Act, passed in 1918, 40 Stat. 755, as amended, 16 U. S. C. § 703 et seq. (1976 ed.), was more extensive, giving the Secretary of the Interior power to adopt regulations for the protection of migratory birds. Other measures concentrated on establishing refuges for wildlife. See, e. g., Land and Water Conservation Fund Act of 1965, 78 Stat. 897, 16 U. S. C. § 460l-4 et seq. (1976 ed.). See generally Environmental Law Institute, The Evolution of National Wildlife Law (1977).

[22] This approach to the problem of taking, of course, contained the same inherent limitations as the Lacey and Black Bass Acts, discussed, n. 20, supra.

[23] Hearings on Endangered Species before the Subcommittee of the House Committee on Merchant Marine and Fisheries, 93d Cong., 1st Sess., 202 (1973) (statement of Assistant Secretary of the Interior) (hereinafter cited as 1973 House Hearings).

[24] See, e. g., 1973 House Hearings 280 (statement of Rep. Roe); id., at 281 (statement of Rep. Whitehurst); id., at 301 (statement of Friends of the Earth); id., at 306-307 (statement of Defenders of Wildlife). One statement, made by the Assistant Secretary of the Interior, particularly deserves notice:

"I have watched in my lifetime a vast array of mollusks in southern streams totally disappear as a result of damming, channelization, and pollution. It is often asked of me, `what is the importance of the mollusks for example in Alabama.' I do not know, and I do not know whether any of us will ever have the insight to know exactly why these mollusks evolved over millions of years or what their importance is in the total ecosystem. However, I have great trouble being party to their destruction without ever having gained such knowledge." Id., at 207.

One member of the mollusk family existing in these southern rivers is the snail, see 12 Encyclopedia Britannica 326 (15th ed. 1974), which ironically enough provides the principal food for snail darters. See supra, at 162, 165-166, n. 16.

[25] For provisions in the House bills, see § 5 (d) of H. R. 37, 470, 471, 1511, 2669, 3696, and 3795; § 3 (d) of H. R. 1461 and 4755; § 5 (d) of H. R. 2735; § 3 (d) of H. R. 4758. For provisions in the Senate bills, see § 3 (d) of S. 1592; § 5 (d) of S. 1983. The House bills are collected in 1973 House Hearings 87-185; the Senate bills are found in the Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 3-49 (1973).

[26] A further indication of the comprehensive scope of the 1973 Act lies in Congress' inclusion of "threatened species" as a class deserving federal protection. Threatened species are defined as those which are "likely to become an endangered species within the foreseeable future throughout all or a significant portion of [their] range." 16 U. S. C. § 1532 (15) (1976 ed.).

[27] For provisions in the House bills, see §§ 2 (c) and 5 (d) of H. R. 37, 470, 471, 1511, 2669, 3310, 3696, and 3795; § 3 (d) of H. R. 1461 and 4755; § 5 (d) of H. R. 2735; § 2 (b) of H. R. 4758; one other House bill, H. R. 2169, imposed no requirements on federal agencies. For provisions in the Senate bills, see § 2 (b) of S. 1592; §§ 2 (b), and 5 (d) of S. 1983.

[28] We note, however, that in the version of S. 1983 which was sent to the floor of the Senate by the Senate Committee on Commerce, the qualifying language "wherever practicable" had been omitted from one part of the bill, that being § 2 (b). See 119 Cong. Rec. 25663 (1973). Section 2 (b) was the portion of S. 1983 that stated the "purposes and policy" of Congress. But the Committee's version of S. 1983—which was reported to the full Senate—retained the limitation on § 7 that we note here. 119 Cong. Rec. 25664 (1973).

[29] See id., at 30157-30162.

[30] When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning. Ex parte Collett, 337 U. S. 55, 61 (1949), and cases cited therein. Here it is not necessary to look beyond the words of the statute. We have undertaken such an analysis only to meet MR. JUSTICE POWELL'S suggestion that the "absurd" result reached in this case, post, at 196, is not in accord with congressional intent.

[31] We do not understand how TVA intends to operate Tellico Dam without "harming" the snail darter. The Secretary of the Interior has defined the term "harm" to mean "an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of `harm.'" 50 CFR § 17.3 (1976) (emphasis added); see S. Rep. No. 93-307, p. 7 (1973).

[32] The only portion of the legislative history which petitioner cites as being favorable to its position consists of certain statements made by Senator Tunney on the floor of the Senate during debates on S.1983; see 119 Cong. Rec. 25691-25692 (1973). Senator Tunney was asked whether the proposed bill would affect the Army Corps of Engineers' decision to build a road through a particular area of Kentucky. Responding to this question, Senator Tunney opined that § 7 of S. 1983 would require consultation, among the agencies involved, but that the Corps of Engineers "would not be prohibited from building such a road if they deemed it necessary to do so." 119 Cong. Rec. 25689 (1973). Petitioner interprets these remarks to mean that an agency, after balancing the respective interests involved, could decide to take action which would extirpate an endangered species. If that is what Senator Tunney meant, his views are in distinct contrast to every other expression in the legislative history as to the meaning of § 7. For example, when the Kentucky example was brought up in the Senate hearings, an administration spokesman interpreted an analogous provision in S. 1592 as "prohibit[ing] [a] federal agency from taking action which does jeopardize the status of endangered species." Supra, at 179. Moreover, we note that the version of S. 1983 being discussed by Senator Tunney contained the "as practicable" limitation in § 7 (a) which we have previously mentioned. See supra, at 182. Senator Tunney's remarks perhaps explain why the Conference Committee subsequently deleted all such qualifying expressions. We construe the Senator's remarks as simply meaning that under the 1973 Act the agency responsible for the project would have the "final decision," 119 Cong. Rec. 25690 (1973), as to whether the action should proceed, notwithstanding contrary advice from the Secretary of the Interior. The Secretary's recourse would be to either appeal to higher authority in the administration, or proceed to federal court under the relevant provisions of the Act; citizens may likewise seek enforcement under 16 U. S. C. § 1540 (g) (1976 ed.), as has been done in this case.

[33] MR. JUSTICE POWELL characterizes the result reached here as giving "retroactive" effect to the Endangered Species Act of 1973. We cannot accept that contention. Our holding merely gives effect to the plain words of the statute, namely, that § 7 affects all projects which remain to be authorized, funded, or carried out. Indeed, under the Act there could be no "retroactive" application since, by definition, any prior action of a federal agency which would have come under the scope of the Act must have already resulted in the destruction of an endangered species or its critical habitat. In that circumstance the species would have already been extirpated or its habitat destroyed; the Act would then have no subject matter to which it might apply.

[34] MR. JUSTICE POWELL'S dissent places great reliance on Church of the Holy Trinity v. United States, 143 U. S. 457, 459 (1892), post, at 204, to support his view of the 1973 Act's legislative history. This Court, however, later explained Holy Trinity as applying only in "rare and exceptional circumstances. . . . And there must be something to make plain the intent of Congress that the letter of the statute is not to prevail." Crooks v. Harrelson, 282 U. S. 55, 60 (1930). As we have seen from our explication of the structure and history of the 1973 Act, there is nothing to support the assertion that the literal meaning of § 7 should not apply in this case.

[35] MR. JUSTICE POWELL'S dissent relies on cases decided under the National Environmental Policy Act to support its position that the 1973 Act should only apply to prospective actions of an agency. Post, at 205-206. The NEPA decisions, however, are completely inapposite. First, the two statutes serve different purposes. NEPA essentially imposes a procedural requirement on agencies, requiring them to engage in an extensive inquiry as to the effect of federal actions on the environment; by way of contrast, the 1973 Act is substantive in effect, designed to prevent the loss of any endangered species, regardless of the cost. Thus, it would make sense to hold NEPA inapplicable at some point in the life of a project, because the agency would no longer have a meaningful opportunity to weigh the benefits of the project versus the detrimental effects on the environment. Section 7, on the other hand, compels agencies not only to consider the effect of their projects on endangered species, but to take such actions as are necessary to insure that species are not extirpated as a result of federal activities. Second, even the NEPA cases have generally required agencies to file environmental impact statements when the remaining governmental action would be environmentally "significant." See, e. g., Environmental Defense Fund v. TVA, 468 F. 2d 1164, 1177 (CA6 1972). Under § 7, the loss of any endangered species has been determined by Congress to be environmentally "significant." See supra, at 177-179.

[36] The Appropriations Acts did not themselves identify the projects for which the sums had been appropriated; identification of these projects requires reference to the legislative history. See n. 14, supra. Thus, unless a Member scrutinized in detail the Committee proceedings concerning the appropriations, he would have no knowledge of the possible conflict between the continued funding and the Endangered Species Act.

[37] Attorney General Bell advised us at oral argument that the dam had been completed, that all that remains is to "[c]lose the gate," and to complete the construction of "some roads and bridges." The "dam itself is finished. All the landscaping has been done . . . . [I]t is completed." Tr. of Oral Arg. 18.

[38] Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976).

[39] Although the snail darter is a distinct species, it is hardly an extraordinary one. Even icthyologists familiar with the snail darter have difficulty distinguishing it from several related species. App. 107, 131. Moreover, new species of darters are discovered in Tennessee at the rate of about 1 a year; 8 to 10 have been discovered in the last five years. Id., at 131. All told, there are some 130 species of darters, 85 to 90 of which are found in Tennessee, 40 to 45 in the Tennessee River system, and 11 in the Little Tennessee itself. Id., at 38 n. 7, 130-131.

[40] Hearings on Public Works for Water and Power Development and Energy Research Appropriations Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976).

[41] The Court of Appeals interpreted the District Court opinion as holding that TVA's continuation of the Tellico Project would violate the Act, but that the requested injunction should be denied on equitable grounds. 549 F. 2d 1064, 1069-1070 (CA6 1977). This interpretation of the District Court opinion appears untenable in light of that opinion's conclusion that the Act could "not be construed as preventing completion of the project," 419 F. Supp. 753, 755 n. 2 (1976) (emphasis added). Moreover, the District Court stated the issue in the case as whether "[it is] reasonable to conclude that Congress intended the Act to halt the Tellico Project at its present stage of completion." Id., at 760. It concluded that the "Act should be construed in a reasonable manner to effectuate the legislative purpose," ibid., and "that the Act does not operate in such a manner as to halt the completion of this particular project," id., at 763. From all this, together with the District Court's reliance on cases interpreting the National Environmental Policy Act, 42 U. S. C. § 4321 et seq., as inapplicable to substantially completed projects, see 419 F. Supp., at 760-761, it seems clear that District Judge Taylor correctly interpreted § 7 as inapplicable to the Tellico Project.

[42] The District Court found that $53 million out of more than $78 million then expended on the Project would be unrecoverable if completion of the dam were enjoined. 419 F. Supp., at 760. As more than $110 million has now been spent on the Project, it seems probable that abandonment of the dam would entail an even greater waste of tax dollars.

[43] S. Rep. No. 94-960, p. 96 (1976).

[44] S. Rep. No. 95-301, p. 99 (1977).

[45] H. R. Rep. No. 95-379, p. 104 (1977).

[46] See Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Column. L. Rev. 1259, 1263 (1947); Hand, The Speech of Justice, 29 Harv. L. Rev. 617, 620 (1916).

[47] The purpose of this Act is admirable. Protection of endangered species long has been neglected. This unfortunate litigation—wasteful for taxpayers and likely in the end to be counterproductive in terms of respondents' purpose—may have been invited by careless draftsmanship of otherwise meritorious legislation.

[48] Ante, at 184-188. At oral argument, respondents clearly stated this as their view of § 7:

"QUESTION: . . . Do you think—it is still your position, as I understand it, that this Act, Section 7, applies to completed projects? I know you don't think it occurs very often that there'll be a need to apply it. But does it apply if the need exists?

"MR. PLATER: To the continuation—

"QUESTION: To completed projects. Take the Grand Coulee dam—

"MR. PLATER: Right. Your Honor, if there were a species there—

.....

"—it wouldn't be endangered by the dam.

"QUESTION: I know that's your view. I'm asking you not to project your imagination—

"MR. PLATER: I see, your Honor.

"QUESTION: —beyond accepting my assumption.

"MR. PLATER: Right.

"QUESTION: And that was that an endangered species might turn up at Grand Coulee. Does Section 7 apply to it?

"MR. PLATER: I believe it would, Your Honor. The Secretary of the Interior—

"QUESTION: That answers my question.

"MR. PLATER: Yes, it would." Tr. of Oral Arg. 57-58.

[49] Under the Court's interpretation, the prospects for such disasters are breathtaking indeed, since there are hundreds of thousands of candidates for the endangered list:

"`The act covers every animal and plant species, subspecies, and population in the world needing protection. There are approximately 1.4 million full species of animals and 600,000 full species of plants in the world. Various authorities calculate as many as 10% of them—some 200,000—may need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention individual populations, the total could increase to three to five times that number.'" Keith Shreiner, Associate Director and Endangered Species Program Manager of the U. S. Fish and Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B. J. 25, 27 (1978).

[50] Accord, e. g., United States v. American Trucking Assns., 310 U. S. 534, 543 (1940); Armstrong Co. v. Nu-Enamel Corp., 305 U. S. 315, 333 (1938); Sorrells v. United States, 287 U. S. 435, 446-448 (1932) (collecting cases); United States v. Ryan, 284 U. S. 167, 175 (1931). The Court suggests, ante, at 187 n. 33, that the precept stated in Church of the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U. S. 55, 60 (1930). Only a year after the decision in Crooks, however, the Court declared that a "literal application of a statute which would lead to absurd consequences is to be avoided whenever a reasonable application can be given which is consistent with the legislative purpose." Ryan, supra, at 175. In the following year, the Court expressly relied upon Church of the Holy Trinity on this very point. Sorrells, supra, at 448. The real difference between the Court and myself on this issue arises from our perceptions of the character of today's result. The Court professes to find nothing particularly remarkable about the result produced by its decision in this case. Because I view it as remarkable indeed, and because I can find no hint that Congress actually intended it, see infra, at 207-210, I am led to conclude that the congressional words cannot be given the meaning ascribed to them by the Court.

[51] Landis, A Note on "Statutory Interpretation," 43 Harv. L. Rev. 886 (1930).

[52] The quotations from the legislative history relied upon by the Court are reasonably viewed as demonstrating that Congress was thinking about agency action in prospective situations, rather than actions requiring abandonment of completed projects. For example, the Court quotes Representative Dingell's statement as a highly pertinent interpretation of what the Conference bill intended. In the statement relied upon, ante, at 183-184, Representative Dingell said that Air Force bombing activities along the gulf coast of Texas, if found to endanger whooping cranes, would have to be discontinued. With respect to grizzly bears, he noted that they may or may not be endangered, but under the Act it will be necessary "to take action to see . . . that these bears are not driven to extinction."

The Court also predicates its holding as to legislative intent upon the provision in the Act that instructs federal agencies not to "take" endangered species, meaning that no one is "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" such life forms. Ante, at 184-185. The Court quotes, ante, at 184-185, n. 30, the Secretary of the Interior's definition of the term "harm" to mean—among other things—any act which "annoy[s wild life] to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of `harm.'" 50 CFR § 17.3 (1976). Two observations are pertinent. First, the reach of this regulation —which the Court accepts as authorized by the Act—is virtually limitless. All one would have to find is that the "essential behavioral patterns" of any living species as to breeding, feeding, or sheltering are significantly disrupted by the operation of an existing project.

I cannot believe that Congress would have gone this far to imperil every federal project, however important, on behalf of any living species however unimportant, without a clear declaration of that intention. The more rational interpretation is consistent with Representative Dingell's obvious thinking: The Act is addressed to prospective action where reasonable options exist; no thought was given to abandonment of completed projects.

[53] The Senate sponsor of the bill, Senator Tunney, apparently thought that the Act was merely precatory and would not withdraw from the agency the final decision on completion of the project:

"[A]s I understand it, after the consultation process took place, the Bureau of Public Roads, or the Corps of Engineers, would not be prohibited from building a road if they deemed it necessary to do so.

"[A]s I read the language, there has to be consultation. However, the Bureau of Public Roads or any other agency would have the final decision as to whether such a road should be built. That is my interpretation of the legislation at any rate." 119 Cong. Rec. 25689-25690 (1973). See also Sierra Club v. Froehlke, 534 F. 2d 1289, 1303-1304 (CA8 1976).

[54] The initial proposed rulemaking under the Act made it quite clear that such an interpretation was not intended:

"Neither [the Fish and Wildlife Service of the Department of the Interior] nor [the National Marine Fisheries Service of the Department of Commerce] intends that section 7 bring about the waste that can occur if an advanced project is halted. . . . The affected agency must decide whether the degree of completion and extent of public funding of particular projects justify an action that may be otherwise inconsistent with section 7." 42 Fed. Reg. 4869 (1977).

After the decision of the Court of Appeals in this case, however, the quoted language was withdrawn, and the agencies adopted the view of the court. 43 Fed. Reg. 870, 872, 875 (1978).

[55] The Court acknowledges, as it must, that the permanent injunction it grants today will require "the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds." Ante, at 174.

908 F.2d 1312 (1990)

[1313] [1314] Byron G. Cudmore, Asst. U.S. Atty., Springfield, Ill., John W. Vandreuil, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellee.

Burton H. Shostak, D. J. Kerns, Theodore A. Zimmerman, St. Louis, Mo., for Stanley J. Marshall.

T. Christopher Kelly, Madison, Wis., for Richard L. Chapman.

P. Scott Hassett, Lawton & Cates, T. Christopher Kelly, Madison, Wis., for John M. Schoenecker.

Stephen J. Eisenberg, T. Christopher Kelly, Madison, Wis., for Patrick Brumm.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

Reargued In Banc May 30, 1990.

Rehearing and Rehearing En Banc Denied September 10, 1990.

EASTERBROOK, Circuit Judge.

Two cases consolidated for decision in banc present three questions concerning the application and constitutionality of the statute and sentencing guidelines that govern sales of lysergic acid diethylamide (LSD). Stanley J. Marshall was convicted after a bench trial and sentenced to 20 years' imprisonment for conspiring to distribute, and distributing, more than ten grams of LSD, enough for 11,751 doses. 706 F.Supp. 650. Patrick Brumm, Richard L. Chapman, and John M. Schoenecker were convicted by a jury of selling ten [1315] sheets (1,000 doses) of paper containing LSD. Because the total weight of the paper and LSD was 5.7 grams, a five-year mandatory minimum applied. The district court sentenced Brumm to 60 months (the minimum), Schoenecker to 63 months, and Chapman to 96 months' imprisonment. All four defendants confine their arguments on appeal to questions concerning their sentences.

The three questions we must resolve are these: (1) Whether 21 U.S.C. § 841(b)(1)(A)(v) and (B)(v), which set mandatory minimum terms of imprisonment — five years for selling more than one gram of a "mixture or substance containing a detectable amount" of LSD, ten years for more than ten grams — exclude the weight of a carrier medium. (2) Whether the weight tables in the sentencing guidelines likewise exclude the weight of any carrier. (3) Whether the statute and the guidelines are unconstitutional to the extent their computations are based on anything other than the weight of the pure drug. Marshall presents some additional questions concerning his sentence that are important only if we get past these three.

I

According to the Sentencing Commission, the LSD in an average dose weighs 0.05 milligrams. Twenty thousand pure doses are a gram. But 0.05 mg is almost invisible, so LSD is distributed to retail customers in a carrier. Pure LSD is dissolved in a solvent such as alcohol and sprayed on paper or gelatin; alternatively the paper may be dipped in the solution. After the solvent evaporates, the paper or gel is cut into one-dose squares and sold by the square. Users swallow the squares or may drop them into a beverage, releasing the drug. Although the gelatin and paper are light, they weigh much more than the drug. Marshall's 11,751 doses weighed 113.32 grams; the LSD accounted for only 670.72 mg of this, not enough to activate the five-year mandatory minimum sentence, let alone the ten-year minimum. The ten sheets of blotter paper carrying the 1,000 doses Chapman and confederates sold weighed 5.7 grams; the LSD in the paper did not approach the one-gram threshold for a mandatory minimum sentence. This disparity between the weight of the pure LSD and the weight of LSD-plus-carrier underlies the defendants' arguments.

A

If the carrier counts in the weight of the "mixture or substance containing a detectable amount" of LSD, some odd things may happen. Weight in the hands of distributors may exceed that of manufacturers and wholesalers. Big fish then could receive paltry sentences or small fish draconian ones. Someone who sold 19,999 doses of pure LSD (at 0.05 mg per dose) would escape the five-year mandatory minimum of § 841(b)(1)(B)(v) and be covered by § 841(b)(1)(C), which lacks a minimum term and has a maximum of "only" 20 years. Someone who sold a single hit of LSD dissolved in a tumbler of orange juice could be exposed to a ten-year mandatory minimum. Retailers could fall in or out of the mandatory terms depending not on the number of doses but on the medium: sugar cubes weigh more than paper, which weighs more than gelatin. One way to eliminate the possibility of such consequences is to say that the carrier is not a "mixture or substance containing a detectable amount" of the drug. Defendants ask us to do this.

Defendants' submission starts from the premise that the interaction of the statutory phrase "mixture or substance" with the distribution of LSD by the dose in a carrier creates a unique probability of surprise results. The premise may be unwarranted. The paper used to distribute LSD is light stuff, not the kind used to absorb ink. Chapman's 1,000 doses weighed about 0.16 ounces. More than 6,000 doses, even in blotter paper, weigh less than an ounce. Because the LSD in one dose weighs about 0.05 milligrams, the combination of LSD-plus-paper is about 110 times the weight of the LSD. The impregnated paper could be [1316] described as "0.9% LSD".^[1] Gelatin carrying LSD could be described as "2.5% LSD", if the weight for gelatin given in United States v. McGeehan, 824 F.2d 677, 680 (8th Cir.1987), is accurate.

This is by no means an unusual dilution rate for illegal drugs. Heroin sold on the street is 2% to 3% opiate and the rest filler. Jerome J. Platt, Heroin Addiction: Theory, Research, and Treatment 48-50 (1986). Sometimes the mixture is even more dilute, approaching the dilution rate for LSD in blotter paper. E.g., United States v. Buggs, 904 F.2d 1070, 1072 (7th Cir.1990), (conviction for sale of 9.95 grams of 1.2% heroin). Heroin and crack cocaine, like LSD, are sold on the streets by the dose, although they are sold by weight higher in the distributional chain. All of the "designer drugs" and many of the opiates are sold by the dose, often conveniently packaged in pills. The Sentencing Commission lists MDA, PCP, psilocin, psilocybin, methaqualone, phenmetrazine, and amphetamines (regular and meth-) along with LSD as drugs sold by the dose in very dilute form. 55 Fed.Reg. 19197 (May 8, 1990) (amending Application Note 11 to U.S.S.G. 2D1.1). Other drugs, such as dilaudid and dolaphine, are sold by the pill rather than weight, and it is safe to assume that all have far less than 100% active ingredients.

Just as it is hasty to assume that the carrier produces a unique dilution factor for LSD, so it is unwarranted to assume that LSD as it leaves the refinery is pure, and therefore weighs only 0.05 mg per dose. Solid LSD weighs that little, but is it shipped dry? Neither the record nor the sparse literature tells us. LSD is applied to a carrier in a solvent such as alcohol. How dilute is this solution? If we assume that one drop of liquid is applied to each square of blotter paper, then the liquid is only 0.1% LSD.^[2] We do not know whether one drop per dose is right, but, if it is, the solution weighs 8.5 times as much per dose as blotter paper: a dose of LSD in alcohol weighs 0.0487 grams, while a dose of LSD in blotter paper weighs 0.0057 grams.^[3] A manufacturer caught with wholesale quantities of LSD solution that had not been applied to blotter paper would face sentences higher than those who possess only the paper containing the drug.

So there may be nothing extraordinary about LSD, no reason to think that the statute operates differently for LSD than for heroin. Heroin comes into this country pure; it is sold diluted on the street, creating the possibility that § 841 will require higher sentences for retailers than for smugglers or refiners. The dilution factor for retail heroin is not significantly different from the factor for LSD on blotter paper. LSD in solution weighs more than LSD on blotter paper; pure heroin weighs (much) less per dose than the dilute heroin sold on the street. Heroin is sold in different cities at different dilution rates; that implies that the weight of a packet of heroin for a single administration weighs more in some cities than in others. The percentage difference exceeds the gap between paper and gelatin, the common carriers of LSD. Office of Intelligence, Drug Enforcement Administration, Domestic Monitor Program: Summary Report Fiscal Year 1989. So although § 841 creates the possibility of erratic application in LSD cases, it is important to recognize that the [1317] normal case involves neither extreme weight (LSD in orange juice) nor extreme purity (19,999 doses weighing less than a gram). With this understanding, we turn to the statute.

B

It is not possible to construe the words of § 841 to make the penalty turn on the net weight of the drug rather than the gross weight of carrier and drug. The statute speaks of "mixture or substance containing a detectable amount" of a drug. "Detectable amount" is the opposite of "pure"; the point of the statute is that the "mixture" is not to be converted to an equivalent amount of pure drug.

The structure of the statute reinforces this conclusion. The 10-year minimum applies to any person who possesses, with intent to distribute, "100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP)", § 841(b)(1)(A)(iv). Congress distinguished the pure drug from a "mixture or substance containing a detectable amount of" it. All drugs other than PCP are governed exclusively by the "mixture or substance" language. Even brute force cannot turn that language into a reference to pure LSD. Congress used the same "mixture or substance" language to describe heroin, cocaine, amphetamines, and many other drugs that are sold after being cut — sometimes as much as LSD. There is no sound basis on which to treat the words "substance or mixture containing a detectable amount of", repeated verbatim for every drug mentioned in § 841 except PCP, as different things for LSD and cocaine although the language is identical, while treating the "mixture or substance" language as meaning the same as the reference to pure PCP in 21 U.S.C. § 841(b)(1)(A)(iv) and (B)(iv).

Although the "mixture or substance" language shows that the statute cannot be limited to pure LSD, it does not necessarily follow that blotter paper is a "mixture or substance containing" LSD. That phrase cannot include all "carriers". One gram of crystalline LSD in a heavy glass bottle is still only one gram of "statutory LSD". So is a gram of LSD being "carried" in a Boeing 747. How much mingling of the drug with something else is essential to form a "mixture or substance"? The legislative history is silent, but ordinary usage is indicative.

"Substance" may well refer to a chemical compound, or perhaps to a drug in a solvent. LSD does not react chemically with sugar, blotter paper, or gelatin, and none of these is a solvent. "Mixture" is more inclusive. Cocaine often is mixed with mannitol, quinine, or lactose. These white powders do not react, but it is common ground that a cocaine-mannitol mixture is a statutory "mixture".

LSD and blotter paper are not commingled in the same way as cocaine and lactose. What is the nature of their association? The possibility most favorable to defendants is that LSD sits on blotter paper as oil floats on water. Immiscible substances may fall outside the statutory definition of "mixture". The possibility does not assist defendants — not on this record, anyway. LSD is applied to paper in a solvent; after the solvent evaporates, a tiny quantity of LSD remains. Because the fibers absorb the alcohol, the LSD solidifies inside the paper rather than on it. You cannot pick a grain of LSD off the surface of the paper. Ordinary parlance calls the paper containing tiny crystals of LSD a mixture.

United States v. Rose, 881 F.2d 386 (7th Cir.1989), like every other appellate decision that has addressed the question,^[4] concludes [1318] that the carrier medium for LSD, like the "cut" for heroin and cocaine, is a "mixture or substance containing a detectable amount" of the drug. Although a chemist might be able to offer evidence bearing on the question whether LSD and blotter paper "mix" any more fully than do oil and water, the record contains no such evidence. Without knowing more of the chemistry than this record reveals, we adhere to the unanimous conclusion of the other courts of appeals that blotter paper treated with LSD is a "mixture or substance containing a detectable quantity of" LSD.

C

Two reasons have been advanced to support a contrary conclusion: that statutes should be construed to avoid constitutional problems, and that some members of the sitting Congress are dissatisfied with basing penalties on the combined weight of LSD and carrier. Neither is persuasive.

A preference for giving statutes a constitutional meaning is a reason to construe, not to rewrite or "improve". E.g., United States v. Monsanto, ___ U.S. ___, 109 S.Ct. 2657, 2664, 105 L.Ed.2d 512 (1989); United States v. Albertini, 472 U.S. 675, 680, 105 S.Ct. 2897, 2902, 86 L.Ed.2d 536 (1985). Canons are doubt-resolvers, useful when the language is ambiguous and "a construction of the statute is fairly possible by which the question may be avoided", Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296-97, 76 L.Ed. 598 (1932) (emphasis added). "[S]ubstance or mixture containing a detectable quantity" is not ambiguous, avoidance not "fairly possible". Neither the rule of lenity nor the preference for avoiding constitutional adjudication justifies disregarding unambiguous language.

The canon about avoiding constitutional decisions, in particular, must be used with care, for it is a closer cousin to invalidation than to interpretation. It is a way to enforce the constitutional penumbra, and therefore an aspect of constitutional law proper. Constitutional decisions breed penumbras, which multiply questions. Treating each as justification to construe laws out of existence too greatly enlarges the judicial power. And heroic "construction" is unnecessary, given our conclusion in Part III that Congress possesses the constitutional power to set penalties on the basis of gross weight.

As for the pending legislation: subsequent debates are not a ground for avoiding the import of enactments. E.g., Pierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct. 2541, 2550-52, 101 L.Ed.2d 490 (1988); Illinois Brick Co. v. Illinois, 431 U.S. 720, 733-34 & n. 14, 97 S.Ct. 2061, 2068-69 & n. 14, 52 L.Ed.2d 707 (1977); Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 352-53, 42 L.Ed.2d 320 (1974). Although the views of a subsequent Congress are entitled to respect, ongoing debates do not represent the views of Congress. Judge Wilkins, Chairman of the Sentencing Commission, wrote a letter to Senator Biden, Chairman of the Judiciary Committee, remarking that "it is unclear whether Congress intended the carrier to be considered as a packaging material, or since it is commonly consumed along with the illicit drug, as a dilutent ingredient in the drug mixture". The Chairman of the Commission invited the Chairman of the Committee to introduce legislation choosing one or the other explicitly.

Senator Biden introduced an amendment to S. 1711, the Administration's omnibus drug bill, stating in materials read into the Congressional Record that the amendment changes the statute to omit the weight of the carrier. 135 Cong.Rec. S 12748 (daily ed. Oct. 5, 1989). So far as we can determine, the language he actually introduced did not contain the text to which his prepared statement referred. No language of this kind appears in the version the Senate passed. 135 Cong.Rec. S 13433 (daily ed. Oct. 16, 1989) (text of bill that Senate sent to House). The House is yet to act. Senator Kennedy has introduced an amendment to other legislation affecting the criminal code, which, like Senator Biden's, would [1319] exclude the carrier. Amendment No. 1716 to S.1970, 136 Cong.Rec. S 7069 (daily ed. May 24, 1990). But this proposal, too, awaits enactment. Both Senator Kennedy's proposal and Senator Biden's statement are more naturally understood as suggestions for change than as evidence of today's meaning. At all events, the Senators were speaking for themselves, not for Congress as an institution. See Quern v. Mandley, 436 U.S. 725, 736 n. 10, 98 S.Ct. 2068, 2075 n. 10, 56 L.Ed.2d 658 (1978).

Statements supporting proposals that have not been adopted do not inform our reading of the text an earlier Congress passed and the President signed, see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989). We may not, in the name of faithful interpretation of what the political branches enacted, treat as authoritative the statements of legislators supporting change. Opinion polls of Senators are not law. See Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438-39 (7th Cir.1988). See also In re Sinclair, 870 F.2d 1340 (7th Cir.1989).

II

Only Brumm received a mandatory minimum sentence. Everyone else could have received the same sentence if all minima were excised from § 841, and if the weights in the statute were read as referring to pure LSD rather than to LSD-plus-carrier. The sentences of Marshall (20 years), Chapman (8 years), and Schoenecker (63 months) are derived largely from the sentencing guidelines. Understandably, these defendants argue that whether or not the statute counts the carrier medium, the quantity table in the guidelines does not.

This is not a strong argument. The guidelines speak of "mixture or substance", the statutory language. Footnote * to the quantity table at U.S.S.G. 2D1.1 says that "[u]nless otherwise specified, the weight of the controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance." Only PCP and methamphetamine are "otherwise specified". Application Note 9 reiterates that the footnote allows purity adjustments only for PCP and methamphetamine. Application Note 1 to § 2D1.1 says that "`Mixture or substance' as used in this guideline has the same meaning as in 21 U.S.C. § 841." As we observed in United States v. Pinto, 875 F.2d 143 (7th Cir.1989), and United States v. White, 888 F.2d 490 (7th Cir.1989), these notes are taken seriously as contemporaneous explanations by the authors. To conclude that the carrier medium is a statutory "mixture or substance" is to conclude that its weight counts under the guidelines as well.

For what it is worth, the guidelines demonstrate the view of the Sentencing Commission that the statutory weights include dilutents and carriers. None of the references to purity in the guidelines makes sense if the weights in the statute deal with pure drugs to start with. The Commission's most recent words reinforce the conclusion that it understands both the statute and the guidelines to include the weight of the carrier medium for LSD. Recently the Commission transmitted to Congress a proposed amendment to U.S.S.G. 2D1.1 Application Note 11, the conversion table for cases in which only the number of doses is known. See 55 Fed.Reg. 19197 (May 8, 1990). This table gives LSD a weight of 0.05 mg per dose (20,000 doses per gram). The amendment specifies that the number of doses is not to be used to derive the weight of the "mixture or substance" if the actual weight is known, a caution necessary only if "mixture or substance" includes the carrier medium. Lest the smallest ambiguity remain, the Commission puts an asterisk after LSD and adds (emphasis added): "[T]he weight per unit shown is the weight of the actual controlled substance, and not generally the weight of the mixture or substance containing the controlled substance. Therefore, use of this table provides a very conservative estimate of the total weight." Couldn't be clearer that the Sentencing Commission believes that the weight of the carrier is part of the total "mixture or [1320] substance" under both the statute and the guidelines.

III

A constitutional question remains, given our construction of the statute and guidelines. The provision of the Constitution reading on sentences is the eighth amendment, forbidding the infliction of "cruel and unusual punishment". Marshall, alone among the four defendants, invokes the eighth amendment. It offers weak support at best. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1984), holds that 40 years is not constitutionally excessive for distributing nine ounces of marijuana. Marshall got 20 for a more serious crime. Many federal courts have held that sentences in this range may be imposed for selling similar volumes of LSD.^[5] Other courts have sustained life without parole for drug offenses.^[6] LSD causes psychoses, sometimes leading to suicide or violent aggression. Terrence C. Cox, Michael R. Jacobs, A. Eugene LeBlanc & Joan A. Marshman, Drugs and Drug Abuse: A Reference Text 311-15 (1983); Albert Hofmann, LSD: My Problem Child 67-73 (1979). Society believes that the sale of hallucinogens is a serious crime, and severe sentences constitutionally may attend the crimes troubling to the people. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); United States v. Sanchez, 859 F.2d 483 (7th Cir.1988); United States v. Rhodes, 779 F.2d 1019 (4th Cir.1985).

A

Although these defendants received sentences within the limits set by the eighth amendment — the provision of the Bill of Rights expressly addressed to quantum of punishment — they insist that their sentences are unconstitutional under the due process clause of the fifth amendment. Yet defendants received ample "process". Their complaint is about substance, not process. Substantive due process, a judicial invention, is least applicable when a provision of the Constitution directly addresses the subject. Graham v. Connor, ___ U.S. ___, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (substantive due process is not an appropriate way to analyze excessive force in arrests, given the fourth amendment); see also Chicago Board of Realtors, Inc. v. Chicago, 819 F.2d 732, 742-45 (7th Cir.1987); United States v. Miller, 891 F.2d 1265, 1271-73 (7th Cir.1989) (concurring opinion). This is not an appropriate case for the deployment of that elusive doctrine.

Defendants' arguments are not so much about the sentences handed out for LSD in blotter paper as they are objections to the possibility that other persons will receive sentences much too long (LSD in orange juice) or too short (19,999 doses in pure form). But these are only possibilities, which have nothing to do with these sentences. Defendants' sentences bear rational relations to their offenses. That is all the Constitution requires, unless criminal defendants are entitled to assert third parties' rights to better sentencing practices — which they are not. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987); Schall v. Martin, 467 U.S. 253, 269 n. 18, 104 S.Ct. 2403, 2412 n. 18, 81 L.Ed.2d 207 (1984); United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522-23, 4 L.Ed.2d 524 (1960).

That someone else's sentence might be disproportionate to their offenses is no reason for altering these defendants' punishments. Effects of statutes on strangers are in general not sufficient to prevent application to oneself (this is not a first amendment case), and in particular [1321] the claim that someone else may not be punished severely enough is not a good objection to one's own punishment. Wayte v. United States, 470 U.S. 598, 607-10, 105 S.Ct. 1524, 1530-32, 84 L.Ed.2d 547 (1985); FTC v. Universal-Rundle Corp., 387 U.S. 244, 87 S.Ct. 1622, 18 L.Ed.2d 749 (1967); Falls v. Town of Dyer, 875 F.2d 146 (7th Cir.1989). Prosecutors possess the power to excuse the big cheeses while landing on the small fry with hobnail boots. Discretion, even if it ends in grossly unequal treatment according to culpability, does not entitle a guilty defendant to avoid a sentence appropriate to his own crime. So too when the possibility may be attributed to the statute rather than (or in addition) to prosecutorial choice. See United States v. Batchelder, 442 U.S. 114, 124-26, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979), holding that it does not violate the due process clause to enact two statutes providing different penalties for identical conduct — the mirror image of the claim in this case that the statutes do too little to impose graduated penalties for different conduct.

Until this century Congress did not attempt to differentiate sentences according to culpability, and it did not authorize judges to do so. Statutes often set out flat penalties for specified crimes, such as the sanction of 25 years' imprisonment for armed robbery of a postal carrier, 18 U.S.C. § 2114 (repealed in 1984), a term impervious to such variables as the amount taken and the use of violence. Courts thought identical (and severe) treatment of greatly different offenses constitutional. E.g., United States v. Smith, 602 F.2d 834 (8th Cir.1979); Smith v. United States, 284 F.2d 789, 791 (5th Cir.1960). We recounted the history briefly in Pinto, in the course of holding that the sentencing guidelines do not violate the due process clause by diminishing sentencing judges' discretion to tailor sentences closely to offense and offender.

Pinto rests on a conclusion that the due process clause allows Congress to write with broad strokes, recognizing that there will be a poor fit between the statutory elements of the offense and the sentence attached to them if other important factors are left out. (Here the omitted factor is the purity of the "mixture or substance".) Every other court of appeals has agreed with Pinto.^[7] Judges, who in the era between the end of uniform penalties and the creation of the guidelines had discretion to impose such sentences as pleased them, also may create disparity. Some judges thought wholesalers the principal threat; some were offended by retailers; some thought young criminals especially deserving of punishment; others excused women when men would have received high sentences for identical conduct. It was this crazy-quilt of incompatible yet unreviewable sentences, Dorszynski v. United States, 418 U.S. 424, 440-41, 94 S.Ct. 3042, 3051-52, 41 L.Ed.2d 855 (1974), that the 1984 code and the guidelines were designed to replace. No one supposes, however, that the pre-guideline practice was unconstitutional, even though the potential for disparity had been realized.

Neither uniform sentences that disregard characteristics of offense and offender, nor sentences so thoroughly discretionary that they are not comparable from one judge to another, violate the due process clause. Both systems have been tried in the United States and deemed constitutional. If they are constitutional, so is § 841. Maybe Congress ought to make the statute books more rational. Maybe it ought to specify that the sentence increases as a function of the net rather than the gross weight of the drug, but the task of determining how close to make the fit between offense and sentence is legislative.

[1322] B

Cases such as McCleskey v. Kemp, 481 U.S. 279, 306-08, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987), hold open the possibility of a constitutional objection under equal protection criteria when the punishment bears no relation whatever to the crime. See also Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974), holding that statutory limits on eligibility for low sentences may be examined, although only under the highly deferential rational basis test. Let us ask, then, whether the pattern of sentences under the drug laws is cockeyed. Other courts do not think so; they have uniformly rebuffed constitutional challenges to statutes that make punishment depend on gross rather than net weight.^[8]

Both the statute and the guidelines make the sentence increase with quantity. The greater the quantity, the greater the sentence. This is a rational way to proceed. Whether the potential created by failure to adjust for purity will be realized depends not only on the range of purity that actually occurs but also on what can be done about the extreme cases. Do we see major suppliers of LSD skipping out the courthouse door because their pure drug falls outside the mandatory minima, and the catchall statute (§ 841(b)(1)(C)) does not allow judges to craft sentences appropriate to their crimes? Do we see people going to jail for ten years because they sold one dose of LSD in a soft drink? If we don't, then the potential for disparity does not require holding statute and guidelines unconstitutional.

We do not see an inverted system of penalties. Counsel have not called to our attention, and we could not find, even one prosecution for selling a single dose of LSD, let alone a single-dose prosecution that ended in a preposterously high sentence. In the broad middle ground of retail and wholesale sales, in which (to judge from recent decisions) LSD almost always is sold in blotter paper, § 841 and the guidelines work as they should: the more doses, the greater the weight; the greater the weight, the longer the sentence. Marshall, wholesaler of 11,751 doses, gets 20 years; the other three defendants, retailers of 1,000, get five to eight years. As for the high end: any manufacturer or wholesaler who is in the business in a big way will trigger either § 841(b)(1)(A)(v) {10 years to life for 10 grams or more of LSD} or § 841(b)(1)(B)(v) {5 to 40 years for 1 gram or more of LSD}. A person who cannot be linked to even one gram is not such a big fish after all.

Even a "minor manufacturer" is covered by § 841(b)(1)(C), which authorizes a maximum sentence of 20 years without parole. Although this subsection lacks a mandatory minimum, this is irrelevant to the sentence. Minimum sentences are designed for little fish, the ones judges would throw back if the legislature would let them. That a manufacturer caught with less than a gram of pure LSD would not draw a mandatory minimum is of no moment. He could and likely would get the 20 years per count authorized by § 841(b)(1)(C), and probably there would be more than one count. A manufacturer or wholesaler will [1323] be involved in a conspiracy, the sentence for which may be tacked on to the sentence for the amount possessed or sold.

That is not the half of it. The real punishment for a manufacturer or a major wholesaler of any drug is not set by § 841. It is set by the Continuing Criminal Enterprise statute, 21 U.S.C. § 848. This law, "a carefully crafted prohibition ... designed to reach the `top brass' in the drug rings", Garrett v. United States, 471 U.S. 773, 781, 105 S.Ct. 2407, 2413, 85 L.Ed.2d 764 (1985), comes into play whenever a person organizes or supervises a criminal enterprise, involving at least five others, from which he earns substantial income. Major distributors fall within the statute, United States v. Bond, 847 F.2d 1233 (7th Cir.1988), as do those who aid and abet the drug chieftains, United States v. Pino-Perez, 870 F.2d 1230 (7th Cir.1989) (in banc). Persons who escape the jaws of § 841 walk into the maw of § 848. The CCE offense carries a minimum term of 20 years' imprisonment. If the defendant is "the principal administrator" and the enterprise has gross receipts of $10 million per year, the mandatory penalty is life without parole, 21 U.S.C. § 848(b). There is in theory little risk, and in practice none, that the major players in the manufacture and distribution of LSD or any other illegal drug will be treated lightly compared with the four middlemen now before us. Defendants might have established that, despite all appearances, sentences are unrelated (or inversely related) to the amount of pure LSD involved. Yet they introduced no evidence to this effect, and none has been published in the social science literature. Persons who want a court to hold a statute unconstitutional need to do more than speculate. Ogden v. Saunders, 25 U.S. (12 Wheat.) 212, 270, 6 L.Ed. 606 (1827) (opinion of Washington, J.).

Although the parties say that Congress legislated in ignorance, we lack support for that belief. Congress itself says the opposite, that it selected the weights in the table "after consulting with a number of DEA agents and prosecutors about the distribution patterns for these various drugs". H.R.Rep. No. 99-845, 99th Cong., 2d Sess. 11 (1986). Agents and prosecutors are well-acquainted with the effects of different drugs and the details of their distribution. The numbers in § 841 are not hat sizes. Yet even if we attribute unfamiliarity to Congress, we must recognize our own innocence of data. We do not know whether LSD leaves the factory (a) pure and dry, (b) on blotter paper, or (c) dissolved in alcohol (and, if in solution, at what rate of dilution). The range of weights per dose spans at least three orders of magnitude (see notes 1-3 above). If LSD is shipped in solution, then the higher-ups draw longer sentences per dose than do retailers; if shipped in blotter paper the sentences are the same per dose. We do not know the extent to which blotter paper dominates retail sales; if it holds the lion's share, then the risk of erratic sentences at the retail tier is small. We do not know the actual distribution of sentences. For all we can tell, sentences in LSD cases come closer to a smooth upward graduation per dose than do sentences for cocaine and heroin.^[9] Lacking these facts, we are in no position to condemn this act of Congress as arbitrary [1324] in operation. Section 841 may work sensibly in practice and so is capable of constitutional application. E.g., Caplin & Drysdale v. United States, ___ U.S. ___, 109 S.Ct. 2646, 2657, 105 L.Ed.2d 528 (1989); Wheat v. United States, 486 U.S. 153, 163, 108 S.Ct. 1692, 1699, 100 L.Ed.2d 140 (1988); Salerno, 481 U.S. at 745, 107 S.Ct. at 2100. Condemning a statute on the basis of a problem that may not exist is an inappropriate use of judicial power. Schall, 467 U.S. at 269 n. 18, 104 S.Ct. at 2412 n. 18; Raines, 362 U.S. at 21, 80 S.Ct. at 522-23.

C

The sentencing guidelines do not prevent judges from matching punishment to gravity of offense. The guidelines do nothing to mitigate the lengthy sentences to which the main suppliers are exposed under the CCE act. Nor do they require manufacturers to be treated like retailers even if § 841 is considered in isolation. Higher-ups receive increases under U.S.S.G. 3B1.1. Departures may follow hard on the increases. The "heartland" of the drug guidelines is distribution of dilute mixtures. Unrepresentative crimes lead to departures. Application Note 9 to U.S.S.G. 2D1.1 makes this clear in saying that "unusually high purity" of a drug may be the basis for upward departure. So sources may be treated in accord with their real culpability, even while the range in the table governs the dilute LSD usually recovered on the street. United States v. Baker, 883 F.2d 13, 15 (5th Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 51 (1st Cir.1989).

The possibility of departures in either direction ensures the constitutionality of the guidelines. United States v. Savage, 888 F.2d 528, 529 (7th Cir.), rehearing denied, 894 F.2d 1495 (1989); United States v. Thomas, 884 F.2d 540, 542-43 (10th Cir.1989); United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989). If the LSD is extraordinarily dilute, say in rum and Coca-Cola rather than blotter paper, the judge may depart downward, just as the judge may go up for special purity. Such escape hatches ensure sufficient flexibility to comply with any proportionality requirement in the Constitution. Only the mandatory minimum sentences bind. The Federal Courts Study Committee recommends that these be repealed, Report of the Federal Courts Study Committee 133-34 (1990), but this is legislative rather than judicial business.

D

Although sentences under §§ 841, 846, and 848 together may be proportional to the number of doses sold, it would not matter if they were not. All Congress needs is a rational basis for making the penalties depend on gross rather than net weight. There are at least three.

First, LSD is sold at retail for a low price (a few dollars per dose). Blotter paper apparently has contributed to the renewed success of the drug, making it easy to transport, store, conceal, and sell. Because the carrier medium is an ingredient in the drug distribution business, it is rational to design a schedule of penalties based on that tool of the trade. Congress might choose to penalize drug smugglers according to the value of the property they use rather than the number of doses they distribute. The portions of the statute requiring the forfeiture of property used in connection with the sale of an illegal drug do exactly this, penalizing peddlers without regard to the volume of sales. Similarly, it is rational to make the penalty depend on a carrier that is essential to successful distribution of the drug.

Second, extracting the "pure" drug and debating whether that task has been done properly is unnecessary if, in 99% of all cases, LSD is sold in blotter paper. Why reduce the amount to a pure measure if that almost never spells a difference? No one has been prosecuted for distributing LSD in sugar cubes in the last 20 years. Similarly, no one has been prosecuted for possessing significant quantities of pure LSD in the last decade. Why worry about how to treat manufacturers caught red-handed with pure dry LSD if they are never nabbed? Statutes rationally may be addressed to the main cases rather than [1325] the exceptions. Congress may count on prosecutorial discretion to take care of the absurd cases (one dose in a quart of lemonade), and it has created the CCE Act to take care of Mr. Big. It need not build into each section of the United States Code an apparatus sufficient in itself to produce graduated penalties.

Third, extracting LSD from blotter paper and weighing the drug accurately may be difficult. One dose is an exceedingly small quantity of pure LSD. Counsel suggested at oral argument that it takes a specialist in gas chromatography^[10] to extract the drug, and that this is done only for samples rather than the defendant's entire supply. Figures reported in the cases (including this one) are extrapolations from samples, not actual weights. Congress rationally may decide to avoid a costly and imprecise process.

Although nothing in the legislative history suggests that Congress went through such a process of reasoning, it need not. Judges assess the validity of legislative decisions; we do not assign grades to legislative deliberations. The Supreme Court tells us that it is enough that a rational basis may be hypothesized, Vance v. Bradley, 440 U.S. 93, 110-12, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979); Northside Sanitary Landfill, Inc. v. Indianapolis, 902 F.2d 521 (7th Cir.1990) (collecting other cases), whether or not the legislature acted on it. Even laws that resulted from mistakes in the drafting process or ignorance in the halls of Congress survive if a rational basis may be supplied for the result. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461-62, 66 L.Ed.2d 368 (1980); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977).

E

What remains is concern that the statute and guidelines discriminate among retailers. Those who distribute LSD in sugar cubes generate higher gross weights (and thus higher sentences) than those who distribute on blotter paper. Some kinds of paper are heavier than others and so yield higher sentences. To say that the difference in weight between sugar and paper (or between brands of paper) condemns the rules with respect to LSD is to damn the rules concerning heroin, cocaine, and all other drugs too. Anyway, these defendants sold LSD on blotter paper and as beneficiaries of any difference in sentencing (compared with sugar cubes) they are in no position to complain.

Any distributor concerned that sugar cubes weigh more than small squares of paper may reduce his exposure by choosing the lightest brand of paper as a medium. Blotter paper seems to be the norm these days. There have been no reported federal prosecutions in 20 years for distributing LSD in sugar cubes, and no state prosecutions in 17 (Michigan, in 1973, is the most recent, see People v. Urban, 45 Mich.App. 255, 206 N.W.2d 511 (1973)); to hold a law unconstitutional out of concern about something that has not happened in a generation is not sensible. More: Distributors pick their poison. The penalties are plain for all to see. They decide what drug to peddle, on what medium. Marshall liked the cost-benefit ratio for LSD, including its penalty, more than the cost-benefit ratio for cocaine. Perhaps the amount of crack cocaine leading to a 20 year term causes more social harm than the level of LSD that draws this sentence, but a court would not dream of requiring the weight ratios among LSD, heroin, and cocaine to reflect their "true dangerousness". No more should the court involve itself with the details of dilution ratios and carrier mediums. Retailers who select sugar rather than blotter paper on which to sell LSD must accept their fate.

Political decisions may be harsh yet within the bounds of power. The Constitution does not compel Congress to adopt a criminal code with all possibility for unjust variation [1326] extirpated. Experience with the guidelines suggests the reverse: Every attempt to make the system of sentences "more rational" carries costs and concealed irrationalities, both loopholes and unanticipated severity. Criminals have neither a moral nor a constitutional claim to equal or entirely proportional treatment. Constitutional law is not a device allowing judges to set the "just price" of crime, to prescribe the ratio of retailers' to manufacturers' sentences. That Congress could have written better laws does not mean that it had to. United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). Amendments to the criminal code may be in order, but they are not ours to make under the banner of constitutional adjudication.

IV

Remaining objections to Marshall's sentence may be dealt with briefly. The district judge increased Marshall's offense level by two on concluding that Marshall was "an organizer, leader, manager, or supervisor" of the LSD distribution network. U.S.S.G. 3B1.1(c). Evidence that Marshall saturated the blotter paper with the LSD solution and sold it wholesale supports the district judge's finding that Marshall was organizing its distribution. Once the judge passes on contested issues of fact, or application of law to fact, our review is deferential. 18 U.S.C. § 3742(e), as amended and renumbered by the Anti-Drug Abuse Act of 1988, Pub.L. 100-690; White, 888 F.2d at 495; United States v. Wright, 873 F.2d 437, 443-44 (1st Cir.1989) (Breyer, J.); United States v. Mejia-Orosco, 868 F.2d 807 (5th Cir.1989). The conclusion that Marshall was an organizer is not clearly erroneous.

Marshall's other arguments all concern reasons for believing that the judge should have given him a sentence lower than the guideline range. His request was addressed to the district judge's discretion. We lack jurisdiction to review the court's decision to impose a sentence within the range. United States v. Franz, 886 F.2d 973 (7th Cir.1989). Marshall's appeal is dismissed for want of jurisdiction to the extent he asks us to direct the district judge to depart downward. In all other respects the judgments under review are

AFFIRMED.

CUMMINGS, Circuit Judge, with whom BAUER, Chief Judge, and WOOD, Jr., CUDAHY, and POSNER, Circuit Judges, join, dissenting:

Two assumptions lie at the heart of the majority opinion. The first is that the words "mixture or substance" are not ambiguous and are not therefore susceptible of interpretation by the courts. The second is that the due process clause of the Fifth Amendment guarantees process but not substance. Both of these assumptions are unwarranted.

Six courts, including the district court in Marshall, have explicitly considered whether the carrier in an LSD case is a mixture or substance within the meaning of 21 U.S.C. § 841.^[11] Five of these courts have concluded that the blotter paper is a "mixture or substance" within the meaning of the statute. United States v. Larsen, 904 F.2d 562 (10th Cir.1990); United States v. Elrod, 898 F.2d 60 (6th Cir.1989); United States v. Bishop, 894 F.2d 981 (8th Cir.1990); United States v. Taylor, 868 F.2d 125 (5th Cir.1989); United States v. Marshall, 706 F.Supp. 650, 653 (C.D.Ill.1989). These courts rely primarily on the 1986 amendments to Section 841, which altered the references to various drugs, including LSD, by adding the words "mixture or substance containing a detectable amount of [the drug in question]." The earlier version of the statute referred merely to the drugs themselves. See United States v. McGeehan, 824 F.2d 677 (8th Cir.1987) (weight of carrier medium excluded from [1327] sentencing calculation under pre-amendment version of 21 U.S.C. § 841), certiorari denied sub nom. Jovanovich v. United States, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982.

The sixth court, the United States District Court for the District of Columbia, held that blotter paper was not a mixture or substance within the meaning of the statute. United States v. Healy, 729 F.Supp. 140 (D.D.C.1990). The court relied not only on ordinary dictionary definitions of the words mixture and substance but also on a November 30, 1988, Sentencing Commission publication, entitled "Questions Most Frequently Asked About the Sentencing Guidelines," which states that the Commission has not taken a position on whether the blotter paper should be weighed. The conclusion that the Commission has not yet resolved this question is further supported by a Sentencing Commission Notice issued on March 3, 1989, which requested public comments on whether the Commission should exclude the weight of the carrier for sentencing purposes in LSD cases.^[12]

The Healy court also stated that Congress could have intended the words "mixture or substance" to refer to the liquid in which the pure LSD is dissolved. Id. Finally, the Healy court relied on a Guidelines table designed to provide a sentencing court with an equivalent weight for sentencing purposes in cases in which the number of doses distributed is known but the actual weight is unknown. The table provides that a dose of LSD weighs .05 milligrams. Guidelines § 2D1.1, Commentary, Drug Equivalency Tables. This weight closely approximates the weight of one dose of LSD without blotter paper, but is not an accurate reflection of one dose with blotter paper.^[13]

The court in Healy did not refer to the legislative history of the statute to support the proposition that Congress did not intend the weight of the carrier to be included in LSD cases. This is not surprising since the only reference to LSD in the debates preceding the passage of the 1986 amendments to Section 841 was a passing reference that does not address quantities or weights of drugs. 132 Cong.Rec. S14270 (daily ed. Sept. 30, 1986) (statement of Sen. Harken).

Two subsequent pieces of legislative history, however, do shed some light on this question.^[14] In a letter to Senator Joseph R. Biden, Jr., dated April 26, 1989 (Marshall Appendix at 165), the Chairman of the Sentencing Commission, William W. Wilkens, Jr., noted the ambiguity in the statute as it is currently written:

With respect to LSD, it is unclear whether Congress intended the carrier to be considered as a packaging material, or, since it is commonly consumed along with the illicit drug, as a dilutant ingredient [1328] in the drug mixture * * *. The Commission suggests that Congress may wish to further consider the LSD carrier issue in order to clarify legislative intent as to whether the weight of the carrier should or should not be considered in determining the quantity of LSD mixture for punishment purposes.

Presumably acting in response to this query, Senator Biden added to the Congressional Record for October 5, 1989, an analysis of one of a series of technical corrections to 21 U.S.C. § 841 that were under consideration by the Senate that day. This analysis states that the purpose of the particular correction at issue was to remove an unintended "inequity" from Section 841 caused by the decisions of some courts to include the weight of the blotter paper for sentencing purposes in LSD cases. According to Senator Biden, the correction "remedie[d] this inequity by removing the weight of the carrier from the calculation of the weight of the mixture or substance."^[15] This correction was adopted as part of Amendment No. 976 to S. 1711. 135 Cong.Rec. S12749 (daily ed. Oct. 5, 1989). The amended bill was passed by a unanimous vote of the Senate (id. at S12765) and is currently pending before the House.^[16]

Comments in more recent issues of the Congressional Record indicate that S. 1711 is not expected to pass the House of Representatives. See 136 Cong.Rec. S943 (daily ed. Feb. 7, 1990). In the meantime, however, a second attempt to clarify Congress' intent in amending 21 U.S.C. § 841 to include the words mixture or substance has now been introduced in the Senate. On April 18, 1990, Senator Kennedy introduced an amendment to S. 1970 (a bill establishing constitutional procedures for the imposition of the death penalty) seeking to clarify the language of 21 U.S.C. § 841. That amendment, Amendment No. 1716, states:

Section 841(b)(1) of title 21, United States Code, is amended by inserting the following new subsection at the end thereof:

"(E) In determining the weight of a `mixture or substance' under this section, the court shall not include the weight of the carrier upon which the controlled substance is placed, or by which it is transported."

136 Cong.Rec. S7069 (daily ed. May 24, 1990).

To be sure there are difficulties inherent in relying heavily on this subsequent legislative history. The first is that these initiatives to clarify the manner in which 21 U.S.C. § 841 and the sentencing guidelines treat LSD offenders may never be enacted. The second is that a given amendment may be viewed not as a clarification of Congress' [1329] original intent, but as the expression of an entirely new intent. At the very least, however, this subsequent legislative history, coupled with the fact that the Sentencing Commission has yet to resolve its position on the matter, refutes the proposition that the language of the statute and the Guidelines "couldn't be clearer."

It was established at oral argument that when illegal drugs are sold in capsules, the weight of the capsule is not included in calculating the total weight of the drugs for charging or sentencing purposes. See Davis v. United States, 279 F.2d 576, 578 (4th Cir.1960); Thomas v. United States, 239 F.2d 7, 8 (10th Cir.1956) (weight of heroin sold in both cases excludes the weight of the capsule containing the heroin). Capsules are made of gelatin, Webster's Medical Desk Dictionary 97 (1986); Dorland's Illustrated Medical Dictionary 226 (23d ed. 1957), and yet their weight is not included. But the majority holds that when LSD is sold on gelatin the weight of the gelatin is included. Thus, apparently some gelatin is part of a "mixture or substance" and some is not. Does the determination depend on the shape into which the gelatin has been formed or on some other criterion? Would the gelatin be a part of the mixture or substance in an LSD case if a defendant sprayed an LSD-alcohol solution into a capsule, but not if a grain of LSD were placed into the capsule with a tweezers? It is not enough to say that "ordinary usage" precludes including the weight of a heavy glass bottle or a Boeing 747. The words "mixture or substance" are ambiguous, and a construction of those words that can avoid invalidation on constitutional grounds is therefore appropriate. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645; St. Martin Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612; Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296-97, 76 L.Ed. 598; Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208.

Even if such a construction is wrong, however, and Congress did intend to include the weight of various carrier media in the weight calculation in LSD cases, the defendants should still prevail, since such inclusion would violate the defendants' Fifth Amendment right to due process of law. The Fifth Amendment prohibits the government from engaging in discrimination that is so unjustified that it violates due process of law. Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). The defendants in these cases do not complain that they have been treated differently from individuals convicted of distributing other drugs, or differently from individuals convicted of distributing drugs in other places. Hence the equal protection holding in Rose and the decisions in cases such as United States v. Holland, 810 F.2d 1215 (D.C.Cir.1987) (enhanced penalty for distributing drugs within 1,000 feet of school does not violate due process), certiorari denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854 are not applicable. Rather, the defendants contend that the statute and the Guidelines require two defendants convicted of selling the same number of doses of LSD for the same amount of money to be sentenced differently if they have chosen different inert carrier media to distribute the LSD.

The defendants have argued that their right to fairness in the criminal justice system, including the right to fair treatment in sentencing, is a fundamental right. Hence they contend that the statute and the Guideline Section at issue here should be subjected to strict scrutiny. See Rotunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure § 18.41 (1986). The holding in Marshall v. Parker, 470 F.2d 34 (9th Cir.1972), does not foreclose this argument. In Marshall the Ninth Circuit rejected the defendant's claim that the provision under which he was sentenced denied him equal protection. The provision at issue, Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-4255, excludes offenders who have been convicted of a felony on two or more prior occasions from eligibility for a drug rehabilitation treatment program. The Court held that the statute did not create a [1330] suspect classification, and that there was no "`fundamental right' to rehabilitation at public expense." Id. at 38. Consequently the Ninth Circuit subjected the statute to rational basis review. The Supreme Court granted certiorari and employed the same standard of review as the Ninth Circuit, noting that the petitioner conceded that "rational basis" was the appropriate standard. Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 704, 38 L.Ed.2d 618. A decision that there is no fundamental right to rehabilitation at public expense is not equivalent to a decision that there is no fundamental right to fairness in sentencing.

This case does not require a resolution of whether there is a fundamental right to fairness in sentencing, however, since a difference in sentences based solely on the difference in the weight of an inert ingredient is not rationally related to the government's legitimate goal of eliminating the serious drug problem in this country. Congress' stated purpose in enacting the enhanced penalties of 21 U.S.C. § 841 was to punish major drug traffickers more harshly than minor participants. H.R.Rep. No. 845, 99th Cong., 2d Sess. Part I at 11-12.^[17] A statute that punishes those convicted of distributing greater amounts (in terms of weight) of drugs will rationally serve this purpose if the drugs being distributed are sold by weight. As the government has conceded, however, LSD is not sold by weight, but by dose. A given number of doses will fetch a given price in the market. Neither the price of those doses nor the number of purchasers of those doses will increase because the LSD is sold on blotter paper instead of in its granular or liquid form. Thus a dealer selling LSD that weighs more because he has chosen to sell the drug on blotter paper will not be a more significant market participant than one who has chosen to sell the same number of doses in granular or liquid form. In fact, it is more likely that those individuals in possession of LSD in its granular or liquid form will be the major actors in any given LSD-trafficking network. They are the individuals who will have either manufactured the drug or acquired it in order to apply it to a chosen carrier medium to facilitate eventual distribution. But under the current statutory scheme, and at a weight per dose of .05 milligrams, such a major dealer would be able to possess up to 20,000 doses of LSD in granular form without subjecting himself to the mandatory five-year minimum penalty of 21 U.S.C. § 841(b)(1)(A)(v). A statute that produces such a result and yet purports to punish major participants more severely cannot survive even the limited scrutiny of rational basis review.

Cases in which the Supreme Court has applied rational basis review and found a statute unconstitutional are few, but there are some. As the Supreme Court recently reiterated in Logan v. Zimmerman Brush Co., 455 U.S. 422, 438, 102 S.Ct. 1148, 1159, 71 L.Ed.2d 265 (1982), "the rational basis standard is `not a toothless one.'" (citations omitted). In Logan, a majority of the Court agreed that an employment discrimination claim deadline violated the plaintiff's right to equal protection because it was not rationally related to the stated goals of expediting legitimate claims and discouraging unfounded claims. 455 U.S. at 438-442, 102 S.Ct. at 1159-1162 (separate opinion of Blackmun, J., joined by Brennan, J., Marshall, J., and O'Connor, J.), 455 U.S. at 443-444, 102 S.Ct. at 1161-1162 (concurring opinion of Powell, J., joined by Rehnquist, J.). See also Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973); U.S. Dept. of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973) (all finding statutes unconstitutional under rational basis review).

The majority has decided that ambiguous language is clear and that rational basis [1331] review is toothless. I therefore respectfully dissent.

POSNER, Circuit Judge, joined by BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., and CUDAHY, Circuit Judges, dissenting.

In each of these cases consolidated for decision en banc (and in a third that is awaiting decision, United States v. Dean, No. 89-2786), the district court sentenced sellers of LSD in accordance with an interpretation of 21 U.S.C. § 841 that is plausible but that makes the punishment scheme for LSD irrational. It has been assumed that an irrational federal sentencing scheme denies the equal protection of the laws and therefore (Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954)) violates the due process clause of the Fifth Amendment. Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974); McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 1059-60, 35 L.Ed.2d 282 (1973); United States v. Cyrus, 890 F.2d 1245, 1248 (D.C.Cir.1989); United States v. Pineda, 847 F.2d 64 (2d Cir.1988). The assumption is proper, and in order to avoid having to strike down the statute we are entitled to adopt a reasonable interpretation that cures the constitutional infirmity, even if that interpretation might not be our first choice were there no such infirmity.

The statute fixes the minimum and maximum punishments with respect to each illegal drug on the basis of the weight of the "mixture or substance containing a detectable amount of" the drug. Examples are five years minimum and twenty years maximum for selling a hundred grams of a "mixture or substance containing a detectable amount of" heroin and ten years minimum and forty years maximum for selling a kilogram of such a mixture or substance. The corresponding weights for LSD are one gram and ten grams. The quoted words are critical. Drugs are usually consumed, and therefore often sold, in a diluted form, and the adoption by Congress of the "mixture or substance" method of grading punishment reflected a conscious decision to mete out heavy punishment to large retail dealers, who are likely to possess "substantial street quantities," which is to say quantities of the diluted drug ready for sale. H.R.Rep. No. 845, 99th Cong., 2d Sess. 11-12 (1986). That decision is well within Congress's constitutional authority even though it may sometimes result in less severe punishment for possessing a purer, and therefore a lighter, form of the illegal drug than a heavier but much less potent form.

The statute fixes only the minimum and maximum punishments and for the actual punishment in a particular case we must go to the Sentencing Guidelines. They proportion punishment to the weight of the mixture or substance, defined as in the statute. § 2D1.1, Application Note 1; § 2D.1, Drug Quantity Table, n. *. They permit an adjustment upward for sales of unusual purity, § 2D1.1, Application Note 9, but this takes care of the problem identified in the previous paragraph only in part; the statutory mandatory minimum sentences (which, like the Guidelines sentences themselves, are not subject to parole) truncate the effort of the Guidelines' framers to tie the severity of punishment in the particular case to the gravity of the defendant's misconduct.

Based as it is on weight, the system I have described works well for drugs that are sold by weight; and ordinarily the weight quoted to the buyer is the weight of the dilute form, although of course price will vary with purity. The dilute form is the product, and it is as natural to punish its purveyors according to the weight of the product as it is to punish moonshiners by the weight or volume of the moonshine they sell rather than by the weight of the alcohol contained in it. So, for example, under Florida law it is a felony to possess one or more gallons of moonshine, and a misdemeanor to possess less than one gallon, regardless of the alcoholic content. Fla.Stat. §§ 561.01, 562.451.

LSD, however, is sold to the consumer by the dose; it is not cut, diluted, or mixed with something else. Moreover, it is incredibly light. An average dose of LSD weighs .05 milligrams, which is less than [1332] two millionths of an ounce. To ingest something that small requires swallowing something much larger. Pure LSD in granular form is first diluted by being dissolved, usually in alcohol, and then a quantity of the solution containing one dose of LSD is sprayed or eyedropped on a sugar cube, or on a cube of gelatin, or, as in the cases before us, on an inch-square section of "blotter" paper. (LSD blotter paper, which is sold typically in sheets ten inches square containing a hundred sections each with one dose of LSD on it, is considerably thinner than the paper used to blot ink but much heavier than the LSD itself.) After the solution is applied to the carrier medium, the alcohol or other solvent evaporates, leaving an invisible (and undiluted) spot of pure LSD on the cube or blotter paper. The consumer drops the cube or the piece of paper into a glass of water, or orange juice, or some other beverage, causing the LSD to dissolve in the beverage, which is then drunk. This is not dilution. It is still one dose that is being imbibed. Two quarts of a 50-proof alcoholic beverage are more than one quart of a 100-proof beverage, though the total alcoholic content is the same. But a quart of orange juice containing one dose of LSD is not more, in any relevant sense, than a pint of juice containing the same one dose, and it would be loony to punish the purveyor of the quart more heavily than the purveyor of the pint. It would be like basing the punishment for selling cocaine on the combined weight of the cocaine and of the vehicle (plane, boat, automobile, or whatever) used to transport it or the syringe used to inject it or the pipe used to smoke it. The blotter paper, sugar cubes, etc. are the vehicles for conveying LSD to the consumer.

The weight of the carrier is vastly greater than that of the LSD, as well as irrelevant to its potency. There is no comparable disparity between the pure and the mixed form (if that is how we should regard LSD on blotter paper or other carrier medium) with respect to the other drugs in section 841, with the illuminating exception of PCP. There Congress specified alternative weights, for the drug itself and for the substance or mixture containing the drug. For example, the five-year minimum sentence for a seller of PCP requires the sale of either ten grams of the drug itself or one hundred grams of a substance or mixture containing the drug. 21 U.S.C. § 841(b)(1)(B)(iv).

Ten sheets of blotter paper, containing a thousand doses of LSD, weigh almost six grams. The LSD itself weighs less than a hundredth as much. If the thousand doses are on gelatin cubes instead of sheets of blotter paper, the total weight is less, but it is still more than two grams, United States v. McGeehan, 824 F.2d 677, 680 (8th Cir.1987), which is forty times the weight of the LSD. In both cases, if the carrier plus the LSD constitutes the relevant "substance or mixture" (the crucial "if" in this case), the dealer is subject to the minimum mandatory sentence of five years. One of the defendants before us (Marshall) sold almost 12,000 doses of LSD on blotter paper. This subjected him to the ten-year minimum, and the Guidelines then took over and pushed him up to twenty years. Since it takes 20,000 doses of LSD to equal a gram, Marshall would not have been subject to even the five-year mandatory minimum had he sold the LSD in its pure form. And a dealer who sold fifteen times the number of doses as Marshall — 180,000 — would not be subject to the ten-year mandatory minimum sentence if he sold the drug in its pure form, because 180,000 doses is only nine grams.

At the other extreme, if Marshall were not a dealer at all but dropped a square of blotter paper containing a single dose of LSD into a glass of orange juice and sold it to a friend at cost (perhaps 35 cents), he would be subject to the ten-year minimum. The juice with LSD dissolved in it would be the statutory mixture or substance containing a detectable amount of the illegal drug and it would weigh more than ten grams (one ounce is about 35 grams, and the orange juice in a glass of orange juice weighs several ounces). So a person who sold one dose of LSD might be subject to the ten-year mandatory minimum sentence while a dealer who sold 199,999 doses in [1333] pure form would be subject only to the five-year minimum. Defendant Dean (in No. 89-2786) sold 198 doses, crowded onto one sheet of blotter paper: this subjected him to the five-year mandatory minimum, too, since the ensemble weighed slightly more than a gram.

There are no reported orange juice cases; for that matter there are no reported federal cases in which the carrier is a sugar cube rather than a gelatin cube, although sugar cubes are said to be a common LSD carrier, United States v. Marshall, 706 F.Supp. 650, 652 (C.D.Ill.1989), and in two state cases defendants have been prosecuted for unlawful possession of one and of six LSD-laced sugar cubes, respectively. People v. Urban, 45 Mich.App. 255, 206 N.W.2d 511 (1973); Commonwealth v. Cohen, 359 Mass. 140, 268 N.E.2d 357 (1971). A sugar cube weighs more than two grams, so a seller of a mere six sugar cubes laced with LSD — six doses — would, if prosecuted federally, have bought himself the mandatory minimum ten-year sentence.

All this seems crazy but we must consider whether Congress might have had a reason for wanting to key the severity of punishment for selling LSD to the weight of the carrier rather than to the number of doses or to some reasonable proxy for dosage (as weight is, for many drugs). The only one suggested is that it might be costly to determine the weight of the LSD in the blotter paper, sugar cube, etc., because it is so light! That merely underscores the irrationality of basing the punishment for selling this drug on weight rather than on dosage. But in fact the weight is reported in every case I have seen, so apparently it can be determined readily enough; it has to be determined in any event, to permit a purity adjustment under the Guidelines. If the weight of the LSD is difficult to determine, the difficulty is easily overcome by basing punishment on the number of doses, which makes much more sense in any event. To base punishment on the weight of the carrier medium makes about as much sense as basing punishment on the weight of the defendant.

A person who sells LSD on blotter paper is not a worse criminal than one who sells the same number of doses on gelatin cubes, but he is subject to a heavier punishment. A person who sells five doses of LSD on sugar cubes is not a worse person than a manufacturer of LSD who is caught with 19,999 doses in pure form, but the former is subject to a ten-year mandatory minimum no-parole sentence while the latter is not even subject to the five-year minimum. If defendant Chapman, who received five years for selling a thousand doses of LSD on blotter paper, had sold the same number of doses in pure form, his Guidelines sentence would have been fourteen months. And defendant Marshall's sentence for selling almost 12,000 doses would have been four years rather than twenty. The defendant in United States v. Rose, 881 F.2d 386, 387 (7th Cir.1989), must have bought an unusually heavy blotter paper, for he sold only 472 doses, yet his blotter paper weighed 7.3 grams — more than Chapman's, although Chapman sold more than twice as many doses. Depending on the weight of the carrier medium (zero when the stuff is sold in pure form), and excluding the orange juice case, the Guidelines range for selling 198 doses (the amount in Dean) or 472 doses (the amount in Rose) stretches from ten months to 365 months; for selling a thousand doses (Chapman), from fifteen to 365 months; and for selling 11,751 doses (Marshall), from 33 months to life. In none of these computations, by the way, does the weight of the LSD itself make a difference — so slight is its weight relative to that of the carrier — except of course when it is sold in pure form. Congress might as well have said: if there is a carrier, weigh the carrier and forget the LSD.

This is a quilt the pattern whereof no one has been able to discern. The legislative history is silent, and since even the Justice Department cannot explain the why of the punishment scheme that it is defending, the most plausible inference is that Congress simply did not realize how LSD is sold. The inference is reinforced by the statutory treatment of PCP.

We can actually measure the rationality of the punishment scheme for LSD, by [1334] regressing the Guidelines sentence on the number of doses sold. The sentence should increase with the number of doses, and the number of doses should explain most of the variance in sentences. Using the different weights of blotter paper disclosed by the cases (including Dean), plus gelatin cubes, sugar cubes, and no carrier (for sales of pure LSD) as additional dosage forms, I have been able to calculate that for sales of between one dose and a thousand, although the average Guidelines sentence does increase with the number of doses, that number explains only 23 percent of the possible sentencing variance for these different methods of selling the drug. For sales of between one dose and 180,000 doses the amount of variance explained falls to 16 percent. Differences in the severity of punishment are determined by differences in the weight of the carrier medium, even though that weight is completely irrelevant to culpability. I have abstracted from criminal history and other personal factors that might influence the sentence of a particular defendant, but I have not abstracted from the mandatory minimum sentencing provisions, because they are a key element in the irrationality of the scheme for punishing LSD offenders.

That irrationality is magnified when we compare the sentences for people who sell other drugs prohibited by 21 U.S.C. § 841. Marshall, remember, sold fewer than 12,000 doses and was sentenced to twenty years. Twelve thousand doses sounds like a lot, but to receive a comparable sentence for selling heroin Marshall would have had to sell ten kilograms, which would yield between one and two million doses. Platt, Heroin Addiction: Theory, Research, and Treatment 50 (2d ed. 1986); cf. Diamorphine 63, 98 (Scott ed. 1988). To receive a comparable sentence for selling cocaine he would have had to sell fifty kilograms, which would yield anywhere from 325,000 to five million doses. Washton, Cocaine Addiction: Treatment, Recovery and Relapse Prevention 18 (1989); Cocaine Use in America: Epidemiologic and Clinical Perspectives 214 (Kozel & Adams, eds., National Institute on Drug Abuse Pamphlet No. 61, 1985)). While the corresponding weight is lower for crack — half a kilogram — this still translates into 50,000 doses.

LSD is a potentially dangerous drug, especially for psychotics (whom it can drive to suicide). Hoffman, LSD: My Problem Child 67-71 (1983). But many things are dangerous for psychotics. No one believes that LSD is a more dangerous drug than heroin or cocaine (particularly crack cocaine). The general view is that it is much less dangerous. Cox, et al., Drugs and Drug Abuse: A Reference Text 313-15 (1983). There is no indication that Congress believes it to be more dangerous, or more difficult to control. The heavy sentences that the law commands for minor traffickers in LSD are the inadvertent result of the interaction among a statutory procedure for measuring weight, adopted without understanding how LSD is sold; a decision to specify harsh mandatory minimum sentences for drug traffickers, based on the weight of the drug sold; and a decision (gratuitous and unreflective, as far as I can see) by the framers of the Guidelines to key punishment to the statutory measure of weight, thereby amplifying Congress's initial error and ensuring that the big dealer who makes or ships the pure drug will indeed receive a shorter sentence than the small dealer who handles the stuff in its street form. As the wholesale value of LSD may be as little as 35 cents a dose (Report 1988: The Supply of Illicit Drugs to the United States 52 (National Narcotics Intelligence Consumers Comm.1989)), a seller of five sugar cubes could be subject to a mandatory minimum prison term of ten years for selling $2 worth of illegal drugs. Dean received six years (no parole, remember) for selling $73 worth. The irrationality is quite bad enough if we confine our attention to LSD sold on blotter paper, since the weight of blotter paper varies considerably, making punishment turn on a factor that has no relation to the dosages or market values of LSD.

Well, what if anything can we judges do about this mess? The answer lies in the shadow of a jurisprudential disagreement [1335] that is not less important by virtue of being unavowed by most judges. It is the disagreement between the severely positivistic view that the content of law is exhausted in clear, explicit, and definite enactments by or under express delegation from legislatures, and the natural lawyer's or legal pragmatist's view that the practice of interpretation and the general terms of the Constitution (such as "equal protection of the laws") authorize judges to enrich positive law with the moral values and practical concerns of civilized society. Judges who in other respects have seemed quite similar, such as Holmes and Cardozo, have taken opposite sides of this issue. Neither approach is entirely satisfactory. The first buys political neutrality and a type of objectivity at the price of substantive injustice, while the second buys justice in the individual case at the price of considerable uncertainty and, not infrequently, judicial willfulness. It is no wonder that our legal system oscillates between the approaches. The positivist view, applied unflinchingly to this case, commands the affirmance of prison sentences that are exceptionally harsh by the standards of the modern Western world, dictated by an accidental, unintended scheme of punishment nevertheless implied by the words (taken one by one) of the relevant enactments. The natural law or pragmatist view leads to a freer interpretation, one influenced by norms of equal treatment; and let us explore the interpretive possibilities here. One is to interpret "mixture or substance containing a detectable amount of [LSD]" to exclude the carrier medium — the blotter paper, sugar or gelatin cubes, and orange juice or other beverage. That is the course we rejected in United States v. Rose, supra, 881 F.2d at 388, as have the other circuits. I wrote Rose, but I am no longer confident that its literal interpretation of the statute, under which the blotter paper, cubes, etc. are "substances" that "contain" LSD, is inevitable. The blotter paper, etc. are better viewed, I now think, as carriers, like the package in which a kilo of cocaine comes wrapped or the bottle in which a fifth of liquor is sold.

Interpreted to exclude the carrier, the punishment schedule for LSD would make perfectly good sense; it would not warp the statutory design. The comparison with heroin and cocaine is again illuminating. The statute imposes the five-year mandatory minimum sentence on anyone who sells a substance or mixture containing a hundred grams of heroin, equal to 10,000 to 20,000 doses. One gram of pure LSD, which also would trigger the five-year minimum, yields 20,000 doses. The comparable figures for cocaine are 3250 to 50,000 doses, placing LSD in about the middle. So Congress may have wanted to base punishment for the sale of LSD on the weight of the pure drug after all, using one and ten grams of the pure drug to trigger the five-year and ten-year minima (and corresponding maxima — twenty years and forty years). This interpretation leaves "substance or mixture containing" without a referent, so far as LSD is concerned. But we must remember that Congress used the identical term in each subsection that specifies the quantity of a drug that subjects the seller to the designated minimum and maximum punishments. In thus automatically including the same term in each subsection, Congress did not necessarily affirm that, for each and every drug covered by the statute, a substance or mixture containing the drug must be found.

The flexible interpretation that I am proposing is decisively strengthened by the constitutional objection to basing punishment of LSD offenders on the weight of the carrier medium rather than on the weight of the LSD. Courts often do interpretive handsprings to avoid having even to decide a constitutional question. Gomez v. United States, ___ U.S. ___, 109 S.Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). In doing so they expand, very questionably in my view, the effective scope of the Constitution, creating a constitutional penumbra in which statutes wither, shrink, are deformed. A better case for flexible interpretation is presented when the alternative is to nullify Congress's action: when in other words there is not merely a constitutional question about, but a constitutional barrier to, the statute when interpreted [1336] literally. Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211, 39 L.Ed. 297 (1895). This is such a case.

The Supreme Court held in Bolling v. Sharpe that action by the federal government which if it were state action would violate the equal protection clause of the Fourteenth Amendment violates the due process clause of the Fifth Amendment (the Fifth Amendment contains no equal protection clause). This, then, is a form of "substantive due process" expressly approved by the Supreme Court; disparage it — reject it — and you affirm the power of the federal government to practice racial discrimination, since the constitutional prohibition against such discrimination derives from the equal protection clause. Because under Bolling v. Sharpe equal protection is a duty of the federal government, it does not matter that, viewed in isolation, the sentences in the cases before us are not so disproportionate to the gravity of the defendants' conduct that they violate the loose principles of proportionality that courts have found in the Eighth Amendment's prohibition of cruel and unusual punishments. Cf. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam). The sentences stand condemned under a different principle: that which forbids the unequal treatment of people identically situated. That this principle exists and is potentially applicable to criminal punishment can scarcely be doubted, quite apart from the cases cited at the beginning of this opinion. Suppose that through a draftman's error a statute fixed a two-year minimum sentence for attempted larceny and a one-year minimum for larceny. A person sentenced for attempted larceny could not complain that his punishment was cruel and unusual, but he could complain that he was being punished pursuant to an irrational punishment scheme. And so with the dealer who sells a thousand doses of LSD on heavy blotter paper, the dealer who sells a thousand doses on light blotter paper, the dealer who sells the same number of doses on gelatin cubes, the dealer who sells the same number on sugar cubes, and the dealer who sells the same number in pure form: all these dealers are identically situated, so far as the purposes animating the drug statute are concerned; all can complain, therefore, that they are being sentenced pursuant to an irrational scheme that denies them the equal protection of the laws.

Not all types of dealer are before us in these two cases, it is true; but in challenging a statute as a denial of equal protection a plaintiff will invariably be comparing his situation under the statute with those of persons not before the court. Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987); Orr v. Orr, 440 U.S. 268, 272-73, 99 S.Ct. 1102, 1108-09, 59 L.Ed.2d 306 (1979); Kucharek v. Hanaway, 902 F.2d 513, 516, 520-21 (7th Cir.1990). How could it be otherwise? If a tax statute exempts a class of taxpayers on grounds claimed to be irrational, no member of that class will attack the exemption as a denial of equal protection, yet the challenger must be able to point to the favored class in support of his constitutional challenge. He is permitted to do this without having to drag the members of that class into court. The defendants in the cases before us point to the manufacturer who ships LSD in granular form (the sensible way to ship it, since that is the lightest and most compact form), the dealer who sells LSD on gelatin cubes rather than blotter paper, and the dealer who uses light rather than heavy blotter paper, as persons irrationally exempted from the heavy sentences that the mandatory minimum punishment provisions of section 841, in conjunction with the provisions of the Guidelines, have placed the defendants in our cases under. The defendants have no standing to complain about the hypothetical punishment of the person who sells LSD in sugar cubes or glasses of orange juice, but, as with the use of hypothetical cases in legal reasoning generally, these examples are relevant to exploring the logic behind the scheme of punishment — and show that there is none.

The point is not that the judicial imagination can conjure up anomalous applications of the statute. A statute is not irrational because its draftsmen lacked omniscience. [1337] The point is that graduating punishment to the weight of the carrier medium produces, in the case of LSD, a systematically, unavoidably bizarre schedule of punishments that no one is able to justify. I would give respectful consideration to any rationale for the schedule advanced by the legislators, the framers of the Guidelines, or the Department of Justice. None has been advanced. And such give as there is in the Guidelines (the purity adjustment) is unavailing when defendants are subject to the mandatory minimum sentences in section 841, as all the defendants before us (plus Dean) are.

Granted, when the total system of federal criminal punishment is considered, including prosecutorial discretion and executive clemency, it becomes arguable that the grossest inequities enabled by reading section 841 to base punishment on the weight of the carrier rather than of the LSD are unlikely to occur. Maybe that is why we have seen no recent sugar-cube cases. But this argument is too powerful; it would eliminate or at least greatly curtail the judicial role in protecting criminal defendants from arbitrary statutes, by preventing the defendant from showing that the statute was arbitrary.

Our choice is between ruling that the provisions of section 841 regarding LSD are irrational, hence unconstitutional, and therefore there is no punishment for dealing in LSD — Congress must go back to the drawing boards, and all LSD cases in the pipeline must be dismissed — and ruling that, to preserve so much of the statute as can constitutionally be preserved, the statutory expression "substance or mixture containing a detectable amount of [LSD]" excludes the carrier medium. Given this choice, we can be reasonably certain that Congress would have preferred the second course; and this consideration carries the argument for a flexible interpretation over the top.

That interpretation would bring the statute into line with the punishment for other illegal drugs; but this is only an incidental benefit because, as ruled in Rose (correctly, as it seems to me and has seemed to the other courts that have considered the question, see United States v. Elrod, 898 F.2d 60 (6th Cir.1990) (per curiam), and other cases cited there), it is not a feasible judicial office to rationalize the thousands of different federal criminal prohibitions, passed at different times in different climates of opinion, that are scattered throughout the United States Code. Cf. United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979); Edwards v. United States, 814 F.2d 486, 489 (7th Cir.1987). The relevant irrationality — which was not presented as an issue in Rose and which has not received full consideration in any other case either, although there are glancing references to it in United States v. Bishop, 894 F.2d 981, 985-86 (8th Cir.1990), and United States v. Elrod, supra, 898 F.2d at 63; cf. United States v. Bayerle, 898 F.2d 28, 31 (4th Cir.1990) — lies in making the punishment of LSD offenders vary by the adventitious and indeed perverse factor of the weight of the carrier. But it is reassuring that in removing this irrationality from section 841 we would create no new disparities between the punishment of sellers of LSD and the punishment of other drug offenders.

The literal interpretation adopted by the majority is not inevitable. All interpretation is contextual. The words of the statute — interpreted against a background that includes a constitutional norm of equal treatment, a (closely related) constitutional commitment to rationality, an evident failure by both Congress and the Sentencing Commission to consider how LSD is actually produced, distributed, and sold, and an equally evident failure by the same two bodies to consider the interaction between heavy mandatory minimum sentences and the Sentencing Guidelines — will bear an interpretation that distinguishes between the carrier vehicle of the illegal drug and the substance or mixture containing a detectable amount of the drug. The punishment of the crack dealer is not determined by the weight of the glass tube in which he sells the crack; we should not lightly attribute to Congress a purpose of punishing the dealer in LSD according to the weight of [1338] the LSD carrier. We should not make Congress's handiwork an embarrassment to the members of Congress and to us.

[1] The 1,000 doses in Chapman weighed 5.7 grams, or 0.0057 grams per dose. The 11,751 doses in Marshall weighed 113.32 grams, or 0.00964 grams per dose. Marshall apparently sold premium LSD; the forensic chemist concluded that his 11,751 squares of blotter paper contained 670.72 milligrams of LSD, or 0.057 mg per dose — 14% more per dose than the Sentencing Commission's norm of 0.05 mg. The substance Marshall sold was 0.59% LSD; the substance the other three sold was 0.877% LSD.

[2] One drop is equivalent to one minim, or 0.06161 milliliters. That implies about 16,231 drops per liter. One liter of water weighs a kilogram. Ethyl alcohol has a specific gravity of 0.7893, so a liter of ethyl alcohol weighs 0.7893 kilograms. LSD weighs 0.05 mg per hit. So 16,231 doses of LSD weigh 0.811 grams. A liter of alcohol containing these doses weighs 790.11 grams (the 789.3 grams of alcohol plus the 0.811 grams of LSD). Thus the solution is 0.103% LSD.

[3] In Chapman, in which 1,000 doses weighed 5.7 grams. LSD dissolved in alcohol weighs only 5.05 times as much per dose as LSD in Marshall's heavier blotter paper (see note 1 above).

[4] United States v. Daly, 883 F.2d 313 (4th Cir.1989); United States v. Taylor, 868 F.2d 125 (5th Cir.1989); United States v. Elrod, 898 F.2d 60 (6th Cir.1990); United States v. Bishop, 894 F.2d 981 (8th Cir.1990); United States v. Larsen, 904 F.2d 562 (10th Cir.1990). See also United States v. Skelton, 901 F.2d 1204, 1206 (4th Cir.1990) (although "Congress has drawn a distinction between pure PCP and PCP mixtures, it has not drawn a like distinction with respect to PCPy or any other hallucinogen"; holding that the full weight of a PCPy mixture counts, even though PCPy is a close chemical relation to PCP); Tennessee v. Elphee, 1989 WL 19159, 1989 Tenn.Cr.App. LEXIS 163 at 9-10 (weight of blotter paper counted under state law identical to § 841).

[5] Including our own opinion in Rose, which held that five years for 472 doses of LSD is consistent with the eighth amendment. See also, e.g., Bishop (151 months permissible for possession of 3500 doses).

[6] Michigan v. Harmelin, 176 Mich.App. 524, 440 N.W.2d 75 (1989), cert. granted, ___ U.S. ___, 110 S.Ct. 2559, 109 L.Ed.2d 742 (1990) (less than one kilogram of cocaine); United States v. Aiello, 864 F.2d 257 (2d Cir.1988); Terrebonne v. Butler, 848 F.2d 500 (5th Cir.1988) (in banc); United States v. Stewart, 820 F.2d 1107 (9th Cir.1987) (Kennedy, J.).

[7] United States v. Fox, 889 F.2d 357 (1st Cir.1989); United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989); United States v. Frank, 864 F.2d 992 (3d Cir.1988); United States v. Bolding, 876 F.2d 21 (4th Cir.1989); United States v. White, 869 F.2d 822 (5th Cir.1989); United States v. Allen, 873 F.2d 963 (6th Cir.1989); United States v. Brittman, 872 F.2d 827 (8th Cir.1989); United States v. Brady, 895 F.2d 538 (9th Cir.1990); United States v. Thomas, 884 F.2d 540 (10th Cir.1989); United States v. Erves, 880 F.2d 376 (11th Cir.1989); United States v. Lafayette, 896 F.2d 599 (D.C.Cir.).

[8] E.g., United States v. Whitehead, 849 F.2d 849, 858-60 & n. 26 (4th Cir.1988); United States v. Baker, 883 F.2d 13 (5th Cir.1989); United States v. Mendoza, 876 F.2d 639, 641 (8th Cir.1989); Bishop, supra note 4, 894 F.2d at 987; United States v. Savinovich, 845 F.2d 834 (9th Cir.1988); United States v. Holmes, 838 F.2d 1175 (11th Cir.1988). See also United States v. Bayerle, 898 F.2d 28, 31-32 (4th Cir.1990) (rejecting a constitutional challenge to the application of the weight tables to dilaudid, which like LSD is sold by the dose in dilute form). State cases to the same effect include People v. Campbell, 115 Mich.App. 369, 320 N.W.2d 381, 382-83 (1982); Traylor v. Delaware, 458 A.2d 1170, 1176-77 (Del.1983); Florida v. Yu, 400 So.2d 762 (Fla.1981); People v. Mayberry, 63 Ill.2d 1, 345 N.E.2d 97 (1976); see also Daneff v. Henderson, 501 F.2d 1180 (2d Cir.1974) (New York law). Cf. United States v. Holland, 810 F.2d 1215, 1219 (D.C.Cir.1987) (Congress need not rank offenses by severity when designing penalties); United States v. Buckner, 894 F.2d 975, 980-81 (8th Cir.1990) (§ 841's treatment of one gram of cocaine base (crack) as equivalent to 100 grams of cocaine does not violate substantive due process); United States v. Thornton, 901 F.2d 738 (9th Cir.1990) (enhancement provided by § 845a for sales within 1,000 feet of a school is rational as applied to sales that have no connection to school or school children).

[9] Judge Posner's dissenting opinion contends that the number of doses of LSD accounts for only 16% to 23% of the variance in sentences. This is a hypothetical calculation; data about the lengths of actual sentences (which we do not possess) may put things in better light, or may show that the correlation for LSD is no worse than that for other drugs. Judge Posner's hypothetical cases include many in which LSD is distributed on sugar cubes. Sugar cubes are so heavy compared to blotter paper that one might as well examine the effect on sentences of distributing LSD in bricks. If you remove the sugar cube hypotheticals from Judge Posner's sample (a plausible step, since there has not been even one sugar cube prosecution under § 841), the number of doses then explains 59.6% of the variance in sentences.

Contrast heroin, which is sold pure at wholesale and diluted at retail. Assume an average purity in retail sales of 2.5%, and 100% purity in wholesale sales. Assume also that the heroin is sold at retail purity in half of the cases. In this simple model, using the median guideline range, criminal history level I, for quantities from 1 gram to 50 kilograms, the quantity of pure heroin explains only 45% of the variance in sentences. LSD does not come off the worse for the comparison.

[10] So counsel said; more likely a gas chromatograph tells you whether LSD is present without verifying the amount. It may take a gas centrifuge to extract and re-purify the drug, and it is very difficult and costly to run a sophisticated gas centrifuge.

[11] A seventh court, the Court of Appeals for the Fourth Circuit, has also held that the weight of the blotter paper should be included for sentencing purposes. As in this Circuit's decision in United States v. Rose, 881 F.2d 386, 388 (1989), however, the Fourth Circuit decision did not turn on whether the paper is properly considered a "mixture or substance" since the defendant conceded that point. United States v. Daly, 883 F.2d 313, 317 (4th Cir.1989).

[12] The Commission has recently adopted several amendments and sent them to Congress for approval. Among these is an amendment to Application Note 11 to Guidelines Section 2D1.1. This amendment specifically states that the typical weight per dose of LSD that is given in the Weight Per Dose Table as .05 milligrams is the weight of the LSD alone and not of the LSD combined with any carrier. 55 Fed.Reg. 19197 (May 8, 1990). A recent reference to this amendment in the BNA Criminal Practice Manual incorrectly suggests that the amendment seeks to permit an adjustment to a sentence for an LSD conviction if the combined weights of the carrier and the LSD "grossly exaggerate" the sentence. BNA Criminal Practice Manual, Vol. 4, No. 11 at 249. In spite of this apparent misapprehension by the BNA, the Commission has not, as yet, taken a position on whether the weight of the blotter paper should be included for the purpose of calculating a sentence in an LSD case.

[13] For example, in Marshall the parties stipulated that the defendant sold 11,751 doses of LSD. As previously noted, the total weight of these doses including the blotter paper was 113,320 milligrams. Thus if the blotter paper is included the weight of one dose would be 9.64 milligrams. On the other hand the weight of the LSD without the blotter paper in Marshall was 670.72 milligrams, and the weight of one dose if the blotter paper is not included is .057 milligrams.

[14] The Supreme Court has discussed the limitations of the use of subsequent legislative history in interpreting enacted legislation, but has declined to hold that subsequent legislative history is not entitled to any weight. Compare Sullivan v. Finkelstein, ___ U.S. ___, ___ n. 8, 110 S.Ct. 2658, 2665-66 n. 8, 110 L.Ed.2d 563 (1990), with id. ___ U.S. at ___-___, 110 S.Ct. at 2665-67 (Scalia, J., concurring in part).

[15] The complete text of the relevant portions of Senator Biden's supplementary analysis of Amendment No. 976 is as follows:

Section 67 contains two amendments to the drug trafficking penalties in 21 U.S.C. § 841. The first amendment merely corrects a typographical error in section 6470(g) of the Anti-Drug Abuse Act of 1988.

The second amendment responds to an inequity discussed in several recent cases involving LSD. See, e.g., United States v. Bishop, 704 F.Supp. 910 (N.D.Iowa 1989). In these cases the courts determined that the weight of carriers such as sugar cubes, gelatin cubes, and blotter paper used to transport and consume substances such as LSD should be counted in determining whether the weight of the "mixture or substance" was sufficient to trigger a mandatory minimum penalty.

The inequity in these decisions is apparent in the following example. A single dose of LSD weighs approximately .05 mg. The sugar cube on which the dose may be dropped for purposes of ingestion and transportation, however, weighs approximately 2 grams. Under 21 U.S.C. § 841(b) a person distributing more than one gram of a "mixture or substance" containing LSD is punishable by a minimum sentence of 5 years and a maximum sentence of 40 years. A person distributing less than a gram of LSD, however, is subject only to a maximum sentence of 20 years. Thus a person distributing 1,000 doses of LSD in liquid form is subject to no minimum penalty, while a person handing another person a single dose on a sugar cube is subject to the mandatory five year penalty.

The amendment remedies this inequity by removing the weight of the carrier from the calculation of the weight of the mixture or substance.

135 Cong.Rec. S12748 (daily ed. Oct. 5, 1989).

[16] Although the record indicates that Amendment No. 976 was passed in its entirety, the final version of S. 1711 as reproduced in the Congressional Record of October 16, 1989, does not appear to contain the relevant portion of the amendment.

[17] The majority opinion advances three rationales that apparently never occurred to the government since the government briefs contain no mention of any of them. Furthermore, when asked at oral argument whether the Justice Department had suggested any rationale for punishing a distributor of one dose of LSD on a carrier more harshly than a distributor of numerous doses of LSD without a carrier the government attorneys conceded that it had not.

143 U.S. 457 (1892)

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Mr. Seaman Miller for plaintiff in error.

Mr. Assistant Attorney General Maury for defendant in error submitted on his brief.

MR. JUSTICE BREWER delivered the opinion of the court.

Plaintiff in error is a corporation, duly organized and incorporated as a religious society under the laws of the State of New York. E. Walpole Warren was, prior to September, [458] 1887, an alien residing in England. In that month the plaintiff in error made a contract with him, by which he was to remove to the city of New York and enter into its service as rector and pastor; and in pursuance of such contract, Warren did so remove and enter upon such service. It is claimed by the United States that this contract on the part of the plaintiff in error was forbidden by the act of February 26, 1885, 23 Stat. 332, c. 164, and an action was commenced to recover the penalty prescribed by that act. The Circuit Court held that the contract was within the prohibition of the statute, and rendered judgment accordingly, (36 Fed. Rep. 303;) and the single question presented for our determination is whether it erred in that conclusion.

The first section describes the act forbidden, and is in these words:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this act it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration of any alien or aliens, any foreigner or foreigners, into the United States, its Territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its Territories, or the District of Columbia."

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other. Not only are the general words labor and service both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added "of any kind;" and, further, as noticed by the Circuit Judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers and domestic [459] servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think Congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. This has been often asserted, and the reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator, for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Plowden, 205: "From which cases, it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter, they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature; which they have collected sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances."

In Margate Pier Co. v. Hannam, 3 B. & Ald. 266, 270, Abbott, C.J. quotes from Lord Coke as follows: "Acts of Parliament are to be so construed as no man that is innocent or free from injury or wrong be, by a literal construction, punished or endamaged." In the case of the State v. Clark, 5 Dutcher, (29 N.J. Law) 96, 98, 99, it appeared that an act had been passed making it a misdemeanor to wilfully break down a fence in the possession of another person. Clark was indicted [460] under that statute. The defence was that the act of breaking down the fence, though wilful, was in the exercise of a legal right to go upon his own lands. The trial court rejected the testimony offered to sustain the defence, and the Supreme Court held that this ruling was error. In its opinion the court used this language: "The act of 1855, in terms, makes the wilful opening, breaking down or injuring of any fences belonging to or in the possession of any other person a misdemeanor. In what sense is the term wilful used? In common parlance, wilful is used in the sense of intentional, as distinguished from accidental or involuntary. Whatever one does intentionally he does wilfully. Is it used in that sense in this act? Did the legislature intend to make the intentional opening of a fence for the purpose of going upon the land of another indictable, if done by permission or for a lawful purpose? ... We cannot suppose such to have been the actual intent. To adopt such a construction would put a stop to the ordinary business of life. The language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed." In United States v. Kirby, 7 Wall. 482, 486, the defendants were indicted for the violation of an act of Congress, providing "that if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offence pay a fine not exceeding one hundred dollars." The specific charge was that the defendants knowingly and wilfully retarded the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty, and also in like manner retarded the steamboat General Buell, at that time engaged in carrying the mail. To this indictment the defendants pleaded specially that Farris had been indicted for murder by a court of competent authority in Kentucky; that a bench warrant had been issued and [461] placed in the hands of the defendant Kirby, the sheriff of the county, commanding him to arrest Farris and bring him before the court to answer to the indictment; and that in obedience to this warrant, he and the other defendants, as his posse, entered upon the steamboat General Buell and arrested Farris, and used only such force as was necessary to accomplish that arrest. The question as to the sufficiency of this plea was certified to this court, and it was held that the arrest of Farris upon the warrant from the state court was not an obstruction of the mail, or the retarding of the passage of a carrier of the mail, within the meaning of the act. In its opinion the court says: "All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted `that whoever drew blood in the streets should be punished with the utmost severity,' did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, `for he is not to be hanged because he would not stay to be burnt.' And we think that a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder." The following cases may also be cited. Henry v. Tilson, 17 Vermont, 479; Ryegate v. Wardsboro, 30 Vermont, 746; Ex parte Ellis, 11 California, 222; Ingraham v. Speed, 30 Mississippi, 410; Jackson v. Collins, 3 Cowen, 89; People v. Insurance Company, 15 Johns. 358; Burch v. Newbury, 10 N.Y. 374; People v. N.Y. [462] Commissioners of Taxes, 95 N.Y. 554, 558; People v. Lacombe, 99 N.Y. 43, 49; Canal Co. v. Railroad Co., 4 G. & J., 1, 152; Osgood v. Breed, 12 Mass. 525, 530; Wilbur v. Crane, 13 Pick. 284; Oates v. National Bank, 100 U.S. 239.

Among other things which may be considered in determining the intent of the legislature is the title of the act. We do not mean that it may be used to add to or take from the body of the statute, Hadden v. The Collector, 5 Wall. 107, but it may help to interpret its meaning. In the case of United States v. Fisher, 2 Cranch, 358, 386, Chief Justice Marshall said: "On the influence which the title ought to have in construing the enacting clauses much has been said; and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration." And in the case of United States v. Palmer, 3 Wheat. 610, 631, the same judge applied the doctrine in this way: "The words of the section are in terms of unlimited extent. The words `any person or persons' are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the State, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power, who in a foreign ship may commit murder or robbery on the high seas? The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, `An act for the punishment of certain crimes against the United States.' It would seem that offences against the United States, not offences against the human race, were the crimes which the legislature intended by this law to punish."

[463] It will be seen that words as general as those used in the first section of this act were by that decision limited, and the intent of Congress with respect to the act was gathered partially, at least, from its title. Now, the title of this act is, "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its Territories and the District of Columbia." Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of ministers, rectors and pastors.

Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. United States v. Union Pacific Railroad, 91 U.S. 72, 79. The situation which called for this statute was briefly but fully stated by Mr. Justice Brown when, as District Judge, he decided the case of United States v. Craig, 28 Fed. Rep. 795, 798: "The motives and history of the act are matters of common knowledge. It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts, by which the employer agreed; upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level [464] of the assisted immigrant. The evil finally became so flagrant that an appeal was made to Congress for relief by the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage."

It appears, also, from the petitions, and in the testimony presented before the committees of Congress, that it was this cheap unskilled labor which was making the trouble, and the influx of which Congress sought to prevent. It was never suggested that we had in this country a surplus of brain toilers, and, least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of Congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the act.

A singular circumstance, throwing light upon the intent of Congress, is found in this extract from the report of the Senate Committee on Education and Labor, recommending the passage of the bill: "The general facts and considerations which induce the committee to recommend the passage of this bill are set forth in the Report of the Committee of the House. The committee report the bill back without amendment, although there are certain features thereof which might well be changed or modified, in the hope that the bill may not fail of passage during the present session. Especially would the committee have otherwise recommended amendments, substituting for the expression `labor and service,' whenever it occurs in the body of the bill, the words `manual labor' or `manual service,' as sufficiently broad to accomplish the purposes of the bill, and that such amendments would remove objections which a sharp and perhaps unfriendly criticism may urge to the proposed legislation. The committee, however, believing that the bill in its present form will be construed as including only those whose labor or service is manual in character, and being very desirous that the bill become a law before the adjournment, have reported the bill without [465] change." 6059, Congressional Record, 48th Congress. And, referring back to the report of the Committee of the House, there appears this language: "It seeks to restrain and prohibit the immigration or importation of laborers who would have never seen our shores but for the inducements and allurements of men whose only object is to obtain labor at the lowest possible rate, regardless of the social and material well-being of our own citizens and regardless of the evil consequences which result to American laborers from such immigration. This class of immigrants care nothing about our institutions, and in many instances never even heard of them; they are men whose passage is paid by the importers; they come here under contract to labor for a certain number of years; they are ignorant of our social condition, and that they may remain so they are isolated and prevented from coming into contact with Americans. They are generally from the lowest social stratum, and live upon the coarsest food and in hovels of a character before unknown to American workmen. They, as a rule, do not become citizens, and are certainly not a desirable acquisition to the body politic. The inevitable tendency of their presence among us is to degrade American labor, and to reduce it to the level of the imported pauper labor." Page 5359, Congressional Record, 48th Congress.

We find, therefore, that the title of the act, the evil which was intended to be remedied, the circumstances surrounding the appeal to Congress, the reports of the committee of each house, all concur in affirming that the intent of Congress was simply to stay the influx of this cheap unskilled labor.

But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. The commission to Christopher Columbus, prior to his sail westward, is from "Ferdinand and Isabella, by the grace of God, King and Queen of Castile," etc., and recites that "it is hoped that by God's assistance some of the continents and islands in the [466] ocean will be discovered," etc. The first colonial grant, that made to Sir Walter Raleigh in 1584, was from "Elizabeth, by the grace of God, of England, Fraunce and Ireland, queene, defender of the faith," etc.; and the grant authorizing him to enact statutes for the government of the proposed colony provided that "they be not against the true Christian faith nowe professed in the Church of England." The first charter of Virginia, granted by King James I in 1606, after reciting the application of certain parties for a charter, commenced the grant in these words: "We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government; DO, by these our Letters-Patents, graciously accept of, and agree to, their humble and well-intended Desires."

Language of similar import may be found in the subsequent charters of that colony, from the same king, in 1609 and 1611; and the same is true of the various charters granted to the other colonies. In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant. The celebrated compact made by the Pilgrims in the Mayflower, 1620, recites: "Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia; Do by these Presents, solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid."

The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-1639, commence with this declaration: "Forasmuch as it hath pleased the All-mighty God by the wise disposition of his diuyne pruidence [467] so to Order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and vppon the River of Conectecotte and the Lands thereunto adioyneing; And well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Gouerment established according to God, to order and dispose of the affayres of the people at all seasons as occation shall require; doe therefore assotiate and conioyne our selues to be as one Publike State or Comonwelth; and doe, for our selues and our Successors and such as shall be adioyned to vs att any tyme hereafter, enter into Combination and Confederation togather, to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus wch we now prfesse, as also the disciplyne of the Churches, wch according to the truth of the said gospell is now practised amongst vs."

In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: "Because no People can be truly happy, though under the greatest Enjoyment of Civil Liberties, if abridged of the Freedom of their Consciences, as to their Religious Profession and Worship; And Almighty God being the only Lord of Conscience, Father of Lights and Spirits; and the Author as well as Object of all divine Knowledge, Faith and Worship, who only doth enlighten the Minds, and persuade and convince the Understandings of People, I do hereby grant and declare," etc.

Coming nearer to the present time, the Declaration of Independence recognizes the presence of the Divine in human affairs in these words: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." "We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare," etc.; "And for the support [468] of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor."

If we examine the constitutions of the various States we find in them a constant recognition of religious obligations. Every constitution of every one of the forty-four States contains language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well being of the community This recognition may be in the preamble, such as is found in the constitution of Illinois, 1870: "We, the people of the State of Illinois, grateful to Almighty God for the civil, political and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations," etc.

It may be only in the familiar requisition that all officers shall take an oath closing with the declaration "so help me God." It may be in clauses like that of the constitution of Indiana, 1816, Article XI, section 4: "The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to God." Or in provisions such as are found in Articles 36 and 37 of the Declaration of Rights of the Constitution of Maryland, 1867: "That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought, by any law, to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights; nor ought any person to be compelled to frequent or maintain or contribute, unless on contract, to maintain any place of worship, or any ministry; nor shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief: Provided, He [469] believes in the existence of God, and that, under His dispensation, such person will be held morally accountable for his acts, and be rewarded or punished therefor, either in this world or the world to come. That no religious test ought ever to be required as a qualification for any office of profit or trust in this State other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution." Or like that in Articles 2 and 3, of Part 1st, of the Constitution of Massachusetts, 1780: "It is the right as well as the duty of all men in society publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe... . As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion and morality in all cases where such provision shall not be made voluntarily." Or as in sections 5 and 14 of Article 7, of the constitution of Mississippi, 1832: "No person who denies the being of a God, or a future state of rewards and punishments, shall hold any office in the civil department of this State... . Religion, morality and knowledge being necessary to good government, the preservation of liberty, and the happiness of mankind, schools and the means of education, shall forever be encouraged in this State." Or by Article 22 of the constitution of Delaware, 1776, which required all officers, besides an oath of allegiance, to make and subscribe the following declaration: "I, A.B., do profess [470] faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the Holy Scriptures of the Old and New Testament to be given by divine inspiration."

Even the Constitution of the United States, which is supposed to have little touch upon the private life of the individual, contains in the First Amendment a declaration common to the constitutions of all the States, as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," etc. And also provides in Article 1, section 7, (a provision common to many constitutions,) that the Executive shall have ten days (Sundays excepted) within which to determine whether he will approve or veto a bill.

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons: they are organic utterances; they speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. The Commonwealth, 11 S. & R. 394, 400, it was decided that, "Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; ... not Christianity with an established church, and tithes, and spiritual courts; but Christianity with liberty of conscience to all men." And in The People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: "The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order... . The free, equal and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious [471] subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community; is an abuse of that right. Nor are we bound, by any expressions in the Constitution as some have strangely supposed, either not to punish at all, or to punish indiscriminately, the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason; that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors." And in the famous case of Vidal v. Girard's Executors, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: "It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania."

If we pass beyond these matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

[472] Suppose in the Congress that passed this act some member had offered a bill which in terms declared that, if any Roman Catholic church in this country should contract with Cardinal Manning to come to this country and enter into its service as pastor and priest; or any Episcopal church should enter into a like contract with Canon Farrar; or any Baptist church should make similar arrangements with Rev. Mr. Spurgeon; or any Jewish synagogue with some eminent Rabbi, such contract should be adjudged unlawful and void, and the church making it be subject to prosecution and punishment, can it be believed that it would have received a minute of approving thought or a single vote? Yet it is contended that such was in effect the meaning of this statute. The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.

The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.

916 F.2d 1154 (1990)

[1155] Charles R. McKirdy, Matthew R. McArthur, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for plaintiff-appellant.

Joseph M. Burns, Stephen B. Horwitz, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for defendant-appellee.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Would a company whose customer paid 50.1% of the bill think it had received "substantially all" of the price? Not likely. Nonetheless, Continental Can Company insists that when a majority of a pension fund's assets come from firms engaged in the trucking business, contributing employers qualify for a treatment that is available only if "substantially all of the contributions required under the plan are made by employers primarily engaged in the long and short haul trucking industry", 29 U.S.C. § 1383(d)(2).

When Continental Can employed truck drivers to transport some of its goods in the Chicago area it made pension contributions to the Chicago Truck Drivers Pension Fund. Continental closed its trucking operation in July 1985 and withdrew from the Pension Fund, which demanded that it make good its share of the Fund's under-fundedness — as it must, 29 U.S.C. §§ 1381, 1391, unless "substantially all" of the Fund's assets come from "employers primarily engaged in the long and short haul trucking industry". An arbitrator determined that 61.6% of the Fund's assets are attributable to such employers and that "substantially all" means 85%; he ordered Continental to make withdrawal payments exceeding $700,000. Continental asked the district court to set this award aside; the court enforced the award, 1989 U.S.Dist. LEXIS 13997 (N.D.Ill.), concluding (in line with several other courts) that less than 85% cannot be "substantially all". Republic Industries, Inc. v. Teamsters Joint Council, 718 F.2d 628, 643 n. 19 (4th Cir.1983) (dictum); Central States Pension Fund v. Bellmont Trucking Co., 610 F.Supp. 1505 (N.D.Ind.1985), affirmed on other grounds, 788 F.2d 428 (7th Cir.1986); Peick v. PBGC, 539 F.Supp. 1025, 1060 (N.D.Ill.1982), affirmed on other grounds, 724 F.2d 1247 (7th Cir.1983).

"Substantially all" sounds like "less than all, but not much less". Arbitrators and courts must convert this phrase to a percentage in order to make it work, which raises the question why Congress did not enact a percentage in the first place. It is as easy to write "a majority" or "two thirds" or "three quarters" or 85% or e-0.162 as it is to write "substantially all" — and any of the former choices would have prevented disputes of this kind. Perhaps, however, "substantially all" is an attractive [1156] standard because it enables Members of Congress to say different things to different interest groups. The genesis of § 1383(d)(2), which was § 4203(d)(2) of the Multiemployer Pension Plan Amendments Act of 1980, suggests something of this kind — although it is also consistent with the possibility that the sponsor pulled the wrong language out of his pocket.

On May 22, 1980, the House unanimously passed H.R. 3904, its bill to establish a system of withdrawal liability for under-funded pension plans. This bill lacked an exclusion for the trucking industry. Many of that industry's plans are chronically under-funded. The business also is characterized by frequent entry and exit (many firms are small). Exit does not necessarily threaten pension plans, because when one firm leaves another picks up the slack. Continental's departure had exactly this effect: although Continental closed its trucking operations, it still needs to move its goods. When the Senate's Labor and Human Resources and Finance Committees reported the Senate equivalent of H.R. 3904 to the floor on July 24, 1980, the bill had a special rule for the trucking business, in exactly the language that became § 4203(d)(2). The report accompanying the bill did not discuss the meaning of "substantially all".

The House accepted most of the Senate's amendments to H.R. 3904. Representative Thompson, the floor manager, commented on this particular change:

The [Senate] bill also contains a special withdrawal liability rule for certain trucking industry plans where substantially all of the contributions are made by employers primarily engaged in the long and short haul trucking industry, the household goods moving industry or the public warehousing industry. The phrase "substantially all" appears in several provisions of the tax laws — including the industrial development bond and the private foundation rules — where the Internal Revenue Service has interpreted the phrase to mean at least 85 percent. It is our intent that, as used in this special trucking industry withdrawal liability rule, the substantially all requirement would only be satisfied where at least 85 percent of the contributions to the plan are made by employers who are primarily engaged in the specified industries.

126 Cong.Rec. 23040 (Aug. 25, 1980). The House passed the legislation unanimously the same day.

One day later the Senate also passed H.R. 3904, making a few changes in the House's latest version, amendments irrelevant to § 4203(d)(2) — which the House accepted verbatim. In a text sandwiched between two "speeches" marked by a • (indicating that the remarks were inserted after the debate rather than delivered on the floor) Sen. Durenberger explained why special treatment for the trucking industry is appropriate and added:

[I]t should be observed that if the majority of the contributions to any pension plan are made by employers engaged in over the road (long) and short haul trucking ... this withdrawal liability procedure will apply to all employers who contribute to such a plan.

126 Cong.Rec. 23286-87 (Aug. 26, 1980). This remark, coming after both House and Senate had agreed to the language of § 4203(d)(2), is the first time anyone implied that "substantially all" means "majority".

Because the House was unwilling to accept all of the Senate's further amendments, the chambers held a conference. Section 4203(d)(2), language common to the two versions, was not mentioned in the Conference Committee's report. On September 26, 1980, President Carter signed the bill into law. That was not, however, the end of Senator Durenberger's efforts to explain his amendment. On November 19, 1980, the Senator inserted into the Congressional Record still another bulleted statement:

Recently ... I found out that on the very day that I clarified the intent of this special withdrawal liability procedure for the trucking industry, Mr. Thompson told the House of Representatives that this special rule would only apply if at least [1157] 85 percent of the contributions to the plan were made by employers previously engaged in the specified industries. Mr. Thompson based his statement upon unrelated interpretations of the phrase "substantially all."

Since this amendment originated in the Senate without Mr. Thompson's participation, I am amazed that he would undertake an interpretation of the intent of the language.

My interpretation was based on information supplied to me as to the diversity of Teamster representation, and I am convinced that an 85-percent contribution requirement would emasculate the special withdrawal procedure.

Therefore, as a final clarification, I will reiterate that the withdrawal liability procedure will apply to any multiemployer pension plan in the trucking industry if the majority (50.1 percent) of contributions to the plan are made by employers who are primarily engaged in the long- and short-haul trucking industry, the household goods moving industry, or the public warehousing industry. •

126 Cong.Rec. 30203 (Nov. 19, 1980). Representative Thompson did not file a surrebuttal, perhaps thinking that the race is to the swift — for he had gotten his thoughts into the record before the House voted, while Senator Durenberger's two statements came after the Senate first adopted § 4203(d)(2), and the Senator's second statement came nearly two months after the bill became law.

Although Senator Durenberger was "amazed" that anyone would dare to interpret language he had not written, we do not view Representative Thompson's speech as an exercise in temerity. The Senate amended H.R. 3904 and wanted the House to accept its revisions. Members of the House were entitled to form their own understanding of the language before deciding whether to enact it. Words do not have meanings given by natural law. You don't have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities. See In re Erickson, 815 F.2d 1090 (7th Cir.1987). Texts are addressed to readers, in this case initially to the Representatives. Authors' private meanings — meanings subjectively held but not communicated — do not influence the readers' beliefs. The Senate, and then the House, and the Senate once again, passed § 4203(d)(2) without knowing Senator Durenberger's belief that "substantially all" means 50.1%. At the time the President signed the bill, Rep. Thompson's specific statement of August 25 and Sen. Durenberger's vague one of August 26 were the only ones on paper. Representative Thompson's was in line with a frequent meaning of the phrase and must have supplied the meaning for the bulk of Members and the President, if the phrase was ever present to their minds. That is why statements after enactment do not count; the legislative history of a bill is valuable only to the extent it shows genesis and evolution, making "subsequent legislative history" an oxymoron. Pierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988); Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974); United States v. Marshall, 908 F.2d 1312, 1318 (7th Cir.1990) (in banc); Covalt v. Carey Canada Inc., 860 F.2d 1434, 1438-39 (7th Cir.1988).

Continental Can presses on us an extreme version of the belief that the "real" law lies in the "intent" of Congress, of which the words of the statute are just evidence. It is an extreme version because here the only intent is the author's; Continental Can wants us to disregard the intent of all the other Members of Congress and the President, even though their assent was necessary to put Sen. Durenberger's text into force. But we need not worry about whether the argument is modest or extreme, because its premise is wrong. The text of the statute, and not the private intent of the legislators, is the law. Only the text survived the complex process for proposing, amending, adopting, and obtaining the President's signature (or two-thirds of each house). It is easy to announce intents and hard to enact laws; the Constitution gives force only to what is enacted. [1158] So the text is law and legislative intent a clue to the meaning of the text, rather than the text being a clue to legislative intent. In re Sinclair, 870 F.2d 1340 (7th Cir.1989).

"Substantially all" may have a special meaning. Statutes contain words of art, whose meaning may appear strange to a lay reader. Country Mutual Insurance Co. v. American Farm Bureau Federation, 876 F.2d 599 (7th Cir.1989). Cf. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). "Substantially all" is one of those phrases with a special legal meaning. Congress uses it all the time in tax statutes, and the Internal Revenue Service decodes it as meaning 85%. Here are a few examples, well short of "substantially all": (1) 26 U.S.C. § 4071 imposes a tax on tires used for highway vehicles, unless the vehicles will be used "substantially all" of the time as school busses, 26 U.S.C. § 4221(e)(3); 26 C.F.R. § 48.4221-11(b)(3) provides that "substantially all" in § 4221(d)(7)(C) means 85% or more; (2) 26 U.S.C. § 4942(a) imposes a tax on a charitable foundation's undistributed income, but 26 U.S.C. § 4942(a)(1) and (j)(3)(A) exempt foundations that distribute "substantially all" of their income; 26 C.F.R. § 53.4942(b)-1(c) defines "substantially all" as "85 percent or more"; (3) 26 U.S.C. § 951(a) imposes a tax on Americans holding shares of certain foreign corporations but excludes from the corporations' income gains from the sale of commodities if "substantially all" of its business is as an active producer, § 954(c)(1)(C)(ii); 26 C.F.R. § 1.954-2T(f)(3)(iv) defines "substantially all" as "85 percent of the taxable income of the controlled foreign corporation." There are many more. All of the regulations we could find, not just substantially all, quantify this phrase as 85% or more. The only departure from 85% was on the high side. Rev.Proc. 77-37, § 3.01, 1977-2 C.B. 568, provides that the Internal Revenue Service will not issue letter rulings finding that corporate reorganizations satisfy the "substantially all" requirements in, e.g., 26 U.S.C. §§ 354(b)(1)(A) and 368(a), unless the transferred assets represent at least 90% of the fair market value of the net assets.

Because language is an exercise in shared understanding, one Senator's idiosyncratic meaning does not count. This was the point of the exchange between Alice and Humpty Dumpty. If everyone accepts a new meaning for a word, then the language has changed; if one speaker chooses a private meaning, we have babble rather than communication.

The question, then, is whether anyone other than Senator Durenberger used "substantially all" to signify 50.1% rather than 85%. Nothing in the debates suggests that they did. Representative Thompson's statement, the only one delivered on the floor in advance of passage, shows that he at least (and likely the House) used the phrase in the customary way. Senator Durenberger's two comments, inserted in the Congressional Record after the fact, could not have influenced anyone in the House and probably did not come to the attention of anyone in the Senate; anyway it was too late. Efforts of this kind to change the meaning of a text without bothering to change the text itself demonstrate why the use of legislative history has come under such vigorous attack, even by former Senators. E.g., Electrical Workers v. NLRB, 814 F.2d 697, 715-20 (D.C.Cir.1987) (Buckley, J., concurring). See also, e.g., Iron Workers Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir.1989). If Senator Durenberger wanted to see whether his colleagues would agree to an amendment exempting funds the majority of which came from the trucking industry, he had only to propose words such as "majority" or "50.1%" or "more than half" or "most". Instead he chose a formula with a known meaning and tipped into the Congressional Record a novel interpretation. Perhaps he believed that language expressly using a preponderance-of-the-assets standard would not have been enacted but he expected the federal courts to accept the legislative "history". Perhaps instead he meant to propose an amendment saying "majority" but slipped, and did the best he could later on to convey what he had meant to propose. Either way, what Congress [1159] enacted, as opposed to what Sen. Durenberger wishes it had enacted, means 85%.

Continental Can has one last hope. Pointing to Sen. Durenberger's warning that an 85% threshold would "emasculate the special withdrawal procedure", it asks us to interpret the exception so that it has some effect. A study prepared by the Comptroller General bears out Sen. Durenberger's concern; it concludes that the 85% threshold

has in effect negated the trucking rule at most trucking plans. Of the nine trucking plans in our sample, only one has determined that 85 percent of its contributing employers are in the trucking industry. This plan ... is also relatively small, with fewer than 400 participants and 15 contributing employers.

Assessment of Special Rules Exempting Employers Withdrawing from Multiemployer Pension Plans from Withdrawal Liability 25 (1984). Congress does not legislate in vain, Continental Can reminds us, and it concludes that we must therefore choose a figure under 85% — preferably under 62%. To this the Fund replies that § 4203(d)(2) is a mere exception, that the multiemployer amendments are remedial legislation to be liberally construed, and that if we emasculate the exception we will be doing just what Congress wanted.

Debating whether to give liberal or stingy interpretations to exceptions is a bootless exercise. "Exceptions" are artifacts of language. If English contained a word (say, "pepti") meaning "multi-employer pension plans other than those to which firms in the trucking industry make 85% of the contributions", Congress could have said: "Any employer withdrawing from an under-funded pepti must make up its share of the shortfall." We would not see this as an "exception"; it would be a rule made intricate by the complex term "pepti". English does not contain many such comprehensive words, so statutes are written using rules and exceptions. Necessary adaptations to the language should not cause us to read rules broadly, or narrowly, or somewhere in between. We must instead ascertain the meaning of the full law as best we can, without a thumb on the scales.

Whether to shade the meaning of a term in order to achieve a particular effect (such as "more coverage of the exemption") also is not a question to which there is a general answer. Continental Can tells us that Congress' purpose was exclusion in the trucking industry and it wants more of this; the Fund tells us that Congress' purpose was imposition of withdrawal liability for under-funded plans, and it wants more of that. Of course Congress' purpose was both of these things, to a degree, and the question is: what degree? We cannot divine the balance between objectives by pointing to their existence. "[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice — and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law." Rodriguez v. United States, 480 U.S. 522, 525-26, 107 S.Ct. 1391, 1393, 94 L.Ed.2d 533 (1987) (emphasis in original); Pension Benefit Guaranty Corp. v. LTV Corp., ___ U.S. ___, 110 S.Ct. 2668, 2676, 110 L.Ed.2d 579 (1990). See also Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374, 106 S.Ct. 681, 689, 88 L.Ed.2d 691 (1986).

Congress had a choice: it could legislate a means, or it could legislate a result. It could say that firms participating in pension plans that have such-and-such attributes are exempt from withdrawal liability, or it could say, for example, that the 50% of the pension plans having the largest share of contributions from the trucking industry are exempt. It chose the former method. It (at least Sen. Durenberger and the interest groups for which he spoke) might have anticipated that the rule would exempt a large fraction of the industry, but anticipations and goals are not themselves law. See Premier Electrical Construction Co. v. National Electrical Contractors Ass'n, Inc., 814 F.2d 358, 364-65 (7th Cir.1987). Statutory rules frequently differ from the goals animating their promoters. [1160] Prussner v. CIR, 896 F.2d 218, 226 (7th Cir.1990) (in banc); Railway Labor Executives' Ass'n v. ICC, 894 F.2d 915, 918 (7th Cir.1990).

To see this, suppose that Congress had created an exclusion if "85% of the contributions required under the plan are made by employers primarily engaged in the long and short haul trucking industry", and the committee reports contained a prediction that this would exclude two-thirds of the industry. Now suppose the prediction is wrong, that only 10% of the plans in the trucking industry get more than 85% of their contributions from truckers, and a withdrawing firm convincingly demonstrates that the only way to exclude 2/3 of the plans is to reduce the threshold from 85% to 60%. Would it follow that a plan with 62% of its assets from the trucking business is exempt? Certainly not. Congress enacted the percentage and not the expectation. Disappointment with the results may supply a good reason for Congress to change the law; it does not provide a reason for a court to change the law.

From what we can see, the reason § 4203(d)(2) fails to cover many plans — the parties tell us that with an 85% threshold it would apply to none of the large plans — lies principally in another feature of the law. Contributions count toward the 85% (or the 50.1%) only if the employer is "primarily engaged" in the trucking business. Many firms employing truck drivers, and making large volumes of contributions to the multi-employer plans in the trucking industry, are not "primarily engaged" in transportation. Continental Can is an example. Its contributions to this plan were on behalf of truck drivers, but none counted toward the 85%. If § 4203(d)(2) applied when "substantially all of the contributions required under the plan are made [on behalf of employees] primarily engaged in the long and short haul trucking industry" (altered language in brackets), then the Chicago Truck Drivers Pension Fund would qualify for the exception, as would many other plans. All of this just goes to show, however, that if you choose different language, you get a different result. The language Congress chose excludes the Chicago Truck Drivers Pension Fund.

AFFIRMED.

FLAUM, Circuit Judge, concurring in the judgment.

I concur in the judgment of the majority. I write separately because of my reluctance to join what, with all due respect, I view as an unnecessary excursion into areas of legislative motive and functioning.

As the arbitrator and the district court found, the plain meaning of the term "substantially all" used in 29 U.S.C. § 1381 favors the Pension Fund. While what "substantially all" means in numerical terms may not be clear, what is clear is that it does not mean a bare majority. In light of the plain meaning of the statute as it relates to the question posed in this case, it is questionable whether examination of the legislative history of the statute is appropriate, much less enlightening. See Davis v. Michigan Dept. of the Treasury, 489 U.S. 803, 109 S.Ct. 1500, 1503 n. 3, 103 L.Ed.2d 891 (1989) ("Legislative history is irrelevant to the interpretation of an unambiguous statute.").

Moreover, any impact of the scant legislative history of § 1381 on the decision of this case is at best neutral. Continental's case is based in part on a particularly disfavored form of legislative "history," post-enactment statements. See Pierce v. Underwood, 487 U.S. at 566-68, 108 S.Ct. at 2550 (1988); United States v. United Mine Workers, 330 U.S. 258, 281-82, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947); United States v. Marshall, 908 F.2d 1312, 1318-19 (7th Cir.1990) (en banc). Even the pre-enactment statement of Senator Durenberger on which Continental relies conflicts with a contemporaneous statement made by Representative Thompson, to which we must accord equal weight.

Furthermore, the interpretation the arbitrator gave the term "substantially all" is consistent with the use of that term by the Internal Revenue Service in a variety of contexts. Turning to judicial interpretations, the view Continental propounds is inconsistent with the one taken by two [1161] district courts in this Circuit. Central States Pension Fund v. Bellmont Trucking Co., 610 F.Supp. 1505, 1510-11 (N.D.Ind.1985), aff'd on other grounds, 788 F.2d 428 (7th Cir.1986); Peick v. PBGC, 539 F.Supp. 1025, 1060-61 (N.D.Ill.1982), aff'd on other grounds, 724 F.2d 1247 (7th Cir.1983). These reasons, taken together, suffice to dispose of this case.

149 U.S. 304 (1893)

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

[306] Mr. Edwin B. Smith for plaintiff in error.

Mr. Assistant Attorney General Maury for defendant in error.

MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The single question in this case is whether tomatoes, considered as provisions, are to be classed as "vegetables" or as "fruit," within the meaning of the Tariff Act of 1883.

The only witnesses called at the trial testified that neither "vegetables" nor "fruit" had any special meaning in trade or commerce, different from that given in the dictionaries; and that they had the same meaning in trade to-day that they had in March, 1883.

The passages cited from the dictionaries define the word "fruit" as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are "fruit," as distinguished from "vegetables," in common speech, or within the meaning of the Tariff Act.

There being no evidence that the words "fruit" and "vegetables" have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that [307] meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court. Brown v. Piper, 91 U.S. 37, 42; Jones v. United States, 137 U.S. 202, 216; Nelson v. Cushing, 2 Cush. 519, 532, 533; Page v. Fawcet, 1 Leon. 242; Taylor on Evidence, (8th ed.) §§ 16, 21.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables, which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery and lettuce, usually served at dinner in, with or after the soup, fish or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

The attempt to class tomatoes with fruit is not unlike a recent attempt to class beans as seeds, of which Mr. Justice Bradley, speaking for this court, said: "We do not see why they should be classified as seeds, any more than walnuts should be so classified. Both are seeds in the language of botany or natural history, but not in commerce nor in common parlance. On the other hand, in speaking generally of provisions, beans may well be included under the term `vegetables.' As an article of food on our tables, whether baked or boiled, or forming the basis of soup, they are used as a vegetable, as well when ripe as when green. This is the principal use to which they are put. Beyond the common knowledge which we have on this subject, very little evidence is necessary, or can be produced." Robertson v. Salomon, 130 U.S. 412, 414.

Judgment affirmed.

515 U.S. 687 (1995)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[689] Stevens, J., delivered the opinion of the Court, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed a concurring opinion, post, p. 708. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, post, p. 714.

Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Days, Assistant Attorney General Schiffer, Beth S. Brinkmann, Martin W. Matzen, Ellen J. Durkee, and Jean E. Williams.

[689] John A. Macleod argued the cause for respondents. With him on the brief were Steven P. Quarles, Clifton S. Elgarten, Thomas R. Lundquist, and William R. Murray.^[1]

[690] Justice Stevens delivered the opinion of the Court.

The Endangered Species Act of 1973 (ESA or Act), 87 Stat. 884, 16 U. S. C. § 1531 (1988 ed. and Supp. V), contains a variety of protections designed to save from extinction species that the Secretary of the Interior designates as endangered or threatened. Section 9of the Act makes it unlawful for any person to "take" any endangered or threatened species. The Secretary has promulgated a regulation that defines the statute's prohibition on takings to include "significant habitat modification or degradation where it actually kills or injures wildlife." This case presents the question whether the Secretary exceeded his authority under the Act by promulgating that regulation.

I

Section 9(a)(1) of the Act provides the following protection for endangered species:^[2]

"Except as provided in sections 1535(g)(2) and 1539 of this title, with respect to any endangered species of fish or wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to—. . . . .

[691] "(B) take any such species within the United States or the territorial sea of the United States." 16 U. S. C. § 1538(a)(1).

Section 3(19)of the Act defines the statutory term "take":

"The term `take' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U. S. C. § 1532(19).

The Act does not further define the terms it uses to define "take." The Interior Department regulations that implement the statute, however, define the statutory term "harm":

"Harm in the definition of `take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." 50 CFR § 17.3 (1994).

This regulation has been in place since 1975.^[3]

A limitation on the § 9 "take" prohibition appears in § 10(a)(1)(B) of the Act, which Congress added by amendment in 1982. That section authorizes the Secretary to grant a permit for any taking otherwise prohibited by § 9(a)(1)(B) "if such taking is incidental to, and not the purpose of,the carrying out of an otherwise lawful activity." 16 U. S. C. § 1539(a)(1)(B).

In addition to the prohibition on takings, the Act provides several other protections for endangered species. Section 4, 16 U. S. C. § 1533, commands the Secretary to identify species of fish or wildlife that are in danger of extinction and to publish from time to time lists of all species he determines to [692] be endangered or threatened. Section 5, 16 U. S. C. § 1534, authorizes the Secretary, in cooperation with the States, see § 1535, to acquire land to aid in preserving such species. Section 7 requires federal agencies to ensure that none of their activities,including the granting of licenses and permits, will jeopardize the continued existence of endangered species "or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical." 16 U. S. C. § 1536(a)(2).

Respondents in this action are small landowners, logging companies, and families dependent on the forest products industries in the Pacific Northwest and in the Southeast, and organizations that represent their interests. They brought this declaratory judgment action against petitioners, the Secretary of the Interior and the Director of the Fish and Wildlife Service, in the United States District Court for the District of Columbia to challenge the statutory validity of the Secretary's regulation defining "harm," particularly the inclusion of habitat modification and degradation in the definition.^[4] Respondents challenged the regulation on its face. Their complaint alleged that application of the "harm" regulation to the red-cockaded woodpecker, an endangered species,^[5] and the northern spotted owl, a threatened species,^[6] had injured them economically. App. 17-23.

[693] Respondents advanced three arguments to support their submission that Congress did not intend the word "take" in § 9 to include habitat modification, as the Secretary's "harm" regulation provides. First, they correctly noted that language in the Senate's original version of the ESA would have defined "take" to include "destruction, modification, or curtailment of [the] habitat or range" of fish or wildlife,^[7] but the Senate deleted that language from the bill before enacting it. Second, respondents argued that Congress intended the Act's express authorization for the Federal Government to buy private land in order to prevent habitat degradation in § 5 to be the exclusive check against habitat modification on private property. Third, because the Senate added the term "harm" to the definition of "take" in a floor amendment without debate, respondents argued that the court should not interpret the term so expansively as to include habitat modification.

The District Court considered and rejected each of respondents' arguments, finding "that Congress intended an expansive interpretation of the word `take,' an interpretation that encompasses habitat modification." 806 F. Supp. 279, 285 (1992). The court noted that in 1982, when Congress was aware of a judicial decision that had applied the Secretary's regulation, see Palila v. Hawaii Dept. of Land and Natural Resources, 639 F. 2d 495 (CA9 1981) (Palila I), it amended the Act without using the opportunity to change the definition of "take." 806 F. Supp., at 284. The court stated that, even had it found the ESA "`silent or ambiguous' " as to the authority for the Secretary's definition of "harm," it would nevertheless have upheld the regulation as a reasonable interpretation of the statute. Id., at 285 (quoting [694] Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984)). The District Court therefore entered summary judgment for petitioners and dismissed respondents' complaint.

A divided panel of the Court of Appeals initially affirmed the judgment of the District Court. 1 F. 3d 1 (CADC 1993). After granting a petition for rehearing, however, the panel reversed. 17 F. 3d 1463 (CADC 1994). Although acknowledging that "[t]he potential breadth of the word `harm' is indisputable," id., at 1464, the majority concluded that the immediate statutory context in which "harm" appeared counseled against a broad reading; like the other words in the definition of "take," the word "harm" should be read as applying only to "the perpetrator's direct application of force against the animal taken . . . . The forbidden acts fit, in ordinary language, the basic model `A hit B.' " Id., at 1465. The majority based its reasoning on a canon of statutory construction called noscitur a sociis, which holds that a word is known by the company it keeps. See Neal v. Clark, 95 U. S. 704, 708-709 (1878).

The majority claimed support for its construction from a decision of the Ninth Circuit that narrowly construed the word "harass" in the Marine Mammal Protection Act of 1972, 16 U. S. C. § 1372(a)(2)(A), see United States v. Hayashi, 5 F. 3d 1278, 1282 (1993); from the legislative history of the ESA;^[8] from its view that Congress must not have intended the purportedly broad curtailment of private property rights that the Secretary's interpretation permitted; and from the ESA's land acquisition provision in § 5 and restriction on federal agencies' activities regarding habitat in § 7, both of which the court saw as evidence that Congress had not intended the § 9 "take" prohibition to reach habitat modification. [695] Most prominently, the court performed a lengthy analysis of the 1982 amendment to § 10 that provided for "incidental take permits" and concluded that the amendment did not change the meaning of the term "take" as defined in the 1973 statute.^[9]

Chief Judge Mikva, who had announced the panel's original decision, dissented. See 17 F. 3d, at 1473. In his view, a proper application of Chevron indicated that the Secretary had reasonably defined "harm," because respondents had failed to show that Congress unambiguously manifested its intent to exclude habitat modification from the ambit of "take." Chief Judge Mikva found the majority's reliance on noscitur a sociis inappropriate in light of the statutory language and unnecessary in light of the strong support in the legislative history for the Secretary's interpretation. He did not find the 1982 "incidental take permit" amendment alone sufficient to vindicate the Secretary's definition of "harm," but he believed the amendment provided additional support for that definition because it reflected Congress' view in 1982 that the definition was reasonable.

The Court of Appeals' decision created a square conflict with a 1988 decision of the Ninth Circuit that had upheld the Secretary's definition of "harm." See Palila v. Hawaii Dept. of Land and Natural Resources, 852 F. 2d 1106 (1988) (Palila II). The Court of Appeals neither cited nor distinguished Palila II, despite the stark contrast between the Ninth Circuit's holding and its own. We granted certiorari to resolve the conflict. 513 U. S. 1072 (1995). Our consideration of the text and structure of the Act, its legislative history, and the significance of the 1982 amendment persuades us that the Court of Appeals' judgment should be reversed.

[696] II

Because this case was decided on motions for summary judgment, we may appropriately make certain factual assumptions in order to frame the legal issue. First, we assume respondents have no desire to harm either the redcockaded woodpecker or the spotted owl; they merely wish to continue logging activities that would be entirely proper if not prohibited by the ESA. On the other hand, we must assume, arguendo, that those activities will have the effect, even though unintended, of detrimentally changing the natural habitat of both listed species and that, as a consequence, members of those species will be killed or injured. Under respondents' view of the law, the Secretary's only means of forestalling that grave result—even when the actor knows it is certain to occur^[10]—is to use his § 5 authority to purchase [697] the lands on which the survival of the species depends. The Secretary, on the other hand, submits that the § 9 prohibition on takings, which Congress defined to include "harm," places on respondents a duty to avoid harm that habitat alteration will cause the birds unless respondents first obtain a permit pursuant to § 10.

The text of the Act provides three reasons for concluding that the Secretary's interpretation is reasonable. First, an ordinary understanding of the word "harm" supports it. The dictionary definition of the verb form of "harm" is "to cause hurt or damage to: injure." Webster's Third New International Dictionary 1034 (1966). In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.

Respondents argue that the Secretary should have limited the purview of "harm" to direct applications of force against protected species, but the dictionary definition does not include the word "directly" or suggest in any way that only direct or willful action that leads to injury constitutes "harm."^[11] Moreover, unless the statutory term "harm" encompasses [698] indirect as well as direct injuries, the word has no meaning that does not duplicate the meaning of other words that § 3 uses to define "take." A reluctance to treat statutory terms as surplusage supports the reasonableness of the Secretary's interpretation. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988).^[12]

Second, the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid. In TVA v. Hill, 437 U. S. 153 (1978), we described the Act as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Id., at 180. Whereas predecessor statutes enacted in 1966 and 1969 had not contained any sweeping prohibition against the taking of endangered species except on federal lands, see id., at 175, the 1973 Act applied to all land in the United States and to the Nation's territorial seas. As stated in § 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . ." 16 U. S. C. § 1531(b).

[699] In Hill, we construed § 7 as precluding the completion of the Tellico Dam because of its predicted impact on the survival of the snail darter. See 437 U. S., at 193. Both our holding and the language in our opinion stressed the importance of the statutory policy. "The plain intent of Congress in enacting this statute," we recognized, "was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute." Id., at 184. Although the § 9 "take" prohibition was not at issue in Hill, we took note of that prohibition, placing particular emphasis on the Secretary's inclusion of habitat modification in his definition of "harm."^[13] In light of that provision for habitat protection, we could "not understand how TVA intends to operate Tellico Dam without `harming' the snail darter." Id., at 184, n. 30. Congress' intent to provide comprehensive protection for endangered and threatened species supports the permissibility of the Secretary's "harm" regulation.

Respondents advance strong arguments that activities that cause minimal or unforeseeable harm will not violate the Act as construed in the "harm" regulation. Respondents, however, present a facial challenge to the regulation. Cf. Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995); INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183, 188 (1991). Thus, they ask us to invalidate the Secretary's understanding of "harm" in every circumstance, even when an actor knows that an activity, such as draining a [700] pond, would actually result in the extinction of a listed species by destroying its habitat. Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of "harm" is reasonable.^[14]

Third, the fact that Congress in 1982 authorized the Secretary to issue permits for takings that § 9(a)(1)(B) would otherwise prohibit, "if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity," 16 U. S. C. § 1539(a)(1)(B), strongly suggests that Congress understood § 9(a)(1)(B) to prohibit indirect as well as deliberate takings. Cf. NLRB v. Bell Aerospace Co., 416 U. S. 267, 274-275 (1974). The permit process requires the applicant to prepare a "conservation plan" that specifies how he intends to "minimize and mitigate" the "impact" of his activity on endangered and threatened species, 16 U. S. C. § 1539(a)(2)(A), making clear that Congress had in mind foreseeable rather than merely accidental effects on listed species.^[15] No one could seriously request an "incidental" take [701] permit to avert § 9 liability for direct, deliberate action against a member of an endangered or threatened species, but respondents would read "harm" so narrowly that the permit procedure would have little more than that absurd purpose. "When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS, 514 U. S. 386, 397 (1995). Congress' addition of the § 10 permit provision supports the Secretary's conclusion that activities not intended to harm an endangered species, such as habitat modification, may constitute unlawful takings under the ESA unless the Secretary permits them.

The Court of Appeals made three errors in asserting that "harm" must refer to a direct application of force because the words around it do.^[16] First, the court's premise was flawed. Several of the words that accompany "harm" in the § 3 definition of "take," especially "harass," "pursue," "wound," and "kill," refer to actions or effects that do not require direct applications of force. Second, to the extent the court read a requirement of intent or purpose into the words used to define "take," it ignored § 11's express provision that a "knowin[g]" [702] action is enough to violate the Act. Third, the court employed noscitur a sociis to give "harm" essentially the same function as other words in the definition, thereby denying it independent meaning. The canon, to the contrary, counsels that a word "gathers meaning from the words around it." Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961). The statutory context of "harm" suggests that Congress meant that term to serve a particular function in the ESA, consistent with, but distinct from, the functions of the other verbs used to define "take." The Secretary's interpretation of "harm" to include indirectly injuring endangered animals through habitat modification permissibly interprets "harm" to have "a character of its own not to be submerged by its association." Russell Motor Car Co. v. United States, 261 U. S. 514, 519 (1923).^[17]

Nor does the Act's inclusion of the § 5 land acquisition authority and the § 7 directive to federal agencies to avoid destruction or adverse modification of critical habitat alter our conclusion. Respondents' argument that the Government lacks any incentive to purchase land under § 5 when it can simply prohibit takings under § 9 ignores the practical considerations that attend enforcement of the ESA. Purchasing habitat lands may well cost the Government less in many circumstances than pursuing civil or criminal penalties. In addition, the § 5 procedure allows for protection of habitat before the seller's activity has harmed any endangered animal, [703] whereas the Government cannot enforce the § 9 prohibition until an animal has actually been killed or injured. The Secretary may also find the § 5 authority useful for preventing modification of land that is not yet but may in the future become habitat for an endangered or threatened species. The § 7 directive applies only to the Federal Government, whereas the § 9 prohibition applies to "any person." Section 7 imposes a broad, affirmative duty to avoid adverse habitat modifications that § 9 does not replicate, and § 7 does not limit its admonition to habitat modification that "actually kills or injures wildlife." Conversely, § 7 contains limitations that § 9 does not, applying only to actions "likely to jeopardize the continued existence of any endangered species or threatened species," 16 U. S. C. § 1536(a)(2), and to modifications of habitat that has been designated "critical" pursuant to § 4, 16 U. S. C. § 1533(b)(2).^[18] Any overlap that § 5 or § 7 may have with § 9 in particular cases is unexceptional, see, e. g., Russello v. United States, 464 U. S. 16, 24, and n. 2 (1983), and simply reflects the broad purpose of the Act set out in § 2 and acknowledged in TVA v. Hill.

We need not decide whether the statutory definition of "take" compels the Secretary's interpretation of "harm," because our conclusions that Congress did not unambiguously manifest its intent to adopt respondents' view and that the Secretary's interpretation is reasonable suffice to decide this case. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation. See [704] Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 373 (1986).^[19]

III

Our conclusion that the Secretary's definition of "harm" rests on a permissible construction of the ESA gains further support from the legislative history of the statute. The Committee Reports accompanying the bills that became the ESA do not specifically discuss the meaning of "harm," but they make clear that Congress intended "take" to apply broadly to cover indirect as well as purposeful actions. The Senate Report stressed that "`[t]ake' is defined . . . in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife." S. Rep. No. 93-307, p. 7 (1973). The House Report stated that "the broadest possible terms" were used to define restrictions on takings. H. R. Rep. No. 93-412, p. 15 (1973). The House Report underscored the breadth of the [705] "take" definition by noting that it included "harassment, whether intentional or not. " Id., at 11 (emphasis added). The Report explained that the definition "would allow, for example, the Secretary to regulate or prohibit the activities of birdwatchers where the effect of those activities might disturb the birds and make it difficult for them to hatch or raise their young." Ibid. These comments, ignored in the dissent's welcome but selective foray into legislative history, see post, at 726-729, support the Secretary's interpretation that the term "take" in § 9 reached far more than the deliberate actions of hunters and trappers.

Two endangered species bills, S. 1592 and S. 1983, were introduced in the Senate and referred to the Commerce Committee. Neither bill included the word "harm" in its definition of "take," although the definitions otherwise closely resembled the one that appeared in the bill as ultimately enacted. See Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., pp. 7, 27 (1973) (hereinafter Hearings). Senator Tunney, the floor manager of the bill in the Senate, subsequently introduced a floor amendment that added "harm" to the definition, noting that this and accompanying amendments would "help to achieve the purposes of the bill." 119 Cong. Rec. 25683 (1973). Respondents argue that the lack of debate about the amendment that added "harm" counsels in favor of a narrow interpretation. We disagree. An obviously broad word that the Senate went out of its way to add to an important statutory definition is precisely the sort of provision that deserves a respectful reading.

The definition of "take" that originally appeared in S. 1983 differed from the definition as ultimately enacted in one other significant respect: It included "the destruction, modification, or curtailment of [the] habitat or range" of fish and wildlife. Hearings, at 27. Respondents make much of the fact that the Commerce Committee removed this phrase [706] from the "take" definition before S. 1983 went to the floor. See 119 Cong. Rec. 25663 (1973). We do not find that fact especially significant. The legislative materials contain no indication why the habitat protection provision was deleted. That provision differed greatly from the regulation at issue today. Most notably, the habitat protection provision in S. 1983 would have applied far more broadly than the regulation does because it made adverse habitat modification a categorical violation of the "take" prohibition, unbounded by the regulation's limitation to habitat modifications that actually kill or injure wildlife. The S. 1983 language also failed to qualify "modification" with the regulation's limiting adjective "significant." We do not believe the Senate's unelaborated disavowal of the provision in S. 1983 undermines the reasonableness of the more moderate habitat protection in the Secretary's "harm" regulation.^[20]

[707] The history of the 1982 amendment that gave the Secretary authority to grant permits for "incidental" takings provides further support for his reading of the Act. The House Report expressly states that "[b]y use of the word `incidental' the Committee intends to cover situations in which it is known that a taking will occur if the other activity is engaged in but such taking is incidental to, and not the purpose of, the activity." H. R. Rep. No. 97-567, p. 31 (1982). This reference to the foreseeability of incidental takings undermines respondents' argument that the 1982 amendment covered only accidental killings of endangered and threatened animals that might occur in the course of hunting or trapping other animals. Indeed, Congress had habitat modification directly in mind: Both the Senate Report and the House Conference Report identified as the model for the permit process a cooperative state-federal response to a case in California where a development project threatened incidental harm to a species of endangered butterfly by modification of its habitat. See S. Rep. No. 97-418, p. 10 (1982); H. R. Conf. Rep. No. 97-835, pp. 30-32 (1982). Thus, Congress in 1982 focused squarely on the aspect of the "harm" regulation at issue in this litigation. Congress' implementation of a permit program [708] is consistent with the Secretary's interpretation of the term "harm."

IV

When it enacted the ESA, Congress delegated broad administrative and interpretive power to the Secretary. See 16 U. S. C. §§ 1533, 1540(f). The task of defining and listing endangered and threatened species requires an expertise and attention to detail that exceeds the normal province of Congress. Fashioning appropriate standards for issuing permits under § 10 for takings that would otherwise violate § 9 necessarily requires the exercise of broad discretion. The proper interpretation of a term such as "harm" involves a complex policy choice. When Congress has entrusted the Secretary with broad discretion, we are especially reluctant to substitute our views of wise policy for his. See Chevron, 467 U. S., at 865-866. In this case, that reluctance accords with our conclusion, based on the text, structure, and legislative history of the ESA, that the Secretary reasonably construed the intent of Congress when he defined "harm" to include "significant habitat modification or degradation that actually kills or injures wildlife."

In the elaboration and enforcement of the ESA, the Secretary and all persons who must comply with the law will confront difficult questions of proximity and degree; for, as all recognize, the Act encompasses a vast range of economic and social enterprises and endeavors. These questions must be addressed in the usual course of the law, through case-bycase resolution and adjudication.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice O'Connor, concurring.

My agreement with the Court is founded on two understandings. First, the challenged regulation is limited to significant habitat modification that causes actual, as opposed [709] to hypothetical or speculative, death or injury to identifiable protected animals. Second, even setting aside difficult questions of scienter, the regulation's application is limited by ordinary principles of proximate causation, which introduce notions of foreseeability. These limitations, in my view, call into question Palila v. Hawaii Dept. of Land and Natural Resources, 852 F. 2d 1106 (CA9 1988) (Palila II), and with it, many of the applications derided by the dissent. Because there is no need to strike a regulation on a facial challenge out of concern that it is susceptible of erroneous application, however, and because there are many habitat-related circumstances in which the regulation might validly apply, I join the opinion of the Court.

In my view, the regulation is limited by its terms to actions that actually kill or injure individual animals. Justice Scalia disagrees, arguing that the harm regulation "encompasses injury inflicted, not only upon individual animals, but upon populations of the protected species." Post, at 716. At one level, I could not reasonably quarrel with this observation; death to an individual animal always reduces the size of the population in which it lives, and in that sense, "injures" that population. But by its insight, the dissent means something else. Building upon the regulation's use of the word "breeding," Justice Scalia suggests that the regulation facially bars significant habitat modification that actually kills or injures hypothetical animals (or, perhaps more aptly, causes potential additions to the population not to come into being). Because "[i]mpairment of breeding does not `injure' living creatures," Justice Scalia reasons, the regulation must contemplate application to "a population of animals which would otherwise have maintained or increased its numbers." Post, at 716, 734.

I disagree. As an initial matter, I do not find it as easy as Justice Scalia does to dismiss the notion that significant impairment of breeding injures living creatures. To raze the last remaining ground on which the piping plover currently [710] breeds, thereby making it impossible for any piping plovers to reproduce, would obviously injure the population (causing the species' extinction in a generation). But by completely preventing breeding, it would also injure the individual living bird, in the same way that sterilizing the creature injures the individual living bird. To "injure" is, among other things, "to impair." Webster's Ninth New Collegiate Dictionary 623 (1983). One need not subscribe to theories of "psychic harm," cf. post, at 734-735, n. 5, to recognize that to make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete. This, in my view, is actual injury.

In any event, even if impairing an animal's ability to breed were not, in and of itself, an injury to that animal, interference with breeding can cause an animal to suffer other, perhaps more obvious, kinds of injury. The regulation has clear application, for example, to significant habitat modification that kills or physically injures animals which, because they are in a vulnerable breeding state, do not or cannot flee or defend themselves, or to environmental pollutants that cause an animal to suffer physical complications during gestation. Breeding, feeding, and sheltering are what animals do. If significant habitat modification, by interfering with these essential behaviors, actually kills or injures an animal protected by the Act, it causes "harm" within the meaning of the regulation. In contrast to Justice Scalia, I do not read the regulation's "breeding" reference to vitiate or somehow to qualify the clear actual death or injury requirement, or to suggest that the regulation contemplates extension to nonexistent animals.

There is no inconsistency, I should add, between this interpretation and the commentary that accompanied the amendment of the regulation to include the actual death or injury requirement. See 46 Fed. Reg. 54748 (1981). Quite the contrary. It is true, as Justice Scalia observes, post, at 716, [711] that the Fish and Wildlife Service states at one point that "harm" is not limited to "direct physical injury to an individual member of the wildlife species," see 46 Fed. Reg. 54748 (1981). But one could just as easily emphasize the word "direct" in this sentence as the word "individual."^[21] Elsewhere in the commentary, the Service makes clear that "section 9's threshold does focus on individual members of a protected species." Id., at 54749. Moreover, the Service says that the regulation has no application to speculative harm, explaining that its insertion of the word "actually" was intended "to bulwark the need for proven injury to a species due to a party's actions." Ibid.; see also ibid. (approving language that "[h]arm covers actions . . . which actually (as opposed to potentially), cause injury"). That a protected animal could have eaten the leaves of a fallen tree or could, perhaps, have fruitfully multiplied in its branches is not sufficient under the regulation. Instead, as the commentary reflects, the regulation requires demonstrable effect (i. e., actual injury or death) on actual, individual members of the protected species.

By the dissent's reckoning, the regulation at issue here, in conjunction with 16 U. S. C. § 1540(a)(1), imposes liability for any habitat-modifying conduct that ultimately results in the death of a protected animal, "regardless of whether that result is intended or even foreseeable, and no matter how long [712] the chain of causality between modification and injury." Post, at 715; see also post, at 719. Even if § 1540(a)(1) does create a strict liability regime (a question we need not decide at this juncture), I see no indication that Congress, in enacting that section, intended to dispense with ordinary principles of proximate causation. Strict liability means liability without regard to fault; it does not normally mean liability for every consequence, however remote, of one's conduct. See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 559-560 (5th ed. 1984) (describing "practical necessity for the restriction of liability within some reasonable bounds" in the strict liability context). I would not lightly assume that Congress, in enacting a strict liability statute that is silent on the causation question, has dispensed with this well-entrenched principle. In the absence of congressional abrogation of traditional principles of causation, then, private parties should be held liable under § 1540(a)(1) only if their habitat-modifying actions proximately cause death or injury to protected animals. Cf. Benefiel v. Exxon Corp., 959 F. 2d 805, 807-808 (CA9 1992) (in enacting the Trans-Alaska Pipeline Authorization Act, which provides for strict liability for damages that are the result of discharges, Congress did not intend to abrogate common-law principles of proximate cause to reach "remote and derivative" consequences); New York v. Shore Realty Corp., 759 F. 2d 1032, 1044, and n. 17 (CA2 1985) (noting that "[t]raditional tort law has often imposed strict liability while recognizing a causation defense," but that, in enacting the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Congress "specifically rejected including a causation requirement"). The regulation, of course, does not contradict the presumption or notion that ordinary principles of causation apply here. Indeed, by use of the word "actually," the regulation clearly rejects speculative or conjectural effects, and thus itself invokes principles of proximate causation.

[713] Proximate causation is not a concept susceptible of precise definition. See Keeton, supra, at 280-281. It is easy enough, of course, to identify the extremes. The farmer whose fertilizer is lifted by a tornado from tilled fields and deposited miles away in a wildlife refuge cannot, by any stretch of the term, be considered the proximate cause of death or injury to protected species occasioned thereby. At the same time, the landowner who drains a pond on his property, killing endangered fish in the process, would likely satisfy any formulation of the principle. We have recently said that proximate causation "normally eliminates the bizarre," Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. 527, 536 (1995), and have noted its "functionally equivalent" alternative characterizations in terms of foreseeability, see Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 475 (1877) ("natural and probable consequence"), and duty, see Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928). Consolidated Rail Corporation v. Gott- shall, 512 U. S. 532, 546 (1994). Proximate causation depends to a great extent on considerations of the fairness of imposing liability for remote consequences. The task of determining whether proximate causation exists in the limitless fact patterns sure to arise is best left to lower courts. But I note, at the least, that proximate cause principles inject a foreseeability element into the statute, and hence, the regulation, that would appear to alleviate some of the problems noted by the dissent. See, e. g., post, at 719 (describing "a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby [injures] protected fish").

In my view, then, the "harm" regulation applies where significant habitat modification, by impairing essential behaviors, proximately (foreseeably) causes actual death or injury to identifiable animals that are protected under the Endangered Species Act. Pursuant to my interpretation, Palila II —-under which the Court of Appeals held that a state [714] agency committed a "taking" by permitting mouflon sheep to eat mamane-naio seedlings that, when full grown, might have fed and sheltered endangered palila—was wrongly decided according to the regulation's own terms. Destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently sustaining actual birds.

This case, of course, comes to us as a facial challenge. We are charged with deciding whether the regulation on its face exceeds the agency's statutory mandate. I have identified at least one application of the regulation (Palila II) that is, in my view, inconsistent with the regulation's own limitations. That misapplication does not, however, call into question the validity of the regulation itself. One can doubtless imagine questionable applications of the regulation that test the limits of the agency's authority. However, it seems to me clear that the regulation does not on its terms exceed the agency's mandate, and that the regulation has innumerable valid habitat-related applications. Congress may, of course, see fit to revisit this issue. And nothing the Court says today prevents the agency itself from narrowing the scope of its regulation at a later date.

With this understanding, I join the Court's opinion.

Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.

I think it unmistakably clear that the legislation at issue here (1) forbade the hunting and killing of endangered animals, and (2) provided federal lands and federal funds for the acquisition of private lands, to preserve the habitat of endangered animals. The Court's holding that the hunting and killing prohibition incidentally preserves habitat on private lands imposes unfairness to the point of financial ruin—not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use. I respectfully dissent.

[715] I

The Endangered Species Act of 1973 (Act), 16 U. S. C. § 1531 et seq. (1988 ed. and Supp. V), provides that "it is unlawful for any person subject to the jurisdiction of the United States to—. . . take any [protected] species within the United States." § 1538(a)(1)(B). The term "take" is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." § 1532(19) (emphasis added). The challenged regulation defines "harm" thus:

"Harm in the definition of `take' in the Act means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 CFR § 17.3 (1994).

In my view petitioners must lose—the regulation must fall— even under the test of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984), so I shall assume that the Court is correct to apply Chevron. See ante, at 703-704, and n. 18.

The regulation has three features which, for reasons I shall discuss at length below, do not comport with the statute. First, it interprets the statute to prohibit habitat modification that is no more than the cause-in-fact of death or injury to wildlife. Any "significant habitat modification" that in fact produces that result by "impairing essential behavioral patterns" is made unlawful, regardless of whether that result is intended or even foreseeable, and no matter how long the chain of causality between modification and injury. See, e. g., Palila v. Hawaii Dept. of Land and Natural Resources, 852 F. 2d 1106, 1108-1109 (CA9 1988) (Palila II) (sheep grazing constituted "taking" of palila birds, since although sheep do not destroy full-grown mamane trees, they do destroy mamane seedlings, which will not grow to [716] full-grown trees, on which the palila feeds and nests). See also Davison, Alteration of Wildlife Habitat as a Prohibited Taking under the Endangered Species Act, 10 J. Land Use & Envtl. L. 155, 190 (1995) (regulation requires only causation-in-fact).

Second, the regulation does not require an "act": The Secretary's officially stated position is that an omission will do. The previous version of the regulation made this explicit. See 40 Fed. Reg. 44412, 44416 (1975) ("`Harm' in the definition of `take' in the Act means an act or omission which actually kills or injures wildlife . . ."). When the regulation was modified in 1981 the phrase "or omission" was taken out, but only because (as the final publication of the rule advised) "the [Fish and Wildlife] Service feels that `act' is inclusive of either commissions or omissions which would be prohibited by section [1538(a)(1)(B)]." 46 Fed. Reg. 54748, 54750 (1981). In their brief here petitioners agree that the regulation covers omissions, see Brief for Petitioners 47 (although they argue that "[a]n `omission' constitutes an `act' . . . only if there is a legal duty to act"), ibid.

The third and most important unlawful feature of the regulation is that it encompasses injury inflicted, not only upon individual animals, but upon populations of the protected species. "Injury" in the regulation includes "significantly impairing essential behavioral patterns, including breeding, " 50 CFR § 17.3 (1994) (emphasis added). Impairment of breeding does not "injure" living creatures; it prevents them from propagating, thus "injuring" a population of animals which would otherwise have maintained or increased its numbers. What the face of the regulation shows, the Secretary's official pronouncements confirm. The Final Redefinition of "Harm" accompanying publication of the regulation said that "harm" is not limited to "direct physical injury to an individual member of the wildlife species," 46 Fed. Reg. 54748 (1981), and refers to "injury to a population, " id., at 54749 (emphasis added). See also Palila II, supra, at 1108; [717] Davison, supra, at 190, and n. 177, 195; M. Bean, The Evolution of National Wildlife Law 344 (1983).^[22]

None of these three features of the regulation can be found in the statutory provisions supposed to authorize it. The term "harm" in § 1532(19) has no legal force of its own. An indictment or civil complaint that charged the defendant with "harming" an animal protected under the Act would be dismissed as defective, for the only operative term in the statute is to "take." If "take" were not elsewhere defined in the Act, none could dispute what it means, for the term is as old as the law itself. To "take," when applied to wild animals, means to reduce those animals, by killing or capturing, to human control. See, e. g., 11 Oxford English Dictionary (1933) ("Take . . . To catch, capture (a wild beast, bird, fish, etc.)"); Webster's New International Dictionary of the English Language (2d ed. 1949) (take defined as "to catch or capture by trapping, snaring, etc., or as prey"); Geer v. Connecticut, 161 U. S. 519, 523 (1896) ("`[A]ll the animals which can be taken upon the earth, in the sea, or in the air, that is to say, wild animals, belong to those who take them' ") (quoting the Digest of Justinian); 2 W. Blackstone, Commentaries 411 (1766) ("Every man . . . has an equal right of pursuing and taking to his own use all such creatures as are ferae naturae "). This is just the sense in which "take" is used elsewhere in federal legislation and treaty. See, e. g., Migratory Bird Treaty Act, 16 U. S. C. § 703 (1988 ed., Supp. V) (no person may "pursue, hunt, take, capture, kill, [or] attempt to take, capture, or kill" any migratory bird); Agreement on the Conservation of Polar Bears, Nov. 15, 1973, Art. I, 27 U. S. T. 3918, 3921, T. I. A. S. No. 8409 (defining "taking" as "hunting, killing and capturing"). And that meaning fits neatly with the rest of § 1538(a)(1), which makes it unlawful not only to take protected species, but also to import or export them, [718] § 1538(a)(1)(A); to possess, sell, deliver, carry, transport, or ship any taken species, § 1538(a)(1)(D); and to transport, sell, or offer to sell them in interstate or foreign commerce, §§ 1538(a)(1)(E), (F). The taking prohibition, in other words, is only part of the regulatory plan of § 1538(a)(1), which covers all the stages of the process by which protected wildlife is reduced to man's dominion and made the object of profit. It is obvious that "take" in this sense—a term of art deeply embedded in the statutory and common law concerning wildlife—describes a class of acts (not omissions) done directly and intentionally (not indirectly and by accident) to particular animals (not populations of animals).

The Act's definition of "take" does expand the word slightly (and not unusually), so as to make clear that it includes not just a completed taking, but the process of taking, and all of the acts that are customarily identified with or accompany that process ("to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect"); and so as to include attempts. § 1532(19). The tempting fallacy—which the Court commits with abandon, see ante, at 697-698, n. 10—is to assume that once defined, "take" loses any significance, and it is only the definition that matters. The Court treats the statute as though Congress had directly enacted the § 1532(19) definition as a self-executing prohibition, and had not enacted § 1538(a)(1)(B) at all. But § 1538(a)(1)(B) is there, and if the terms contained in the definitional section are susceptible of two readings, one of which comports with the standard meaning of "take" as used in application to wildlife, and one of which does not, an agency regulation that adopts the latter reading is necessarily unreasonable, for it reads the defined term "take"—the only operative term—out of the statute altogether.^[23]

[719] That is what has occurred here. The verb "harm" has a range of meaning: "to cause injury" at its broadest, "to do hurt or damage" in a narrower and more direct sense. See, e. g., 1 N. Webster, An American Dictionary of the English Language (1828) ("Harm, v.t. To hurt; to injure; to damage; to impair soundness of body, either animal or vegetable") (emphasis added); American College Dictionary 551 (1970) ("harm . . . n. injury; damage; hurt: to do him bodily harm "). In fact the more directed sense of "harm" is a somewhat more common and preferred usage; "harm has in it a little of the idea of specially focused hurt or injury, as if a personal injury has been anticipated and intended." J. Opdycke, Mark My Words: A Guide to Modern Usage and Expression 330 (1949). See also American Heritage Dictionary 662 (1985) ("Injure has the widest range. . . . Harm and hurt refer principally to what causes physical or mental distress to living things"). To define "harm" as an act or omission that, however remotely, "actually kills or injures" a population of wildlife through habitat modification is to choose a meaning that makes nonsense of the word that "harm" defines—requiring us to accept that a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby "impairs [the] breeding" of protected fish has "taken" or "attempted to take" the fish. It should take the strongest evidence to make us believe that Congress has defined a term in a manner repugnant to its ordinary and traditional sense.

Here the evidence shows the opposite. "Harm" is merely one of 10 prohibitory words in § 1532(19), and the other 9 fit the ordinary meaning of "take" perfectly. To "harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect" are [720] all affirmative acts (the provision itself describes them as "conduct," see § 1532(19)) which are directed immediately and intentionally against a particular animal—not acts or omissions that indirectly and accidentally cause injury to a population of animals. The Court points out that several of the words ("harass," "pursue," "wound," and "kill") "refer to actions or effects that do not require direct applications of force. " Ante, at 701 (emphasis added). That is true enough, but force is not the point. Even "taking" activities in the narrowest sense, activities traditionally engaged in by hunters and trappers, do not all consist of direct applications of force; pursuit and harassment are part of the business of "taking" the prey even before it has been touched. What the nine other words in § 1532(19) have in common—and share with the narrower meaning of "harm" described above, but not with the Secretary's ruthless dilation of the word— is the sense of affirmative conduct intentionally directed against a particular animal or animals.

I am not the first to notice this fact, or to draw the conclusion that it compels. In 1981 the Solicitor of the Fish and Wildlife Service delivered a legal opinion on § 1532(19) that is in complete agreement with my reading:

"The Act's definition of `take' contains a list of actions that illustrate the intended scope of the term . . . . With the possible exception of `harm,' these terms all represent forms of conduct that are directed against and likely to injure or kill individual wildlife. Under the principle of statutory construction, ejusdem generis, . . . the term `harm' should be interpreted to include only those actions that are directed against, and likely to injure or kill, individual wildlife." Memorandum of Apr. 17, reprinted in 46 Fed. Reg. 29490, 29491 (1981) (emphasis in original).

I would call it noscitur a sociis, but the principle is much the same: The fact that "several items in a list share an attribute [721] counsels in favor of interpreting the other items as possessing that attribute as well," Beecham v. United States, 511 U. S. 368, 371 (1994). The Court contends that the canon cannot be applied to deprive a word of all its "independent meaning," ante, at 702. That proposition is questionable to begin with, especially as applied to long lawyers' listings such as this. If it were true, we ought to give the word "trap" in the definition its rare meaning of "to clothe" (whence "trappings")—since otherwise it adds nothing to the word "capture." See Moskal v. United States, 498 U. S. 103, 120 (1990) (Scalia, J., dissenting). In any event, the Court's contention that "harm" in the narrow sense adds nothing to the other words underestimates the ingenuity of our own species in a way that Congress did not. To feed an animal poison, to spray it with mace, to chop down the very tree in which it is nesting, or even to destroy its entire habitat in order to take it (as by draining a pond to get at a turtle), might neither wound nor kill, but would directly and intentionally harm.

The penalty provisions of the Act counsel this interpretation as well. Any person who "knowingly" violates § 1538(a)(1)(B) is subject to criminal penalties under § 1540(b)(1) and civil penalties under § 1540(a)(1); moreover, under the latter section, any person "who otherwise violates" the taking prohibition (i. e., violates it un knowingly) may be assessed a civil penalty of $500 for each violation, with the stricture that "[e]ach such violation shall be a separate offense." This last provision should be clear warning that the regulation is in error, for when combined with the regulation it produces a result that no legislature could reasonably be thought to have intended: A large number of routine private activities—for example, farming, ranching, roadbuilding, construction and logging—are subjected to strict-liability penalties when they fortuitously injure protected wildlife, no matter how remote the chain of causation and no matter how difficult to foresee (or to disprove) the "injury" may be (e. g., [722] an "impairment" of breeding). The Court says that "[the strict-liability provision] is potentially sweeping, but it would be so with or without the Secretary's `harm' regulation." Ante, at 696, n. 9. That is not correct. Without the regulation, the routine "habitat modifying" activities that people conduct to make a daily living would not carry exposure to strict penalties; only acts directed at animals, like those described by the other words in § 1532(19), would risk liability.

The Court says that "[to] read a requirement of intent or purpose into the words used to define `take' . . . ignore[s] [§ 1540's] express provision that a `knowin[g]' action is enough to violate the Act." Ante, at 701-702. This presumably means that because the reading of § 1532(19) advanced here ascribes an element of purposeful injury to the prohibited acts, it makes superfluous (or inexplicable) the more severe penalties provided for a "knowing" violation. That conclusion does not follow, for it is quite possible to take protected wildlife purposefully without doing so knowingly. A requirement that a violation be "knowing" means that the defendant must "know the facts that make his conduct illegal," Staples v. United States, 511 U. S. 600, 606 (1994). The hunter who shoots an elk in the mistaken belief that it is a mule deer has not knowingly violated § 1538(a)(1)(B)—not because he does not know that elk are legally protected (that would be knowledge of the law, which is not a requirement, see ante, at 696-697, n. 9), but because he does not know what sort of animal he is shooting. The hunter has nonetheless committed a purposeful taking of protected wildlife, and would therefore be subject to the (lower) strict-liability penalties for the violation.

So far I have discussed only the immediate statutory text bearing on the regulation. But the definition of "take" in § 1532(19) applies "[f]or the purposes of this chapter," that is, it governs the meaning of the word as used everywhere in the Act. Thus, the Secretary's interpretation of "harm" is wrong if it does not fit with the use of "take" throughout [723] the Act. And it does not. In § 1540(e)(4)(B), for example, Congress provided for the forfeiture of "[a]ll guns, traps, nets, and other equipment . . . used to aid the taking, possessing, selling, [etc.]" of protected animals. This listing plainly relates to "taking" in the ordinary sense. If environmental modification were part (and necessarily a major part) of taking, as the Secretary maintains, one would have expected the list to include "plows, bulldozers, and backhoes." As another example, § 1539(e)(1) exempts "the taking of any endangered species" by Alaskan Indians and Eskimos "if such taking is primarily for subsistence purposes"; and provides that "[n]on-edible byproducts of species taken pursuant to this section may be sold . . . when made into authentic native articles of handicrafts and clothing." Surely these provisions apply to taking only in the ordinary sense, and are meaningless as applied to species injured by environmental modification. The Act is full of like examples. See, e. g., § 1538(a)(1)(D) (prohibiting possession, sale, and transport of "species taken in violation" of the Act). "[I]f the Act is to be interpreted as a symmetrical and coherent regulatory scheme, one in which the operative words have a consistent meaning throughout," Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), the regulation must fall.

The broader structure of the Act confirms the unreasonableness of the regulation. Section 1536 provides:

"Each Federal agency shall . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary . . . to be critical." 16 U. S. C. § 1536(a)(2) (emphasis added).

The Act defines "critical habitat" as habitat that is "essential to the conservation of the species," §§ 1532(5)(A)(i), (A)(ii), with "conservation" in turn defined as the use of methods [724] necessary to bring listed species "to the point at which the measures provided pursuant to this chapter are no longer necessary," § 1532(3).

These provisions have a double significance. Even if §§ 1536(a)(2) and 1538(a)(1)(B) were totally independent prohibitions—the former applying only to federal agencies and their licensees, the latter only to private parties—Congress's explicit prohibition of habitat modification in the one section would bar the inference of an implicit prohibition of habitat modification in the other section. "[W]here Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United States, 508 U. S. 200, 208 (1993) (internal quotation marks omitted). And that presumption against implicit prohibition would be even stronger where the one section which uses the language carefully defines and limits its application. That is to say, it would be passing strange for Congress carefully to define "critical habitat" as used in § 1536(a)(2), but leave it to the Secretary to evaluate, willy-nilly, impermissible "habitat modification" (under the guise of "harm") in § 1538(a)(1)(B).

In fact, however, §§ 1536(a)(2) and 1538(a)(1)(B) do not operate in separate realms; federal agencies are subject to both, because the "person[s]" forbidden to take protected species under § 1538 include agencies and departments of the Federal Government. See § 1532(13). This means that the "harm" regulation also contradicts another principle of interpretation: that statutes should be read so far as possible to give independent effect to all their provisions. See Ratzlaf v. United States, 510 U. S. 135, 140-141 (1994). By defining "harm" in the definition of "take" in § 1538(a)(1)(B) to include significant habitat modification that injures populations of wildlife, the regulation makes the habitat-modification restriction in § 1536(a)(2) almost wholly superfluous. As "critical habitat" is habitat "essential to the conservation of the [725] species," adverse modification of "critical" habitat by a federal agency would also constitute habitat modification that injures a population of wildlife.

Petitioners try to salvage some independent scope for § 1536(a)(2) by the following contortion: Because the definition of critical habitat includes not only "the specific areas within the geographical area occupied by the species [that are] essential to the conservation of the species," § 1532(5)(A)(i), but also "specific areas outside the geographical area occupied by the species at the time it is listed [as a protected species] . . . [that are] essential to the conservation of the species," § 1532A(5)(ii), there may be some agency modifications of critical habitat which do not injure a population of wildlife. See Brief for Petitioners 41, and n. 27. This is dubious to begin with. A principal way to injure wildlife under the Secretary's own regulation is to "significantly impai[r] . . . breeding," 50 CFR § 17.3 (1994). To prevent the natural increase of a species by adverse modification of habitat suitable for expansion assuredly impairs breeding. But even if true, the argument only narrows the scope of the superfluity, leaving as so many wasted words the § 1532(a)(5)(i) definition of critical habitat to include currently occupied habitat essential to the species' conservation. If the Secretary's definition of "harm" under § 1538(a)(1)(B) is to be upheld, we must believe that Congress enacted § 1536(a)(2) solely because in its absence federal agencies would be able to modify habitat in currently unoccupied areas. It is more rational to believe that the Secretary's expansion of § 1538(a)(1)(B) carves out the heart of one of the central provisions of the Act.

II

The Court makes four other arguments. First, "the broad purpose of the [Act] supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid." Ante, at 698. [726] I thought we had renounced the vice of "simplistically .. . assum[ing] that whatever furthers the statute's primary objective must be the law." Rodriguez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis in original). Deduction from the "broad purpose" of a statute begs the question if it is used to decide by what means (and hence to what length ) Congress pursued that purpose; to get the right answer to that question there is no substitute for the hard job (or, in this case, the quite simple one) of reading the whole text. "The Act must do everything necessary to achieve its broad purpose" is the slogan of the enthusiast, not the analytical tool of the arbiter.^[24]

Second, the Court maintains that the legislative history of the 1973 Act supports the Secretary's definition. See ante, at 704-706. Even if legislative history were a legitimate and reliable tool of interpretation (which I shall assume in order to rebut the Court's claim); and even if it could appropriately be resorted to when the enacted text is as clear as this, but see Chicago v. Environmental Defense Fund, 511 U. S. 328, 337 (1994); here it shows quite the opposite of what the Court says. I shall not pause to discuss the Court's reliance on such statements in the Committee Reports as "`[t]ake' is defined . . . in the broadest possible manner to include every conceivable way in which a person can `take' or attempt to `take' any fish or wildlife.' " S. Rep. No. 93-307, p. 7 (1973) (quoted ante, at 704). This sort of empty flourish—to the effect that "this statute means what it means all the way"— [727] counts for little even when enacted into the law itself. See Reves v. Ernst & Young, 507 U. S. 170, 183-184 (1993).

Much of the Court's discussion of legislative history is devoted to two items: first, the Senate floor manager's introduction of an amendment that added the word "harm" to the definition of "take," with the observation that (along with other amendments) it would "`help to achieve the purposes of the bill' "; second, the relevant Committee's removal from the definition of a provision stating that "take" includes "`the destruction, modification or curtailment of [the] habitat or range' " of fish and wildlife. See ante, at 705. The Court inflates the first and belittles the second, even though the second is on its face far more pertinent. But this elaborate inference from various pre-enactment actions and inactions is quite unnecessary, since we have direct evidence of what those who brought the legislation to the floor thought it meant—evidence as solid as any ever to be found in legislative history, but which the Court banishes to a footnote. See ante, at 706-707, n. 19.

Both the Senate and House floor managers of the bill explained it in terms which leave no doubt that the problem of habitat destruction on private lands was to be solved principally by the land acquisition program of § 1534, while § 1538 solved a different problem altogether—the problem of takings. Senator Tunney stated:

"Through [the] land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wildlife from further destruction.

"Although most endangered species are threatened primarily by the destruction of their natural habitats, a significant portion of these animals are subject to preda- tion by man for commercial, sport, consumption, or other purposes. The provisions of [the bill] would prohibit the commerce in or the importation, exportation, or taking of endangered species . . . ." 119 Cong. Rec. 25669 (1973) (emphasis added).

[728] The House floor manager, Representative Sullivan, put the same thought in this way:

"[T]he principal threat to animals stems from destruction of their habitat. . . .[The bill] will meet this prob- lem by providing funds for acquisition of critical habitat. . . . It will also enable the Department of Agriculture to cooperate with willing landowners who desire to assist in the protection of endangered species, but who are understandably unwilling to do so at excessive cost to themselves.

"Another hazard to endangered species arises from those who would capture or kill them for pleasure or profit. There is no way that the Congress can make it less pleasurable for a person to take an animal, but we can certainly make it less profitable for them to do so." Id., at 30162 (emphasis added).

Habitat modification and takings, in other words, were viewed as different problems, addressed by different provisions of the Act. The Court really has no explanation for these statements. All it can say is that "[n]either statement even suggested that [the habitat acquisition funding provision in § 1534] would be the Act's exclusive remedy for habitat modification by private landowners or that habitat modification by private landowners stood outside the ambit of [§ 1538]." Ante, at 707, n. 19. That is to say, the statements are not as bad as they might have been. Little in life is. They are, however, quite bad enough to destroy the Court's legislative-history case, since they display the clear understanding (1) that habitat modification is separate from "taking," and (2) that habitat destruction on private lands is to be remedied by public acquisition, and not by making particular unlucky landowners incur "excessive cost to themselves." The Court points out triumphantly that they do not display the understanding (3) that the land acquisition program is "the [Act's] only response to habitat modification." [729] Ibid. Of course not, since that is not so (all public lands are subject to habitat-modification restrictions); but (1) and (2) are quite enough to exclude the Court's interpretation. They identify the land acquisition program as the Act's only response to habitat modification by private landowners, and thus do not in the least "contradic[t]," ibid., the fact that § 1536 prohibits habitat modification by federal agencies.

Third, the Court seeks support from a provision that was added to the Act in 1982, the year after the Secretary promulgated the current regulation. The provision states:

"[T]he Secretary may permit, under such terms and conditions as he shall prescribe—

. . . . .

"any taking otherwise prohibited by section 1538 (a)(1)(B) . . . if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U. S. C. § 1539(a)(1)(B).

This provision does not, of course, implicate our doctrine that reenactment of a statutory provision ratifies an extant judicial or administrative interpretation, for neither the taking prohibition in § 1538(a)(1)(B) nor the definition in § 1532(19) was reenacted. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 185 (1994). The Court claims, however, that the provision "strongly suggests that Congress understood [§ 1538(a)(1)(B)] to prohibit indirect as well as deliberate takings." Ante, at 700. That would be a valid inference if habitat modification were the only substantial "otherwise lawful activity" that might incidentally and nonpurposefully cause a prohibited "taking." Of course it is not. This provision applies to the many otherwise lawful takings that incidentally take a protected species—as when fishing for unprotected salmon also takes an endangered species of salmon, see Pacific Northwest Generating Cooperative v. Brown, 38 F. 3d 1058, 1067 (CA9 1994). [730] Congress has referred to such "incidental takings" in other statutes as well—for example, a statute referring to "the incidental taking of . . . seaturtles in the course of . . .harvesting [shrimp]" and to the "rate of incidental taking of sea turtles by United States vessels in the course of such harvesting," 103 Stat. 1038, § 609(b)(2), note following 16 U. S. C. § 1537 (1988 ed., Supp. V); and a statute referring to "the incidental taking of marine mammals in the course of commercial fishing operations," 108 Stat. 546, § 118(a). The Court shows that it misunderstands the question when it says that "[n]o one could seriously request an `incidental' take permit to avert . . . liability for direct, deliberate action against a member of an endangered or threatened species. " Ante, at 700-701 (emphasis added). That is not an incidental take at all.^[25]

This is enough to show, in my view, that the 1982 permit provision does not support the regulation. I must acknowledge that the Senate Committee Report on this provision, and the House Conference Committee Report, clearly contemplate that it will enable the Secretary to permit environmental modification. See S. Rep. No. 97-418, p. 10 (1982); H. R. Conf. Rep. No. 97-835, pp. 30-32 (1982). But the text of the amendment cannot possibly bear that asserted meaning, when placed within the context of an Act that must be interpreted (as we have seen) not to prohibit private environmental modification. The neutral language of the amendment cannot possibly alter that interpretation, nor can its legislative history be summoned forth to contradict, rather than clarify, what is in its totality an unambiguous statutory text. See Chicago v. Environmental Defense Fund, 511 U. S. 328 (1994). There is little fear, of course, [731] that giving no effect to the relevant portions of the Committee Reports will frustrate the real-life expectations of a majority of the Members of Congress. If they read and relied on such tedious detail on such an obscure point (it was not, after all, presented as a revision of the statute's prohibitory scope, but as a discretionary-waiver provision) the Republic would be in grave peril.

Fourth and lastly, the Court seeks to avoid the evident shortcomings of the regulation on the ground that the respondents are challenging it on its face rather than as applied. See ante, at 699; see also ante, at 709 (O'Connor, J., concurring). The Court seems to say that even if the regulation dispenses with the foreseeability of harm that it acknowledges the statute to require, that does not matter because this is a facial challenge: So long as habitat modification that would foreseeably cause harm is prohibited by the statute, the regulation must be sustained. Presumably it would apply the same reasoning to all the other defects of the regulation: The regulation's failure to require injury to particular animals survives the present challenge, because at least some environmental modifications kill particular animals. This evisceration of the facial challenge is unprecedented. It is one thing to say that a facial challenge to a regulation that omits statutory element x must be rejected if there is any set of facts on which the statute does not require x. It is something quite different—and unlike any doctrine of "facial challenge" I have ever encountered—to say that the challenge must be rejected if the regulation could be applied to a state of facts in which element x happens to be present. On this analysis, the only regulation susceptible to facial attack is one that not only is invalid in all its applications, but also does not sweep up any person who could have been held liable under a proper application of the statute. That is not the law. Suppose a statute that prohibits "premeditated killing of a human being," and an implementing regulation that prohibits "killing a human [732] being." A facial challenge to the regulation would not be rejected on the ground that, after all, it could be applied to a killing that happened to be premeditated. It could not be applied to such a killing, because it does not require the factfinder to find premeditation, as the statute requires. In other words, to simplify its task the Court today confuses lawful application of the challenged regulation with lawful application of a different regulation, i. e., one requiring the various elements of liability that this regulation omits.

III

In response to the points made in this dissent, the Court's opinion stresses two points, neither of which is supported by the regulation, and so cannot validly be used to uphold it. First, the Court and the concurrence suggest that the regulation should be read to contain a requirement of proximate causation or foreseeability, principally because the statute does —and "[n]othing in the regulation purports to weaken those requirements [of the statute]." See ante, at 696-697, n. 9; 700, n. 13; see also ante, at 711-713 (O'Connor, J., concurring). I quite agree that the statute contains such a limitation, because the verbs of purpose in § 1538(a)(1)(B) denote action directed at animals. But the Court has rejected that reading. The critical premise on which it has upheld the regulation is that, despite the weight of the other words in § 1538(a)(1)(B), "the statutory term `harm' encompasses indirect as well as direct injuries," ante, at 697-698. See also ante, at 698, n. 11 (describing "the sense of indirect causation that `harm' adds to the statute"); ante, at 702 (stating that the Secretary permissibly interprets "`harm' " to include "indirectly injuring endangered animals"). Consequently, unless there is some strange category of causation that is indirect and yet also proximate, the Court has already rejected its own basis for finding a proximate-cause limitation in the regulation. In fact "proximate" causation simply means "direct" causation. See, e. g., Black's Law Dictionary 1103 [733] (5th ed. 1979) (defining "[p]roximate" as "Immediate; nearest; direct ") (emphasis added); Webster's New International Dictionary 1995 (2d ed. 1949) ("[P]roximate cause. A cause which directly, or with no mediate agency, produces an effect") (emphasis added).

The only other reason given for finding a proximate-cause limitation in the regulation is that "by use of the word `actually,' the regulation clearly rejects speculative or conjectural effects, and thus itself invokes principles of proximate causation." Ante, at 712 (O'Connor, J., concurring); see also ante, at 700, n. 13 (majority opinion). Non sequitur, of course. That the injury must be "actual" as opposed to "potential" simply says nothing at all about the length or foreseeability of the causal chain between the habitat modification and the "actual" injury. It is thus true and irrelevant that "[t]he Secretary did not need to include `actually' to connote `but for' causation," ibid.; "actually" defines the requisite injury, not the requisite causality.

The regulation says (it is worth repeating) that "harm" means (1) an act that (2) actually kills or injures wildlife. If that does not dispense with a proximate-cause requirement, I do not know what language would. And changing the regulation by judicial invention, even to achieve compliance with the statute, is not permissible. Perhaps the agency itself would prefer to achieve compliance in some other fashion. We defer to reasonable agency interpretations of ambiguous statutes precisely in order that agencies, rather than courts, may exercise policymaking discretion in the interstices of statutes. See Chevron, 467 U. S., at 843-845. Just as courts may not exercise an agency's power to adjudicate, and so may not affirm an agency order on discretionary grounds the agency has not advanced, see SEC v. Chenery Corp., 318 U. S. 80 (1943), so also this Court may not exercise the Secretary's power to regulate, and so may not uphold a regulation by adding to it even the most reasonable of elements it does not contain.

[734] The second point the Court stresses in its response seems to me a belated mending of its holding. It apparently concedes that the statute requires injury to particular animals rather than merely to populations of animals. See ante, at 700, n. 13; ante, at 696 (referring to killing or injuring "members of [listed] species" (emphasis added)). The Court then rejects my contention that the regulation ignores this requirement, since, it says, "every term in the regulation's definition of `harm' is subservient to the phrase `an act which actually kills or injures wildlife.' " Ante, at 700, n. 13. As I have pointed out, see supra, at 716-717, this reading is incompatible with the regulation's specification of impairment of "breeding" as one of the modes of "kill[ing] or injur[ing] wildlife."^[26]

[735] But since the Court is reading the regulation and the statute incorrectly in other respects, it may as well introduce this novelty as well—law à la carte. As I understand the regulation that the Court has created and held consistent with the statute that it has also created, habitat modification can constitute a "taking," but only if it results in the killing or harming of individual animals, and only if that consequence is the direct result of the modification. This means that the destruction of privately owned habitat that is essential, not for the feeding or nesting, but for the breeding, of butterflies, would not violate the Act, since it would not harm or kill any living butterfly. I, too, think it would not violate the Act—not for the utterly unsupported reason that habitat modifications fall outside the regulation if they happen not to kill or injure a living animal, but for the textual reason that only action directed at living animals constitutes a "take."

* * *

The Endangered Species Act is a carefully considered piece of legislation that forbids all persons to hunt or harm endangered animals, but places upon the public at large, [736] rather than upon fortuitously accountable individual landowners, the cost of preserving the habitat of endangered species. There is neither textual support for, nor even evidence of congressional consideration of, the radically different disposition contained in the regulation that the Court sustains. For these reasons, I respectfully dissent.

[1] Briefs of amici curiae urging reversal were filed for the Environmental Law Committee of the Association of the Bar of the City of New York by Brent L. Brandenburg; for Friends of Animals, Inc., by Herman Kaufman; for the National Wildlife Federation et al. by Patti A. Goldman and Todd D. True; and for Scientist John Cairns, Jr., et al. by Wm. Robert Irvin, Timothy Eichenberg, and Patrick A. Parenteau.

Briefs of amici curiae urging affirmance were filed for the State of Arizona ex rel. M. J. Hassel, Arizona State Land Commissioner, et al. by Grant Woods, Attorney General of Arizona, Mary Mangotich Grier, Assistant Attorney General, and Gale A. Norton, Attorney General of Colorado; for the State of California et al. by Daniel Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz IV, Assistant Attorney General, and Linus Masouredis, Deputy Attorney General, and for the Attorneys General for their respective States as follows: Carla J. Stovall of Kansas, Don Stenberg of Nebraska, and Jan Graham of Utah; for the State of Texas by Dan Morales, Attorney General, Jorge Vega, First Assistant Attorney General, Javier Aguilar and Sam Goodhope, Special Assistant Attorneys General, and Paul Terrill and Eugene Montes, Assistant Attorneys General; for the American Farm Bureau Federation et al. by Timothy S. Bishop, Michael F. Rosenblum, John J. Rademacher, Richard L. Krause, Nancy N. McDonough, Carolyn S. Richardson, Douglas G. Caroom, and Sydney W. Falk, Jr.; for Anderson & Middleton Logging Co., Inc., by Mark C. Rutzick and J. J. Leary, Jr.; for Cargill, Inc., by Louis F. Claiborne, Edgar B. Washburn, and David Ivester; for the Chamber of Commerce of the United States of America et al. by Virginia S. Albrecht, Robin S. Conrad, Ted R. Brown, and Ralph W. Holmen; for the Competitive Enterprise Institute by Sam Kazman; for the Davis Mountains Trans-Pecos Heritage Association et al. by Nancie G. Marzulla; for the Florida Legal Foundation et al. by Michael L. Rosen and G. Stephen Parker; for the Institute for Justice by Richard A. Epstein, William H. Mellor III, and Clint Bolick; for the National Association of Home Builders et al. by D. Barton Doyle; for the National Cattlemen's Association et al. by Roger J. Marzulla, Michael T. Lempres, and William G. Myers III; for the Mountain States Legal Foundation et al. by William Perry Pendley; for the Pacific Legal Foundation et al. by Robin L. Rivett; for the State Water Contractors et al. by Gregory K. Wilkinson, Eric L. Garner, Thomas W. Birmingham, and Stuart L. Somach; for the Washington Legal Foundationet al.by Albert Gidari, Daniel J. Popeo, and Paul D. Kamenar; and for Congressman Bill Baker et al. by Virginia S. Albrecht.

Briefs of amici curiae were filed for the Nationwide Public Projects Coalition etal.by Lawrence R. Liebesman, Kenneth S. Kamlet, and Duane J. Desiderio; and for the Navajo Nation et al. by Scott B. McElroy, Lester K. Taylor, Daniel H. Israel, and Stanley Pollack.

[2] The Act defines the term "endangered species" to mean "any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." 16 U. S. C. § 1532(6).

[3] The Secretary, through the Director of the Fish and Wildlife Service, originally promulgated the regulation in 1975 and amended it in 1981 to emphasize that actual death or injury of a protected animal is necessary for a violation.See 40 Fed. Reg. 44412, 44416 (1975); 46 Fed. Reg. 54748, 54750 (1981).

[4] Respondents also argued in the District Court that the Secretary's definition of "harm" is unconstitutionally void for vagueness, but they do not press that argument here.

[5] The woodpecker was listed as an endangered species in 1970 pursuant to the statutory predecessor of the ESA.See 50 CFR § 17.11(h) (1994), issued pursuant to the Endangered Species Conservation Act of 1969, 83 Stat. 275.

[6] See 55 Fed. Reg. 26114 (1990). Another regulation promulgated by the Secretary extends to threatened species, defined in the ESA as "any species which is likely to become an endangered species within the foreseeablefuture throughout allor a significant portion of its range," 16 U. S. C. § 1532(20), some but not all of the protections endangered species enjoy. See 50 CFR § 17.31(a) (1994).In the District Court respondents unsuccessfully challenged that regulation's extension of § 9 to threatened species, but they do not press the challenge here.

[7] Senate 1983, reprinted in Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 27 (1973).

[8] Judge Sentelle filed a partial concurrence in which he declined to join the portions of the court's opinion that relied on legislative history. See 17 F. 3d 1463, 1472 (CADC 1994).

[9] The 1982 amendment had formed the basis on which the author of the majority's opinion on rehearing originally voted to affirm the judgment of the District Court. Compare 1 F. 3d 1, 11 (CADC 1993) (Williams, J., concurring in part), with 17 F. 3d, at 1467-1472.

[10] As discussed above, the Secretary's definition of "harm" is limited to "act[s] which actually kil[l]or injur[e] wildlife." 50 CFR § 17.3 (1994). In addition, in order to be subject to the Act's criminal penalties or the more severe of its civil penalties, one must "knowingly violat[e]" the Act or its implementing regulations. 16 U. S. C. §§ 1540(a)(1), (b)(1). Congress added "knowingly" in place of "willfully" in 1978 to make "criminal violations of the act a general rather than a specific intent crime." H. R. Conf. Rep. No. 95-1804, p. 26 (1978). The Act does authorize up to a $500 civil fine for "[a]ny person who otherwise violates" the Act or its implementing regulations. 16 U. S. C. § 1540(a)(1). That provision is potentially sweeping, but it would be so with or without the Secretary's "harm" regulation, making it unhelpful in assessing the reasonableness of the regulation. We have imputed scienter requirements to criminal statutes that impose sanctions without expressly requiring scienter, see, e. g., Staples v. United States, 511 U. S. 600 (1994), but the proper case in which we might consider whether to do so in the § 9 provision for a $500 civil penalty would be a challenge to enforcement of that provision itself, not a challenge to a regulation that merely defines a statutory term. We do not agree with the dissent that the regulation covers results that are not "even foreseeable . . . no matter how long the chain of causality between modification and injury." Post, at 715. Respondents have suggested no reason why either the "knowingly violates" or the "otherwise violates" provision of the statute—or the "harm" regulation itself—should not be read to incorporate ordinary requirements of proximate causation and foreseeability. In any event, neither respondents nor their amici have suggested that the Secretary employs the "otherwise violates" provision with any frequency.

[11] Respondents and the dissent emphasize what they portray as the "established meaning" of "take" in the sense of a "wildlife take," a meaning respondents argue extends only to "the effort to exercise dominion over some creature, and the concrete effect of [sic] that creature." Brief for Respondents 19; see post, at 717-718. This limitation ill serves the statutory text, which forbids not taking "some creature" but "tak[ing] any [endangered] species "—a formidable task for even the most rapacious feudal lord. More importantly, Congress explicitly defined the operative term "take" in the ESA, no matter how much the dissent wishes otherwise, see post, at 717-720, 722-723, thereby obviating the need for us to probe its meaning as we must probe the meaning of the undefined subsidiary term "harm." Finally, Congress' definition of "take" includes several words— most obviously "harass," "pursue," and "wound," in addition to "harm" itself—that fit respondents' and the dissent's definition of "take" no better than does "significant habitat modification or degradation."

[12] In contrast, if the statutory term "harm" encompasses such indirect means of killing and injuring wildlife as habitat modification, the other terms listed in § 3—"harass," "pursue," "hunt," "shoot," "wound," "kill," "trap," "capture," and "collect"—generally retain independent meanings. Most of those terms refer to deliberate actions more frequently than does "harm," and they therefore do not duplicate the sense of indirect causation that "harm" adds to the statute. In addition, most of the other words in the definition describe either actions from which habitat modification does not usually result (e. g., "pursue," "harass") or effects to which activities that modify habitat do not usually lead (e. g., "trap," "collect"). To the extent the Secretary's definition of "harm" may have applications that overlap with other words in the definition, that overlap reflects the broad purpose of the Act. See infra this page and 699-700.

[13] We stated: "The Secretary of the Interior has defined the term `harm' to mean `an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of "harm."` " TVA v.Hill, 437 U. S.,at 184-185, n. 30 (citations omitted; emphasis in original).

[14] The dissent incorrectly asserts that the Secretary's regulation (1) "dispenses with the foreseeability of harm" and (2) "fail[s] to require injury to particular animals," post, at 731. As to the first assertion, the regulation merely implements the statute, and it is therefore subject to the statute's "knowingly violates" language, see 16 U. S. C. §§ 1540(a)(1), (b)(1), and ordinary requirements of proximate causation and foreseeability. See n.9, supra. Nothing in the regulation purports to weaken those requirements. To the contrary, the word "actually" in the regulation should be construed to limit the liability about which the dissent appears most concerned, liability under the statute's "otherwise violates" provision. See n. 9, supra; post, at 721-722, 732-733. The Secretary did not need to include "actually" to connote "but for" causation, which the other words in the definition obviously require. As to the dissent's second assertion, every term in the regulation's definition of "harm" is subservient to the phrase "an act which actually kills or injures wildlife."

[15] The dissent acknowledges the legislative history's clear indication that the drafters of the 1982 amendment had habitat modification in mind, see post, at 730, but argues that the text of the amendment requires a contrary conclusion. This argument overlooks the statute's requirement of a "conservation plan," which must describe an alternative to a known, but undesired, habitat modification.

[16] The dissent makes no effort to defend the Court of Appeals' reading of the statutory definition as requiring a direct application of force. Instead, it tries to impose on § 9 a limitation of liability to "affirmative conduct intentionally directed against a particular animal or animals." Post, at 720. Under the dissent's interpretation of the Act, a developer could drain a pond, knowing that the act would extinguish an endangered species of turtles, without even proposing a conservation plan or applying for a permit under § 10(a)(1)(B); unless the developer was motivated by a desire "to get at a turtle," post, at 721, no statutory taking could occur. Because such conduct would not constitute a taking at common law, the dissent would shield it from § 9 liability, even though the words "kill" and "harm" in the statutory definition could apply to such deliberate conduct. We cannot accept that limitation. In any event, our reasons for rejecting the Court of Appeals' interpretation apply as well to the dissent's novel construction.

[17] Respondents' reliance on United States v. Hayashi, 22 F. 3d 859 (CA9 1993), is also misplaced. Hayashi construed the term "harass," part of the definition of "take" in the Marine Mammal Protection Act of 1972, 16 U. S. C. § 1361 et seq., as requiring a "direct intrusion" on wildlife to support a criminal prosecution. 22 F. 3d, at 864. Hayashi dealt with a challenge to a single application of a statute whose "take" definition includes neither "harm" nor several of the other words that appear in the ESA definition. Moreover, Hayashi was decided by a panel of the Ninth Circuit,the same court that had previously upheld the regulation at issue here in Palila II, 852 F. 2d 1106 (1988). Neither the Hayashi majority nor the dissent saw any need to distinguish or even to cite Palila II.

[18] Congress recognized that §§ 7 and 9 are not coextensive as to federal agencies when, in the wake of our decision in Hill in 1978, it added § 7(o), 16 U. S. C. § 1536(o), to the Act. That section provides that any federal project subject to exemption from § 7, 16 U. S. C. § 1536(h),will also be exempt from § 9.

[19] Respondents also argue that the rule of lenity should foreclose any deference to the Secretary's interpretation of the ESA because the statute includes criminal penalties. The rule of lenity is premised on two ideas: First, "`a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed' "; second, "legislatures and not courts should define criminal activity." United States v. Bass, 404 U. S. 336, 347-350 (1971) (quoting McBoyle v. United States, 283 U. S. 25, 27 (1931)). We have applied the rule of lenity in a case raising a narrow question concerning the application of a statute that contains criminal sanctions to a specific factual dispute—whether pistols with short barrels and attachable shoulder stocks are short-barreled rifles—where no regulation was present. See United States v. Thompson/Center Arms Co., 504 U. S. 505, 517-518, and n. 9 (1992). We have never suggested that the rule of lenity should provide the standard for reviewing facial challenges to administrative regulations whenever the governing statute authorizes criminal enforcement. Even if there exist regulations whose interpretations of statutory criminal penalties provide such inadequate notice of potential liability as to offend the rule of lenity, the "harm" regulation, which has existed for two decades and gives a fair warning of its consequences, cannot be one of them.

[20] Respondents place heavy reliance for their argument that Congress intended the § 5 land acquisition provision and not § 9 to be the ESA's remedy for habitat modification on a floor statement by Senator Tunney:

"Many species have been inadvertently exterminated by a negligent destruction of their habitat. Their habitats have been cut in size, polluted, or otherwise altered so that they are unsuitable environments for natural populations of fish and wildlife. Under this bill, we can take steps to make amends for our negligent encroachment. The Secretary would be empowered to use the land acquisition authority granted to him in certain existing legislation to acquire land for the use of the endangered species programs. . . . Through these land acquisition provisions, we will be able to conserve habitats necessary to protect fish and wildlife from further destruction.

"Although most endangered species are threatened primarily by the destruction of their natural habitats, a significant portion of these animals are subject to predation by man for commercial, sport, consumption, or other purposes. The provisions in S. 1983 would prohibit the commerce in or the importation, exportation, or taking of endangered species . . . ." 119 Cong. Rec. 25669 (1973).

Similarly, respondents emphasize a floor statement by Representative Sullivan, the House floor manager for the ESA:

"For the most part, the principal threat to animals stems from destruction of their habitat. . . . H. R. 37will meet this problem by providing funds for acquisition of critical habitat . . . . It will also enable the Department of Agriculture to cooperate with willing landowners who desire to assist in the protection of endangered species, but who are understandably unwilling to do so at excessive cost to themselves.

"Another hazard to endangered species arises from those who would capture or kill them for pleasure or profit. There is no way that Congress can make it less pleasurable for a person to take an animal, but we can certainly make it less profitable for them to do so." Id., at 30162.

Each of these statements merely explained features of the bills that Congress eventually enacted in § 5 of the ESA and went on to discuss elements enacted in § 9. Neither statement even suggested that § 5 would be the Act's exclusive remedy for habitat modification by private landowners or that habitat modification by private landowners stood outside the ambit of § 9. Respondents' suggestion that these statements identified § 5 as the ESA's only response to habitat modification contradicts their emphasis elsewhere on the habitat protections in § 7. See supra, at 702-703.

[21] Justice Scalia suggests that, if the word "direct" merits emphasis in this sentence, then the sentence should be read as an effort to negate principles of proximate causation. See post, at 734-735, n. 5. As this case itself demonstrates, however, the word "direct" is susceptible of many meanings. The Court of Appeals, for example, used "direct" to suggest an element of purposefulness. See 17 F. 3d 1463, 1465 (CADC 1994). So, occasionally, does the dissent. See post, at 720 (describing "affirmative acts. . . which are directed immediately and intentionally against a particular animal") (emphasis added). It is not hard to imagine conduct that, while "indirect" (i. e., nonpurposeful), proximately causes actual death or injury to individual protected animals, cf. post, at 732; indeed, principles of proximate cause routinely apply in the negligence and strict liability contexts.

[22] The Court and Justice O'Connor deny that the regulation has the first or the third of these features. I respond to their arguments in Part III, infra.

[23] The Court suggests halfheartedly that "take" cannot refer to the taking of particular animals, because § 1538(a)(1)(B) prohibits "tak[ing] any [endangered] species. " Ante, at 697, n. 10. The suggestion is halfhearted because that reading obviously contradicts the statutory intent. It would mean no violation in the intentional shooting of a single bald eagle—or, for that matter, the intentional shooting of 1,000 bald eagles out of the extant 1,001. The phrasing of § 1538(a)(1)(B), as the Court recognizes elsewhere, see, e. g., ante, at 696, is shorthand for "take any [member of an endangered] species."

[24] This portion of the Court's opinion, see ante, at 699, n. 12, discusses and quotes a footnote in TVA v. Hill, 437 U. S. 153, 184-185, n. 30 (1978), in which we described the then-current version of the Secretary's regulation, and said that the habitat modification undertaken by the federal agency in the case would have violated the regulation. Even if we had said that the Secretary's regulation was authorized by § 1538, that would have been utter dictum, for the only provision at issue was § 1536. See id., at 193. But in fact we simply opined on the effect of the regulation while assuming its validity, just as courts always do with provisions of law whose validity is not at issue.

[25] The statutory requirement of a "conservation plan" is as consistent with this construction as with the Court's. See ante, at 700, and n.14. The commercial fisherman who is in danger of incidentally sweeping up protected fish in his nets can quite reasonably be required to "minimize and mitigate" the "impact" of his activity. 16 U. S. C. § 1539(a)(2)(A).

[26] Justice O'Connor supposes that an "impairment of breeding" intrinsically injures an animal because "to make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete." Ante, at 710 (concurring opinion). This imaginative construction does achieve the result of extending "impairment of breeding" to individual animals; but only at the expense of also expanding "injury" to include elements beyond physical harm to individual animals. For surely the only harm to the individual animal from impairment of that "essential function" is not the failure of issue (which harms only the issue), but the psychic harm of perceiving that it will leave this world with no issue (assuming, of course, that the animal in question, perhaps an endangered species of slug, is capable of such painful sentiments). If it includes that psychic harm, then why not the psychic harm of not being able to frolic about—so that the draining of a pond used for an endangered animal's recreation, but in no way essential to its survival, would be prohibited by the Act? That the concurrence is driven to such a dubious redoubt is an argument for, not against, the proposition that "injury" in the regulation includes injury to populations of animals. Even more so with the concurrence's alternative explanation: that "impairment of breeding" refers to nothing more than concrete injuries inflicted by the habitat modification on the animal who does the breeding, such as "physical complications [suffered] during gestation," ibid. Quite obviously, if "impairment of breeding" meant such physical harm to an individual animal, it would not have had to be mentioned.

The concurrence entangles itself in a dilemma while attempting to explain the Secretary's commentary to the harm regulation, which stated that "harm" is not limited to "direct physical injury to an individual member of the wildlife species," 46 Fed. Reg. 54748 (1981). The concurrence denies that this means that the regulation does not require injury to particular animals, because "one could just as easily emphasize the word `direct' in this sentence as the word `individual.' " Ante, at 711. One could; but if the concurrence does, it thereby refutes its separate attempt to exclude indirect causation from the regulation's coverage, see ante, at 711— 713. The regulation, after emerging from the concurrence's analysis, has acquired both a proximate-cause limitation and a particular-animals limitation—precisely the one meaning that the Secretary's quoted declaration will not allow, whichever part of it is emphasized.

501 U.S. 452 (1991)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[454] Jim J. Shoemake argued the cause for petitioners. With him on the briefs were Thomas J. Guilfoil and Bruce Dayton Livingston.

James B. Deutsch, Deputy Attorney General of Missouri, argued the cause for respondent. With him on the brief were William L. Webster, Attorney General, and Michael L. Boicourt, Assistant Attorney General.^[1]

[455] JUSTICE O'CONNOR delivered the opinion of the Court.

Article V, § 26, of the Missouri Constitution provides that "[a]ll judges other than municipal judges shall retire at the age of seventy years." We consider whether this mandatory retirement provision violates the federal Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634, and whether it comports with the federal constitutional prescription of equal protection of the laws.

I

Petitioners are Missouri state judges. Judge Ellis Gregory, Jr., is an associate circuit judge for the Twenty-first Judicial Circuit. Judge Anthony P. Nugent, Jr., is a judge of the Missouri Court of Appeals, Western District. Both are subject to the § 26 mandatory retirement provision. Petitioners were appointed to office by the Governor of Missouri, pursuant to the Missouri Non-Partisan Court Plan, Mo. Const., Art. V, §§25(a)-25(g). Each has, since his appointment, been retained in office by means of a retention election in which the judge ran unopposed, subject only to a "yes or no" vote. See Mo. Const., Art. V, §25(c)(1).

[456] Petitioners and two other state judges filed suit against John D. Ashcroft, the Governor of Missouri, in the United States District Court for the Eastern District of Missouri, challenging the validity of the mandatory retirement provision. The judges alleged that the provision violated both the ADEA and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Governor filed a motion to dismiss.

The District Court granted the motion, holding that Missouri's appointed judges are not protected by the ADEA because they are "appointees. . . `on a policymaking level'" and therefore are excluded from the Act's definition of "employee." App. to Pet. for Cert. 22. The court held also that the mandatory retirement provision does not violate the Equal Protection Clause because there is a rational basis for the distinction between judges and other state officials to whom no mandatory retirement age applies. Id., at 23.

The United States Court of Appeals for the Eighth Circuit affirmed the dismissal. 898 F. 2d 598 (1990). That court also held that appointed judges are "`appointee[s] on the policymaking level,'" and are therefore not covered under the ADEA. Id., at 604. The Court of Appeals held as well that Missouri had a rational basis for distinguishing judges who had reached the age of 70 from those who had not. Id., at 606.

We granted certiorari on both the ADEA and equal protection questions, 498 U. S. 979 (1990), and now affirm.

II

The ADEA makes it unlawful for an "employer" "to discharge any individual" who is at least 40 years old "because of such individual's age." 29 U. S. C. §§ 623(a), 631(a). The term "employer" is defined to include "a State or political subdivision of a State." § 630(b)(2). Petitioners work for the State of Missouri. They contend that the Missouri [457] mandatory retirement requirement for judges violates the ADEA.

A

As every schoolchild learns, our Constitution establishes a system of dual sovereignty between the States and the Federal Government. This Court also has recognized this fundamental principle. In Tafflin v. Levitt, 493 U. S. 455, 458 (1990), "[w]e beg[a]n with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause." Over 120 years ago, the Court described the constitutional scheme of dual sovereigns:

"`[T]he people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence,' . . . `[W]ithout the States in union, there could be no such political body as the United States.' Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." Texas v. White, 7 Wall. 700, 725 (1869), quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869).

The Constitution created a Federal Government of limited powers. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U. S. Const., Amdt. 10. The States thus retain substantial sovereign authority under our constitutional system. As James Madison put it:

[458] "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. See generally McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1491-1511 (1987); Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1, 3-10 (1988).

Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The `constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of `our fundamental liberties.'" Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985), quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572 (1985) (Powell, J., dissenting). Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would [459] suppress completely "the attempts of the government to establish a tyranny":

"[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress." The Federalist No. 28, pp. 180-181 (C. Rossiter ed. 1961).

James Madison made much the same point:

"In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." Id., No. 51, p. 323.

One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this "double security" is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.

[460] The Federal Government holds a decided advantage in this delicate balance: the Supremacy Clause. U. S. Const., Art. VI, cl. 2. As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States. Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.

The present case concerns a state constitutional provision through which the people of Missouri establish a qualification for those who sit as their judges. This provision goes beyond an area traditionally regulated by the States; it is a decision of the most fundamental sort for a sovereign entity. Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign. "It is obviously essential to the independence of the States, and to their peace and tranquility, that their power to prescribe the qualifications of their own officers . . . should be exclusive, and free from external interference, except so far as plainly provided by the Constitution of the United States." Taylor v. Beckham, 178 U. S. 548, 570-571 (1900). See also Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 161 (1892) ("Each State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen").

Congressional interference with this decision of the people of Missouri, defining their constitutional officers, would upset the usual constitutional balance of federal and state powers. For this reason, "it is incumbent upon the federal courts to be certain of Congress' intent before finding that federal law overrides" this balance. Atascadero, supra, at 243. We explained recently:

"[I]f Congress intends to alter the `usual constitutional balance between the States and the Federal Government,' it must make its intention to do so `unmistakably clear in the language of the statute.' Atascadero [461] State Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 99 (1984). Atascadero was an Eleventh Amendment case, but a similar approach is applied in other contexts. Congress should make its intention `clear and manifest' if it intends to pre-empt the historic powers of the States, Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) . . . . `In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.' United States v. Bass, 404 U. S. 336, 349 (1971)." Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989).

This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere.

In a recent line of authority, we have acknowledged the unique nature of state decisions that "go to the heart of representative government." Sugarman v. Dougall, 413 U. S. 634, 647 (1973). Sugarman was the first in a series of cases to consider the restrictions imposed by the Equal Protection Clause of the Fourteenth Amendment on the ability of state and local governments to prohibit aliens from public employment. In that case, the Court struck down under the Equal Protection Clause a New York City law that provided a flat ban against the employment of aliens in a wide variety of city jobs. Ibid.

The Court did not hold, however, that alienage could never justify exclusion from public employment. We recognized explicitly the States' constitutional power to establish the qualifications for those who would govern:

"Just as `the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth [462] Amendment, the power to regulate elections,' Oregon v. Mitchell, 400 U. S. 112, 124-125 (1970) (footnote omitted) (opinion of Black, J.); see id., at 201 (opinion of Harlan, J.), and id., at 293-294 (opinion of STEWART, J.), "[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen." Boyd v. Thayer, 143 U. S. 135, 161 (1892). See Luther v. Borden, 7 How. 1, 41 (1849); Pope v. Williams, 193 U. S. 621, 632-633 (1904). Such power inheres in the State by virtue of its obligation, already noted above, `to preserve the basic conception of a political community.' Dunn v. Blumstein, 405 U. S. [330, 344 (1972)]. And this power and responsibility of the State applies, not only to the qualifications of voters, but also to persons holding state elective and important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government." Ibid.

We explained that, while the Equal Protection Clause provides a check on such state authority, "our scrutiny will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives." Id., at 648. This rule "is no more than . . . a recognition of a State's constitutional responsibility for the establishment and operation of its own government, as well as the qualifications of an appropriately designated class of public office holders. U. S. Const. Art. IV, § 4; U. S. Const. Amdt. X; Luther v. Borden, supra; see In re Duncan, 139 U. S. 449, 461 (1891)." Ibid.

In several subsequent cases we have applied the "political function" exception to laws through which States exclude aliens from positions "intimately related to the process of democratic self-government." See Bernal v. Fainter, 467 U. S. 216, 220 (1984). See also Nyquist v. Mauclet, 432 U. S. 1, 11 (1977); Foley v. Connelie, 435 U. S. 291, 295-296 [463] (1978); Ambach v. Norwick, 441 U. S. 68, 73-74 (1979); Cabell v. Chavez-Salido, 454 U. S. 432, 439-441 (1982). "We have . . . lowered our standard of review when evaluating the validity of exclusions that entrust only to citizens important elective and nonelective positions whose operations `go to the heart of representative government.'" Bernal, 467 U. S., at 221 (citations omitted).

These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials.^[2] It is an authority that lies at "`the heart of representative government.'" Ibid. It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States "guarantee[s] to every State in this Union a Republican Form of Government." U. S. Const., Art. IV, § 4. See Sugarman, supra, at 648 (citing the Guarantee Clause and the Tenth Amendment). See also Merritt, 88 Colum. L. Rev., at 50-55.

The authority of the people of the States to determine the qualifications of their government officials is, of course, not without limit. Other constitutional provisions, most notably the Fourteenth Amendment, proscribe certain qualifications; our review of citizenship requirements under the political function exception is less exacting, but it is not absent. [464] Here, we must decide what Congress did in extending the ADEA to the States, pursuant to its powers under the Commerce Clause. See EEOC v. Wyoming, 460 U. S. 226 (1983) (the extension of the ADEA to employment by state and local governments was a valid exercise of Congress' powers under the Commerce Clause). As against Congress' powers "[t]o regulate Commerce . . . among the several States," U. S. Const., Art. I, § 8, cl. 3, the authority of the people of the States to determine the qualifications of their government officials may be inviolate.

We are constrained in our ability to consider the limits that the state-federal balance places on Congress' powers under the Commerce Clause. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985) (declining to review limitations placed on Congress' Commerce Clause powers by our federal system). But there is no need to do so if we hold that the ADEA does not apply to state judges. Application of the plain statement rule thus may avoid a potential constitutional problem. Indeed, inasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise. "[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests." L. Tribe, American Constitutional Law § 6-25, p. 480 (2d ed. 1988).

B

In 1974, Congress extended the substantive provisions of the ADEA to include the States as employers. Pub. L. 93-259, § 28(a), 88 Stat. 74, 29 U. S. C. § 630(b)(2). At the same time, Congress amended the definition of "employee" to exclude all elected and most high-ranking government officials. Under the Act, as amended:

[465] "The term `employee' means an individual employed by any employer except that the term `employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office." 29 U. S. C. § 630(f).

Governor Ashcroft contends that the § 630(f) exclusion of certain public officials also excludes judges, like petitioners, who are appointed to office by the Governor and are then subject to retention election. The Governor points to two passages in § 630(f). First, he argues, these judges are selected by an elected official and, because they make policy, are "appointee[s] on the policymaking level."

Petitioners counter that judges merely resolve factual disputes and decide questions of law; they do not make policy. Moreover, petitioners point out that the policymaking-level exception is part of a trilogy, tied closely to the electedofficial exception. Thus, the Act excepts elected officials and: (1) "any person chosen by such officer to be on such officer's personal staff"; (2) "an appointee on the policymaking level"; and (3) "an immediate advisor with respect to the exercise of the constitutional or legal powers of the office." Applying the maxim of statutory construction noscitur a sociis — that a word is known by the company it keeps — petitioners argue that since (1) and (3) refer only to those in close working relationships with elected officials, so too must (2). Even if it can be said that judges may make policy, petitioners contend, they do not do so at the behest of an elected official.

Governor Ashcroft relies on the plain language of the statute: It exempts persons appointed "at the policymaking level." The Governor argues that state judges, in fashioning and applying the common law, make policy. Missouri is a [466] common law state. See Mo. Rev. Stat. § 1.010 (1986) (adopting "[t]he common law of England" consistent with federal and state law). The common law, unlike a constitution or statute, provides no definitive text; it is to be derived from the interstices of prior opinions and a well-considered judgment of what is best for the community. As Justice Holmes put it:

"The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned. Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but nonetheless traceable to views of public policy in the last analysis." O. Holmes, The Common Law 35-36 (1881).

Governor Ashcroft contends that Missouri judges make policy in other ways as well. The Missouri Supreme Court and Courts of Appeals have supervisory authority over inferior courts. Mo. Const., Art. V, §4. The Missouri Supreme Court has the constitutional duty to establish rules of practice and procedure for the Missouri court system, and inferior courts exercise policy judgment in establishing local rules of practice. See Mo. Const., Art. V, § 5. The state courts have supervisory powers over the state bar, with the Missouri Supreme Court given the authority to develop disciplinary rules. See Mo. Rev. Stat. §§484.040, 484.200-484.270 (1986); Rules Governing the Missouri Bar and the Judiciary (1991).

The Governor stresses judges' policymaking responsibilities, but it is far from plain that the statutory exception requires that judges actually make policy. The statute refers to appointees "on the policymaking level," not to appointees "who make policy." It may be sufficient that the appointee [467] is in a position requiring the exercise of discretion concerning issues of public importance. This certainly describes the bench, regardless of whether judges might be considered policymakers in the same sense as the executive or legislature.

Nonetheless, "appointee at the policymaking level," particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not "employees" would seem the most efficient phrasing. But in this case we are not looking for a plain statement that judges are excluded. We will not read the ADEA to cover state judges unless Congress has made it clear that judges are included. This does not mean that the Act must mention judges explicitly, though it does not. Cf. Dellmuth v. Muth, 491 U. S. 223, 233 (1989) (SCALIA, J., concurring). Rather, it must be plain to anyone reading the Act that it covers judges. In the context of a statute that plainly excludes most important state public officials, "appointee on the policymaking level" is sufficiently broad that we cannot conclude that the statute plainly covers appointed state judges. Therefore, it does not.

The ADEA plainly covers all state employees except those excluded by one of the exceptions. Where it is unambiguous that an employee does not fall within one of the exceptions, the Act states plainly and unequivocally that the employee is included. It is at least ambiguous whether a state judge is an "appointee on the policymaking level."

Governor Ashcroft points also to the "person elected to public office" exception. He contends that because petitioners — although appointed to office initially — are subject to retention election, they are "elected to public office" under the ADEA. Because we conclude that petitioners fall presumptively under the policymaking-level exception, we need not answer this question.

C

The extension of the ADEA to employment by state and local governments was a valid exercise of Congress' powers [468] under the Commerce Clause. EEOC v. Wyoming, 460 U. S. 226 (1983). In Wyoming, we reserved the questions whether Congress might also have passed the ADEA extension pursuant to its powers under § 5 of the Fourteenth Amendment, and whether the extension would have been a valid exercise of that power. Id., at 243, and n. 18. We noted, however, that the principles of federalism that constrain Congress' exercise of its Commerce Clause powers are attenuated when Congress acts pursuant to its powers to enforce the Civil War Amendments. Id., at 243, and n. 18, citing City of Rome v. United States, 446 U. S. 156, 179 (1980). This is because those "Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." Id., at 179. One might argue, therefore, that if Congress passed the ADEA extension under its § 5 powers, the concerns about federal intrusion into state government that compel the result in this case might carry less weight.

By its terms, the Fourteenth Amendment contemplates interference with state authority: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U. S. Const., Amdt. 14. But this Court has never held that the Amendment may be applied in complete disregard for a State's constitutional powers. Rather, the Court has recognized that the States' power to define the qualifications of their officeholders has force even as against the proscriptions of the Fourteenth Amendment.

We return to the political-function cases. In Sugarman, the Court noted that "aliens as a class `are a prime example of a "discrete and insular" minority (see United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938)),' and that classifications based on alienage are `subject to close judicial scrutiny.'" 413 U. S., at 642, quoting Graham v. Richardson, 403 U. S. 365, 372 (1971). The Sugarman Court held that New York City had insufficient interest in preventing aliens from holding a broad category of public [469] jobs to justify the blanket prohibition. 413 U. S., at 647. At the same time, the Court established the rule that scrutiny under the Equal Protection Clause "will not be so demanding where we deal with matters resting firmly within a State's constitutional prerogatives." Id., at 648. Later cases have reaffirmed this practice. See Foley v. Connelie, 435 U. S. 291 (1978); Ambach v. Norwick, 441 U. S. 68 (1979); Cabell v. Chavez-Salido, 454 U. S. 432 (1982). These cases demonstrate that the Fourteenth Amendment does not override all principles of federalism.

Of particular relevance here is Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). The question in that case was whether Congress, in passing a section of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6010 (1982 ed.), intended to place an obligation on the States to provide certain kinds of treatment to the disabled. Respondent Halderman argued that Congress passed § 6010 pursuant to § 5 of the Fourteenth Amendment, and therefore that it was mandatory on the States, regardless of whether they received federal funds. Petitioner and the United States, as respondent, argued that, in passing § 6010, Congress acted pursuant to its spending power alone. Consequently, § 6010 applied only to States accepting federal funds under the Act.

The Court was required to consider the "appropriate test for determining when Congress intends to enforce" the guarantees of the Fourteenth Amendment. 451 U. S., at 16. We adopted a rule fully cognizant of the traditional power of the States: "Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment." Ibid. Because Congress nowhere stated its intent to impose mandatory obligations on the States under its § 5 powers, we concluded that Congress did not do so. Ibid.

[470] The Pennhurst rule looks much like the plain statement rule we apply today. In EEOC v. Wyoming, the Court explained that Pennhurst established a rule of statutory construction to be applied where statutory intent is ambiguous. 460 U. S., at 244, n. 18. In light of the ADEA's clear exclusion of most important public officials, it is at least ambiguous whether Congress intended that appointed judges nonetheless be included. In the face of such ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its Commerce Clause powers or § 5 of the Fourteenth Amendment.

III

Petitioners argue that, even if they are not covered by the ADEA, the Missouri Constitution's mandatory retirement provision for judges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Petitioners contend that there is no rational basis for the decision of the people of Missouri to preclude those aged 70 and over from serving as their judges. They claim that the mandatory retirement provision makes two irrational distinctions: between judges who have reached age 70 and younger judges, and between judges 70 and over and other state employees of the same age who are not subject to mandatory retirement.

Petitioners are correct to assert their challenge at the level of rational basis. This Court has said repeatedly that age is not a suspect classification under the Equal Protection Clause. See Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 313-314 (1976); Vance v. Bradley, 440 U. S. 93, 97 (1979); Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441 (1985). Nor do petitioners claim that they have a fundamental interest in serving as judges. The State need therefore assert only a rational basis for its age classification. See Murgia, supra, at 314; Bradley, 440 U. S., at 97. In cases where a classification burdens neither a suspect [471] group nor a fundamental interest, "courts are quite reluctant to overturn governmental action on the ground that it denies equal protection of the laws." Ibid. In this case, we are dealing not merely with government action, but with a state constitutional provision approved by the people of Missouri as a whole. This constitutional provision reflects both the considered judgment of the state legislature that proposed it and that of the citizens of Missouri who voted for it. See 1976 Mo. Laws 812 (proposing the mandatory retirement provision of § 26); Mo. Const., Art. XII, §§ 2(a), 2(b) (describing the amendment process). "[W]e will not overturn such a [law] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people's] actions were irrational." Bradley, supra, at 97. See also Pennell v. San Jose, 485 U. S. 1, 14 (1988).

Governor Ashcroft cites O'Neil v. Baine, 568 S. W. 2d 761 (Mo. 1978) (en banc), as a fruitful source of rational bases. In O'Neil, the Missouri Supreme Court — to whom Missouri Constitution Article V, § 26, applies — considered an equal protection challenge to a state statute that established a mandatory retirement age of 70 for state magistrate and probate judges. The court upheld the statute, declaring numerous legitimate state objectives it served: "The statute draws a line at a certain age which attempts to uphold the high competency for judicial posts and which fulfills a societal demand for the highest caliber of judges in the system"; "the statute... draws a legitimate line to avoid the tedious and often perplexing decisions to determine which judges after a certain age are physically and mentally qualified and those who are not"; "mandatory retirement increases the opportunity for qualified persons... to share in the judiciary and permits an orderly attrition through retirement"; "such a mandatory provision also assures predictability and ease in establishing and administering judges' pension plans." Id., at 766-767. Any one of these explanations is sufficient to rebut the claim [472] that "the varying treatment of different groups or persons [in § 26] is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [people's] actions were irrational." Bradley, supra, at 97.

The people of Missouri have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. See Bradley, supra, at 111-112; Murgia, supra, at 315. The people may therefore wish to replace some older judges. Voluntary retirement will not always be sufficient. Nor may impeachment — with its public humiliation and elaborate procedural machinery — serve acceptably the goal of a fully functioning judiciary. See Mo. Const., Art. VII, §§ 1-3.

The election process may also be inadequate. Whereas the electorate would be expected to discover if their governor or state legislator were not performing adequately and vote the official out of office, the same may not be true of judges. Most voters never observe state judges in action, nor read judicial opinions. State judges also serve longer terms of office than other public officials, making them — deliberately — less dependent on the will of the people. Compare Mo. Const., Art. V, § 19 (Supreme Court justices and Court of Appeals judges serve 12-year terms; Circuit Court judges 6 years), with Mo. Const., Art. IV, § 17 (Governor, Lieutenant Governor, secretary of state, state treasurer, and attorney general serve 4-year terms) and Mo. Const., Art. III, § 11 (state representatives serve 2-year terms; state senators 4 years). Most of these judges do not run in ordinary elections. See Mo. Const., Art. V, § 25(a). The people of Missouri rationally could conclude that retention elections — in which state judges run unopposed at relatively long intervals — do not serve as an adequate check on judges whose performance is deficient. Mandatory retirement is a reasonable response to this dilemma.

[473] This is also a rational explanation for the fact that state judges are subject to a mandatory retirement provision, while other state officials —whose performance is subject to greater public scrutiny, and who are subject to more standard elections — are not. Judges' general lack of accountability explains also the distinction between judges and other state employees, in whom a deterioration in performance is more readily discernible and who are more easily removed.

The Missouri mandatory retirement provision, like all legal classifications, is founded on a generalization. It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all. But a State "`does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.'" Murgia, 427 U. S., at 316, quoting Dandridge v. Williams, 397 U. S. 471, 485 (1970). "In an equal protection case of this type ... those challenging the . . . judgment [of the people] must convince the court that the ... facts on which the classification is apparently based could not reasonably be conceived to be true by the ... decisionmaker." Bradley, 440 U. S., at 111. The people of Missouri rationally could conclude that the threat of deterioration at age 70 is sufficiently great, and the alternatives for removal sufficiently inadequate, that they will require all judges to step aside at age 70. This classification does not violate the Equal Protection Clause.

IV

The people of Missouri have established a qualification for those who would be their judges. It is their prerogative as citizens of a sovereign State to do so. Neither the ADEA nor the Equal Protection Clause prohibits the choice they have made. Accordingly, the judgment of the Court of Appeals is

Affirmed.

[474] JUSTICE WHITE, with whom JUSTICE STEVENS joins, concurring in part, dissenting in part, and concurring in the judgment.

I agree with the majority that neither the Age Discrimination in Employment Act of 1967 (ADEA) nor the Equal Protection Clause prohibits Missouri's mandatory retirement provision as applied to petitioners, and I therefore concur in the judgment and in Parts I and III of the majority's opinion. I cannot agree, however, with the majority's reasoning in Part II of its opinion, which ignores several areas of well-established precedent and announces a rule that is likely to prove both unwise and infeasible. That the majority's analysis in Part II is completely unnecessary to the proper resolution of this case makes it all the more remarkable.

I

In addition to petitioners' equal protection claim, we granted certiorari to decide the following question:

"Whether appointed Missouri state court judges are `appointee[s] on the policymaking level' within the meaning of the Age Discrimination in Employment Act (`ADEA'), 28 U. S. C. §§ 621-34 (1982 & Supp. V 1987), and therefore exempted from the ADEA's general prohibition of mandatory retirement and thus subject to the mandatory retirement provision of Article V, Section 26 of the Missouri Constitution." Pet. for Cert. i.

The majority, however, chooses not to resolve that issue of statutory construction. Instead, it holds that whether or not the ADEA can fairly be read to exclude state judges from its scope, "[w]e will not read the ADEA to cover state judges unless Congress has made it clear that judges are included." Ante, at 467 (emphasis in original). I cannot agree with this "plain statement" rule because it is unsupported by the decisions upon which the majority relies, contrary to our Tenth Amendment jurisprudence, and fundamentally unsound.

[475] Among other things, the ADEA makes it "unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U. S. C. § 623(a). In 1974, Congress amended the definition of "employer" in the ADEA to include "a State or political subdivision of a State." § 630(b)(2). With that amendment, "there is no doubt what the intent of Congress was: to extend the application of the ADEA to the States." EEOC v. Wyoming, 460 U. S. 226, 244, n. 18 (1983).

The dispute in this case therefore is not whether Congress has outlawed age discrimination by the States. It clearly has. The only question is whether petitioners fall within the definition of "employee" in the Act, § 630(f), which contains exceptions for elected officials and certain appointed officials. If petitioners are "employee[s]," Missouri's mandatory retirement provision clearly conflicts with the antidiscrimination provisions of the ADEA. Indeed, we have noted that the "policies and substantive provisions of the [ADEA] apply with especial force in the case of mandatory retirement provisions." Western Air Lines, Inc. v. Criswell, 472 U. S. 400, 410 (1985). Pre-emption therefore is automatic, since "state law is pre-empted to the extent that it actually conflicts with federal law." Pacific Gas & Elec. Co. v. State Energy Resources Conservation and Development Comm'n, 461 U. S. 190, 204 (1983). The majority's federalism concerns are irrelevant to such "actual conflict" pre-emption. "`The relative importance to the State of its own law is not material when there is a conflict with a valid federal law, for the Framers of our Constitution provided that the federal law must prevail.'" Fidelity Federal Say. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), quoting Free v. Bland, 369 U. S. 663, 666 (1962).

While acknowledging this principle of federal legislative supremacy, see ante, at 460, the majority nevertheless imposes [476] upon Congress a "plain statement" requirement. The majority claims to derive this requirement from the plain statement approach developed in our Eleventh Amendment cases, see, e. g., Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243 (1985), and applied two Terms ago in Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989). The issue in those cases, however, was whether Congress intended a particular statute to extend to the States at all. In Atascadero, for example, the issue was whether States could be sued under § 504 of the Rehabilitation Act of 1973, 29 U. S. C. § 794. Similarly, the issue in Will was whether States could be sued under 42 U. S. C. § 1983. In the present case, by contrast, Congress has expressly extended the coverage of the ADEA to the States and their employees. Its intention to regulate age discrimination by States is thus "unmistakably clear in the language of the statute." Atascadero, supra, at 242. See Davidson v. Board of Governors of State Colleges and Universities, 920 F. 2d 441, 443 (CA7 1990) (ADEA satisfies "clear statement" requirement). The only dispute is over the precise details of the statute's application. We have never extended the plain statement approach that far, and the majority offers no compelling reason for doing so.

The majority also relies heavily on our cases addressing the constitutionality of state exclusion of aliens from public employment. See ante, at 461-463, 468-470. In those cases, we held that although restrictions based on alienage ordinarily are subject to strict scrutiny under the Equal Protection Clause, see Graham v. Richardson, 403 U. S. 365, 372 (1971), the scrutiny will be less demanding for exclusion of aliens "from positions intimately related to the process of democratic self-government." Bernal v. Fainter, 467 U. S. 216, 220 (1984). This narrow "political-function" exception to the strict-scrutiny standard is based on the "State's historical power to exclude aliens from participation in its [477] democratic political institutions." Sugarman v. Dougall, 413 U. S. 634, 648 (1973).

It is difficult to see how the "political-function" exception supports the majority's plain statement rule. First, the exception merely reflects a determination of the scope of the rights of aliens under the Equal Protection Clause. Reduced scrutiny is appropriate for certain political functions because "the right to govern is reserved to citizens." Foley v. Connelie, 435 U. S. 291, 297 (1978); see also Sugarman, supra, at 648-649. This conclusion in no way establishes a method for interpreting rights that are statutorily created by Congress, such as the protection from age discrimination in the ADEA. Second, it is one thing to limit judicially created scrutiny, and it is quite another to fashion a restraint on Congress' legislative authority, as does the majority; the latter is both counter-majoritarian and an intrusion on a coequal branch of the Federal Government. Finally, the majority does not explicitly restrict its rule to "functions that go to the heart of representative government," 413 U. S., at 647, and may in fact be extending it much further to all "state governmental functions." See ante, at 470.

The majority's plain statement rule is not only unprecedented, it directly contravenes our decisions in Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528 (1985), and South Carolina v. Baker, 485 U. S. 505 (1988). In those cases we made it clear "that States must find their protection from congressional regulation through the national political process, not through judicially defined spheres of unregulable state activity." Id., at 512. We also rejected as "unsound in principle and unworkable in practice" any test for state immunity that requires a judicial determination of which state activities are "`traditional,'" "`integral,'" or "`necessary.'" Garcia, supra, at 546. The majority disregards those decisions in its attempt to carve out areas of state activity that will receive special protection from federal legislation.

[478] The majority's approach is also unsound because it will serve only to confuse the law. First, the majority fails to explain the scope of its rule. Is the rule limited to federal regulation of the qualifications of state officials? See ante, at 464. Or does it apply more broadly to the regulation of any "state governmental functions"? See ante, at 470. Second, the majority does not explain its requirement that Congress' intent to regulate a particular state activity be "plain to anyone reading [the federal statute]." See ante, at 467. Does that mean that it is now improper to look to the purpose or history of a federal statute in determining the scope of the statute's limitations on state activities? If so, the majority's rule is completely inconsistent with our pre-emption jurisprudence. See, e. g., Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 715 (1985) (pre-emption will be found where there is a "`clear and manifest purpose'" to displace state law) (emphasis added). The vagueness of the majority's rule undoubtedly will lead States to assert that various federal statutes no longer apply to a wide variety of state activities if Congress has not expressly referred to those activities in the statute. Congress, in turn, will be forced to draft long and detailed lists of which particular state functions it meant to regulate.

The imposition of such a burden on Congress is particularly out of place in the context of the ADEA. Congress already has stated that all "individual[s] employed by any employer" are protected by the ADEA unless they are expressly excluded by one of the exceptions in the definition of "employee." See 29 U. S. C. § 630(f). The majority, however, turns the statute on its head, holding that state judges are not protected by the ADEA because "Congress has [not] made it clear that judges are included." Ante, at 467 (emphasis in original). Cf. EEOC v. Wyoming, 460 U. S. 226 (1983), where we held that state game wardens are covered by the ADEA, even though such employees are not expressly included within the ADEA's scope.

[479] The majority asserts that its plain statement rule is helpful in avoiding a "potential constitutional problem." Ante, at 464. It is far from clear, however, why there would be a constitutional problem if the ADEA applied to state judges, in light of our decisions in Garcia and Baker, discussed above. As long as "the national political process did not operate in a defective manner, the Tenth Amendment is not implicated." Baker, supra, at 513. There is no claim in this case that the political process by which the ADEA was extended to state employees was inadequate to protect the States from being "unduly burden[ed]" by the Federal Government. See Garcia, supra, at 556. In any event, as discussed below, a straightforward analysis of the ADEA's definition of "employee" reveals that the ADEA does not apply here. Thus, even if there were potential constitutional problems in extending the ADEA to state judges, the majority's proposed plain statement rule would not be necessary to avoid them in this case. Indeed, because this case can be decided purely on the basis of statutory interpretation, the majority's announcement of its plain statement rule, which purportedly is derived from constitutional principles, violates our general practice of avoiding the unnecessary resolution of constitutional issues.

My disagreement with the majority does not end with its unwarranted announcement of the plain statement rule. Even more disturbing is its treatment of Congress' power under § 5 of the Fourteenth Amendment. See ante, at 467-470. Section 5 provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Despite that sweeping constitutional delegation of authority to Congress, the majority holds that its plain statement rule will apply with full force to legislation enacted to enforce the Fourteenth Amendment. The majority states: "In the face of . . . ambiguity, we will not attribute to Congress an intent to intrude on state governmental functions regardless of whether Congress acted pursuant to its [480] Commerce Clause powers or § 5 of the Fourteenth Amendment." Ante, at 470 (emphasis added).^[3]

The majority's failure to recognize the special status of legislation enacted pursuant to § 5 ignores that, unlike Congress' Commerce Clause power, "[w]hen Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority." Fitzpatrick v. Bitzer, 427 U. S. 445, 456 (1976). Indeed, we have held that "principles of federalism that might otherwise be an obstacle to congressional authority are necessarily overridden by the power to enforce the Civil War Amendments `by appropriate legislation.' Those Amendments were specifically designed as an expansion of federal power and an intrusion on state sovereignty." City of Rome v. United States, 446 U. S. 156, 179 (1980); see also EEOC v. Wyoming, supra, at 243, n. 18.

The majority relies upon Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), see ante, at 469-470, but that case does not support its approach. There, the Court merely stated that "we should not quickly attribute to Congress an unstated intent to act under its authority to enforce the Fourteenth Amendment." 451 U. S., at 16. In other words, the Pennhurst presumption was designed only to answer the question whether a particular piece of legislation [481] was enacted pursuant to § 5. That is very different from the majority's apparent holding that even when Congress is acting pursuant to § 5, it nevertheless must specify the precise details of its enactment.

The majority's departures from established precedent are even more disturbing when it is realized, as discussed below, that this case can be affirmed based on simple statutory construction.

II

The statute at issue in this case is the ADEA's definition of "employee," which provides:

"The term `employee' means an individual employed by any employer except that the term `employee' shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision." 29 U. S. C. § 630(f).

A parsing of that definition reveals that it excludes from the definition of "employee" (and thus the coverage of the ADEA) four types of (noncivil service) state and local employees: (1) persons elected to public office; (2) the personal staff of elected officials; (3) persons appointed by elected officials to be on the policymaking level; and (4) the immediate advisers of elected officials with respect to the constitutional or legal powers of the officials' offices.

The question before us is whether petitioners fall within the third exception. Like the Court of Appeals, see 898 F. 2d 598, 600 (CA8 1990), I assume that petitioners, who were initially appointed to their positions by the Governor of [482] Missouri, are "appointed" rather than "elected" within the meaning of the ADEA. For the reasons below, I also conclude that petitioners are "on the policymaking level."^[4]

"Policy" is defined as "a definite course or method of action selected (as by a government, institution, group, or individual) from among alternatives and in the light of given conditions to guide and usu[ally] determine present and future decisions." Webster's Third New International Dictionary 1754 (1976). Applying that definition, it is clear that the decisionmaking engaged in by common-law judges, such as petitioners, places them "on the policymaking level." In resolving disputes, although judges do not operate with unconstrained discretion, they do choose "from among alternatives" and elaborate their choices in order "to guide and ... determine present and future decisions." The quotation from Justice Holmes in the majority's opinion, see ante, at 466, is an eloquent description of the policymaking nature of the judicial function. Justice Cardozo also stated it well:

"Each [common-law judge] indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between gaps. He fills the open spaces in the law. . . . [W]ithin the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made." B. Cardozo, The Nature of the Judicial Process 113-115 (1921).

[483] Moreover, it should be remembered that the statutory exception refers to appointees "on the policymaking level," not "policymaking employees." Thus, whether or not judges actually make policy, they certainly are on the same level as policymaking officials in other branches of government and therefore are covered by the exception. The degree of responsibility vested in judges, for example, is comparable to that of other officials that have been found by the lower courts to be on the policymaking level. See, e. g., EEOC v. Reno, 758 F. 2d 581 (CA11 1985) (assistant state attorney); EEOC v. Board of Trustees of Wayne Cty. Community College, 723 F. 2d 509 (CA6 1983) (president of community college).

Petitioners argue that the "appointee[s] on the policymaking level" exception should be construed to apply "only to persons who advise or work closely with the elected official that chose the appointee." Brief for Petitioners 18. In support of that claim, petitioners point out that the exception is "sandwiched" between the "personal staff" and "immediate adviser" exceptions in § 630(f), and thus should be read as covering only similar employees.

Petitioners' premise, however, does not prove their conclusion. It is true that the placement of the "appointee" exception between the "personal staff" and "immediate adviser" exceptions suggests a similarity among the three. But the most obvious similarity is simply that each of the three sets of employees are connected in some way with elected officials: The first and third sets have a certain working relationship with elected officials, while the second is appointed by elected officials. There is no textual support for concluding that the second set must also have a close working relationship with elected officials. Indeed, such a reading would tend to make the "appointee" exception superfluous since the "personal staff" and "immediate adviser" exceptions would seem to cover most appointees who are in a close working relationship with elected officials.

[484] Petitioners seek to rely on legislative history, but it does not help their position. There is little legislative history discussing the definition of "employee" in the ADEA, so petitioners point to the legislative history of the identical definition in Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e(f). If anything, that history tends to confirm that the "appointee[s] on the policymaking level" exception was designed to exclude from the coverage of the ADEA all high-level appointments throughout state government structures, including judicial appointments.

For example, during the debates concerning the proposed extension of Title VII to the States, Senator Ervin repeatedly expressed his concern that the (unamended) definition of "employee" would be construed to reach those "persons who exercise the legislative, executive, and judicial powers of the States and political subdivisions of the States." 118 Cong. Rec. 1838 (1972) (emphasis added). Indeed, he expressly complained that "[t]here is not even an exception in the [unamended] bill to the effect that the EEOC will not have jurisdiction over ... State judges, whether they are elected or appointed to office." Id., at 1677. Also relevant is Senator Taft's comment that, in order to respond to Senator Ervin's concerns, he was willing to agree to an exception not only for elected officials, but also for "those at the top decisionmaking levels in the executive and judicial branch as well." Id., at 1838.

The definition of "employee" subsequently was modified to exclude the four categories of employees discussed above. The Conference Committee that added the "appointee[s] on the policymaking level" exception made clear the separate nature of that exception:

"It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as [485] cabinet officers, and persons with comparable responsibilities at the local level." H. R. Conf. Rep. No. 92-899, pp. 15-16 (1972) (emphasis added).

The italicized "or" in that statement indicates, contrary to petitioners' argument, that appointed officials need not be advisers to be covered by the exception. Rather, it appears that "Congress intended two categories: policymakers, who need not be advisers; and advisers, who need not be policymakers." EEOC v. Massachusetts, 858 F. 2d 52, 56 (CA1 1988). This reading is confirmed by a statement by one of the House Managers, Representative Erlenborn, who explained that "[i]n the conference, an additional qualification was added, exempting those people appointed by officials at the State and local level in policymaking positions." 118 Cong. Rec., at 7567.

In addition, the phrase "the highest levels" in the Conference Report suggests that Congress' intent was to limit the exception "down the chain of command, and not so much across agencies or departments." EEOC v. Massachusetts, 858 F. 2d, at 56. I also agree with the First Circuit's conclusion that even lower court judges fall within the exception because "each judge, as a separate and independent judicial officer, is at the very top of his particular `policymaking' chain of command, responding . . . only to a higher appellate court." Ibid.

For these reasons, I would hold that petitioners are excluded from the coverage of the ADEA because they are "appointee[s] on the policymaking level" under 29 U. S. C. § 630(f).^[5]

[486] I join Parts I and III of the Court's opinion and concur in its judgment.

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, dissenting.

I agree entirely with the cogent analysis contained in Part I of JUSTICE WHITE'S opinion, ante, at 474-481. For the reasons well stated by JUSTICE WHITE, the question we must resolve is whether appointed Missouri state judges are excluded from the general prohibition of mandatory retirement that Congress established in the federal Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §§ 621-634. I part company with JUSTICE WHITE, however, in his determination that appointed state judges fall within the narrow exclusion from ADEA coverage that Congress created for an "appointee on the policymaking level." § 630(f).

I

For two reasons, I do not accept the notion that an appointed state judge is an "appointee on the policymaking level." First, even assuming that judges may be described as policymakers in certain circumstances, the structure and legislative history of the policymaker exclusion make clear that judges are not the kind of policymakers whom Congress intended to exclude from the ADEA's broad reach. Second, [487] whether or not a plausible argument may be made for judges' being policymakers, I would defer to the EEOC's reasonable construction of the ADEA as covering appointed state judges.

A

Although it may be possible to define an appointed judge as a "policymaker" with only a dictionary as a guide,^[6] we have an obligation to construe the exclusion of an "appointee on the policymaking level" with a sensitivity to the context in which Congress placed it. In construing an undefined statutory term, this Court has adhered steadfastly to the rule that "`"`words grouped in a list should be given related meaning,'"'" Dole v. Steelworkers, 494 U. S. 26, 36 (1990), quoting Massachusetts v. Morash, 490 U. S. 107, 114-115 (1989), quoting Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 8 (1985), quoting Securities Industry Assn. v. Board of Governors, FRS, 468 U. S. 207, 218 (1984), and that "`in expounding a statute, we [are] not . . . guided by a single sentence or member of a sentence, but look to the provisions of [488] the whole law, and to its object and policy.'" Morash, 490 U. S., at 115, quoting Pilot Life Ins. Co. v. Dedeaux, 481 U. S. 41, 51 (1987). Applying these maxims of statutory construction, I conclude that an appointed state judge is not the kind of "policymaker" whom Congress intended to exclude from the protection of the ADEA.

The policymaker exclusion is placed between the exclusion of "any person chosen by such [elected] officer to be on such officer's personal staff" and the exclusion of "an immediate adviser with respect to the exercise of the constitutional or legal powers of the office." See 29 U. S. C. § 630(f). Reading the policymaker exclusion in light of the other categories of employees listed with it, I conclude that the class of "appointee[s] on the policymaking level" should be limited to those officials who share the characteristics of personal staff members and immediate advisers, i. e., those who work closely with the appointing official and are directly accountable to that official. Additionally, I agree with the reasoning of the Second Circuit in EEOC v. Vermont, 904 F. 2d 794 (1990):

"Had Congress intended to except a wide-ranging category of policymaking individuals operating wholly independently of the elected official, it would probably have placed that expansive category at the end of the series, not in the middle." Id., at 798.

Because appointed judges are not accountable to the official who appoints them and are precluded from working closely with that official once they have been appointed, they are not "appointee[s] on the policymaking level" for purposes of 29 U. S. C. § 630(f).^[7]

[489] B

The evidence of Congress' intent in enacting the policymaking exclusion supports this narrow reading. As noted by JUSTICE WHITE, ante, at 484, there is little in the legislative history of § 630(f) itself to aid our interpretive endeavor. Because Title VII of the Civil Rights Act of 1964, § 701(f), as amended, 42 U. S. C. § 2000e(f), contains language identical to that in the ADEA's policymaking exclusion, however, we accord substantial weight to the legislative history of the cognate Title VII provision in construing § 630(f). See Lorillard v. Pons, 434 U. S. 575, 584 (1978) (noting that "the prohibitions of the ADEA were derived in haec verba from Title VII"). See also Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985); Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756 (1979); EEOC v. Vermont, 904 F. 2d, at 798.

When Congress decided to amend Title VII to include States and local governments as employers, the original bill did not contain any employee exclusion. As JUSTICE WHITE notes, ante, at 484, the absence of a provision excluding certain state employees was a matter of concern for Senator Ervin, who commented that the bill, as reported, did not contain a provision "to the effect that the EEOC will not have jurisdiction over ... State judges, whether they are elected or appointed to office . . . ." 118 Cong. Rec. 1677 (1972). Because this floor comment refers to appointed judges, JUSTICE WHITE concludes that the later amendment containing the exclusion of "an appointee on the policymaking level" was drafted in response to the concerns raised by Senator Ervin and others, ante, at 484-485, and therefore should be read to include judges.

Even if the only legislative history available was the above-quoted statement of Senator Ervin and the final [490] amendment containing the policymaking exclusion, I would be reluctant to accept JUSTICE WHITE'S analysis. It would be odd to conclude that the general exclusion of those "on the policymaking level" was added in response to Senator Ervin's very specific concern about appointed judges. Surely, if Congress had desired to exclude judges — and was responding to a specific complaint that judges would be within the jurisdiction of the EEOC — it would have chosen far clearer language to accomplish this end.^[8] In any case, a more detailed look at the genesis of the policymaking exclusion seriously undermines the suggestion that it was intended to include appointed judges.

After commenting on the absence of an employee exclusion, Senator Ervin proposed the following amendment:

"[T]he term `employee' as set forth in the original act of 1964 and as modified by the pending bill shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such person to advise him in respect to the exercise of the constitutional or legal powers of his office." 118 Cong. Rec. 4483 (1972).

Noticeably absent from this proposed amendment is any reference to those on the policymaking level or to judges. Senator Williams then suggested expanding the proposed amendment to include the personal staff of the elected individual, leading Senators Williams and Ervin to engage in the following discussion about the purpose of the amendment:

[491] "Mr. WILLIAMS: . . . .

"... First, State and local governments are now included under the bill as employers. The amendment would provide, for the purposes of the bill and for the basic law, that an elected individual is not an employee and, th[e]refore, the law could not cover him. The next point is that the elected official would, in his position as an employer, not be covered and would be exempt in the employment of certain individuals.

. . . . .

". . . [B]asically the purpose of the amendment . . . [is] to exempt from coverage those who are chosen by the Governor or the mayor or the county supervisor, whatever the elected official is, and who are in a close personal relationship and an immediate relationship with him. Those who are his first line of advisers. Is that basically the purpose of the Senator's amendment?

"Mr. ERVIN: I would say to my good friend from New Jersey that that is the purpose of the amendment." Id., at 4492-4493.

Following this exchange, Senator Ervin's amendment was expanded to exclude "any person chosen by such officer to be a personal assistant." Id., at 4493. The Senate adopted these amendments, voting to exclude both personal staff members and immediate advisers from the scope of Title VII.

The policymaker exclusion appears to have arisen from Senator Javits' concern that the exclusion for advisers would sweep too broadly, including hundreds of functionaries such as "lawyers, . . . stenographers, subpena servers, researchers, and so forth." Id., at 4097. Senator Javits asked "to have overnight to check into what would be the status of that rather large group of employees," noting that he "realize[d] that . . . Senator [Ervin was] . . . seeking to confine it to the higher officials in a policymaking or policy advising capacity." [492] Ibid. In an effort to clarify his point, Senator Javits later stated:

"The other thing, the immediate advisers, I was thinking more in terms of a cabinet, of a Governor who would call his commissioners a cabinet, or he may have a cabinet composed of three or four executive officials, or five or six, who would do the main and important things. That is what I would define those things expressly to mean." Id., at 4493.

Although Senator Ervin assured Senator Javits that the exclusion of personal staff and advisers affected only the classes of employees that Senator Javits had mentioned, ibid., the Conference Committee eventually adopted a specific exclusion of an "appointee on the policymaking level" as well as the exclusion of personal staff and immediate advisers contained in the Senate bill. In explaining the scope of the exclusion, the conferees stated:

"It is the intention of the conferees to exempt elected officials and members of their personal staffs, and persons appointed by such elected officials as advisors or to policymaking positions at the highest levels of the departments or agencies of State or local governments, such as cabinet officers, and persons with comparable responsibilities at the local level. It is the conferees['] intent that this exemption shall be construed narrowly." S. Conf. Rep. No. 92-681, pp. 15-16 (1972).

The foregoing history decisively refutes the argument that the policymaker exclusion was added in response to Senator Ervin's concern that appointed state judges would be protected by Title VII. Senator Ervin's own proposed amendment did not exclude those on the policymaking level. Indeed, Senator Ervin indicated that all of the policymakers he sought to have excluded from the coverage of Title VII were encompassed in the exclusion of personal staff and immediate advisers. It is obvious that judges are neither staff nor immediate [493] advisers of any elected official. The only indication as to whom Congress understood to be "appointee[s] on the policymaking level" is Senator Javits' reference to members of the Governor's cabinet, echoed in the Conference Committee's use of "cabinet officers" as an example of the type of appointee at the policymaking level excluded from Title VII's definition of "employee." When combined with the Conference Committee's exhortation that the exclusion be construed narrowly, this evidence indicates that Congress did not intend appointed state judges to be excluded from the reach of Title VII or the ADEA.

C

This Court has held that when a statutory term is ambiguous or undefined, a court construing the statute should defer to a reasonable interpretation of that term proffered by the agency entrusted with administering the statute. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). Thus, even were I to conclude that one might read the exclusion of an "appointee on the policymaking level" to include state judges, our precedent would compel me to accept the EEOC's contrary reading of the exclusion if it were a "permissible" interpretation of this ambiguous term. Id., at 843. This Court has recognized that "it is axiomatic that the EEOC's interpretation of Title VII, for which it has primary enforcement responsibility, need not be the best one by grammatical or any other standards. Rather, the EEOC's interpretation of ambiguous language need only be reasonable to be entitled to deference." EEOC v. Commercial Office Products Co., 486 U. S. 107, 115 (1988). The EEOC's interpretation of ADEA provisions is entitled to the same deference as its interpretation of analogous provisions in Title VII. See Oscar Mayer & Co. v. Evans, 441 U. S., at 761, citing Griggs v. Duke Power Co., 401 U. S. 424, 434 (1971).

[494] The EEOC consistently has taken the position that an appointed judge is not an "appointee on the policymaking level" within the meaning of 29 U. S. C. § 630(f). See EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); EEOC v. Massachusetts, 858 F. 2d 52 (CA1 1988); EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989). Relying on the legislative history detailed above, the EEOC has asserted that Congress intended the policymaker exclusion to include only "`an elected official's first line advisers.'" EEOC v. Massachusetts, 858 F. 2d, at 55. See also CCH EEOC Decisions (1983) ¶ 6725 (discussing the meaning of the policymaker exclusion under Title VII, and stating that policymakers "must work closely with elected officials and their advisors in developing policies that will implement the overall goals of the elected officials"). As is evident from the foregoing discussion, I believe this to be a correct reading of the statute and its history. At a minimum, it is a "permissible" reading of the indisputably ambiguous term "appointee on the policymaking level." Accordingly, I would defer to the EEOC's reasonable interpretation of this term.^[9]

[495] II

The Missouri constitutional provision mandating the retirement of a judge who reaches the age of 70 violates the ADEA and is, therefore, invalid.^[10] Congress enacted the ADEA with the express purpose "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment." 29 U. S. C. § 621. Congress provided for only limited exclusions from the coverage of the ADEA, and exhorted courts applying this law to construe such exclusions narrowly. The statute's structure and legislative history reveal that Congress did not intend an appointed state judge to be beyond the scope of the ADEA's protective reach. Further, the EEOC, which is charged with the enforcement of the ADEA, has determined that an appointed state judge is covered by the ADEA. This Court's precedent dictates that we defer to the EEOC's permissible interpretation of the ADEA.

I dissent.

[1] Cathy Ventrell-Monsees filed a brief for the American Association of Retired Persons as amicus curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Scott Harshbarger, Attorney General of Massachusetts, H. Reed Witherby, Special Assistant Attorney General, and Thomas A. Barnico, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Hubert H. Humphrey III of Minnesota, Donald Stenberg of Nebraska, Robert Del Tufo of New Jersey, Nicholas J. Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, Hector Rivera-Cruz of Puerto Rico, James E. O'Neil of Rhode Island, T. Travis Medlock of South Carolina, and Joseph B. Meyer of Wyoming; for the State of Connecticut by Richard Blumenthal, Attorney General, and Arnold B. Feigin and Daniel R. Schaefer, Assistant Attorneys General; for the State of Vermont, Office of Court Administrator, by William B. Gray; for the Missouri Bar by Karen M. Iverson and Timothy K. McNamara; for the National Governors Association et al. by Richard Ruda, Michael J. Wahoske, and Mark B. Rotenberg; and for the Washington Legal Foundation by John C. Cozad, W. Dennis Cross, R. Christopher Abele, Daniel J. Popeo, and John C. Scully.

Daniel G. Spraul filed a brief for Judge John W. Keefe as amicus curiae.

[2] JUSTICE WHITE believes that the "political function" cases are inapposite because they involve limitations on "judicially created scrutiny" rather than "Congress' legislative authority," which is at issue here. Post, at 477. He apparently suggests that Congress has greater authority to interfere with state sovereignty when acting pursuant to its Commerce Clause powers than this Court does when applying the Fourteenth Amendment. Elsewhere in his opinion, JUSTICE WHITE emphasizes that the Fourteenth Amendment was designed as an intrusion on state sovereignty. See post, at 480. That being the case, our diminished scrutiny of state laws in the "political function" cases, brought under the Fourteenth Amendment, argues strongly for special care when interpreting alleged congressional intrusions into state sovereignty under the Commerce Clause.

[3] In EEOC v. Wyoming, 460 U. S. 226 (1983), we held that the extension of the ADEA to the States was a valid exercise of congressional power under the Commerce Clause. We left open, however, the issue whether it was also a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. Cf. Fitzpatrick v. Bitzer, 427 U. S. 445, 453, n. 9 (1976) (extension of Title VII of Civil Rights Act of 1964 to States was pursuant to Congress' § 5 power). Although we need not resolve the issue in this case, I note that at least two Courts of Appeals have held that the ADEA was enacted pursuant to Congress' § 5 power. See Heiar v. Crawford County, 746 F. 2d 1190, 1193-1194 (CA7 1984); Ramirez v. Puerto Rico Fire Service, 715 F. 2d 694, 700 (CA1 1983).

[4] Most of the lower courts that have addressed the issue have concluded that appointed state judges fall within the "appointee[s] on the policymaking level" exception. See 898 F. 2d 598 (CA8 1990) (case below); EEOC v. Massachusetts, 858 F. 2d 52 (CA1 1988); Sabo v. Casey, 757 F. Supp. 587 (ED Pa. 1991); In re Stout, 521 Pa. 571, 559 A. 2d 489 (1989); see also EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989). But see EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); Schlitz v. Virginia, 681 F. Supp. 330 (ED Va.), rev'd on other grounds, 854 F. 2d 43 (CA4 1988).

[5] The dissent argues that we should defer to the EEOC's view regarding the scope of the "policymaking level" exception. See post, at 493-494. I disagree. The EEOC's position is not embodied in any formal issuance from the agency, such as a regulation, guideline, policy statement, or administrative adjudication. Instead, it is merely the EEOC's litigating position in recent lawsuits. Accordingly, it is entitled to little if any deference. See, e. g., Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212-213 (1988); St. Agnes Hospital v. Sullivan, 284 U. S. App. D. C. 396, 401, 905 F. 2d 1563, 1568 (1990). Although the dissent does cite to an EEOC decision involving the policymaking exception in Title VII, see post, at 494, that decision did not state, even in dicta, that the exception is limited to those who work closely with elected officials. Rather, it merely stated that the exception applies to officials "on the highest levels of state or local government." CCH EEOC Decisions (1983) ¶ 6725. In any event, the EEOC's position is, for the reasons discussed above, inconsistent with the plain language of the statute at issue. "[N]o deference is due to agency interpretations at odds with the plain language of the statute itself." Public Employees Retirement System of Ohio v. Betts, 492 U. S. 158, 171 (1989).

[6] JUSTICE WHITE finds the dictionary definition of "policymaker" broad enough to include the Missouri judges involved in this case, because judges resolve disputes by choosing "`from among alternatives' and elaborate their choices in order `to guide and . . . determine present and future decisions.'" Ante, at 482. See also 898 F. 2d 598, 601 (CA8 1990) (case below), quoting EEOC v. Massachusetts, 858 F. 2d 52, 55 (CA1 1988). I hesitate to classify judges as policymakers, even at this level of abstraction. Although some part of a judge's task may be to fill in the interstices of legislative enactments, the primary task of a judicial officer is to apply rules reflecting the policy choices made by, or on behalf of, those elected to legislative and executive positions. A judge is first and foremost one who resolves disputes, and not one charged with the duty to fashion broad policies establishing the rights and duties of citizens. That task is reserved primarily for legislators. See EEOC v. Vermont, 904 F. 2d 794, 800-801 (CA2 1990).

Nor am I persuaded that judges should be considered policymakers because they sometimes fashion court rules and are otherwise involved in the administration of the state judiciary. See In re Stout, 521 Pa. 571, 583-586, 559 A. 2d 489, 495-497 (1989). These housekeeping tasks are at most ancillary to a judge's primary function described above.

[7] I disagree with JUSTICE WHITE'S suggestion that this reading of the policymaking exclusion renders it superfluous. Ante, at 483. There exist policymakers who work closely with an appointing official but who are appropriately classified as neither members of his "personal staff" nor "immediate adviser[s] with respect to the exercise of the constitutional or legal powers of the office." Among others, certain members of the Governor's Cabinet and high level state agency officials well might be covered by the policymaking exclusion, as I construe it.

[8] The majority acknowledges this anomaly by noting that "`appointee [on] the policymaking level,' particularly in the context of the other exceptions that surround it, is an odd way for Congress to exclude judges; a plain statement that judges are not `employees' would seem the most efficient phrasing." Ante, at 467. The majority dismisses this objection not by refuting it, but by noting that "we are not looking for a plain statement that judges are excluded." Ibid. For the reasons noted in Part I of JUSTICE WHITE'S opinion, this reasoning is faulty; appointed judges are covered unless they fall within the enumerated exclusions.

[9] Relying on Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), JUSTICE WHITE would conclude that the EEOC's view of the scope of the policymaking exclusion is entitled to "little if any deference" because it is "merely the EEOC's litigating position in recent lawsuits." Ante, at 485, n. 3. This case is distinguishable from Bowen, however, in two important respects. First, unlike in Bowen, where the Court declined to defer "to agency litigating positions that are wholly unsupported by regulations, rulings, or administrative practice," 488 U. S., at 212, the EEOC here has issued an administrative ruling construing Title VII's cognate policymaking exclusion that is entirely consistent with the agency's subsequent "litigation position" that appointed judges are not the kind of officials on the policymaking level whom Congress intended to exclude from ADEA coverage. See CCH EEOC Decisions (1983) ¶ 6725. Second, the Court in Bowen emphasized that the agency had failed to offer "a reasoned and consistent view of the scope of" the relevant statute and had proffered an interpretation of the statute that was "contrary to the narrow view of that provision advocated in past cases." See 488 U. S., at 212-213. In contrast, however, the EEOC never has wavered from its view that the policymaking exclusion does not apply to appointed judges. Thus, this simply is not a case in which a court is asked to defer to "nothing more than an agency's convenient litigating position." Id., at 213. For all the reasons that deference was inappropriate in Bowen, it is appropriate here.

[10] Because I conclude that the challenged Missouri constitutional provision violates the ADEA, I need not consider petitioners' alternative argument that the mandatory retirement provision violates the Fourteenth Amendment to the United States Constitution. See Carnival Cruise Lines, Inc. v. Shute, 499 U. S. 585, 589-590 (1991).

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

[491] Solicitor General McCree argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, John S. Irving, Carl L. Taylor, Norton J. Come, and Carol A. De Deo.

Don H. Reuben argued the cause for respondents. With him on the brief were Lawrence Gunnels, James A. Serritella, James A. Klenk, and Jerome J. O'Dowd.^[*]

Briefs of amici curiae urging affirmance were filed by Leo Pfeffer and Earl W. Trent, Jr., for the Baptist Joint Committee on Public Affairs; by Thomas Stephen Neuberger for the Center for Law and Religious Freedom of the Christian Legal Society; by Warren L. Johns, Walter E. Carson, Lee Boothby, and Robert J. Hickey for the General Conference of Seventh-Day Adventists; and by David Goldberger and Barbara P. O'Toole for the Roger Baldwin Foundation of the American Civil Liberties Union, Inc., Illinois Division.

Briefs of amici curiae were filed by Lawrence A. Poltrock and Bruce E. Endy for the American Federation of Teachers (AFL-CIO); by Sharp Whitmore for certain Catholic High Schools in the Archdiocese of Los Angeles and the Diocese of Orange; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This case arises out of the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high schools. We granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses of the First Amendment? 434 U. S. 1061 (1978).

[492] I

One group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South.^[1] Those schools are termed "minor seminaries" because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley schools. In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary schools. The Quigley schools also offer essentially the same college-preparatory curriculum as public secondary schools. Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization.^[2]

The Diocese of Fort Wayne-South Bend, Inc., has five high schools.^[3] Unlike the Quigley schools, the special recommendation [493] of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State.^[4]

In 1974 and 1975, separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers.^[5] The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board's discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board's jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B. 249 (1975). There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations "only when they are completely religious, not just religiously associated." Id., at 250. Because neither group of schools was found to fall within the Board's "completely religious" category, the Board ordered elections. Catholic Bishop of Chicago, 220 N. L. R. B. 359 (1975).^[6]

[494] In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under §§ 8 (a) (1) and (5) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a) (1) and (5). The schools opposed the General Counsel's motion for summary judgment, again challenging the Board's exercise of jurisdiction over religious schools on both statutory and constitutional grounds.

The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these schools.^[7] The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic [495] Bishop of Chicago, 224 N. L. R. B. 1221 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 N. L. R. B. 1226 (1976).

II

The schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders. 559 F. 2d 1112 (1977).^[8] The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion:

"We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where `completely religious' takes over or, on the other hand, ceases. In our opinion the dichotomous `completely religious—merely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e. g., [Wisconsin v.] Yoder, . . . 406 U. S. 205 [(1972)]." Id., at 1118.

The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated [496] schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that from the initial act of certifying a union as the bargaining agent for lay teachers the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way:

"At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an `integral part of the religious mission of the Catholic Church,' Lemon [v. Kurtzman, 403 U. S. 602], 616 [(1971)], courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature." Ibid.

The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not "have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned." Id., at 1124. The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment. "The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops' control of the religious mission of the schools." Ibid.

[497] III

The Board's assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951 the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N. L. R. B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N. L. R. B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary schools. Shattuck School, 189 N. L. R. B. 886 (1971). See also Judson School, 209 N. L. R. B. 677 (1974). The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. 29 CFR § 103.1 (1978). See, e. g., Academia San Jorge, 234 N. L. R. B. 1181 (1978) (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N. L. R. B. 457, 200 N. L. R. B. 991 (1972) (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts).

That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated schools. Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer's minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N. L. R. B. 1053 (1974), the Board did not assert jurisdiction over the Association which offered [498] courses in Jewish culture in after-school classes, a nursery school, and a college. The Board termed the Association an "isolated instance of [an] atypical employer." Id., at 1058-1059. It explained: "Whether an employer falls within a given `class' of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character. . . . [T]he fact that an employer's activity. . . is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction." Id., at 1058. Cf. Board of Jewish Education of Greater Washington, D. C., 210 N. L. R. B. 1037 (1974). In the same year the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high schools. Henry M. Hald High School Assn., 213 N. L. R. B. 415 (1974). It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board's view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. Id., at 418 n. 7.^[9]

When it ordered an election for the lay professional employees at five parochial high schools in Baltimore in 1975, the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment:

"[T]he Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with [499] their religious tenets." Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B., at 250.

The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218, 1218 (1976): "Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain [the Act's] objective." (Emphasis added.)

The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated schools. Implicit in the Board's distinction between schools that are "completely religious" and those "religiously associated" is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school's involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses and hence preclude jurisdiction on constitutional grounds.

IV

That there are constitutional limitations on the Board's actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment.

[500] Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated schools. In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes.

In Machinists v. Street, 367 U. S. 740 (1961), for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding "serious doubt of [the Act's] constitutionality." Id., at 749.

Similarly in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), a case involving the Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which in turn would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving "public questions particularly high in the scale of our national interest." Id., at 17. Because of those questions the Court held that before sanctioning the Board's exercise of jurisdiction " `there must be present the affirmative intention of the Congress clearly expressed.' " Id., at 21-22 (quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 147 (1957)).

[501] The values enshrined in the First Amendment plainly rank high "in the scale of our national values." In keeping with the Court's prudential policy it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act grants jurisdiction.

V

In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U. S. 602, 617 (1971), is true of the schools in this case: "Religious authority necessarily pervades the school system." The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra, at 617, we wrote:

"In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation." (Emphasis added.)

Only recently we again noted the importance of the teacher's function in a church school: "Whether the subject is `remedial reading,' `advanced reading,' or simply `reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists." Meek v. Pittenger, 421 U. S. 349, 370 (1975). Cf. [502] Wolman v. Walter, 433 U. S. 229, 244 (1977). Good intentions by government—or third parties—can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman.

The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.

Moreover, it is already clear that the Board's actions will go beyond resolving factual issues. The Court of Appeals' opinion refers to charges of unfair labor practices filed against religious schools. 559 F. 2d, at 1125, 1126. The court observed that in those cases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.^[10]

The Board's exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are "terms and conditions of [503] employment" and therefore mandatory subjects of bargaining. See 29 U. S. C. § 158 (d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that "nearly everything that goes on in the schools affects teachers and is therefore arguably a `condition of employment.' " Springfield Education Assn. v. Springfield School Dist. No. 19, 24 Ore. App. 751, 759, 547 P. 2d 647, 650 (1976).

The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the "introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management." Pennsylvania Labor Relations Board v. State College Area School Dist., 461 Pa. 494, 504, 337 A. 2d 262, 267 (1975). Cf. Clark County School Dist. v. Local Government Employee-Management Relations Board, 90 Nev. 442, 447, 530 P. 2d 114, 117-118 (1974). See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon, supra, at 616, applies as well here:

"[P]arochial schools involve substantial religious activity and purpose.

"The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid." (Footnote omitted.)

Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting "the admitted and obvious fact that the raison d'êetre of parochial schools is the propagation of a religious faith." 403 U.S., at 628.

[504] The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents.

VI

There is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board's jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools.

In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e. g., 79 Cong. Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, pp. 2341-2343 (1949).

Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of [505] employer-employee relations not covered by the Act. S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History, supra, at 2307.

Congress' next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947—the Taft-Hartley Act. In that Act Congress amended the definition of "employer" in § 2 of the original Act to exclude nonprofit hospitals. 61 Stat. 137, 29 U. S. C. § 152 (2) (1970 ed.). There was some discussion of the scope of the Board's jurisdiction but the consensus was that nonprofit institutions in general did not fall within the Board's jurisdiction because they did not affect commerce. See H. R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg. Hist.); H. R. Rep. No. 245, 80th Cong., 1st Sess., 12 (1947), 1 Leg. Hist. 303; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg. Hist. 507, 536; 93 Cong. Rec. 4997 (1947), 2 Leg. Hist. 1464 (remarks of Sens. Tydings and Taft).^[11]

The most recent significant amendment to the Act was passed in 1974, removing the exemption of nonprofit hospitals. Pub. L. 93-360, 88 Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board's exercise of jurisdiction over church-operated schools. A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board's jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated [506] school until after the 1974 amendment, nothing in the history of the amendment can be read as reflecting Congress' tacit approval of the Board's action.

During the debate there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong. Rec. 12946, 16914 (1974), Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, 93d Cong., 2d Sess., 118, 331-332 (1974) (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees:

"Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501 (c) (3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee." 29 U. S. C. § 169.

The absence of an "affirmative intention of the Congress clearly expressed" fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers.

The Board relies heavily upon Associated Press v. NLRB, [507] 301 U. S. 103 (1937). There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Id., at 131-132. Here, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses.

Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.

Affirmed.

APPENDIX TO OPINION OF THE COURT

Q. [by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know?

A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that?

Q. I believe you defined it before, is that correct, when you first testified?

A. I am not sure. Let me try briefly to do it again, okay?

Q. Yes.

A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman [508] Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer.

Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these—and there is a big spectrum in between those two extremes—all of these are popularly referred to as liturgies.

Q. I see.

A. Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately.

Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools?

A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join, dissenting.

The Court today holds that coverage of the National Labor Relations Act does not extend to lay teachers employed by church-operated schools. That construction is plainly wrong in light of the Act's language, its legislative history, and this Court's precedents. It is justified solely on the basis of a canon of statutory construction seemingly invented by the Court for the purpose of deciding this case. I dissent.

I

The general principle of construing statutes to avoid unnecessary constitutional decisions is a well-settled and salutary [509] one. The governing canon, however, is not that expressed by the Court today. The Court requires that there be a "clear expression of an affirmative intention of Congress" before it will bring within the coverage of a broadly worded regulatory statute certain persons whose coverage might raise constitutional questions. Ante, at 504. But those familiar with the legislative process know that explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace. Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments. This flouts Mr. Chief Justice Taft's admonition "that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save [a] law from conflict with constitutional limitation." Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 (1926). See Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964); Jay v. Boyd, 351 U. S. 345, 357 n. 21 (1956); Shapiro v. United States, 335 U. S. 1, 31, and n. 40 (1948); United States v. Sullivan, 332 U. S. 689, 693 (1948); Hopkins Savings Assn. v. Cleary, 296 U. S. 315, 335 (1935).^[12]

[510] The settled canon for construing statutes wherein constitutional questions may lurk was stated in Machinists v. Street, 367 U. S. 740 (1961), cited by the Court, ante, at 500:

" `When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U. S. 22, 62." Id., at 749-750 (emphasis added).^[13]

Accord, Pernell v. Southall Realty, 416 U. S. 363, 365 (1974); Johnson v. Robison, 415 U. S. 361, 367 (1974); Curtis v. Loether, 415 U. S. 189, 192 n. 6 (1974); Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring); Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933). This limitation to constructions that are "fairly possible," and "reasonable," see Yu Cong Eng v. Trinidad, supra, at 518, acts as a [511] brake against wholesale judicial dismemberment of congressional enactments. It confines the judiciary to its proper role in construing statutes, which is to interpret them so as to give effect to congressional intention. The Court's new "affirmative expression" rule releases that brake.

II

The interpretation of the National Labor Relations Act announced by the Court today is not "fairly possible." The Act's wording, its legislative history, and the Court's own precedents leave "the intention of the Congress . . . revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Moore Ice Cream Co. v. Rose, supra, at 379. Section 2 (2) of the Act, 29 U. S. C. § 152 (2), defines "employer" as

". . . any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization." (Emphasis added.)

Thus, the Act covers all employers not within the eight express exceptions. The Court today substitutes amendment for construction to insert one more exception—for church-operated schools. This is a particularly transparent violation of the judicial role: The legislative history reveals that Congress itself considered and rejected a very similar amendment.

The pertinent legislative history of the NLRA begins with the Wagner Act of 1935, 49 Stat. 449. Section 2 (2) of that Act, identical in all relevant respects to the current section, excluded from its coverage neither church-operated schools [512] nor any other private nonprofit organization.^[14] Accordingly, in applying that Act, the National Labor Relations Board did not recognize an exception for nonprofit employers, even when religiously associated.^[15] An argument for an implied nonprofit exemption was rejected because the design of the Act was as clear then as it is now: "[N]either charitable institutions nor their employees are exempted from operation of the Act by its terms, although certain other employers and employees are exempted." Central Dispensary & Emergency Hospital, 44 N. L. R. B. 533, 540 (1942) (footnotes omitted), enf'd, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944). Both the lower courts and this Court concurred in the Board's construction. See Polish National Alliance v. NLRB, 322 U. S. 643 (1944), aff'g 136 F. 2d 175 (CA7 1943); Associated Press v. NLRB, 301 U. S. 103 (1937), aff'g 85 F. 2d 56 (CA2 1936); NLRB v. Central Dispensary & Emergency Hospital, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944).

The Hartley bill, which passed the House of Representatives [513] in 1947, would have provided the exception the Court today writes into the statute:

"The term `employer' . . . shall not include . . . any corporation, community chest, fund, or foundation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, . . . no part of the net earnings of which inures to the benefit of any private shareholder or individual. . . ." (Emphasis added.) H. R. 3020, 80th Cong., 1st Sess., § 2 (2) (Apr. 18, 1947), reprinted in National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, pp. 160-161 (hereinafter, 1947 Leg. Hist.).

But the proposed exception was not enacted.^[16] The bill reported by the Senate Committee on Labor and Public Welfare did not contain the Hartley exception. See S. 1126, 80th Cong., 1st Sess., § 2 (2) (Apr. 17, 1947), 1947 Leg. Hist. 99, 102. Instead, the Senate proposed an exception limited to nonprofit hospitals, and passed the bill in that form. See H. R. 3020, 80th Cong., 1st Sess., § 2 (2) (Senate, May 13, 1947), 1947 Leg. Hist. 226, 229. The Senate version was accepted by the House in conference, thus limiting the exception [514] for nonprofit employers to nonprofit hospitals. Ch. 120, 61 Stat. 136.^[17]

Even that limited exemption was ultimately repealed in 1974. Pub. L. 93-360, 88 Stat. 395. In doing so, Congress confirmed the view of the Act expressed here: that it was intended to cover all employers—including nonprofit employers— unless expressly excluded, and that the 1947 amendment excluded only nonprofit hospitals. See H. R. Rep. No. 93-1051, [515] p. 4 (1974), reprinted in Senate Committee on Labor and Public Welfare, Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, p. 272 (Comm. Print 1974) (hereafter 1974 Leg. Hist.); 120 Cong. Rec. 12938 (1974), 1974 Leg. Hist. 95 (Sen. Williams); 120 Cong. Rec. 16900 (1974), 1974 Leg. Hist. 291 (Rep. Ashbrook).^[18] Moreover, it is significant that in considering the 1974 amendments, the Senate expressly rejected an amendment proposed by Senator Ervin that was analogous to the one the Court today creates—an amendment to exempt nonprofit hospitals operated by religious groups. 120 Cong. Rec. 12950, 12968 (1974), 1974 Leg. Hist. 119, 141. Senator Cranston, floor manager of the Senate Committee bill and primary opponent of the proposed religious exception, explained:

"[S]uch an exception for religiously affiliated hospitals would seriously erode the existing national policy which holds religiously affiliated institutions generally such as proprietary nursing homes, residential communities, and educational facilities to the same standards as their nonsectarian counterparts." 120 Cong. Rec. 12957 (1974), 1974 Leg. Hist. 137 (emphasis added).

[516] See also ibid. (Sen. Javits); 120 Cong. Rec. 12957 (1974), 1974 Leg. Hist. 138 (Sen. Williams).^[19]

In construing the Board's jurisdiction to exclude church-operated schools, therefore, the Court today is faithful to neither the statute's language nor its history. Moreover, it is also untrue to its own precedents. "This Court has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause. See, e. g., Guss v. Utah Labor Board, 353 U. S. 1, 3; Polish Alliance v. Labor Board, 322 U. S. 643, 647-648; Labor Board v. Fainblatt, 306 U. S. 601, 607." NLRB v. Reliance Fuel Oil Corp., 371 U. S. 224, 226 (1963) (emphasis in original). As long as an employer is within the reach of Congress' power under the Commerce Clause—and no one doubts that respondents are—the Court has held him to be covered by the Act regardless of the nature of his activity. See, e. g., Polish National Alliance v. NLRB, 322 U. S. 643 (1944) (nonprofit fraternal organization). Indeed, Associated Press v. NLRB, 301 U. S. 103 (1937), construed the Act to [517] cover editorial employees of a nonprofit news-gathering organization despite a claim—precisely parallel to that made here—that their inclusion rendered the Act in violation of the First Amendment.^[20] Today's opinion is simply unable to explain the grounds that distinguish that case from this one.^[21]

Thus, the available authority indicates that Congress intended to include—not exclude—lay teachers of church-operated schools. The Court does not counter this with evidence that Congress did intend an exception it never stated. Instead, despite the legislative history to the contrary, it construes the Act as excluding lay teachers only because Congress did not state explicitly that they were covered. In Mr. Justice Cardozo's words, this presses "avoidance of a [518] difficulty . . . to the point of disingenuous evasion." Moore Ice Cream Co. v. Rose, 289 U. S., at 379.^[22]

III

Under my view that the NLRA includes within its coverage lay teachers employed by church-operated schools, the constitutional questions presented would have to be reached. I do not now do so only because the Court does not. See Sierra Club v. Morton, 405 U. S. 727, 755 (1972) (BRENNAN, J., dissenting). I repeat for emphasis, however, that while the resolution of the constitutional question is not without difficulty, it is irresponsible to avoid it by a cavalier exercise in statutory interpretation which succeeds only in defying congressional intent. A statute is not "a nose of wax to be changed from that which the plain language imports . . . ." Yu Cong Eng v. Trinidad, 271 U. S., at 518.

----------

[*] J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

[1] The Catholic Bishop operates other schools in the Chicago area, but they were not involved in the proceedings before the Board.

[2] As explained to the Board's Hearing Officer, in Illinois the term "approval" is distinct from "recognition." Before a school may operate, it must be approved by the State's Department of Education. Approval is given when a school meets the minimal requirements under state law, such as for compulsory attendance; approval does not require any evaluation of the school's program. Recognition, which is not required to operate, is given only after the school has passed the State's evaluation.

[3] The Diocese also has 47 elementary schools. They were not involved in the proceedings before the Board.

[4] As explained to the Board's Hearing Officer, "certification" by the State of Indiana is roughly equivalent to "recognition" by the State of Illinois. Both are voluntary procedures which involve some evaluation by the state educational authorities.

[5] The certification and order cover only "all full-time and regular part-time lay teachers, including physical education teachers . . .; and excluding rectors, procurators, dean of studies, business manager, director of student activities, director of formation, director of counseling services, office clerical employees, maintenance employees, cafeteria workers, watchmen, librarians, nurses, all religious faculty, and all guards and supervisors as defined in the Act . . . ." Catholic Bishop of Chicago, 220 N. L. R. B. 359, 360 (1975).

[6] The decision concerning the Diocese of Fort Wayne-South Bend, Inc., is not reported.

[7] The Board relied on its reasoning in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218 (1976): "We also do not agree that the schools are religious institutions intimately involved with the Catholic Church. It has heretofore been the Board's policy to decline jurisdiction over institutions only when they are completely religious, not just religiously associated. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975). The schools perform in part the secular function of educating children, and in part concern themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis." 223 N. L. R. B., at 1218.

[8] Cf. Caulfield v. Hirsch, 95 LRRM 3164 (ED Pa. 1977) (enjoining Board from asserting jurisdiction over elementary schools in Archdiocese of Philadelphia). This case is presently under review by the Court of Appeals for the Third Circuit. See App. to Pet. for Cert. in Caulfield v. Hirsch, O. T. 1977, No. 77-1411, p. A76, cert. denied, 436 U. S. 957 (1978).

[9] The Board went on to explain that the rights guaranteed by § 7 of the Act, 29 U. S. C. § 157, were "a part of our national heritage established by Congress, [and] were a legitimate exercise of Congress' constitutional power." 213 N. L. R. B., at 418 n. 7.

[10] This kind of inquiry and its sensitivity are illustrated in the examination of Monsignor O'Donnell, the Rector of Quigley North, by the Board's Hearing Officer, which is reproduced in the appendix to this opinion.

[11] The National Labor Relations Act was amended again when Congress passed the Labor-Management Reporting and Disclosure Act in 1959. 73 Stat. 519. That Act made no changes in the definition of "employer" and the legislative history contains no reference to church-operated schools. See generally National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959).

[12] The Court's new canon derives from the statement, " `there must be present the affirmative intention of the Congress clearly expressed,' " in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 21-22 (1963). Reliance upon that case here is clearly misplaced. The question in McCulloch was whether the National Labor Relations Act. extended to foreign seamen working aboard foreign-flag vessels. No question as to the constitutional power of Congress to cover foreign crews was presented. Indeed, all parties agreed that Congress was constitutionally empowered to reach the foreign seamen involved while they were in American waters. Id.,at 17. The only question was whether Congress had intended to do so.

The McCulloch Court held that Congress had not meant to reach disputes between foreign shipowners and their foreign crews. McCulloch, however, did not turn simply upon an absence of affirmative evidence that Congress wanted to reach alien seamen, but rather upon the fact, as a prior case had already held, that the legislative history " `inescapably describe[d] the boundaries of the Act as including only the workingmen of our own country and its possessions,' " Id., at 18, quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 144 (1957). The Court also noted that under well-established rules of international law, "the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, [120 U. S. 1,] 12." 372 U. S., at 21. In light of that contrary legislative history and domestic and international precedent, it is not at all surprising that McCulloch balked at holding foreign seamen covered without a strong affirmative showing of congressional intent. As the Court today admits, there is no such contrary legislative history or precedent with respect to jurisdiction over church-operated schools. Ante, at 504. The McCulloch statement, therefore, has no role to play in this case.

[13] In Street, the Court construed the Railway Labor Act as not permitting the use of an employee's compulsorily checked-off union dues for political causes with which he disagreed. As in McCulloch, see n. 1, supra, it so held not because of an absence of affirmative evidence that Congress did mean to permit such uses, but rather because the language and history of the Act indicated affirmatively that Congress did not mean to permit such constitutionally questionable practices. See 367 U. S., at 765-770.

[14] Section 2 (2), 49 Stat. 450, stated:

"The term `employer' includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."

[15] See Christian Board of Publication, 13 N. L. R. B. 534, 537 (1939), enf'd, 113 F. 2d 678 (CA8 1940); American Medical Assn., 39 N. L. R. B. 385, 386 (1942); Central Dispensary & Emergency Hospital, 44 N. L. R. B. 533, 539 (1942), enf'd, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944); Henry Ford Trade School, 58 N. L. R. B. 1535, 1536 (1944); Polish National Alliance, 42 N. L. R. B. 1375, 1380 (1942), enf'd, 136 F. 2d 175 (CA7 1943), aff'd, 322 U. S. 643 (1944); Associated Press, 1 N. L. R. B. 788, 790, enf'd, 85 F. 2d 56 (CA2 1936), aff'd, 301 U. S. 103 (1937). In unpublished decisions, the Board also exercised jurisdiction over the YWCA and the Welfare & Recreational Association. See Central Dispensary & Emergency Hospital, 44 N. L. R. B., at 538 n. 8.

[16] A number of reasons were offered for the rejection of the Hartley bill's exception. Some Congressmen strongly opposed the exception, see 93 Cong. Rec. 3446 (1947) (remarks of Rep. Klein); some were opposed to additional exceptions to the Board's jurisdiction, see id., at 4997 (remarks of Sen. Taft); and some thought it unnecessary, see H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 32 (1947), 1947 Leg. Hist. 536. See generally NLRB v. Wentworth Institute, 515 F. 2d 550, 555 (CA1 1975) ("[P]erhaps the most obvious, interpretation of the rejection of the House exclusion would be that Congress meant to include nonprofit organizations [within the scope of the Act]"); Sherman & Black, The Labor Board and the Private Nonprofit Employer: A Critical Examination of the Board's Worthy Cause Exemption, 83 Harv. L. Rev. 1323, 1331-1337 (1970). But whatever the reasons, it is clear that an amendment similar to that made by the Court today was proposed and rejected in 1947.

[17] The Board's contemporaneous construction of the 1947 amendment was that only nonprofit hospitals were intended to be exempt. In 1950, for example, in asserting jurisdiction over a nonprofit religious organization, the Board stated:

"The Employer asserts that, as it is a nonprofit organization which is engaged in purely religious activities, it is not engaged in commerce within the meaning of the Act. We find no merit in this contention. . . . As this Board and the courts have held, it is immaterial that the Employer may be a nonprofit organization, or that its activities may be motivated by considerations other than those applicable to enterprises which are, in the generally accepted sense, commercial." Sunday School Board of the Southern Baptist Convention, 92 N. L. R. B. 801, 802.

It is true that in Trustees of Columbia University, 97 N. L. R. B. 424 (1951), the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions; but it expressly did so as a matter of discretion, affirming that the activities of the University did come within the Act and the Board's jurisdiction. Id., at 425. That 1951 discretionary decision does not undermine the validity of the Board's determination in Cornell University, 183 N. L. R. B. 329 (1970), that changing conditions—particularly the increasing impact of such institutions on interstate commerce—now required a change in policy leading to the renewed exercise of Board jurisdiction. As we emphasized in NLRB v. Weingarten, Inc., 420 U. S. 251, 265-266 (1975):

"To hold that the Board's earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking. `"Cumulative experience" begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.' NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953)."

[18] The House Report stated: "Currently, the only broad area of charitable, eleemosynary, educational institutions wherein the Board does not now exercise jurisdiction concerns the nonprofit hospitals, explicitly excluded by section 2 (2) of the Act. . . . [T]he bill removes the existing Taft-Hartley exemption in section 2 (2) of the Act. It restores to the employees of nonprofit hospitals the same rights and protections enjoyed by the employees of proprietary hospitals and most all other employees." H. R. Rep. No. 93-1051, p. 4 (1974), 1974 Leg. Hist. 272. Similarly, Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare, criticized the nonprofit-hospital exemption as "not only inconsistent with the protection enjoyed by proprietary hospitals and other types of health care institutions, but it is also inconsistent with the coverage of other nonprofit activities." 120 Cong. Rec. 12938 (1974), 1974 Leg. Hist. 95. See also 120 Cong. Rec. 16900 (1974), 1974 Leg. Hist. 291 (Rep. Ashbrook).

[19] The Court relies upon the fact that the 1974 amendments provided that "[a]ny employee of a health care institution who is a member of . . . a bona fide religion . . . which has historically held conscientious objections to joining . . . labor organizations shall not be required to join . . . any labor organization as a condition of employment . . . ." 29 U. S. C. § 169 (emphasis added). This is, of course, irrelevant to the instant case, as no employee has alleged that he was required to join a union against his religious principles and not even the respondent employers contend that collective bargaining itself is contrary to their religious beliefs. Recognizing this, the Court has limited its inference from the amendment to the proposition that it reflects "congressional sensitivity to First Amendment guarantees." Ante, at 506. This is quite true, but its usefulness as support for the Court's opinion is completely negated by the rejection of the Ervin amendment, see text, supra, which makes clear the balance struck by Congress. While Congress agreed to exclude conscientiously objecting employees, it expressly refused to sanction an exclusion for all religiously affiliated employers.

[20] Associated Pressstated the employer's argument as follows:

"The conclusion which the petitioner draws is that whatever may be the case with respect to employees in its mechanical departments it must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest opportunity for any bias or prejudice personally entertained by an editorial employee to color or to distort what he writes, and that the Associated Press cannot be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees. So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press." 301 U. S., at 131.

[21] The Court would distinguish Associated Press on the ground that there the Court "[p]erceiv[ed] nothing to suggest that application of the Act would infringe First Amendment guarantees . . . [while h]ere, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction . . . would implicate the guarantees of the Religion Clauses." Ante, at 507. But this is mere assertion. The Court does not explain why the press' First Amendment problem in Associated Press was any less substantial than the church-supported schools' First Amendment challenge here. In point of fact, the problems raised are of precisely the same difficulty. The Court therefore cannot square its judicial "reconstruction" of the Act in this case with the refusal to rewrite the same Act in Associated Press.

[22] Not even the Court's redrafting of the statute causes all First Amendment problems to disappear. The Court's opinion implies limitation of its exception to church-operated schools. That limitation is doubtless necessary since this Court has already rejected a more general exception for nonprofit organizations. See Polish National Alliance v. NLRB, 322 U. S. 643 (1944). But such an exemption, available only to church-operated schools, generates a possible Establishment Clause question of its own. Walz v. Tax Comm'n, 397 U. S. 664 (1970), does not put that question to rest, for in upholding the property tax exemption for churches there at issue, we emphasized that New York had "not singled out . . . churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . ." Id., at 673. Like the Court, "at this stage of [my] consideration [I am] not compelled to determine whether the [Establishment Clause problem] is [as significant] as [I] would were [I] considering the constitutional issue." Ante, at 502. It is enough to observe that no matter which way the Court turns in interpreting the Act, it cannot avoid constitutional questions.

529 U.S. 120 (2000)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

[121] [122] [123] O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 161.

Solicitor General Waxman argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Schultz, Irving L. Gornstein, Eugene Thirolf, Douglas Letter, Gerald C. Kell, Chris- [124] tine N. Kohl, Margaret Jane Porter, Karen E. Schifter, and Patricia J. Kaeding.

Richard M. Cooper argued the cause for respondents. With him on the brief for respondent R. J. Reynolds Tobacco Co. was Steven M. Umin. Andrew S. Krulwich, Bert W. Rein, Thomas W. Kirby, and Michael L. Robinson filed a brief for respondent Brown & Williamson Tobacco Corp. Larry B. Sitton filed a brief for respondents United States Tobacco Co. et al. William C. MacLeod filed a brief for respondents National Association of Convenience Stores et al. Peter T. Grossi, Jr., Arthur N. Levine, Jeff Richman, Richard A. Merrill, and Herbert Dym filed a brief for respondents Philip Morris Inc. et al.^[1]

[125] Justice O'Connor, delivered the opinion of the Court.

This case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use. In 1996, the Food and Drug Administration (FDA), after having expressly disavowed any such authority since its inception, asserted jurisdiction to regulate tobacco products. See 61 Fed. Reg. 44619-45318. The FDA concluded that nicotine is a "drug" within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), 52 Stat. 1040, as amended, 21 U. S. C. § 301 et seq., and that cigarettes and smokeless tobacco are "combination products" that deliver nicotine to the body. 61 Fed. Reg. 44397 (1996). Pursuant to this authority, it promulgated regulations intended to reduce tobacco consumption among children and adolescents. Id., at 44615-44618. The agency believed that, because most tobacco consumers begin their use before reaching the age of 18, curbing tobacco use by minors could substantially reduce the prevalence of addiction in future generations and thus the incidence of tobacco-related death and disease. Id., at 44398-44399.

Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority "in a manner that is inconsistent with the administrative structure that Congress enacted into law." ETSI Pipeline Project v. Missouri, 484 U. S. 495, 517 (1988). And although agencies are generally entitled to deference in the interpretation of statutes that they administer, a reviewing "court, as well as the agency, must give effect to the unambiguously [126] expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). In this case, we believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products. Such authority is inconsistent with the intent that Congress has expressed in the FDCA's overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA. In light of this clear intent, the FDA's assertion of jurisdiction is impermissible.

I

The FDCA grants the FDA, as the designee of the Secretary of Health and Human Services (HHS), the authority to regulate, among other items, "drugs" and "devices." See 21 U. S. C. §§ 321(g)—(h), 393 (1994 ed. and Supp. III). The Act defines "drug" to include "articles (other than food) intended to affect the structure or any function of the body." 21 U. S. C. § 321(g)(1)(C). It defines "device," in part, as "an instrument, apparatus, implement, machine, contrivance, . . . or other similar or related article, including any component, part, or accessory, which is . . . intended to affect the structure or any function of the body." § 321(h). The Act also grants the FDA the authority to regulate so-called "combination products," which "constitute a combination of a drug, device, or biological product." § 353(g)(1). The FDA has construed this provision as giving it the discretion to regulate combination products as drugs, as devices, or as both. See 61 Fed. Reg. 44400 (1996).

On August 11, 1995, the FDA published a proposed rule concerning the sale of cigarettes and smokeless tobacco to children and adolescents. 60 Fed. Reg. 41314-41787. The rule, which included several restrictions on the sale, distribution, and advertisement of tobacco products, was designed to reduce the availability and attractiveness of tobacco products to young people. Id., at 41314. A public comment period followed, during which the FDA received over 700,000 submissions, [127] more than "at any other time in its history on any other subject." 61 Fed. Reg. 44418 (1996).

On August 28, 1996, the FDA issued a final rule entitled "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." Id., at 44396. The FDA determined that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices," and therefore it had jurisdiction under the FDCA to regulate tobacco products as customarily marketed—that is, without manufacturer claims of therapeutic benefit. Id., at 44397, 44402. First, the FDA found that tobacco products "`affect the structure or any function of the body' " because nicotine "has significant pharmacological effects." Id., at 44631. Specifically, nicotine "exerts psychoactive, or mood-altering, effects on the brain" that cause and sustain addiction, have both tranquilizing and stimulating effects, and control weight. Id., at 44631-44632. Second, the FDA determined that these effects were "intended" under the FDCA because they "are so widely known and foreseeable that [they] may be deemed to have been intended by the manufacturers," id., at 44687; consumers use tobacco products "predominantly or nearly exclusively" to obtain these effects, id., at 44807; and the statements, research, and actions of manufacturers revealed that they "have `designed' cigarettes to provide pharmacologically active doses of nicotine to consumers," id., at 44849. Finally, the agency concluded that cigarettes and smokeless tobacco are "combination products" because, in addition to containing nicotine, they include device components that deliver a controlled amount of nicotine to the body, id., at 45208-45216.

Having resolved the jurisdictional question, the FDA next explained the policy justifications for its regulations, detailing the deleterious health effects associated with tobacco use. It found that tobacco consumption was "the single leading cause of preventable death in the United States." Id., at 44398. According to the FDA, "[m]ore than 400,000 [128] people die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." Ibid. The agency also determined that the only way to reduce the amount of tobacco-related illness and mortality was to reduce the level of addiction, a goal that could be accomplished only by preventing children and adolescents from starting to use tobacco. Id., at 44398-44399. The FDA found that 82% of adult smokers had their first cigarette before the age of 18, and more than half had already become regular smokers by that age. Id., at 44398. It also found that children were beginning to smoke at a younger age, that the prevalence of youth smoking had recently increased, and that similar problems existed with respect to smokeless tobacco. Id., at 44398-44399. The FDA accordingly concluded that if "the number of children and adolescents who begin tobacco use can be substantially diminished, tobacco-related illness can be correspondingly reduced because data suggest that anyone who does not begin smoking in childhood or adolescence is unlikely ever to begin." Id., at 44399.

Based on these findings, the FDA promulgated regulations concerning tobacco products' promotion, labeling, and accessibility to children and adolescents. See id., at 44615-44618. The access regulations prohibit the sale of cigarettes or smokeless tobacco to persons younger than 18; require retailers to verify through photo identification the age of all purchasers younger than 27; prohibit the sale of cigarettes in quantities smaller than 20; prohibit the distribution of free samples; and prohibit sales through self-service displays and vending machines except in adult-only locations. Id., at 44616-44617. The promotion regulations require that any print advertising appear in a black-and-white, text-only format unless the publication in which it appears is read almost exclusively by adults; prohibit outdoor advertising within 1,000 feet of any public playground or school; prohibit the distribution of any promotional items, such as T-shirts or hats, bearing the manufacturer's brand name; and prohibit a [129] manufacturer from sponsoring any athletic, musical, artistic, or other social or cultural event using its brand name. Id., at 44617-44618. The labeling regulation requires that the statement, "A Nicotine-Delivery Device for Persons 18 or Older," appear on all tobacco product packages. Id., at 44617.

The FDA promulgated these regulations pursuant to its authority to regulate "restricted devices." See 21 U. S. C. § 360j(e). The FDA construed § 353(g)(1) as giving it the discretion to regulate "combination products" using the Act's drug authorities, device authorities, or both, depending on "how the public health goals of the act can be best accomplished." 61 Fed. Reg. 44403 (1996). Given the greater flexibility in the FDCA for the regulation of devices, the FDA determined that "the device authorities provide the most appropriate basis for regulating cigarettes and smokeless tobacco." Id., at 44404. Under 21 U. S. C. § 360j(e), the agency may "require that a device be restricted to sale, distribution, or use . . . upon such other conditions as [the FDA] may prescribe in such regulation, if, because of its potentiality for harmful effect or the collateral measures necessary to its use, [the FDA] determines that there cannot otherwise be reasonable assurance of its safety and effectiveness." The FDA reasoned that its regulations fell within the authority granted by § 360j(e) because they related to the sale or distribution of tobacco products and were necessary for providing a reasonable assurance of safety. 61 Fed. Reg. 44405-44407 (1996).

Respondents, a group of tobacco manufacturers, retailers, and advertisers, filed suit in United States District Court for the Middle District of North Carolina challenging the regulations. See Coyne Beahm, Inc. v. FDA, 966 F. Supp. 1374 (1997). They moved for summary judgment on the grounds that the FDA lacked jurisdiction to regulate tobacco products as customarily marketed, the regulations exceeded the FDA's authority under 21 U. S. C. § 360j(e), and the advertising [130] restrictions violated the First Amendment. Second Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 40; Third Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 42. The District Court granted respondents' motion in part and denied it in part. 966 F. Supp., at 1400. The court held that the FDCA authorizes the FDA to regulate tobacco products as customarily marketed and that the FDA's access and labeling regulations are permissible, but it also found that the agency's advertising and promotion restrictions exceed its authority under § 360j(e). Id., at 1380-1400. The court stayed implementation of the regulations it found valid (except the prohibition on the sale of tobacco products to minors) and certified its order for immediate interlocutory appeal. Id., at 1400-1401.

The Court of Appeals for the Fourth Circuit reversed, holding that Congress has not granted the FDA jurisdiction to regulate tobacco products. See 153 F. 3d 155 (1998). Examining the FDCA as a whole, the court concluded that the FDA's regulation of tobacco products would create a number of internal inconsistencies. Id., at 162-167. Various provisions of the Act require the agency to determine that any regulated product is "safe" before it can be sold or allowed to remain on the market, yet the FDA found in its rulemaking proceeding that tobacco products are "dangerous" and "unsafe." Id., at 164-167. Thus, the FDA would apparently have to ban tobacco products, a result the court found clearly contrary to congressional intent. Ibid. This apparent anomaly, the Court of Appeals concluded, demonstrates that Congress did not intend to give the FDA authority to regulate tobacco. Id., at 167. The court also found that evidence external to the FDCA confirms this conclusion. Importantly, the FDA consistently stated before 1995 that it lacked jurisdiction over tobacco, and Congress has enacted [131] several tobacco-specific statutes fully cognizant of the FDA's position. See id., at 168-176. In fact, the court reasoned, Congress has considered and rejected many bills that would have given the agency such authority. See id., at 170-171. This, along with the absence of any intent by the enacting Congress in 1938 to subject tobacco products to regulation under the FDCA, demonstrates that Congress intended to withhold such authority from the FDA. Id., at 167-176. Having resolved the jurisdictional question against the agency, the Court of Appeals did not address whether the regulations exceed the FDA's authority under 21 U. S. C. § 360j(e) or violate the First Amendment. See 153 F. 3d, at 176, n. 29.

We granted the federal parties' petition for certiorari, 526 U. S. 1086 (1999), to determine whether the FDA has authority under the FDCA to regulate tobacco products as customarily marketed.

II

The FDA's assertion of jurisdiction to regulate tobacco products is founded on its conclusions that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices." Again, the FDA found that tobacco products are "intended" to deliver the pharmacological effects of satisfying addiction, stimulation and tranquilization, and weight control because those effects are foreseeable to any reasonable manufacturer, consumers use tobacco products to obtain those effects, and tobacco manufacturers have designed their products to produce those effects. 61 Fed. Reg. 44632-44633 (1996). As an initial matter, respondents take issue with the FDA's reading of "intended," arguing that it is a term of art that refers exclusively to claims made by the manufacturer or vendor about the product. See Brief for Respondent Brown & Williamson Tobacco Corp. 6. That is, a product is not a drug or device under the FDCA unless the manufacturer or vendor makes some express claim concerning the product's therapeutic benefits. See id., at 6-7. We [132] need not resolve this question, however, because assuming, arguendo, that a product can be "intended to affect the structure or any function of the body" absent claims of therapeutic or medical benefit, the FDA's claim to jurisdiction contravenes the clear intent of Congress.

A threshold issue is the appropriate framework for analyzing the FDA's assertion of authority to regulate tobacco products. Because this case involves an administrative agency's construction of a statute that it administers, our analysis is governed by Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). Under Chevron, a reviewing court must first ask "whether Congress has directly spoken to the precise question at issue." Id., at 842. IfCongress has done so, the inquiry is at an end; the court "must give effect to the unambiguously expressed intent of Congress." Id., at 843; see also United States v. Haggar Apparel Co., 526 U. S. 380, 392 (1999); Holly Farms Corp. v. NLRB, 517 U. S. 392, 398 (1996). But if Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible. See INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999); Auer v. Robbins, 519 U. S. 452, 457 (1997). Such deference is justified because "[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones," Chevron, supra, at 866, and because of the agency's greater familiarity with the everchanging facts and circumstances surrounding the subjects regulated, see Rust v. Sullivan, 500 U. S. 173, 187 (1991).

In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U. S. 115, 118 (1994) ("Ambiguity is a creature not of definitional possibilities but of statutory [133] context"). It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), and "fit, if possible, all parts into an harmonious whole," FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U. S. 517, 530-531 (1998); United States v. Fausto, 484 U. S. 439, 453 (1988). In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994).

With these principles in mind, we find that Congress has directly spoken to the issue here and precluded the FDA's jurisdiction to regulate tobacco products.

A

Viewing the FDCA as a whole, it is evident that one of the Act's core objectives is to ensure that any product regulated by the FDA is "safe" and "effective" for its intended use. See 21 U. S. C. § 393(b)(2) (1994 ed., Supp. III) (defining the FDA's mission); More Information for Better Patient Care: Hearing before the Senate Committee on Labor and Human Resources, 104th Cong., 2d Sess., 83 (1996) (statement of FDA Deputy Comm'r Schultz) ("A fundamental precept of drug and device regulation in this country is that these products must be proven safe and effective before they can be sold"). This essential purpose pervades the FDCA. For instance, 21 U. S. C. § 393(b)(2) (1994 ed., Supp. III) defines [134] the FDA's "[m]ission" to include "protect[ing] the public health by ensuring that . . . drugsare safe and effective" and that "there is reasonable assurance of the safety and effectiveness of devices intended for human use." The FDCA requires premarket approval of any new drug, with some limited exceptions, and states that the FDA "shall issue an order refusing to approve the application" of a new drug if it is not safe and effective for its intended purpose. §§ 355(d)(1)-(2), (4)-(5). If the FDA discovers after approval that a drug is unsafe or ineffective, it "shall, after due notice and opportunity for hearing to the applicant, withdraw approval" of the drug. 21 U. S. C. §§ 355(e)(1)-(3). The Act also requires the FDA to classify all devices into one of three categories. § 360c(b)(1). Regardless of which category the FDA chooses, there must be a "reasonable assurance of the safety and effectiveness of the device." 21 U. S. C. §§ 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); 61 Fed. Reg. 44412 (1996). Even the "restricted device" provision pursuant to which the FDA promulgated the regulations at issue here authorizes the agency to place conditions on the sale or distribution of a device specifically when "there cannot otherwise be reasonable assurance of its safety and effectiveness." 21 U. S. C. § 360j(e). Thus, the Act generally requires the FDA to prevent the marketing of any drug or device where the "potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit." United States v. Rutherford, 442 U. S. 544, 556 (1979).

In its rulemaking proceeding, the FDA quite exhaustively documented that "tobacco products are unsafe," "dangerous," and "cause great pain and suffering from illness." 61 Fed. Reg. 44412 (1996). It found that the consumption of tobacco products presents "extraordinary health risks," and that "tobacco use is the single leading cause of preventable death in the United States." Id., at 44398. It stated that "[m]ore than 400,000 people die each year from tobaccorelated illnesses, such as cancer, respiratory illnesses, and [135] heart disease, often suffering long and painful deaths," and that "[t]obacco alone kills more people each year in the United States than acquired immunodeficiency syndrome (AIDS), car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined." Ibid. Indeed, the FDA characterized smoking as "a pediatric disease," id., at 44421, because "one out of every three young people who become regular smokers . . . will die prematurely as a result," id., at 44399.

These findings logically imply that, if tobacco products were "devices" under the FDCA, the FDA would be required to remove them from the market. Consider, first, the FDCA's provisions concerning the misbranding of drugs or devices. The Act prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." 21 U. S. C. § 331(a). In light of the FDA's findings, two distinct FDCA provisions would render cigarettes and smokeless tobacco misbranded devices. First, § 352(j) deems a drug or device misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." The FDA's findings make clear that tobacco products are "dangerous to health" when used in the manner prescribed. Second, a drug or device is misbranded under the Act "[u]nless its labeling bears . . . adequate directions for use . . . in such manner and form, as are necessary for the protection of users," except where such directions are "not necessary for the protection of the public health." § 352(f)(1). Given the FDA's conclusions concerning the health consequences of tobacco use, there are no directions that could adequately protect consumers. That is, there are no directions that could make tobacco products safe for obtaining their intended effects. Thus, were tobacco products within the FDA's jurisdiction, the Act would deem them misbranded devices that could not be introduced into interstate [136] commerce. Contrary to the dissent's contention, the Act admits no remedial discretion once it is evident that the device is misbranded.

Second, the FDCA requires the FDA to place all devices that it regulates into one of three classifications. See § 360c(b)(1). The agency relies on a device's classification in determining the degree of control and regulation necessary to ensure that there is "a reasonable assurance of safety and effectiveness." 61 Fed. Reg. 44412 (1996). The FDA has yet to classify tobacco products. Instead, the regulations at issue here represent so-called "general controls," which the Act entitles the agency to impose in advance of classification. See id., at 44404-44405. Although the FDCA prescribes no deadline for device classification, the FDA has stated that it will classify tobacco products "in a future rulemaking" as required by the Act. Id., at 44412. Given the FDA's findings regarding the health consequences of tobacco use, the agency would have to place cigarettes and smokeless tobacco in Class III because, even after the application of the Act's available controls, they would "presen[t] a potential unreasonable risk of illness or injury." 21 U. S. C. § 360c(a)(1)(C). As Class III devices, tobacco products would be subject to the FDCA's premarket approval process. See 21 U. S. C. § 360c(a)(1)(C) (1994 ed., Supp. III); 21 U. S. C. § 360e; 61 Fed. Reg. 44412 (1996). Under these provisions, the FDA would be prohibited from approving an application for premarket approval without "a showing of reasonable assurance that such device is safe under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof." 21 U. S. C. § 360e(d)(2)(A). In view of the FDA's conclusions regarding the health effects of tobacco use, the agency would have no basis for finding any such reasonable assurance of safety. Thus, once the FDA fulfilled its statutory obligation to classify tobacco products, it could not allow them to be marketed.

[137] The FDCA's misbranding and device classification provisions therefore make evident that were the FDA to regulate cigarettes and smokeless tobacco, the Act would require the agency to ban them. In fact, based on these provisions, the FDA itself has previously taken the position that if tobacco products were within its jurisdiction, "they would have to be removed from the market because it would be impossible to prove they were safe for their intended us[e]." Public Health Cigarette Amendments of 1971: Hearings before the Commerce Subcommittee on S. 1454, 92d Cong., 2d Sess., 239 (1972) (hereinafter 1972 Hearings) (statement of FDA Comm'r Charles Edwards). See also Cigarette Labeling and Advertising: Hearings before the House Committee on Interstate and Foreign Commerce, 88th Cong., 2d Sess., 18 (1964) (hereinafter 1964 Hearings) (statement of Dept. of Health, Education, and Welfare (HEW) Secretary Anthony Celebrezze that proposed amendments to the FDCA that would have given the FDA jurisdiction over "smoking product[s]" "might well completely outlaw at least cigarettes").

Congress, however, has foreclosed the removal of tobacco products from the market. A provision of the United States Code currently in force states that "[t]he marketing of tobacco constitutes one of the greatest basic industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare." 7 U. S. C. § 1311(a). More importantly, Congress has directly addressed the problem of tobacco and health through legislation on six occasions since 1965. See Federal Cigarette Labeling and Advertising Act (FCLAA), Pub. L. 89-92, 79 Stat. 282; Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, 84 Stat. 87; Alcohol and Drug Abuse Amendments of 1983, Pub. L. 98-24, 97 Stat. 175; Comprehensive Smoking Education Act, Pub. L. 98-474, 98 Stat. 2200; Comprehensive Smokeless Tobacco Health Education Act of 1986, Pub. L. 99-252, 100 Stat. 30; Alcohol, Drug Abuse, and Mental [138] Health Administration Reorganization Act, Pub. L. 102-321, § 202, 106 Stat. 394. When Congress enacted these statutes, the adverse health consequences of tobacco use were well known, as were nicotine's pharmacological effects. See, e. g., U. S. Dept. of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 25-40, 69-75 (1964) (hereinafter 1964 Surgeon General's Report) (concluding that cigarette smoking causes lung cancer, coronary artery disease, and chronic bronchitis and emphysema, and that nicotine has various pharmacological effects, including stimulation, tranquilization, and appetite suppression); U. S. Dept. of Health and Human Services, Public Health Service, Health Consequences of Smoking for Women 7-12 (1980) (finding that mortality rates for lung cancer, chronic lung disease, and coronary heart disease are increased for both women and men smokers, and that smoking during pregnancy is associated with significant adverse health effects on the unborn fetus and newborn child); U. S. Dept. of Health and Human Services, Public Health Service, Why People Smoke Cigarettes (1983), in Smoking Prevention Education Act, Hearings on H. R. 1824 before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 98th Cong., 1st Sess., 32-37 (1983) (hereinafter 1983 House Hearings) (stating that smoking is "the most widespread example of drug dependence in our country," and that cigarettes "affect the chemistry of the brain and nervous system"); U. S. Dept. of Health and Human Services, Public Health Service, The Health Consequences of Smoking: Nicotine Addiction 6-9, 145-239 (1988) (hereinafter 1988 Surgeon General's Report) (concluding that tobacco products are addicting in much the same way as heroin and cocaine, and that nicotine is the drug that causes addiction). Nonetheless, Congress stopped well short of ordering a ban. Instead, it has generally regulated the labeling and advertisement of tobacco products, expressly providing that it is the policy of Congress that "commerce and the national [139] economy may be . . . protected to the maximum extent consistent with" consumers "be[ing] adequately informed about any adverse health effects." 15 U. S. C. § 1331. Congress' decisions to regulate labeling and advertising and to adopt the express policy of protecting "commerce and the national economy . . . to the maximum extent" reveal its intent that tobacco products remain on the market. Indeed, the collective premise of these statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States. A ban of tobacco products by the FDA would therefore plainly contradict congressional policy.

The FDA apparently recognized this dilemma and concluded, somewhat ironically, that tobacco products are actually "safe" within the meaning of the FDCA. In promulgating its regulations, the agency conceded that "tobacco products are unsafe, as that term is conventionally understood." 61 Fed. Reg. 44412 (1996). Nonetheless, the FDA reasoned that, in determining whether a device is safe under the Act, it must consider "not only the risks presented by a product but also any of the countervailing effects of use of that product, including the consequences of not permitting the product to be marketed." Id., at 44412-44413. Applying this standard, the FDA found that, because of the high level of addiction among tobacco users, a ban would likely be "dangerous." Id., at 44413. In particular, current tobacco users could suffer from extreme withdrawal, the health care system and available pharmaceuticals might not be able to meet the treatment demands of those suffering from withdrawal, and a black market offering cigarettes even more dangerous than those currently sold legally would likely develop. Ibid. The FDA therefore concluded that, "while taking cigarettes and smokeless tobacco off the market could prevent some people from becoming addicted and reduce death and disease for others, the record does not establish that such a ban is the appropriate public health response under the act." Id., at 44398.

[140] It may well be, as the FDA asserts, that "these factors must be considered when developing a regulatory scheme that achieves the best public health result for these products." Id., at 44413. But the FDA's judgment that leaving tobacco products on the market "is more effective in achieving public health goals than a ban," ibid., is no substitute for the specific safety determinations required by the FDCA's various operative provisions. Several provisions in the Act require the FDA to determine that the product itself is safe as used by consumers. That is, the product's probable therapeutic benefits must outweigh its risk of harm. See United States v. Rutherford, 442 U. S., at 555 ("[T]he Commissioner generally considers a drug safe when the expected therapeutic gain justifies the risk entailed by its use"). In contrast, the FDA's conception of safety would allow the agency, with respect to each provision of the FDCA that requires the agency to determine a product's "safety" or "dangerousness," to compare the aggregate health effects of alternative administrative actions. This is a qualitatively different inquiry. Thus, although the FDA has concluded that a ban would be "dangerous," it has not concluded that tobacco products are "safe" as that term is used throughout the Act.

Consider 21 U. S. C. § 360c(a)(2), which specifies those factors that the FDA may consider in determining the safety and effectiveness of a device for purposes of classification, performance standards, and premarket approval. For all devices regulated by the FDA, there must at least be a "reasonable assurance of the safety and effectiveness of the device." See 21 U. S. C. §§ 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); 61 Fed. Reg. 44412 (1996). Title 21 U. S. C. § 360c(a)(2) provides that

"the safety and effectiveness of a device are to be determined—

"(A) with respect to the persons for whose use the device is represented or intended,

[141] "(B) with respect to the conditions of use prescribed, recommended, or suggested in the labeling of the device, and

"(C) weighing any probable benefit to health from the use of the device against any probable risk of injury or illness from such use."

A straightforward reading of this provision dictates that the FDA must weigh the probable therapeutic benefits of the device to the consumer against the probable risk of injury. Applied to tobacco products, the inquiry is whether their purported benefits—satisfying addiction, stimulation and sedation, and weight control—outweigh the risks to health from their use. To accommodate the FDA's conception of safety, however, one must read "any probable benefit to health" to include the benefit to public health stemming from adult consumers' continued use of tobacco products, even though the reduction of tobacco use is the raison d'être of the regulations. In other words, the FDA is forced to contend that the very evil it seeks to combat is a "benefit to health." This is implausible.

The FDA's conception of safety is also incompatible with the FDCA's misbranding provision. Again, § 352(j) provides that a product is "misbranded" if "it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." According to the FDA's understanding, a product would be "dangerous to health," and therefore misbranded under § 352(j), when, in comparison to leaving the product on the market, a ban would not produce "adverse health consequences" in aggregate. Quite simply, these are different inquiries. Although banning a particular product might be detrimental to public health in aggregate, the product could still be "dangerous to health" when used as directed. Section 352(j) focuses on dangers to the consumer from use of the product, not those stemming from the agency's remedial measures.

[142] Consequently, the analogy made by the FDA and the dissent to highly toxic drugs used in the treatment of various cancers is unpersuasive. See 61 Fed. Reg. 44413 (1996); post, at 177 (opinion of Breyer, J.). Although "dangerous" in some sense, these drugs are safe within the meaning of the Act because, for certain patients, the therapeutic benefits outweigh the risk of harm. Accordingly, such drugs cannot properly be described as "dangerous to health" under 21 U. S. C. § 352(j). The same is not true for tobacco products. As the FDA has documented in great detail, cigarettes and smokeless tobacco are an unsafe means to obtaining any pharmacological effect.

The dissent contends that our conclusion means that "the FDCA requires the FDA to ban outright `dangerous' drugs or devices," post, at 174, and that this is a "perverse" reading of the statute, post, at 174, 180. This misunderstands our holding. The FDA, consistent with the FDCA, may clearly regulate many "dangerous" products without banning them. Indeed, virtually every drug or device poses dangers under certain conditions. What the FDA may not do is conclude that a drug or device cannot be used safely for any therapeutic purpose and yet, at the same time, allow that product to remain on the market. Such regulation is incompatible with the FDCA's core objective of ensuring that every drug or device is safe and effective.

Considering the FDCA as a whole, it is clear that Congress intended to exclude tobacco products from the FDA's jurisdiction. A fundamental precept of the FDCA is that any product regulated by the FDA—but not banned—must be safe for its intended use. Various provisions of the Act make clear that this refers to the safety of using the product to obtain its intended effects, not the public health ramifications of alternative administrative actions by the FDA. That is, the FDA must determine that there is a reasonable assurance that the product's therapeutic benefits outweigh the risk of harm to the consumer. According to this standard, [143] the FDA has concluded that, although tobacco products might be effective in delivering certain pharmacological effects, they are "unsafe" and "dangerous" when used for these purposes. Consequently, if tobacco products were within the FDA's jurisdiction, the Act would require the FDA to remove them from the market entirely. But a ban would contradict Congress' clear intent as expressed in its more recent, tobacco-specific legislation. The inescapable conclusion is that there is no room for tobacco products within the FDCA's regulatory scheme. If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit.

B

In determining whether Congress has spoken directly to the FDA's authority to regulate tobacco, we must also consider in greater detail the tobacco-specific legislation that Congress has enacted over the past 35 years. At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings. The "classic judicial task of reconciling many laws enacted over time, and getting them to `make sense' in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute." United States v. Fausto, 484 U. S., at 453. This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand. As we recognized recently in United States v. Estate of Romani, "a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended." 523 U. S., at 530-531.

Congress has enacted six separate pieces of legislation since 1965 addressing the problem of tobacco use and human health. See supra, at 137-138. Those statutes, among other things, require that health warnings appear on all packaging and in all print and outdoor advertisements, see [144] 15 U. S. C. §§ 1331, 1333, 4402; prohibit the advertisement of tobacco products through "any medium of electronic communication" subject to regulation by the Federal Communications Commission (FCC), see §§ 1335, 4402(f); require the Secretary of HHS to report every three years to Congress on research findings concerning "the addictive property of tobacco," 42 U. S. C. § 290aa—2(b)(2); and make States' receipt of certain federal block grants contingent on their making it unlawful "for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18," § 300x—26(a)(1).

In adopting each statute, Congress has acted against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco absent claims of therapeutic benefit by the manufacturer. In fact, on several occasions over this period, and after the health consequences of tobacco use and nicotine's pharmacological effects had become well known, Congress considered and rejected bills that would have granted the FDA such jurisdiction. Under these circumstances, it is evident that Congress' tobacco-specific statutes have effectively ratified the FDA's long-held position that it lacks jurisdiction under the FDCA to regulate tobacco products. Congress has created a distinct regulatory scheme to address the problem of tobacco and health, and that scheme, as presently constructed, precludes any role for the FDA.

On January 11, 1964, the Surgeon General released the report of the Advisory Committee on Smoking and Health. That report documented the deleterious health effects of smoking in great detail, concluding, in relevant part, "that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate." 1964 Surgeon General's Report 31. It also identified the pharmacological effects of nicotine, including "stimulation," "tranquilization," and "suppression of appetite." Id., at 74-75. Seven days after the report's release, the Federal Trade [145] Commission (FTC) issued a notice of proposed rulemaking, see 29 Fed. Reg. 530-532 (1964), and in June 1964, the FTC promulgated a final rule requiring cigarette manufacturers "to disclose, clearly and prominently, in all advertising and on every pack, box, carton or other container . . . that cigarette smoking is dangerous to health and may cause death from cancer and other diseases," id., at 8325. The rule was to become effective January 1, 1965, but, on a request from Congress, the FTC postponed enforcement for six months. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 513-514 (1992).

In response to the Surgeon General's report and the FTC's proposed rule, Congress convened hearings to consider legislation addressing "the tobacco problem." 1964 Hearings 1. During those deliberations, FDA representatives testified before Congress that the agency lacked jurisdiction under the FDCA to regulate tobacco products. Surgeon General Terry was asked during hearings in 1964 whether HEW had the "authority to brand or label the packages of cigarettes or to control the advertising there." Id., at 56. The Surgeon General stated that "we do not have such authority in existing laws governing the . . . Food and Drug Administration." Ibid. Similarly, FDA Deputy Commissioner Rankin testified in 1965 that "[t]he Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims." Cigarette Labeling and Advertising—1965: Hearings on H. R. 2248 before the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess., 193 (hereinafter 1965 Hearings). See also Letter to Directors of Bureaus, Divisions and Directors of Districts from FDA Bureau of Enforcement (May 24, 1963), in 1972 Hearings 240 ("[T]obacco marketed for chewing or smoking without accompanying therapeutic claims, does not meet the definitions in the Food, Drug, and Cosmetic Act for food, drug, device or cosmetic"). In fact, HEW Secretary Celebrezze urged Congress not to amend the FDCA to cover [146] "smoking products" because, in light of the findings in the Surgeon General's report, such a "provision might well completely outlaw at least cigarettes. This would be contrary to what, we understand, is intended or what, in the light of our experience with the 18th amendment, would be acceptable to the American people." 1964 Hearings 18.

The FDA's disavowal of jurisdiction was consistent with the position that it had taken since the agency's inception. As the FDA concedes, it never asserted authority to regulate tobacco products as customarily marketed until it promulgated the regulations at issue here. See Brief for Petitioners 37; see also Brief for Appellee (FDA) in Action on Smoking and Health v. Harris, 655 F. 2d 236 (CADC 1980), in 9 Rec. in No. 97-1604 (CA4), Tab No. 4, pp. 14-15 ("In the 73 years since the enactment of the original Food and Drug Act, and in the 41 years since the promulgation of the modern Food, Drug, and Cosmetic Act, the FDA has repeatedly informed Congress that cigarettes are beyond the scope of the statute absent health claims establishing a therapeutic intent on behalf of the manufacturer or vendor").

The FDA's position was also consistent with Congress' specific intent when it enacted the FDCA. Before the Act's adoption in 1938, the FDA's predecessor agency, the Bureau of Chemistry, announced that it lacked authority to regulate tobacco products under the Pure Food and Drug Act of 1906, ch. 3915, 34 Stat. 768, unless they were marketed with therapeutic claims. See U. S. Dept. of Agriculture, Bureau of Chemistry, 13 Service and Regulatory Announcements 24 (Apr. 1914) (Feb. 1914 Announcements ¶ 13, Opinion of Chief of Bureau C. L. Alsberg). In 1929, Congress considered and rejected a bill "[t]o amend the Food and Drugs Act of June 30, 1906, by extending its provisions to tobacco and tobacco products." S. 1468, 71st Cong., 1st Sess., 1. See also 71 Cong. Rec. 2589 (1929) (remarks of Sen. Smoot). And, as the FDA admits, there is no evidence in the text of the FDCA or its legislative history that Congress in 1938 even considered [147] the applicability of the Act to tobacco products. See Brief for Petitioners 22, n. 4. Given the economic and political significance of the tobacco industry at the time, it is extremely unlikely that Congress could have intended to place tobacco within the ambit of the FDCA absent any discussion of the matter. Of course, whether the Congress that enacted the FDCA specifically intended the Act to cover tobacco products is not determinative; "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998); see also TVA v. Hill, 437 U. S. 153, 185 (1978) ("It is not for us to speculate, much less act, on whether Congress would have altered its stance had the specific events of this case been anticipated"). Nonetheless, this intent is certainly relevant to understanding the basis for the FDA's representations to Congress and the background against which Congress enacted subsequent tobacco-specific legislation.

Moreover, before enacting the FCLAA in 1965, Congress considered and rejected several proposals to give the FDA the authority to regulate tobacco. In April 1963, Representative Udall introduced a bill "[t]o amend the Federal Food, Drug, and Cosmetic Act so as to make that Act applicable to smoking products." H. R. 5973, 88th Cong., 1st Sess., 1. Two months later, Senator Moss introduced an identical bill in the Senate. S. 1682, 88th Cong., 1st Sess. (1963). In discussing his proposal on the Senate floor, Senator Moss explained that "this amendment simply places smoking products under FDA jurisdiction, along with foods, drugs, and cosmetics." 109 Cong. Rec. 10322 (1963). In December 1963, Representative Rhodes introduced another bill that would have amended the FDCA "by striking out `food, drug, device, or cosmetic, each place where it appears therein and inserting in lieu thereof `food, drug, device, cosmetic, or smoking product.' " H. R. 9512, 88th Cong., 1st Sess., § 3 (1963). And in January 1965, five months before passage of [148] the FCLAA, Representative Udall again introduced a bill to amend the FDCA "to make that Act applicable to smoking products." H. R. 2248, 89th Cong., 1st Sess., 1. None of these proposals became law.

Congress ultimately decided in 1965 to subject tobacco products to the less extensive regulatory scheme of the FCLAA, which created a "comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health." Pub. L. 89-92, § 2, 79 Stat. 282. The FCLAA rejected any regulation of advertising, but it required the warning, "Caution: Cigarette Smoking May Be Hazardous to Your Health," to appear on all cigarette packages. Id., § 4, 79 Stat. 283. In the FCLAA's "Declaration of Policy," Congress stated that its objective was to balance the goals of ensuring that "the public may be adequately informed that cigarette smoking may be hazardous to health" and protecting "commerce and the national economy . . . to the maximum extent." Id., § 2, 79 Stat. 282 (codified at 15 U. S. C. § 1331).

Not only did Congress reject the proposals to grant the FDA jurisdiction, but it explicitly pre-empted any other regulation of cigarette labeling: "No statement relating to smoking and health, other than the statement required by . . . this Act, shall be required on any cigarette package." Pub. L. 89-92, § 5(a), 79 Stat. 283. The regulation of product labeling, however, is an integral aspect of the FDCA, both as it existed in 1965 and today. The labeling requirements currently imposed by the FDCA, which are essentially identical to those in force in 1965, require the FDA to regulate the labeling of drugs and devices to protect the safety of consumers. See 21 U. S. C. § 352; 21 U. S. C. § 352 (1964 ed. and Supp. IV). As discussed earlier, the Act requires that all products bear "adequate directions for use . . . as are necessary for the protection of users," 21 U. S. C. § 352(f)(1); 21 U. S. C. § 352(f)(1) (1964 ed.); requires that all products provide "adequate warnings against use in those pathological [149] conditions or by children where its use may be dangerous to health," 21 U. S. C. § 352(f)(2); 21 U. S. C. § 352(f)(2) (1964 ed.); and deems a product misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof," 21 U. S. C. § 352(j); 21 U. S. C. § 352(j) (1964 ed.). In this sense, the FCLAA was—and remains—incompatible with FDA regulation of tobacco products. This is not to say that the FCLAA's pre-emption provision by itself necessarily foreclosed FDA jurisdiction. See Cipollone v. Liggett Group, Inc., 505 U. S., at 518-519. But it is an important factor in assessing whether Congress ratified the agency's position—that is, whether Congress adopted a regulatory approach to the problem of tobacco and health that contemplated no role for the FDA.

Further, the FCLAA evidences Congress' intent to preclude any administrative agency from exercising significant policymaking authority on the subject of smoking and health. In addition to prohibiting any additional requirements for cigarette labeling, the FCLAA provided that "[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." Pub. L. 89-92, § 5(b), 79 Stat. 283. Thus, in reaction to the FTC's attempt to regulate cigarette labeling and advertising, Congress enacted a statute reserving exclusive control over both subjects to itself.

Subsequent tobacco-specific legislation followed a similar pattern. By the FCLAA's own terms, the prohibition on any additional cigarette labeling or advertising regulations relating to smoking and health was to expire July 1, 1969. See § 10, 79 Stat. 284. In anticipation of the provision's expiration, both the FCC and the FTC proposed rules governing the advertisement of cigarettes. See 34 Fed. Reg. 1959 (1969) (FCC proposed rule to "ban the broadcast of cigarette commercials by radio and television stations"); id., at 7917 [150] (FTC proposed rule requiring manufacturers to disclose on all packaging and in all print advertising "`that cigarette smoking is dangerous to health and may cause death from cancer, coronary heart disease, chronic bronchitis, pulmonary emphysema, and other diseases' "). After debating the proper role for administrative agencies in the regulation of tobacco, see generally Cigarette Labeling and Advertising— 1969: Hearings before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., pt. 2 (1969), Congress amended the FCLAA by banning cigarette advertisements "on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission" and strengthening the warning required to appear on cigarette packages. Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, §§ 4, 6, 84 Stat. 88-89. Importantly, Congress extended indefinitely the prohibition on any other regulation of cigarette labeling with respect to smoking and health (again despite the importance of labeling regulation under the FDCA). § 5(a), 84 Stat. 88 (codified at 15 U. S. C. § 1334(a)). Moreover, it expressly forbade the FTC from taking any action on its pending rule until July 1, 1971, and it required the FTC, if it decided to proceed with its rule thereafter, to notify Congress at least six months in advance of the rule's becoming effective. § 7(a), 84 Stat. 89. As the chairman of the House committee in which the bill originated stated, "the Congress—the body elected by the people— must make the policy determinations involved in this legislation—and not some agency made up of appointed officials." 116 Cong. Rec. 7920 (1970) (remarks of Rep. Staggers).

Four years later, after Congress had transferred the authority to regulate substances covered by the Hazardous Substances Act (HSA) from the FDA to the Consumer Products Safety Commission (CPSC), the American Public Health Association, joined by Senator Moss, petitioned the CPSC to regulate cigarettes yielding more than 21 milligrams of tar. See Action on Smoking and Health v. Harris, 655 F. 2d 236, [151] 241 (CADC 1980); R. Kluger, Ashes to Ashes 375-376 (1996). After the CPSC determined that it lacked authority under the HSA to regulate cigarettes, a District Court held that the HSA did, in fact, grant the CPSC such jurisdiction and ordered it to reexamine the petition. See American Public Health Association v. Consumer Product Safety Commission, [1972-1975 Transfer Binder] CCH Consumer Prod. Safety Guide ¶ 75,081 (DC 1975), vacated as moot, No. 75-1863 (CADC 1976). Before the CPSC could take any action, however, Congress mooted the issue by adopting legislation that eliminated the agency's authority to regulate "tobacco and tobacco products." Consumer Product Safety Commission Improvements Act of 1976, Pub. L. 94-284, § 3(c), 90 Stat. 503 (codified at 15 U. S. C. § 1261(f)(2)). Senator Moss acknowledged that the "legislation, in effect, reverse[d]" the District Court's decision, 121 Cong. Rec. 23563 (1975), and the FDA later observed that the episode was "particularly" "indicative of the policy of Congress to limit the regulatory authority over cigarettes by Federal Agencies," Letter to Action on Smoking and Health (ASH) Executive Director Banzhaf from FDA Comm'r Goyan (Nov. 25, 1980), App. 59. A separate statement in the Senate Report underscored that the legislation's purpose was to "unmistakably reaffirm the clear mandate of the Congress that the basic regulation of tobacco and tobacco products is governed by the legislation dealing with the subject, . . . and that any further regulation in this sensitive and complex area must be reserved for specific Congressional action." S. Rep. No. 94-251, p. 43 (1975) (additional views of Sens. Hartke, Hollings, Ford, Stevens, and Beall).

Meanwhile, the FDA continued to maintain that it lacked jurisdiction under the FDCA to regulate tobacco products as customarily marketed. In 1972, FDA Commissioner Edwards testified before Congress that "cigarettes recommended for smoking pleasure are beyond the Federal Food, Drug, and Cosmetic Act." 1972 Hearings 239, 242. He further [152] stated that the FDA believed that the Public Health Cigarette Smoking Act "demonstrates that the regulation of cigarettes is to be the domain of Congress," and that "labeling or banning cigarettes is a step that can be take[n] only by the Congress. Any such move by FDA would be inconsistent with the clear congressional intent." Ibid.

In 1977, ASH filed a citizen petition requesting that the FDA regulate cigarettes, citing many of the same grounds that motivated the FDA's rulemaking here. See Citizen Petition, No. 77P-0185 (May 26, 1977), 10 Rec. in No. 97-1604 (CA4), Tab No. 22, pp. 1-10. ASH asserted that nicotine was highly addictive and had strong physiological effects on the body; that those effects were "intended" because consumers use tobacco products precisely to obtain those effects; and that tobacco causes thousands of premature deaths annually. Ibid. In denying ASH's petition, FDA Commissioner Kennedy stated that "[t]he interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by the vendors." Letter to ASH Executive Director Banzhaf (Dec. 5, 1977), App. 47. After the matter proceeded to litigation, the FDA argued in its brief to the Court of Appeals that "cigarettes are not comprehended within the statutory definition of the term `drug' absent objective evidence that vendors represent or intend that their products be used as a drug." Brief for Appellee in Action on Smoking and Health v. Harris, 655 F. 2d 236 (CADC 1980), 9 Rec. in No. 97-1604 (CA4), Tab No. 4, at 27-28. The FDA also contended that Congress had "long been aware that the FDA does not consider cigarettes to be within its regulatory authority in the absence of health claims made on behalf of the manufacturer or vendor," and that, because "Congress has never acted to disturb the agency's interpretation," it had "acquiesced in the FDA's interpretation of the statutory limits on its authority to regulate cigarettes." Id., at 23, 27, n. 23. The Court of Appeals upheld the FDA's position, concluding that "[i]f the statute [153] requires expansion, that is the job of Congress." Action on Smoking and Health v. Harris, 655 F. 2d, at 243. In 1980, the FDA also denied a request by ASH to commence rulemaking proceedings to establish the agency's jurisdiction to regulate cigarettes as devices. See Letter to ASH Executive Director Banzhaf from FDA Comm'r Goyan (Nov. 25, 1980), App. 50-51. The agency stated that "[i]nsofar as rulemaking would relate to cigarettes or attached filters as customarily marketed, we have concluded that FDA has no jurisdiction under section 201(h) of the Act [21 U. S. C. § 321(h)]." Id., at 67.

In 1983, Congress again considered legislation on the subject of smoking and health. HHS Assistant Secretary Brandt testified that, in addition to being "a major cause of cancer," smoking is a "major cause of heart disease" and other serious illnesses, and can result in "unfavorable pregnancy outcomes." 1983 House Hearings 19-20. He also stated that it was "well-established that cigarette smoking is a drug dependence, and that smoking is addictive for many people." Id., at 20. Nonetheless, Assistant Secretary Brandt maintained that "the issue of regulation of tobacco . . . is something that Congress has reserved to itself, and we do not within the Department have the authority to regulate nor are we seeking such authority." Id., at 74. He also testified before the Senate, stating that, despite the evidence of tobacco's health effects and addictiveness, the Department's view was that "Congress has assumed the responsibility of regulating . . . cigarettes." Smoking Prevention and Education Act: Hearings on S. 772 before the Senate Committee on Labor and Human Resources, 98th Cong., 1st Sess., 56 (1983) (hereinafter 1983 Senate Hearings).

Against this backdrop, Congress enacted three additional tobacco-specific statutes over the next four years that incrementally expanded its regulatory scheme for tobacco products. In 1983, Congress adopted the Alcohol and Drug Abuse Amendments, Pub. L. 98-24, 97 Stat. 175 (codified at [154] 42 U. S. C. § 290aa et seq. ), which require the Secretary of HHS to report to Congress every three years on the "addictive property of tobacco" and to include recommendations for action that the Secretary may deem appropriate. A year later, Congress enacted the Comprehensive Smoking Education Act, Pub. L. 98-474, 98 Stat. 2200, which amended the FCLAA by again modifying the prescribed warning. Notably, during debate on the Senate floor, Senator Hawkins argued that the FCLAA was necessary in part because "[u]nder the Food, Drug and Cosmetic Act, the Congress exempted tobacco products." 130 Cong. Rec. 26953 (1984). And in 1986, Congress enacted the Comprehensive Smokeless Tobacco Health Education Act of 1986 (CSTHEA), Pub. L. 99-252, 100 Stat. 30 (codified at 15 U. S. C. § 4401 et seq. ), which essentially extended the regulatory provisions of the FCLAA to smokeless tobacco products. Like the FCLAA, the CSTHEA provided that "[n]o statement relating to the use of smokeless tobacco products and health, other than the statements required by [the Act], shall be required by any Federal agency to appear on any package . . . of a smokeless tobacco product." § 7(a), 100 Stat. 34 (codified at 15 U. S. C. § 4406(a)). Thus, as with cigarettes, Congress reserved for itself an aspect of smokeless tobacco regulation that is particularly important to the FDCA's regulatory scheme.

In 1988, the Surgeon General released a report summarizing the abundant scientific literature demonstrating that "[c]igarettes and other forms of tobacco are addicting," and that "nicotine is psychoactive" and "causes physical dependence characterized by a withdrawal syndrome that usually accompanies nicotine abstinence." 1988 Surgeon General's Report 14. The report further concluded that the "pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine." Id., at 15. In the same year, FDA Commissioner Young stated before Congress that "it doesn't look like it is possible to regulate [tobacco] under the [155] Food, Drug and Cosmetic Act even though smoking, I think, has been widely recognized as being harmful to human health." Rural Development, Agriculture, and Related Agencies Appropriations for 1989: Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., 409 (1988). At the same hearing, the FDA's General Counsel testified that "what is fairly important in FDA law is whether a product has a therapeutic purpose," and "[c]igarettes themselves are not used for a therapeutic purpose as that concept is ordinarily understood." Id., at 410. Between 1987 and 1989, Congress considered three more bills that would have amended the FDCA to grant the FDA jurisdiction to regulate tobacco products. See H. R. 3294, 100th Cong., 1st Sess. (1987); H. R. 1494, 101st Cong., 1st Sess. (1989); S. 769, 101st Cong., 1st Sess. (1989). As before, Congress rejected the proposals. In 1992, Congress instead adopted the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, Pub. L. 102-321, § 202, 106 Stat. 394 (codified at 42 U. S. C. § 300x et seq. ), which creates incentives for States to regulate the retail sale of tobacco products by making States' receipt of certain block grants contingent on their prohibiting the sale of tobacco products to minors.

Taken together, these actions by Congress over the past 35 years preclude an interpretation of the FDCA that grants the FDA jurisdiction to regulate tobacco products. We do not rely on Congress' failure to act—its consideration and rejection of bills that would have given the FDA this authority—in reaching this conclusion. Indeed, this is not a case of simple inaction by Congress that purportedly represents its acquiescence in an agency's position. To the contrary, Congress has enacted several statutes addressing the particular subject of tobacco and health, creating a distinct regulatory scheme for cigarettes and smokeless tobacco. In doing so, Congress has been aware of tobacco's health hazards and its pharmacological effects. It has also enacted this legislation [156] against the background of the FDA repeatedly and consistently asserting that it lacks jurisdiction under the FDCA to regulate tobacco products as customarily marketed. Further, Congress has persistently acted to preclude a meaningful role for any administrative agency in making policy on the subject of tobacco and health. Moreover, the substance of Congress' regulatory scheme is, in an important respect, incompatible with FDA jurisdiction. Although the supervision of product labeling to protect consumer health is a substantial component of the FDA's regulation of drugs and devices, see 21 U. S. C. § 352 (1994 ed. and Supp. III), the FCLAA and the CSTHEA explicitly prohibit any federal agency from imposing any health-related labeling requirements on cigarettes or smokeless tobacco products, see 15 U. S. C. §§ 1334(a), 4406(a).

Under these circumstances, it is clear that Congress' tobacco-specific legislation has effectively ratified the FDA's previous position that it lacks jurisdiction to regulate tobacco. As in Bob Jones Univ. v. United States, 461 U. S. 574 (1983), "[i]t is hardly conceivable that Congress—and in this setting, any Member of Congress—was not abundantly aware of what was going on." Id., at 600-601. Congress has affirmatively acted to address the issue of tobacco and health, relying on the representations of the FDA that it had no authority to regulate tobacco. It has created a distinct scheme to regulate the sale of tobacco products, focused on labeling and advertising, and premised on the belief that the FDA lacks such jurisdiction under the FDCA. As a result, Congress' tobacco-specific statutes preclude the FDA from regulating tobacco products as customarily marketed.

Although the dissent takes issue with our discussion of the FDA's change in position, post, at 186-189, our conclusion does not rely on the fact that the FDA's assertion of jurisdiction represents a sharp break with its prior interpretation of the FDCA. Certainly, an agency's initial interpretation of a statute that it is charged with administering is not "carved [157] in stone." Chevron, 467 U. S., at 863; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). As we recognized in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983), agencies "must be given ample latitude to `adapt their rules and policies to the demands of changing circumstances.' " Id., at 42 (quoting Permian Basin Area Rate Cases, 390 U. S. 747, 784 (1968)). The consistency of the FDA's prior position is significant in this case for a different reason: It provides important context to Congress' enactment of its tobacco-specific legislation. When the FDA repeatedly informed Congress that the FDCA does not grant it the authority to regulate tobacco products, its statements were consistent with the agency's unwavering position since its inception, and with the position that its predecessor agency had first taken in 1914. Although not crucial, the consistency of the FDA's prior position bolsters the conclusion that when Congress created a distinct regulatory scheme addressing the subject of tobacco and health, it understood that the FDA is without jurisdiction to regulate tobacco products and ratified that position.

The dissent also argues that the proper inference to be drawn from Congress' tobacco-specific legislation is "critically ambivalent." Post, at 182. We disagree. In that series of statutes, Congress crafted a specific legislative response to the problem of tobacco and health, and it did so with the understanding, based on repeated assertions by the FDA, that the agency has no authority under the FDCA to regulate tobacco products. Moreover, Congress expressly pre-empted any other regulation of the labeling of tobacco products concerning their health consequences, even though the oversight of labeling is central to the FDCA's regulatory scheme. And in addressing the subject, Congress consistently evidenced its intent to preclude any federal agency from exercising significant policymaking authority in the area. Under these circumstances, we believe the appropriate [158] inference—that Congress intended to ratify the FDA's prior position that it lacks jurisdiction—is unmistakable.

The dissent alternatively argues that, even if Congress' subsequent tobacco-specific legislation did, in fact, ratify the FDA's position, that position was merely a contingent disavowal of jurisdiction. Specifically, the dissent contends that "the FDA's traditional view was largely premised on a perceived inability to prove the necessary statutory `intent' requirement." Post, at 189-190. A fair reading of the FDA's representations prior to 1995, however, demonstrates that the agency's position was essentially unconditional. See, e. g., 1972 Hearings 239, 242 (statement of Comm'r Edwards) ("[R]egulation of cigarettes is to be the domain of Congress," and "[a]ny such move by FDA would be inconsistent with the clear congressional intent"); 1983 House Hearings 74 (statement of Assistant Secretary Brandt) ("[T]he issue of regulation of tobacco . . . is something that Congress has reserved to itself"); 1983 Senate Hearings 56 (statement of Assistant Secretary Brandt) ("Congress has assumed the responsibility of regulating . . . cigarettes"); Brief for Appellee in Action on Smoking and Health v. Harris, 655 F. 2d 236 (CADC 1980), 9 Rec. in No. 97-1604 (CA4), Tab No. 4, at 27, n. 23 (because "Congress has never acted to disturb the agency's interpretation," it "acquiesced in the FDA's interpretation"). To the extent the agency's position could be characterized as equivocal, it was only with respect to the well-established exception of when the manufacturer makes express claims of therapeutic benefit. See, e. g., 1965 Hearings 193 (statement of Deputy Comm'r Rankin) ("The Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims"); Letter to ASH Executive Director Banzhaf from FDA Comm'r Kennedy (Dec. 5, 1977), App. 47 ("The interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by the vendors"); Letter to ASH Executive Director Banzhaf from [159] FDA Comm'r Goyan (Nov. 25, 1980), id., at 67 ("Insofar as rulemaking would relate to cigarettes or attached filters as customarily marketed, we have concluded that FDA has no jurisdiction"). Thus, what Congress ratified was the FDA's plain and resolute position that the FDCA gives the agency no authority to regulate tobacco products as customarily marketed.

C

Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under Chevron to an agency's construction of a statute that it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. See Chevron, supra, at 844. In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. Cf. Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration").

This is hardly an ordinary case. Contrary to its representations to Congress since 1914, the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy. In fact, the FDA contends that, were it to determine that tobacco products provide no "reasonable assurance of safety," it would have the authority to ban cigarettes and smokeless tobacco entirely. See Brief for Petitioners 35-36; Reply Brief for Petitioners 14. Owing to its unique place in American history and society, tobacco has its own unique political history. Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to [160] give the FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area. Given this history and the breadth of the authority that the FDA has asserted, we are obliged to defer not to the agency's expansive construction of the statute, but to Congress' consistent judgment to deny the FDA this power.

Our decision in MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218 (1994), is instructive. That case involved the proper construction of the term "modify" in § 203(b) of the Communications Act of 1934. The FCC contended that, because the Act gave it the discretion to "modify any requirement" imposed under the statute, it therefore possessed the authority to render voluntary the otherwise mandatory requirement that long distance carriers file their rates. Id., at 225. We rejected the FCC's construction, finding "not the slightest doubt" that Congress had directly spoken to the question. Id., at 228. In reasoning even more apt here, we concluded that "[i]t is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rateregulated to agency discretion—and even more unlikely that it would achieve that through such a subtle device as permission to `modify' rate-filing requirements." Id., at 231.

As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion. To find that the FDA has the authority to regulate tobacco products, one must not only adopt an extremely strained understanding of "safety" as it is used throughout the Act—a concept central to the FDCA's regulatory scheme—but also ignore the plain implication of Congress' subsequent tobaccospecific legislation. It is therefore clear, based on the FDCA's overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the [161] question at issue and precluded the FDA from regulating tobacco products.

* * *

By no means do we question the seriousness of the problem that the FDA has sought to address. The agency has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States. Nonetheless, no matter how "important, conspicuous, and controversial" the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, post, at 190, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. And "`[i]n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop.' " United States v. Article of Drug . . . Bacto-Unidisk, 394 U. S. 784, 800 (1969) (quoting 62 Cases of Jam v. United States, 340 U. S. 593, 600 (1951)). Reading the FDCA as a whole, as well as in conjunction with Congress' subsequent tobaccospecific legislation, it is plain that Congress has not given the FDA the authority that it seeks to exercise here. For these reasons, the judgment of the Court of Appeals for the Fourth Circuit is affirmed.

It is so ordered.

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

The Food and Drug Administration (FDA) has the authority to regulate "articles (other than food) intended to affect the structure or any function of the body . . . ." Federal Food, Drug, and Cosmetic Act (FDCA), 21 U. S. C. § 321(g)(1)(C). Unlike the majority, I believe that tobacco products fit within this statutory language.

[162] In its own interpretation, the majority nowhere denies the following two salient points. First, tobacco products (including cigarettes) fall within the scope of this statutory definition, read literally. Cigarettes achieve their moodstabilizing effects through the interaction of the chemical nicotine and the cells of the central nervous system. Both cigarette manufacturers and smokers alike know of, and desire, that chemically induced result. Hence, cigarettes are "intended to affect" the body's "structure" and "function," in the literal sense of these words.

Second, the statute's basic purpose—the protection of public health—supports the inclusion of cigarettes within its scope. See United States v. Article of Drug . . . BactoUnidisk, 394 U. S. 784, 798 (1969) (FDCA "is to be given a liberal construction consistent with [its] overriding purpose to protect the public health " (emphasis added)). Unregulated tobacco use causes "[m]ore than 400,000 people [to] die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." 61 Fed. Reg. 44398 (1996). Indeed, tobacco products kill more people in this country every year "than . . . AIDS . . . , car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined. " Ibid. (emphasis added).

Despite the FDCA's literal language and general purpose (both of which support the FDA's finding that cigarettes come within its statutory authority), the majority nonetheless reads the statute as excluding tobacco products for two basic reasons:

(1) the FDCA does not "fit" the case of tobacco because the statute requires the FDA to prohibit dangerous drugs or devices (like cigarettes) outright, and the agency concedes that simply banning the sale of cigarettes is not a proper remedy, ante, at 139-141; and (2) Congress has enacted other statutes, which, when viewed in light of the FDA's long history of denying [163] tobacco-related jurisdiction and considered together with Congress' failure explicitly to grant the agency tobacco-specific authority, demonstrate that Congress did not intend for the FDA to exercise jurisdiction over tobacco, ante, at 155-156.

In my view, neither of these propositions is valid. Rather, the FDCA does not significantly limit the FDA's remedial alternatives. See infra, at 174-181. And the later statutes do not tell the FDA it cannot exercise jurisdiction, but simply leave FDA jurisdictional law where Congress found it. See infra, at 181-186; cf. Food and Drug Administration Modernization Act of 1997, 111 Stat. 2380 (codified at note following 21 U. S. C. § 321 (1994 ed., Supp. III)) (statute "shall" not "be construed to affect the question of whether" the FDA "has any authority to regulate any tobacco product").

The bulk of the opinion that follows will explain the basis for these latter conclusions. In short, I believe that the most important indicia of statutory meaning—language and purpose—along with the FDCA's legislative history (described briefly in Part I) are sufficient to establish that the FDA has authority to regulate tobacco. The statute-specific arguments against jurisdiction that the tobacco companies and the majority rely upon (discussed in Part II) are based on erroneous assumptions and, thus, do not defeat the jurisdiction-supporting thrust of the FDCA's language and purpose. The inferences that the majority draws from later legislative history are not persuasive, since (as I point out in Part III) one can just as easily infer from the later laws that Congress did not intend to affect the FDA's tobacco-related authority at all. And the fact that the FDA changed its mind about the scope of its own jurisdiction is legally insignificant because (as Part IV establishes) the agency's reasons for changing course are fully justified. Finally, as I explain in Part V, the degree of accountability that likely will attach to the FDA's action in this case should alleviate any concern [164] that Congress, rather than an administrative agency, ought to make this important regulatory decision.

I

Before 1938, the federal Pure Food and Drug Act contained only two jurisdictional definitions of "drug":

"[1] medicines and preparations recognized in the United States Pharmacopoeia or National Formulary . . . and [2] any substance or mixture of substances intended to be used for the cure, mitigation, or prevention of disease." Act of June 30, 1906, ch. 3915, § 6, 34 Stat. 769.

In 1938, Congress added a third definition, relevant here:

"(3) articles (other than food) intended to affect the structure or any function of the body . . . ." Act of June 25, 1938, ch. 675, § 201(g), 52 Stat. 1041 (codified at 21 U. S. C. § 321(g)(1)(C)).

It also added a similar definition in respect to a "device." See § 201(h), 52 Stat. 1041 (codified at 21 U. S. C. § 321(h)). As I have mentioned, the literal language of the third definition and the FDCA's general purpose both strongly support a projurisdiction reading of the statute. See supra, at 161-162.

The statute's history offers further support. The FDA drafted the new language, and it testified before Congress that the third definition would expand the FDCA's jurisdictional scope significantly. See Hearings on S. 1944 before a Subcommittee of the Senate Committee on Commerce, 73d Cong., 2d Sess., 15-16 (1933), reprinted in 1 FDA, Legislative History of the Federal Food, Drug, and Cosmetic Act and Its Amendments 107-108 (1979) (hereinafter Leg. Hist.). Indeed, "[t]he purpose" of the new definition was to "make possible the regulation of a great many products that have been found on the market that cannot be alleged to be treatments for diseased conditions." Id., at 108. While the drafters focused specifically upon the need to give the FDA jurisdiction [165] over "slenderizing" products such as "antifat remedies," ibid., they were aware that, in doing so, they had created what was "admittedly an inclusive, a wide definition," id., at 107. And that broad language was included deliberately, so that jurisdiction could be had over "all substances and preparations, other than food, and all devices intended to affect the structure or any function of the body . . . ." Ibid. (emphasis added); see also Hearings on S. 2800 before the Senate Committee on Commerce, 73d Cong., 2d Sess., 516 (1934), reprinted in 2 Leg. Hist. 519 (statement of then-FDA Chief Walter Campbell acknowledging that "[t]his definition of `drugs' is all-inclusive").

After studying the FDCA's history, experts have written that the statute "is a purposefully broad delegation of discretionary powers by Congress," 1 J. O'Reilly, Food and Drug Administration § 6.01, p. 6-1 (2d ed. 1995) (hereinafter O'Reilly), and that, in a sense, the FDCA "must be regarded as a constitution " that "establish[es] general principles" and "permit[s] implementation within broad parameters" so that the FDA can "implement these objectives through the most effective and efficient controls that can be devised." Hutt, Philosophy of Regulation Under the Federal Food, Drug and Cosmetic Act, 28 Food Drug Cosm. L. J. 177, 178-179 (1973) (emphasis added). This Court, too, has said that the

"historical expansion of the definition of drug, and the creation of a parallel concept of devices, clearly show . . . that Congress fully intended that the Act's coverage be as broad as its literal language indicates—and equally clearly, broader than any strict medical definition might otherwise allow." Bacto-Unidisk, 394 U. S., at 798.

That Congress would grant the FDA such broad jurisdictional authority should surprise no one. In 1938, the President and much of Congress believed that federal administrative agencies needed broad authority and would exercise that authority wisely—a view embodied in much Second New [166] Deal legislation. Cf. Gray v. Powell, 314 U. S. 402, 411-412 (1941) (Congress "could have legislated specifically" but decided "to delegate that function to those whose experience in a particular field gave promise of a better informed, more equitable" determination). Thus, at around the same time that it added the relevant language to the FDCA, Congress enacted laws granting other administrative agencies even broader powers to regulate much of the Nation's transportation and communication. See, e. g., Civil Aeronautics Act of 1938, ch. 601, § 401(d)(1), 52 Stat. 987 (Civil Aeronautics Board to regulate airlines within confines of highly general "public convenience and necessity" standard); Motor Carrier Act of 1935, ch. 498, § 204(a)(1), 49 Stat. 546 (Interstate Commerce Commission to establish "reasonable requirements" for trucking); Communications Act of 1934, ch. 652, § 201(a), 48 Stat. 1070 (Federal Communications Commission (FCC) to regulate radio, later television, within confines of even broader "public interest" standard). Why would the 1938 New Deal Congress suddenly have hesitated to delegate to so well established an agency as the FDA all of the discretionary authority that a straightforward reading of the relevant statutory language implies?

Nor is it surprising that such a statutory delegation of power could lead after many years to an assertion of jurisdiction that the 1938 legislators might not have expected. Such a possibility is inherent in the very nature of a broad delegation. In 1938, it may well have seemed unlikely that the FDA would ever bring cigarette manufacturers within the FDCA's statutory language by proving that cigarettes produce chemical changes in the body and that the makers "intended" their product chemically to affect the body's "structure" or "function." Or, back then, it may have seemed unlikely that, even assuming such proof, the FDA actually would exercise its discretion to regulate so popular a product. See R. Kluger, Ashes to Ashes 105 (1997) (in the 1930's "Americans were in love with smoking . . .").

[167] But it should not have seemed unlikely that, assuming the FDA decided to regulate and proved the particular jurisdictional prerequisites, the courts would rule such a jurisdictional assertion fully authorized. Cf. United States v. Southwestern Cable Co., 392 U. S. 157, 172 (1968) (reading Communications Act of 1934 as authorizing FCC jurisdiction to regulate cable systems while noting that "Congress could not in 1934 have foreseen the development of" advanced communications systems). After all, this Court has read more narrowly phrased statutes to grant what might have seemed even more unlikely assertions of agency jurisdiction. See, e. g., Permian Basin Area Rate Cases, 390 U. S. 747, 774-777 (1968) (statutory authority to regulate interstate "transportation" of natural gas includes authority to regulate "prices" charged by field producers); Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 677-684 (1954) (independent gas producer subject to regulation despite Natural Gas Act's express exemption of gathering and production facilities).

I shall not pursue these general matters further, for neither the companies nor the majority denies that the FDCA's literal language, its general purpose, and its particular legislative history favor the FDA's present jurisdictional view. Rather, they have made several specific arguments in support of one basic contention: Even if the statutory delegation is broad, it is not broad enough to include tobacco. I now turn to each of those arguments.

II

A

The tobacco companies contend that the FDCA's words cannot possibly be read to mean what they literally say. The statute defines "device," for example, as "an instrument, apparatus, implement, machine, contrivance, implant, in vitro reagent, or other similar or related article . . . intended to affect the structure or any function of the body . . . ." 21 [168] U. S. C. § 321(h). Taken literally, this definition might include everything from room air conditioners to thermal pajamas. The companies argue that, to avoid such a result, the meaning of "drug" or "device" should be confined to medical or therapeutic products, narrowly defined. See Brief for Respondent United States Tobacco Co. 8-9.

The companies may well be right that the statute should not be read to cover room air conditioners and winter underwear. But I do not agree that we must accept their proposed limitation. For one thing, such a cramped reading contravenes the established purpose of the statutory language. See Bacto-Unidisk, 394 U. S., at 798 (third definition is "clearly, broader than any strict medical definition"); 1 Leg. Hist. 108 (definition covers products "that cannot be alleged to be treatments for diseased conditions"). For another, the companies' restriction would render the other two "drug" definitions superfluous. See 21 U. S. C. §§ 321(g)(1)(A), (g)(1)(B) (covering articles in the leading pharmacology compendia and those "intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease").

Most importantly, the statute's language itself supplies a different, more suitable, limitation: that a "drug" must be a chemical agent. The FDCA's "device" definition states that an article which affects the structure or function of the body is a "device" only if it "does not achieve its primary intended purposes through chemical action within . . . the body," and "is not dependent upon being metabolized for the achievement of its primary intended purposes." § 321(h) (emphasis added). One can readily infer from this language that at least an article that does achieve its primary purpose through chemical action within the body and that is dependent upon being metabolized is a "drug," provided that it otherwise falls within the scope of the "drug" definition. And one need not hypothesize about air conditioners or thermal [169] pajamas to recognize that the chemical nicotine, an important tobacco ingredient, meets this test.

Although I now oversimplify, the FDA has determined that once nicotine enters the body, the blood carries it almost immediately to the brain. See 61 Fed. Reg. 44698-44699 (1966). Nicotine then binds to receptors on the surface of brain cells, setting off a series of chemical reactions that alter one's mood and produce feelings of sedation and stimulation. See id., at 44699, 44739. Nicotine also increases the number of nicotinic receptors on the brain's surface, and alters its normal electrical activity. See id., at 44739. And nicotine stimulates the transmission of a natural chemical that "rewards" the body with pleasurable sensations (dopamine), causing nicotine addiction. See id., at 44700, 44721-44722. The upshot is that nicotine stabilizes mood, suppresses appetite, tranquilizes, and satisfies a physical craving that nicotine itself has helped to create—all through chemical action within the body after being metabolized.

This physiology—and not simply smoker psychology— helps to explain why as many as 75% of adult smokers believe that smoking "reduce[s] nervous irritation," 60 Fed. Reg. 41579 (1995); why 73% of young people (10- to 22-yearolds) who begin smoking say they do so for "relaxation," 61 Fed. Reg. 44814 (1996); and why less than 3% of smokers succeed in quitting each year, although 70% want to quit, id., at 44704. That chemistry also helps to explain the Surgeon General's findings that smokers believe "smoking [makes them] feel better" and smoke more "in situations involving negative mood." Id., at 44814. And, for present purposes, that chemistry demonstrates that nicotine affects the "structure" and "function" of the body in a manner that is quite similar to the effects of other regulated substances. See id., at 44667 (FDA regulates Valium, NoDoz, weight-loss products). Indeed, addiction, sedation, stimulation, and weight loss are precisely the kinds of product effects that the FDA typically reviews and controls. And, since the nicotine in cigarettes [170] plainly is not a "food," its chemical effects suffice to establish that it is as a "drug" (and the cigarette that delivers it a drug-delivery "device") for the purpose of the FDCA.

B

The tobacco companies' principal definitional argument focuses upon the statutory word "intended." See 21 U. S. C. § 321(g)(1)(C). The companies say that "intended" in this context is a term of art. See Brief for Respondent Brown & Williamson Tobacco Corp. 2. They assert that the statutory word "intended" means that the product's maker has made an express claim about the effect that its product will have on the body. Ibid. Indeed, according to the companies, the FDA's inability to prove that cigarette manufacturers make such claims is precisely why that agency historically has said it lacked the statutory power to regulate tobacco. See id., at 19-20.

The FDCA, however, does not use the word "claimed"; it uses the word "intended." And the FDA long ago issued regulations that say the relevant "intent" can be shown not only by a manufacturer's "expressions," but also "by the circumstances surrounding the distribution of the article." 41 Fed. Reg. 6896 (1976) (codified at 21 CFR § 801.4 (1999)); see also 41 Fed. Reg. 6896 (1976) ("objective intent" shown if "article is, with the knowledge [of its makers], offered and used" for a particular purpose). Thus, even in the absence of express claims, the FDA has regulated products that affect the body if the manufacturer wants, and knows, that consumers so use the product. See, e. g., 60 Fed. Reg. 41527-41531 (1995) (describing agency's regulation of topical hormones, sunscreens, fluoride, tanning lamps, thyroid in food supplements, novelty condoms—all marketed without express claims); see also 1 O'Reilly § 13.04, at 13-15 ("Sometimes the very nature of the material makes it a drug . . .").

Courts ordinarily reverse an agency interpretation of this kind only if Congress has clearly answered the interpretive [171] question or if the agency's interpretation is unreasonable. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984). The companies, in an effort to argue the former, point to language in the legislative history tying the word "intended" to a technical concept called "intended use." But nothing in Congress' discussion either of "intended" or "intended use" suggests that an express claim (which often shows intent) is always necessary. Indeed, the primary statement to which the companies direct our attention says only that a manufacturer can determine what kind of regulation applies—"food" or "drug"—because, "through his representations in connection with its sale, [the manufacturer] can determine" whether an article is to be used as a "food," as a "drug," or as "both." S. Rep. No. 361, 74th Cong., 1st Sess., 4 (1935), reprinted in 3 Leg. Hist. 696.

Nor is the FDA's "objective intent" interpretation unreasonable. It falls well within the established scope of the ordinary meaning of the word "intended." See Agnew v. United States, 165 U. S. 36, 53 (1897) (intent encompasses the known consequences of an act). And the companies acknowledge that the FDA can regulate a drug-like substance in the ordinary circumstance, i. e., where the manufacturer makes an express claim, so it is not unreasonable to conclude that the agency retains such power where a product's effects on the body are so well known (say, like those of aspirin or calamine lotion), that there is no need for express representations because the product speaks for itself.

The companies also cannot deny that the evidence of their intent is sufficient to satisfy the statutory word "intended" as the FDA long has interpreted it. In the first place, there was once a time when they actually did make express advertising claims regarding tobacco's mood-stabilizing and weight-reducing properties—and historical representations can portend present expectations. In the late 1920's, for example, the American Tobacco Company urged weightconscious smokers to "`Reach for a Lucky instead of a [172] sweet.' " Kluger, Ashes to Ashes, at 77-78. The advertisements of R J Reynolds (RJR) emphasized mood stability by depicting a pilot remarking that "`It Takes Steady Nerves to Fly the Mail at Night . . . . That's why I smoke Camels. And I smoke plenty!' " Id., at 86. RJR also advertised the stimulating quality of cigarettes, stating in one instance that "`You get a Lift with a Camel,' " and, in another, that Camels are "`A Harmless Restoration of the Flow of Natural Body Energy.' " Id., at 87. And claims of medical proof of mildness (and of other beneficial effects) once were commonplace. See, e. g., id., at 93 (Brown & Williamson advertised Koolbrand mentholated cigarettes as "a tonic to hot, tired throats"); id., at 101, 131 (Philip Morris contended that "`[r]ecognized laboratory tests have conclusively proven the advantage of Phillip [sic] Morris' "); id., at 88 (RJR proclaimed "`For Digestion's sake, smoke Camels! . . . Camels make mealtime more pleasant—digestion is stimulated—alkalinity increased' "). Although in recent decades cigarette manufacturers have stopped making express health claims in their advertising, consumers have come to understand what the companies no longer need to express—that through chemical action cigarettes stabilize mood, sedate, stimulate, and help suppress appetite.

Second, even though the companies refused to acknowledge publicly (until only very recently) that the nicotine in cigarettes has chemically induced, and habit-forming, effects, see, e. g., Regulation of Tobacco Products (Part 1): Hearings before the House Subcommittee on Health and the Environment, 103d Cong., 2d Sess., 628 (1994) (hereinafter 1994 Hearings) (heads of seven major tobacco companies testified under oath that they believed "nicotine is not addictive" (emphasis added)), the FDA recently has gained access to solid, documentary evidence proving that cigarette manufacturers have long known tobacco produces these effects within the body through the metabolizing of chemicals, and that they [173] have long wanted their products to produce those effects in this way.

For example, in 1972, a tobacco-industry scientist explained that "`[s]moke is beyond question the most optimized vehicle of nicotine,' " and "`the cigarette is the most optimized dispenser of smoke.' " 61 Fed. Reg. 44856 (1996) (emphasis deleted). That same scientist urged company executives to

"`[t]hink of the cigarette pack as a storage container for a day's supply of nicotine. . . . Think of the cigarette as a dispenser for a dose unit of nicotine [and] [t]hink of a puff of smoke as the vehicle of nicotine.' " Ibid. (Philip Morris) (emphasis deleted).

That same year, other tobacco industry researchers told their superiors that

"`in different situations and at different dose levels, nicotine appears to act as a stimulant, depressant, tranquilizer, psychic energizer, appetite reducer, anti-fatigue agent, or energizer. . . . Therefore, [tobacco] products may, in a sense, compete with a variety of other products with certain types of drug action.' " Id., at 44669 (RJR) (emphasis deleted).

A draft report prepared by authorities at Philip Morris said that nicotine

"`is a physiologically active, nitrogen containing substance [similar to] quinine, cocaine, atropine and morphine. [And] [w]hile each of these [other] substances can be used to affect human physiology, nicotine has a particularly broad range of influence.' " Id., at 44668-44669.

And a 1980 manufacturer's study stated that

"`the pharmacological response of smokers to nicotine is believed to be responsible for an individual's smoking [174] behaviour, providing the motivation for and the degree of satisfaction required by the smoker.' " Id., at 44936 (Brown & Williamson).

With such evidence, the FDA has more than sufficiently established that the companies "intend" their products to "affect" the body within the meaning of the FDCA.

C

The majority nonetheless reaches the "inescapable conclusion" that the language and structure of the FDCA as a whole "simply do not fit" the kind of public health problem that tobacco creates. Ante, at 143. That is because, in the majority's view, the FDCA requires the FDA to ban outright "dangerous" drugs or devices (such as cigarettes); yet, the FDA concedes that an immediate and total cigarette-sale ban is inappropriate. Ibid.

This argument is curious because it leads with similarly "inescapable" force to precisely the opposite conclusion, namely, that the FDA does have jurisdiction but that it must ban cigarettes. More importantly, the argument fails to take into account the fact that a statute interpreted as requiring the FDA to pick a more dangerous over a less dangerous remedy would be a perverse statute, causing, rather than preventing, unnecessary harm whenever a total ban is likely the more dangerous response. And one can at least imagine such circumstances.

Suppose, for example, that a commonly used, mildly addictive sleeping pill (or, say, a kind of popular contact lens), plainly within the FDA's jurisdiction, turned out to pose serious health risks for certain consumers. Suppose further that many of those addicted consumers would ignore an immediate total ban, turning to a potentially more dangerous black-market substitute, while a less draconian remedy (say, adequate notice) would wean them gradually away to a safer product. Would the FDCA still force the FDA to impose [175] the more dangerous remedy? For the following reasons, I think not.

First, the statute's language does not restrict the FDA's remedial powers in this way. The FDCA permits the FDA to regulate a "combination product"—i. e., a "device" (such as a cigarette) that contains a "drug" (such as nicotine)— under its "device" provisions. 21 U. S. C. § 353(g)(1). And the FDCA's "device" provisions explicitly grant the FDA wide remedial discretion. For example, where the FDA cannot "otherwise" obtain "reasonable assurance" of a device's "safety and effectiveness," the agency may restrict by regulation a product's "sale, distribution, or use" upon "such . . . conditions as the Secretary may prescribe." § 360j(e)(1) (emphasis added). And the statutory section that most clearly addresses the FDA's power to ban (entitled "Banned devices") says that, where a device presents "an unreasonable and substantial risk of illness or injury," the Secretary "may "—not must —"initiate a proceeding . . . to make such device a banned device." § 360f(a) (emphasis added).

The Court points to other statutory subsections which it believes require the FDA to ban a drug or device entirely, even where an outright ban risks more harm than other regulatory responses. See ante, at 135-136. But the cited provisions do no such thing. It is true, as the majority contends, that "the FDCA requires the FDA to place all devices" in "one of three classifications" and that Class III devices require "premarket approval." Ante, at 136. But it is not the case that the FDA must place cigarettes in Class III because tobacco itself "presents a potential unreasonable risk of illness or injury." 21 U. S. C. § 360c(a)(1)(C). In fact, Class III applies only where regulation cannot otherwise "provide reasonable assurance of . . . safety." §§ 360c(a) (1)(A), (B) (placing a device in Class I or Class II when regulation can provide that assurance). Thus, the statute plainly allows the FDA to consider the relative, overall "safety" of [176] a device in light of its regulatory alternatives, and where the FDA has chosen the least dangerous path, i. e., the safest path, then it can—and does—provide a "reasonable assurance" of "safety" within the meaning of the statute. A good football helmet provides a reasonable assurance of safety for the player even if the sport itself is still dangerous. And the safest regulatory choice by definition offers a "reasonable" assurance of safety in a world where the other alternatives are yet more dangerous.

In any event, it is not entirely clear from the statute's text that a Class III categorization would require the FDA affirmatively to withdraw from the market dangerous devices, such as cigarettes, which are already widely distributed. See, e. g., § 360f(a) (when a device presents an "unreasonable and substantial risk of illness or injury," the Secretary "may" make it "a banned device"); § 360h(a) (when a device "presents an unreasonable risk of substantial harm to the public health," the Secretary "may" require "notification"); § 360h(b) (when a defective device creates an "unreasonable risk" of harm, the Secretary "may" order "[r]epair, replacement, or refund"); cf. 2 O'Reilly § 18.08, at 18-29 (point of Class III "premarket approval" is to allow "careful scientific review" of each "truly new" device "before it is exposed" to users (emphasis added)).

Noting that the FDCA requires banning a "misbranded" drug, the majority also points to 21 U. S. C. § 352(j), which deems a drug or device "misbranded" if "it is dangerous to health when used" as "prescribed, recommended, or suggested in the labeling." See ante, at 135. In addition, the majority mentions § 352(f)(1), which calls a drug or device "misbranded" unless "its labeling bears . . . adequate directions for use" as "are necessary for the protection of users." Ibid. But this "misbranding" language is not determinative, for it permits the FDA to conclude that a drug or device is not "dangerous to health" and that it does have "adequate" [177] directions when regulated so as to render it as harmless as possible. And surely the agency can determine that a substance is comparatively "safe" (not "dangerous") whenever it would be less dangerous to make the product available (subject to regulatory requirements) than suddenly to withdraw it from the market. Any other interpretation risks substantial harm of the sort that my sleeping pill example illustrates. See supra, at 174-175. And nothing in the statute prevents the agency from adopting a view of "safety" that would avoid such harm. Indeed, the FDA already seems to have taken this position when permitting distribution of toxic drugs, such as poisons used for chemotherapy, that are dangerous for the user but are not deemed "dangerous to health" in the relevant sense. See 61 Fed. Reg. 44413 (1996).

The tobacco companies point to another statutory provision which says that if a device "would cause serious, adverse health consequences or death, the Secretary shall issue" a cease distribution order. 21 U. S. C. § 360h(e)(1) (emphasis added). But that word "shall" in this context cannot mean that the Secretary must resort to the recall remedy whenever a device would have serious, adverse health effects. Rather, that language must mean that the Secretary "shall issue" a cease distribution order in compliance with the section's procedural requirements if the Secretary chooses in her discretion to use that particular subsection's recall remedy. Otherwise, the subsection would trump and make meaningless the same section's provision of other lesser remedies such as simple "notice" (which the Secretary similarly can impose if, but only if, she finds that the device "presents an unreasonable risk of substantial harm to the public"). § 360h(a)(1). And reading the statute to compel the FDA to "recall" every dangerous device likewise would conflict with that same subsection's statement that the recall remedy "shall be in addition to [the other] remedies provided" in the statute. § 360h(e)(3) (emphasis added).

[178] The statute's language, then, permits the agency to choose remedies consistent with its basic purpose—the overall protection of public health.

The second reason the FDCA does not require the FDA to select the more dangerous remedy, see supra, at 175, is that, despite the majority's assertions to the contrary, the statute does not distinguish among the kinds of health effects that the agency may take into account when assessing safety. The Court insists that the statute only permits the agency to take into account the health risks and benefits of the "product itself " as used by individual consumers, ante, at 140, and, thus, that the FDA is prohibited from considering that a ban on smoking would lead many smokers to suffer severe withdrawal symptoms or to buy possibly stronger, more dangerous, black market cigarettes—considerations that the majority calls "the aggregate health effects of alternative administrative actions." Ibid. But the FDCA expressly permits the FDA to take account of comparative safety in precisely this manner. See, e. g., 21 U. S. C. § 360h(e)(2)(B)(i)(II) (no device recall if "risk of recal[l]" presents "a greater health risk than" no recall); § 360h(a) (notification "unless" notification "would present a greater danger" than "no such notification").

Moreover, one cannot distinguish in this context between a "specific" health risk incurred by an individual and an "aggregate" risk to a group. All relevant risk is, at bottom, risk to an individual; all relevant risk attaches to "the product itself"; and all relevant risk is "aggregate" in the sense that the agency aggregates health effects in order to determine risk to the individual consumer. If unregulated smoking will kill 4 individuals out of a typical group of 1,000 people, if regulated smoking will kill 1 out of 1,000, and if a smoking ban (because of the black market) will kill 2 out of 1,000; then these three possibilities mean that in each group four, one, and two individuals, on average, will die respectively. And the risk to each individual consumer is 4/1,000, [179] 1/1,000, and 2/1,000 respectively. A "specific" risk to an individual consumer and "aggregate" risks are two sides of the same coin; each calls attention to the same set of facts. While there may be a theoretical distinction between the risk of the product itself and the risk related to the presence or absence of an intervening voluntary act (e. g., the search for a replacement on the black market), the majority does not rely upon any such distinction, and the FDA's history of regulating "replacement" drugs such as methadone shows that it has long taken likely actual alternative consumer behavior into account.

I concede that, as a matter of logic, one could consider the FDA's "safety" evaluation to be different from its choice of remedies. But to read the statute to forbid the agency from taking account of the realities of consumer behavior either in assessing safety or in choosing a remedy could increase the risks of harm—doubling the risk of death to each "individual user" in my example above. Why would Congress insist that the FDA ignore such realities, even if the consequent harm would occur only unusually, say, where the FDA evaluates a product (a sleeping pill; a cigarette; a contact lens) that is already on the market, potentially habit forming, or popular? I can find no satisfactory answer to this question. And that, I imagine, is why the statute itself says nothing about any of the distinctions that the Court has tried to draw. See 21 U. S. C. § 360c(a)(2) (instructing FDA to determine the safety and effectiveness of a "device" in part by weighing "any probable benefit to health . . . against any probable risk of injury or illness . . ." (emphasis added)).

Third, experience counsels against an overly rigid interpretation of the FDCA that is divorced from the statute's overall health-protecting purposes. A different set of words, added to the FDCA in 1958 by the Delaney Amendment, provides that "no [food] additive shall be deemed to be safe if it is found [after appropriate tests] to induce cancer when ingested by man or animal." § 348(c)(3). The FDA [180] once interpreted this language as requiring it to ban any food additive, no matter how small the amount, that appeared in any food product if that additive was ever found to induce cancer in any animal, no matter how large a dose needed to induce the appearance of a single carcinogenic cell. See H. R. Rep. No. 95-658, p. 7 (1977) (discussing agency's view). The FDA believed that the statute's ban mandate was absolute and prevented it from establishing a level of "safe use" or even to judge whether "the benefits of continued use outweigh the risks involved." Id., at 5. This interpretation— which in principle could have required the ban of everything from herbal teas to mushrooms—actually led the FDA to ban saccharine, see 42 Fed. Reg. 19996 (1977), though this extremely controversial regulatory response never took effect because Congress enacted, and has continually renewed, a law postponing the ban. See Saccharin Study and Labeling Act, Pub. L. 95-203, § 3, 91 Stat. 1452; e. g., Pub. L. 102-142, Tit. VI, 105 Stat. 910.

The Court's interpretation of the statutory language before us risks Delaney-type consequences with even less linguistic reason. Even worse, the view the Court advances undermines the FDCA's overall health-protecting purpose by placing the FDA in the strange dilemma of either banning completely a potentially dangerous drug or device or doing nothing at all. Saying that I have misunderstood its conclusion, the majority maintains that the FDA "may clearly regulate many `dangerous' products without banning them." Ante, at 142. But it then adds that the FDA must ban— rather than otherwise regulate—a drug or device that "cannot be used safely for any therapeutic purpose." Ibid. If I misunderstand, it is only because this linchpin of the majority's conclusion remains unexplained. Why must a widely used but unsafe device be withdrawn from the market when that particular remedy threatens the health of many and is thus more dangerous than another regulatory response? It is, indeed, a perverse interpretation that reads the FDCA [181] to require the ban of a device that has no "safe" therapeutic purpose where a ban is the most dangerous remedial alternative.

In my view, where linguistically permissible, we should interpret the FDCA in light of Congress' overall desire to protect health. That purpose requires a flexible interpretation that both permits the FDA to take into account the realities of human behavior and allows it, in appropriate cases, to choose from its arsenal of statutory remedies. A statute so interpreted easily "fit[s]" this, and other, drug- and device-related health problems.

III

In the majority's view, laws enacted since 1965 require us to deny jurisdiction, whatever the FDCA might mean in their absence. But why? Do those laws contain language barring FDA jurisdiction? The majority must concede that they do not. Do they contain provisions that are inconsistent with the FDA's exercise of jurisdiction? With one exception, see infra, at 184-185, the majority points to no such provision. Do they somehow repeal the principles of law (discussed in Part II, supra ) that otherwise would lead to the conclusion that the FDA has jurisdiction in this area? The companies themselves deny making any such claim. See Tr. of Oral Arg. 27 (denying reliance on doctrine of "partial repeal"). Perhaps the later laws "shape" and "focus" what the 1938 Congress meant a generation earlier. Ante, at 143. But this Court has warned against using the views of a later Congress to construe a statute enacted many years before. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650 (1990) (later history is a "`hazardous basis for inferring the intent of an earlier' Congress" (quoting United States v. Price, 361 U. S. 304, 313 (1960))). And, while the majority suggests that the subsequent history "control[s] our construction" of the FDCA, see ante, at 143 (citation and internal quotation marks omitted), this Court [182] expressly has held that such subsequent views are not "controlling." Haynes v. United States, 390 U. S. 85, 87-88, n. 4 (1968); accord, Southwestern Cable Co., 392 U. S., at 170 (such views have "`very little, if any, significance' "); see also Sullivan v. Finkelstein, 496 U. S. 617, 632 (1990) (Scalia, J., concurring) ("Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote").

Regardless, the later statutes do not support the majority's conclusion. That is because, whatever individual Members of Congress after 1964 may have assumed about the FDA's jurisdiction, the laws they enacted did not embody any such "no jurisdiction" assumption. And one cannot automatically infer an antijurisdiction intent, as the majority does, for the later statutes are both (and similarly) consistent with quite a different congressional desire, namely, the intent to proceed without interfering with whatever authority the FDA otherwise may have possessed. See, e. g., Cigarette Labeling and Advertising—1965: Hearings on H. R. 2248 et al. before the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess., 19 (1965) (hereinafter 1965 Hearings) (statement of Rep. Fino that the proposed legislation would not "erode" agency authority). As I demonstrate below, the subsequent legislative history is critically ambivalent, for it can be read either as (a) "ratif[ying]" a no-jurisdiction assumption, see ante, at 158, or as (b) leaving the jurisdictional question just where Congress found it. And the fact that both inferences are "equally tenable," Pension Benefit Guaranty Corp., supra, at 650 (citation and internal quotation marks omitted); Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (Scalia, J., dissenting), prevents the majority from drawing from the later statutes the firm, antijurisdiction implication that it needs.

Consider, for example, Congress' failure to provide the FDA with express authority to regulate tobacco—a circumstance [183] that the majority finds significant. See ante, at 144, 147-148, 155. But cf. Southwestern Cable Co., supra, at 170 (failed requests do not prove agency "did not already possess" authority). In fact, Congress both failed to grant express authority to the FDA when the FDA denied it had jurisdiction over tobacco and failed to take that authority expressly away when the agency later asserted jurisdiction. See, e. g., S. 1262, 104th Cong., 1st Sess., § 906 (1995) (failed bill seeking to amend FDCA to say that "[n]othing in this Act or any other Act shall provide the [FDA] with any authority to regulate in any manner tobacco or tobacco products"); see also H. R. 516, 105th Cong., 1st Sess., § 2 (1997) (similar); H. R. Res. 980, reprinted in 142 Cong. Rec. 5018 (1996) (Georgia legislators unsuccessfully requested that Congress "rescind any action giving the FDA authority" over tobacco); H. R. 2283, 104th Cong., 1st Sess. (1995) (failed bill "[t]o prohibit the [FDA] regulation of the sale or use of tobacco"); H. R. 2414, 104th Cong., 1st Sess., § 2(a) (1995) (similar). Consequently, the defeat of various different proposed jurisdictional changes proves nothing. This history shows only that Congress could not muster the votes necessary either to grant or to deny the FDA the relevant authority. It neither favors nor disfavors the majority's position.

The majority also mentions the speed with which Congress acted to take jurisdiction away from other agencies once they tried to assert it. See ante, at 145, 149-151. But such a congressional response again proves nothing. On the one hand, the speedy reply might suggest that Congress somehow resented agency assertions of jurisdiction in an area it desired to reserve for itself—a consideration that supports the majority. On the other hand, Congress' quick reaction with respect to other agencies' regulatory efforts contrasts dramatically with its failure to enact any responsive law (at any speed) after the FDA asserted jurisdiction over tobacco more than three years ago. And that contrast supports the opposite conclusion.

[184] In addition, at least one post-1938 statute reveals quite a different congressional intent than the majority infers. See note following 21 U. S. C. § 321 (1994 ed., Supp. III) (FDA Modernization Act of 1997) (law "shall [not] be construed to affect the question of whether the [FDA] has any authority to regulate any tobacco product," and "[s]uch authority, if any, shall be exercised under the [FDCA] as in effect on the day before the date of [this] enactment"). Consequently, it appears that the only interpretation that can reconcile all of the subsequent statutes is the inference that Congress did not intend, either explicitly or implicitly, for its later laws to answer the question of the scope of the FDA's jurisdictional authority. See 143 Cong. Rec. S8860 (Sept. 5, 1997) (the Modernization Act will "not interfere or substantially negatively affect any of the FDA tobacco authority").

The majority's historical perspective also appears to be shaped by language in the Federal Cigarette Labeling and Advertising Act (FCLAA), 79 Stat. 282, 15 U. S. C. § 1331 et seq. See ante, at 148-149. The FCLAA requires manufacturers to place on cigarette packages, etc., health warnings such as the following:

"SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy." 15 U. S. C. § 1333(a).

The FCLAA has an express pre-emption provision which says that "[n]o statement relating to smoking and health, other than the statement required by [this Act], shall be required on any cigarette package." § 1334(a). This preemption clause plainly prohibits the FDA from requiring on "any cigarette package" any other "statement relating to smoking and health," but no one contends that the FDA has failed to abide by this prohibition. See, e. g., 61 Fed. Reg. 44399 (1996) (describing the other regulatory prescriptions). Rather, the question is whether the FCLAA's pre-emption [185] provision does more. Does it forbid the FDA to regulate at all?

This Court has already answered that question expressly and in the negative. See Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992). Cipollone held that the FCLAA's preemption provision does not bar state or federal regulation outside the provision's literal scope. Id., at 518. And it described the pre-emption provision as "merely prohibit[ing] state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels . . . ." Ibid.

This negative answer is fully consistent with Congress' intentions in regard to the pre-emption language. When Congress enacted the FCLAA, it focused upon the regulatory efforts of the Federal Trade Commission (FTC), not the FDA. See 1965 Hearings 1-2. And the Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, § 7(c), 84 Stat. 89, expressly amended the FCLAA to provide that "[n]othing in this Act shall be construed to affirm or deny the [FTC's] holding that it has the authority to issue trade regulation rules" for tobacco. See also H. R. Conf. Rep. No. 91-897, p. 7 (1970) (statement of House Managers) (we have "no intention to resolve the question as to whether" the FTC could regulate tobacco in a different way); see also 116 Cong. Rec. 7921 (1970) (statement of Rep. Satterfield) (same). Why would one read the FCLAA's pre-emption clause—a provision that Congress intended to limit even in respect to the agency directly at issue—so broadly that it would bar a different agency from engaging in any other cigarette regulation at all? The answer is that the Court need not, and should not, do so. And, inasmuch as the Court already has declined to view the FCLAA as pre-empting the entire field of tobacco regulation, I cannot accept that that same law bars the FDA's regulatory efforts here.

When the FCLAA's narrow pre-emption provision is set aside, the majority's conclusion that Congress clearly intended for its tobacco-related statutes to be the exclusive [186] "response" to "the problem of tobacco and health," ante, at 157, is based on legislative silence. Notwithstanding the views voiced by various legislators, Congress itself has addressed expressly the issue of the FDA's tobacco-related authority only once—and, as I have said, its statement was that the statute was not to "be construed to affect the question of whether the [FDA] has any authority to regulate any tobacco product." Note following 21 U. S. C. § 321 (1994 ed., Supp. III). The proper inference to be drawn from all of the post-1965 statutes, then, is one that interprets Congress' general legislative silence consistently with this statement.

IV

I now turn to the final historical fact that the majority views as a factor in its interpretation of the subsequent legislative history: the FDA's former denials of its tobaccorelated authority.

Until the early 1990's, the FDA expressly maintained that the 1938 statute did not give it the power that it now seeks to assert. It then changed its mind. The majority agrees with me that the FDA's change of positions does not make a significant legal difference. See ante, at 156-157; see also Chevron, 467 U. S., at 863 ("An initial agency interpretation is not instantly carved in stone"); accord, Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996) ("[C]hange is not invalidating"). Nevertheless, it labels those denials "important context" for drawing an inference about Congress' intent. Ante, at 157. In my view, the FDA's change of policy, like the subsequent statutes themselves, does nothing to advance the majority's position.

When it denied jurisdiction to regulate cigarettes, the FDA consistently stated why that was so. In 1963, for example, FDA administrators wrote that cigarettes did not satisfy the relevant FDCA definitions—in particular, the "intent" requirement—because cigarette makers did not sell their product with accompanying "therapeutic claims." [187] Letter to Directors of Bureaus, Divisions and Directors of Districts from FDA Bureau of Enforcement (May 24, 1963), in Public Health Cigarette Amendments of 1971: Hearings on S. 1454 before the Consumer Subcommittee of the Senate Committee on Commerce, 92d Cong., 2d Sess., 240 (1972) (hereinafter FDA Enforcement Letter). And subsequent FDA Commissioners made roughly the same assertion. One pointed to the fact that the manufacturers only "recommended" cigarettes "for smoking pleasure." Two others reiterated the evidentiary need for "health claims." Yet another stressed the importance of proving "intent," adding that "[w]e have not had sufficient evidence" of "intent with regard to nicotine." See, respectively, id., at 239 (Comm'r Edwards); Letter of Dec. 5, 1977, App. 47 (Comm'r Kennedy); 1965 Hearings 193 (Comm'r Rankin); 1994 Hearings 28 (Comm'r Kessler). Tobacco company counsel also testified that the FDA lacked jurisdiction because jurisdiction "depends on . . . intended use," which in turn "depends, in general, on the claims and representations made by the manufacturer." Health Consequences of Smoking: Nicotine Addiction, Hearing before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 100th Cong., 2d Sess., 288 (1988) (testimony of Richard Cooper) (emphasis added).

Other agency statements occasionally referred to additional problems. Commissioner Kessler, for example, said that the "enormous social consequences" flowing from a decision to regulate tobacco counseled in favor of obtaining specific congressional "guidance." 1994 Hearings 69; see also ante, at 153 (quoting statement of Health and Human Services Secretary Brandt to the effect that Congress wanted to make the relevant jurisdictional decision). But a fair reading of the FDA's denials suggests that the overwhelming problem was one of proving the requisite manufacturer intent. See Action on Smoking and Health v. Harris, 655 F. 2d 236, 238-239 (CADC 1980) (FDA "comments" reveal its "understanding" [188] that "the crux of FDA jurisdiction over drugs lay in manufacturers' representations as revelatory of their intent").

What changed? For one thing, the FDA obtained evidence sufficient to prove the necessary "intent" despite the absence of specific "claims." See supra, at 172-174. This evidence, which first became available in the early 1990's, permitted the agency to demonstrate that the tobacco companies knew nicotine achieved appetite-suppressing, mood-stabilizing, and habituating effects through chemical (not psychological) means, even at a time when the companies were publicly denying such knowledge.

Moreover, scientific evidence of adverse health effects mounted, until, in the late 1980's, a consensus on the seriousness of the matter became firm. That is not to say that concern about smoking's adverse health effects is a new phenomenon. See, e. g., Higginson, A New Counterblast, in Out-door Papers 179, 194 (1863) (characterizing tobacco as "`a narcotic poison of the most active class' "). It is to say, however, that convincing epidemiological evidence began to appear mid-20th century; that the first Surgeon General's Report documenting the adverse health effects appeared in 1964; and that the Surgeon General's Report establishing nicotine's addictive effects appeared in 1988. At each stage, the health conclusions were the subject of controversy, diminishing somewhat over time, until recently—and only recently—has it become clear that there is a wide consensus about the health problem. See 61 Fed. Reg. 44701-44706 (1996).

Finally, administration policy changed. Earlier administrations may have hesitated to assert jurisdiction for the reasons prior Commissioners expressed. See supra, at 186-187 and this page. Commissioners of the current administration simply took a different regulatory attitude.

Nothing in the law prevents the FDA from changing its policy for such reasons. By the mid-1990's, the evidence [189] needed to prove objective intent—even without an express claim—had been found. The emerging scientific consensus about tobacco's adverse, chemically induced, health effects may have convinced the agency that it should spend its resources on this important regulatory effort. As for the change of administrations, I agree with then-Justice Rehnquist's statement in a different case, where he wrote:

"The agency's changed view . . . seems to be related to the election of a new President of a different political party. It is readily apparent that the responsible members of one administration may consider public resistance and uncertainties to be more important than do their counterparts in a previous administration. A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations. As long as the agency remains within the bounds established by Congress, it is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 59 (1983) (concurring in part and dissenting in part).

V

One might nonetheless claim that, even if my interpretation of the FDCA and later statutes gets the words right, it lacks a sense of their "music." See Helvering v. Gregory, 69 F. 2d 809, 810-811 (CA2 1934) (L. Hand, J.) ("[T]he meaning of a [statute] may be more than that of the separate words, as a melody is more than the notes . . .").Such a claim might rest on either of two grounds.

First, one might claim that, despite the FDA's legal right to change its mind, its original statements played a critical part in the enactment of the later statutes and now should play a critical part in their interpretation. But the FDA's [190] traditional view was largely premised on a perceived inability to prove the necessary statutory "intent" requirement. See, e. g., FDA Enforcement Letter 240 ("The statutory basis for the exclusion of tobacco products from FDA's jurisdiction is the fact that tobacco marketed for chewing or smoking without accompanying therapeutic claims, does not meet the definitions . . . for food, drug, device or cosmetic"). The statement, "we cannot assert jurisdiction over substance X unless it is treated as a food," would not bar jurisdiction if the agency later establishes that substance X is, and is intended to be, eaten. The FDA's denials of tobacco-related authority sufficiently resemble this kind of statement that they should not make the critical interpretive difference.

Second, one might claim that courts, when interpreting statutes, should assume in close cases that a decision with "enormous social consequences," 1994 Hearings 69, should be made by democratically elected Members of Congress rather than by unelected agency administrators. Cf. Kent v. Dulles, 357 U. S. 116, 129 (1958) (assuming Congress did not want to delegate the power to make rules interfering with exercise of basic human liberties). If there is such a background canon of interpretation, however, I do not believe it controls the outcome here.

Insofar as the decision to regulate tobacco reflects the policy of an administration, it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility. And the very importance of the decision taken here, as well as its attendant publicity, means that the public is likely to be aware of it and to hold those officials politically accountable. Presidents, just like Members of Congress, are elected by the public. Indeed, the President and Vice President are the only public officials whom the entire Nation elects. I do not believe that an administrative agency decision of this magnitude—one that is important, conspicuous, and controversial—can escape the kind of public scrutiny that is essential in any democracy. [191] And such a review will take place whether it is the Congress or the Executive Branch that makes the relevant decision.

* * *

According to the FDA, only 2.5% of smokers successfully stop smoking each year, even though 70% say they want to quit and 34% actually make an attempt to do so. See 61 Fed. Reg. 44704 (1996) (citing Centers for Disease Control and Prevention, Cigarette Smoking Among Adults—United States, 1993; 43 Morbidity and Mortality Weekly Report 929 (Dec. 23, 1994)). The fact that only a handful of those who try to quit smoking actually succeed illustrates a certain reality—the reality that the nicotine in cigarettes creates a powerful physiological addiction flowing from chemically induced changes in the brain. The FDA has found that the makers of cigarettes "intend" these physical effects. Hence, nicotine is a "drug"; the cigarette that delivers nicotine to the body is a "device"; and the FDCA's language, read in light of its basic purpose, permits the FDA to assert the disease-preventing jurisdiction that the agency now claims.

The majority finds that cigarettes are so dangerous that the FDCA would require them to be banned (a result the majority believes Congress would not have desired); thus, it concludes that the FDA has no tobacco-related authority. I disagree that the statute would require a cigarette ban. But even if I am wrong about the ban, the statute would restrict only the agency's choice of remedies, not its jurisdiction.

The majority also believes that subsequently enacted statutes deprive the FDA of jurisdiction. But the later laws say next to nothing about the FDA's tobacco-related authority. Previous FDA disclaimers of jurisdiction may have helped to form the legislative atmosphere out of which Congress' own tobacco-specific statutes emerged. But a legislative atmosphere is not a law, unless it is embodied in a statutory word or phrase. And the relevant words and phrases here reveal [192] nothing more than an intent not to change the jurisdictional status quo.

The upshot is that the Court today holds that a regulatory statute aimed at unsafe drugs and devices does not authorize regulation of a drug (nicotine) and a device (a cigarette) that the Court itself finds unsafe. Far more than most, this particular drug and device risks the life-threatening harms that administrative regulation seeks to rectify. The majority's conclusion is counterintuitive. And, for the reasons set forth, I believe that the law does not require it.

Consequently, I dissent.

[1] Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Mike Hatch, Attorney General of Minnesota, James S. Alexander, Assistant Attorney General, Louise H. Renne, and by the Attorneys General for their respective States as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Mark Pryor of Arkansas, Bill Lockyer of California, Ken Salazar of Colorado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W. Nixon of Missouri, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, John Cornyn of Texas, Jan Graham of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, James E. Doyle of Wisconsin, and Gay Woodhouse of Wyoming; for Action on Smoking and Health by John F. Banzhaf III and Kathleen E. Scheg; for the American Cancer Society, Inc., by Russell E. Brooks, David R. Gelfand, Charles W. Westland, and William J. Dalton; for the American College of Chest Physicians by Raymond D. Cotton; and for Public Citizen, Inc., et al. by Allison M. Zieve, Alan B. Morrison, and David C. Vladeck.

Briefs of amici curiae urging affirmance were filed for the Pacific Legal Foundation by Anne M. Hayes and M. Reed Hopper; for the Product Liability Advisory Council, Inc., by Kenneth S. Geller; and for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp.

407 U.S. 258 (1972)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

Arthur J. Goldberg argued the cause for petitioner. With him on the briefs was Jay H. Topkis.

Paul A. Porter argued the cause for respondent Kuhn. Louis F. Hoynes, Jr., argued the cause for respondents Feeney, President of National League of Professional Baseball Clubs, et al. With them on the brief were Mark F. Hughes, Alexander H. Hadden, James P. Garner, Warren Daane, and Jerome I. Chapman.

[259] MR. JUSTICE BLACKMUN delivered the opinion of the Court.

For the third time in 50 years the Court is asked specifically to rule that professional baseball's reserve system is within the reach of the federal antitrust laws.^[1] [260] Collateral issues of state law and of federal labor policy are also advanced.

I

THE GAME

It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken's [261] Elysian Fields June 19, 1846, with Alexander Jay Cartwright as the instigator and the umpire. The teams were amateur, but the contest marked a significant date in baseball's beginnings. That early game led ultimately to the development of professional baseball and its tightly organized structure.

The Cincinnati Red Stockings came into existence in 1869 upon an outpouring of local pride. With only one Cincinnatian on the payroll, this professional team traveled over 11,000 miles that summer, winning 56 games and tying one. Shortly thereafter, on St. Patrick's Day in 1871, the National Association of Professional Baseball Players was founded and the professional league was born.

The ensuing colorful days are well known. The ardent follower and the student of baseball know of General Abner Doubleday; the formation of the National League in 1876; Chicago's supremacy in the first year's competition under the leadership of Al Spalding and with Cap Anson at third base; the formation of the American Association and then of the Union Association in the 1880's; the introduction of Sunday baseball; interleague warfare with cut-rate admission prices and player raiding; the development of the reserve "clause"; the emergence in 1885 of the Brotherhood of Professional Ball Players, and in 1890 of the Players League; the appearance of the American League, or "junior circuit," in 1901, rising from the minor Western Association; the first World [262] Series in 1903, disruption in 1904, and the Series' resumption in 1905; the short-lived Federal League on the majors' scene during World War I years; the troublesome and discouraging episode of the 1919 Series; the home run ball; the shifting of franchises; the expansion of the leagues; the installation in 1965 of the major league draft of potential new players; and the formation of the Major League Baseball Players Association in 1966.^[2]

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, [263] Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove.^[3] The list seems endless.

And one recalls the appropriate reference to the "World Serious," attributed to Ring Lardner, Sr.; Ernest L. Thayer's "Casey at the Bat";^[4] the ring of "Tinker to [264] Evers to Chance";^[5] and all the other happenings, habits, and superstitions about and around baseball that made it the "national pastime" or, depending upon the point of view, "the great American tragedy."^[6]

II

The Petitioner

The petitioner, Curtis Charles Flood, born in 1938, began his major league career in 1956 when he signed a contract with the Cincinnati Reds for a salary of $4,000 for the season. He had no attorney or agent to advise him on that occasion. He was traded to the St. Louis Cardinals before the 1958 season. Flood rose to fame as a center fielder with the Cardinals during the years 1958-1969. In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.

[265] Flood's St. Louis compensation for the years shown was:

     1961    $13,500 (including a bonus for signing)
     1962    $16,000
     1963    $17,500
     1964    $23,000
     1965    $35,000
     1966    $45,000
     1967    $50,000
     1968    $72,000
     1969    $90,000

These figures do not include any so-called fringe benefits or World Series shares.

But at the age of 31, in October 1969, Flood was traded to the Philadelphia Phillies of the National League in a multi-player transaction. He was not consulted about the trade. He was informed by telephone and received formal notice only after the deal had been consummated. In December he complained to the Commissioner of Baseball and asked that he be made a free agent and be placed at liberty to strike his own bargain with any other major league team. His request was denied.

Flood then instituted this antitrust suit^[7] in January 1970 in federal court for the Southern District of New York. The defendants (although not all were named in each cause of action) were the Commissioner of Baseball, the presidents of the two major leagues, and the 24 major league clubs. In general, the complaint charged violations of the federal antitrust laws and civil rights statutes, violation of state statutes and the common law, and the imposition of a form of peonage and involuntary [266] servitude contrary to the Thirteenth Amendment and 42 U. S. C. § 1994, 18 U. S. C. § 1581, and 29 U. S. C. §§ 102 and 103. Petitioner sought declaratory and injunctive relief and treble damages.

Flood declined to play for Philadelphia in 1970, despite a $100,000 salary offer, and he sat out the year. After the season was concluded, Philadelphia sold its rights to Flood to the Washington Senators. Washington and the petitioner were able to come to terms for 1971 at a salary of $110,000.^[8] Flood started the season but, apparently because he was dissatisfied with his performance, he left the Washington club on April 27, early in the campaign. He has not played baseball since then.

III

The Present Litigation

Judge Cooper, in a detailed opinion, first denied a preliminary injunction, 309 F. Supp. 793 (SDNY 1970), observing on the way:

"Baseball has been the national pastime for over one hundred years and enjoys a unique place in our American heritage. Major league professional baseball is avidly followed by millions of fans, looked upon with fervor and pride and provides a special source of inspiration and competitive team spirit especially for the young.

"Baseball's status in the life of the nation is so pervasive that it would not strain credulity to say the Court can take judicial notice that baseball is everybody's business. To put it mildly and with restraint, it would be unfortunate indeed if a fine sport and profession, which brings surcease from daily travail and an escape from the ordinary to [267] most inhabitants of this land, were to suffer in the least because of undue concentration by any one or any group on commercial and profit considerations. The game is on higher ground; it behooves every one to keep it there." 309 F. Supp., at 797.

Flood's application for an early trial was granted. The court next deferred until trial its decision on the defendants' motions to dismiss the primary causes of action, but granted a defense motion for summary judgment on an additional cause of action. 312 F. Supp. 404 (SDNY 1970).

Trial to the court took place in May and June 1970. An extensive record was developed. In an ensuing opinion, 316 F. Supp. 271 (SDNY 1970), Judge Cooper first noted that:

"Plaintiff's witnesses in the main concede that some form of reserve on players is a necessary element of the organization of baseball as a league sport, but contend that the present all-embracing system is needlessly restrictive and offer various alternatives which in their view might loosen the bonds without sacrifice to the game. . . .

.....

"Clearly the preponderance of credible proof does not favor elimination of the reserve clause. With the sole exception of plaintiff himself, it shows that even plaintiff's witnesses do not contend that it is wholly undesirable; in fact they regard substantial portions meritorious. . . ." 316 F. Supp., at 275-276.

He then held that Federal Baseball Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), were controlling; that it was not necessary to reach the issue whether exemption from the antitrust laws would result because aspects of [268] baseball now are a subject of collective bargaining; that the plaintiff's state-law claims, those based on common law as well as on statute, were to be denied because baseball was not "a matter which admits of diversity of treatment," 316 F. Supp., at 280; that the involuntary servitude claim failed because of the absence of "the essential element of this cause of action, a showing of compulsory service," 316 F. Supp., at 281-282; and that judgment was to be entered for the defendants. Judge Cooper included a statement of personal conviction to the effect that "negotiations could produce an accommodation on the reserve system which would be eminently fair and equitable to all concerned" and that "the reserve clause can be fashioned so as to find acceptance by player and club." 316 F. Supp., at 282 and 284.

On appeal, the Second Circuit felt "compelled to affirm." 443 F. 2d 264, 265 (1971). It regarded the issue of state law as one of first impression, but concluded that the Commerce Clause precluded its application. Judge Moore added a concurring opinion in which he predicted, with respect to the suggested overruling of Federal Baseball and Toolson, that "there is no likelihood that such an event will occur."^[9] 443 F. 2d, at 268, 272.

[269] We granted certiorari in order to look once again at this troublesome and unusual situation. 404 U. S. 880 (1971).

IV

The Legal Background

A. Federal Baseball Club v. National League, 259 U. S. 200 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U. S., at 201-206.

Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said:

"The business is giving exhibitions of base ball, which are purely state affairs. . . . But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and [270] must arrange and pay for their doing so is not enough to change the character of the business. . . . [T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendants, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.

"If we are right the plaintiff's business is to be described in the same way and the restrictions by contract that prevented the plaintiff from getting players to break their bargains and the other conduct charged against the defendants were not an interference with commerce among the States." 259 U. S., at 208-209.^[10]

[271] The Court thus chose not to be persuaded by opposing examples proffered by the plaintiff, among them (a) Judge Learned Hand's decision on a demurrer to a Sherman Act complaint with respect to vaudeville entertainers traveling a theater circuit covering several States, H. B. Marienelli, Ltd. v. United Booking Offices, 227 F. 165 (SDNY 1914); (b) the first Mr. Justice Harlan's opinion in International Textbook Co. v. Pigg, 217 U. S. 91 (1910), to the effect that correspondence courses pursued through the mail constituted commerce among the States; and (c) Mr. Justice Holmes' own opinion, for another unanimous Court, on demurrer in a Sherman Act case, relating to cattle shipment, the interstate movement of which was interrupted for the finding of purchasers at the stockyards, Swift & Co. v. United States, 196 U. S. 375 (1905). The only earlier case the parties were able to locate where the question was raised whether organized baseball was within the Sherman Act was American League Baseball Club v. Chase, 86 Misc. 441, 149 N. Y. S. 6 (1914). That court had answered the question in the negative.

B. Federal Baseball was cited a year later, and without disfavor, in another opinion by Mr. Justice Holmes for a unanimous Court. The complaint charged antitrust violations with respect to vaudeville bookings. It was held, however, that the claim was not frivolous and that the bill should not have been dismissed. Hart v. B. F. Keith Vaudeville Exchange, 262 U. S. 271 (1923).^[11]

It has also been cited, not unfavorably, with respect to the practice of law, United States v. South-Eastern [272] Underwriters Assn., 322 U. S. 533, 573 (1944) (Stone, C. J., dissenting); with respect to out-of-state contractors, United States v. Employing Plasterers Assn., 347 U. S. 186, 196-197 (1954) (Minton, J., dissenting); and upon a general comparison reference, North American Co. v. SEC, 327 U. S. 686, 694 (1946).

In the years that followed, baseball continued to be subject to intermittent antitrust attack. The courts, however, rejected these challenges on the authority of Federal Baseball. In some cases stress was laid, although unsuccessfully, on new factors such as the development of radio and television with their substantial additional revenues to baseball.^[12] For the most part, however, the Holmes opinion was generally and necessarily accepted as controlling authority.^[13] And in the 1952 Report of the Subcommittee on Study of Monopoly Power of the House Committee on the Judiciary, H. R. Rep. No. 2002, 82d Cong., 2d Sess., 229, it was said, in conclusion:

"On the other hand the overwhelming preponderance of the evidence established baseball's need for some sort of reserve clause. Baseball's history shows that chaotic conditions prevailed when there was no reserve clause. Experience points to no feasible substitute to protect the integrity of the game or to guarantee a comparatively even competitive [273] struggle. The evidence adduced at the hearings would clearly not justify the enactment of legislation flatly condemning the reserve clause."

C. The Court granted certiorari, 345 U. S. 963 (1953), in the Toolson, Kowalski, and Corbett cases, cited in nn. 12 and 13, supra, and, by a short per curiam (Warren, C. J., and Black, Frankfurter, DOUGLAS, Jackson, Clark, and Minton, JJ.), affirmed the judgments of the respective courts of appeals in those three cases. Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953). Federal Baseball was cited as holding "that the business of providing public baseball games for profit between clubs of professional baseball players was not within the scope of the federal antitrust laws," 346 U. S., at 357, and:

"Congress has had the ruling under consideration but has not seen fit to bring such business under these laws by legislation having prospective effect. The business has thus been left for thirty years to develop, on the understanding that it was not subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation. Without re-examination of the underlying issues, the judgments below are affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." Ibid.

This quotation reveals four reasons for the Court's affirmance of Toolson and its companion cases: (a) Congressional awareness for three decades of the Court's ruling in Federal Baseball, coupled with congressional [274] inaction. (b) The fact that baseball was left alone to develop for that period upon the understanding that the reserve system was not subject to existing federal antitrust laws. (c) A reluctance to overrule Federal Baseball with consequent retroactive effect. (d) A professed desire that any needed remedy be provided by legislation rather than by court decree. The emphasis in Toolson was on the determination, attributed even to Federal Baseball, that Congress had no intention to include baseball within the reach of the federal antitrust laws. Two Justices (Burton and Reed, JJ.) dissented, stressing the factual aspects, revenue sources, and the absence of an express exemption of organized baseball from the Sherman Act. 346 U. S., at 357. The 1952 congressional study was mentioned. Id., at 358, 359, 361.

It is of interest to note that in Toolson the petitioner had argued flatly that Federal Baseball "is wrong and must be overruled," Brief for Petitioner, No. 18, O. T. 1953, p. 19, and that Thomas Reed Powell, a constitutional scholar of no small stature, urged, as counsel for an amicus, that "baseball is a unique enterprise," Brief for Boston American League Base Ball Co. as Amicus Curiae 2, and that "unbridled competition as applied to baseball would not be in the public interest." Id., at 14.

D. United States v. Shubert, 348 U. S. 222 (1955), was a civil antitrust action against defendants engaged in the production of legitimate theatrical attractions throughout the United States and in operating theaters for the presentation of such attractions. The District Court had dismissed the complaint on the authority of Federal Baseball and Toolson. 120 F. Supp. 15 (SDNY 1953). This Court reversed. Mr. Chief Justice Warren noted the Court's broad conception of "trade or commerce" in the antitrust statutes and the types of enterprises already held to be within the reach of that phrase. [275] He stated that Federal Baseball and Toolson afforded no basis for a conclusion that businesses built around the performance of local exhibitions are exempt from the antitrust laws. 348 U. S., at 227. He then went on to elucidate the holding in Toolson by meticulously spelling out the factors mentioned above:

"In Federal Baseball, the Court, speaking through Mr. Justice Holmes, was dealing with the business of baseball and nothing else. . . . The travel, the Court concluded, was `a mere incident, not the essential thing.' . . .

.....

"In Toolson, where the issue was the same as in Federal Baseball, the Court was confronted with a unique combination of circumstances. For over 30 years there had stood a decision of this Court specifically fixing the status of the baseball business under the antitrust laws and more particularly the validity of the so-called `reserve clause.' During this period, in reliance on the Federal Baseball precedent, the baseball business had grown and developed. . . . And Congress, although it had actively considered the ruling, had not seen fit to reject it by amendatory legislation. Against this background, the Court in Toolson was asked to overrule Federal Baseball on the ground that it was out of step with subsequent decisions reflecting present-day concepts of interstate commerce. The Court, in view of the circumstances of the case, declined to do so. But neither did the Court necessarily reaffirm all that was said in Federal Baseball. Instead, `[w]ithout re-examination of the underlying issues,' the Court adhered to Federal Baseball `so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws.' 346 [276] U. S., at 357. In short, Toolson was a narrow application of the rule of stare decisis.

". . . If the Toolson holding is to be expanded— or contracted—the appropriate remedy lies with Congress." 348 U. S., at 228-230.

E. United States v. International Boxing Club, 348 U. S. 236 (1955), was a companion to Shubert and was decided the same day. This was a civil antitrust action against defendants engaged in the business of promoting professional championship boxing contests. Here again the District Court had dismissed the complaint in reliance upon Federal Baseball and Toolson. The Chief Justice observed that "if it were not for Federal Baseball and Toolson, we think that it would be too clear for dispute that the Government's allegations bring the defendants within the scope of the Act." 348 U. S., at 240-241. He pointed out that the defendants relied on the two baseball cases but also would have been content with a more restrictive interpretation of them than the Shubert defendants, for the boxing defendants argued that the cases immunized only businesses that involve exhibitions of an athletic nature. The Court accepted neither argument. It again noted, 348 U. S., at 242, that "Toolson neither overruled Federal Baseball nor necessarily reaffirmed all that was said in Federal Baseball." It stated:

"The controlling consideration in Federal Baseball and Hart was, instead, a very practical one— the degree of interstate activity involved in the particular business under review. It follows that stare decisis cannot help the defendants here; for, contrary to their argument, Federal Baseball did not hold that all businesses based on professional sports were outside the scope of the antitrust laws. The issue confronting us is, therefore, not whether a previously granted exemption should continue, [277] but whether an exemption should be granted in the first instance. And that issue is for Congress to resolve, not this Court." 348 U. S., at 243.

The Court noted the presence then in Congress of various bills forbidding the application of the antitrust laws to "organized professional sports enterprises"; the holding of extensive hearings on some of these; subcommittee opposition; a postponement recommendation as to baseball; and the fact that "Congress thus left intact the then-existing coverage of the antitrust laws." 348 U. S., at 243-244.

Mr. Justice Frankfurter, joined by Mr. Justice Minton, dissented. "It would baffle the subtlest ingenuity," he said, "to find a single differentiating factor between other sporting exhibitions . . . and baseball insofar as the conduct of the sport is relevant to the criteria or considerations by which the Sherman Law becomes applicable to a `trade or commerce.' " 348 U. S., at 248. He went on:

"The Court decided as it did in the Toolson case as an application of the doctrine of stare decisis. That doctrine is not, to be sure, an imprisonment of reason. But neither is it a whimsy. It can hardly be that this Court gave a preferred position to baseball because it is the great American sport. . . . If stare decisis be one aspect of law, as it is, to disregard it in identical situations is mere caprice.

"Congress, on the other hand, may yield to sentiment and be capricious, subject only to due process. . . .

"Between them, this case and Shubert illustrate that nice but rational distinctions are inevitable in adjudication. I agree with the Court's opinion in Shubert for precisely the reason that constrains me to dissent in this case." 348 U. S., at 249-250.

[278] Mr. Justice Minton also separately dissented on the ground that boxing is not trade or commerce. He added the comment that "Congress has not attempted" to control baseball and boxing. 348 U. S., at 251, 253. The two dissenting Justices, thus, did not call for the overruling of Federal Baseball and Toolson; they merely felt that boxing should be under the same umbrella of freedom as was baseball and, as Mr. Justice Frankfurter said, 348 U. S., at 250, they could not exempt baseball "to the exclusion of every other sport different not one legal jot or tittle from it."^[14]

F. The parade marched on. Radovich v. National Football League, 352 U. S. 445 (1957), was a civil Clayton Act case testing the application of the antitrust laws to professional football. The District Court dismissed. The Ninth Circuit affirmed in part on the basis of Federal Baseball and Toolson. The court did not hesitate to "confess that the strength of the pull" of the baseball cases and of International Boxing "is about equal," but then observed that "[f]ootball is a team sport" and boxing an individual one. 231 F. 2d 620, 622.

This Court reversed with an opinion by Mr. Justice Clark. He said that the Court made its ruling in Toolson "because it was concluded that more harm would be done in overruling Federal Baseball than in upholding a ruling which at best was of dubious validity." 352 U. S., at 450. He noted that Congress had not acted. He then said:

"All this, combined with the flood of litigation that would follow its repudiation, the harassment that would ensue, and the retroactive effect of such a decision, led the Court to the practical result that [279] it should sustain the unequivocal line of authority reaching over many years.

"[S]ince Toolson and Federal Baseball are still cited as controlling authority in antitrust actions involving other fields of business, we now specifically limit the rule there established to the facts there involved, i. e., the business of organized professional baseball. As long as the Congress continues to acquiesce we should adhere to—but not extend— the interpretation of the Act made in those cases. . . .

"If this ruling is unrealistic, inconsistent, or illogical, it is sufficient to answer, aside from the distinctions between the businesses, that were we considering the question of baseball for the first time upon a clean slate we would have no doubts. But Federal Baseball held the business of baseball outside the scope of the Act. No other business claiming the coverage of those cases has such an adjudication. We, therefore, conclude that the orderly way to eliminate error or discrimination, if any there be, is by legislation and not by court decision. Congressional processes are more accommodative, affording the whole industry hearings and an opportunity to assist in the formulation of new legislation. The resulting product is therefore more likely to protect the industry and the public alike. The whole scope of congressional action would be known long in advance and effective dates for the legislation could be set in the future without the injustices of retroactivity and surprise which might follow court action." 352 U. S., at 450-452 (footnote omitted).

Mr. Justice Frankfurter dissented essentially for the reasons stated in his dissent in International Boxing, [280] 352 U. S., at 455. Mr. Justice Harlan, joined by MR. JUSTICE BRENNAN, also dissented because he, too, was "unable to distinguish football from baseball." 352 U. S., at 456. Here again the dissenting Justices did not call for the overruling of the baseball decisions. They merely could not distinguish the two sports and, out of respect for stare decisis, voted to affirm.

G. Finally, in Haywood v. National Basketball Assn., 401 U. S. 1204 (1971), MR. JUSTICE DOUGLAS, in his capacity as Circuit Justice, reinstated a District Court's injunction pendente lite in favor of a professional basketball player and said, "Basketball . . . does not enjoy exemption from the antitrust laws." 401 U. S., at 1205.^[15]

H. This series of decisions understandably spawned extensive commentary,^[16] some of it mildly critical and [281] much of it not; nearly all of it looked to Congress for any remedy that might be deemed essential.

I. Legislative proposals have been numerous and persistent. Since Toolson more than 50 bills have been introduced in Congress relative to the applicability or nonapplicability of the antitrust laws to baseball.^[17] A few of these passed one house or the other. Those that did would have expanded, not restricted, the reserve system's exemption to other professional league sports. And the Act of Sept. 30, 1961, Pub. L. 87-331, 75 Stat. 732, and the merger addition thereto effected by the Act of Nov. 8, 1966. Pub. L. 89-800, § 6 (b), [282] 80 Stat. 1515, 15 U. S. C. §§ 1291-1295, were also expansive rather than restrictive as to antitrust exemption.^[18]

V

In view of all this, it seems appropriate now to say that:

1. Professional baseball is a business and it is engaged in interstate commerce.

2. With its reserve system enjoying exemption from the federal antitrust laws, baseball is, in a very distinct sense, an exception and an anomaly. Federal Baseball and Toolson have become an aberration confined to baseball.

3. Even though others might regard this as "unrealistic, inconsistent, or illogical," see Radovich, 352 U. S., at 452, the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court's expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball's unique characteristics and needs.

4. Other professional sports operating interstate—football, [283] boxing, basketball, and, presumably, hockey^[19] and golf^[20]—are not so exempt.

5. The advent of radio and television, with their consequent increased coverage and additional revenues, has not occasioned an overruling of Federal Baseball and Toolson.

6. The Court has emphasized that since 1922 baseball, with full and continuing congressional awareness, has been allowed to develop and to expand unhindered by federal legislative action. Remedial legislation has been introduced repeatedly in Congress but none has ever been enacted. The Court, accordingly, has concluded that Congress as yet has had no intention to subject baseball's reserve system to the reach of the antitrust statutes. This, obviously, has been deemed to be something other than mere congressional silence and passivity. Cf. Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241-242 (1970).

7. The Court has expressed concern about the confusion and the retroactivity problems that inevitably would result with a judicial overturning of Federal Baseball. It has voiced a preference that if any change is to be made, it come by legislative action that, by its nature, is only prospective in operation.

8. The Court noted in Radovich, 352 U. S., at 452, that the slate with respect to baseball is not clean. Indeed, it has not been clean for half a century.

This emphasis and this concern are still with us. We continue to be loath, 50 years after Federal Baseball and almost two decades after Toolson, to overturn those cases judicially when Congress, by its positive inaction, [284] has allowed those decisions to stand for so long and, far beyond mere inference and implication, has clearly evinced a desire not to disapprove them legislatively.

Accordingly, we adhere once again to Federal Baseball and Toolson and to their application to professional baseball. We adhere also to International Boxing and Radovich and to their respective applications to professional boxing and professional football. If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing that is to be remedied by the Congress and not by this Court. If we were to act otherwise, we would be withdrawing from the conclusion as to congressional intent made in Toolson and from the concerns as to retrospectivity therein expressed. Under these circumstances, there is merit in consistency even though some might claim that beneath that consistency is a layer of inconsistency.

The petitioner's argument as to the application of state antitrust laws deserves a word. Judge Cooper rejected the state law claims because state antitrust regulation would conflict with federal policy and because national "uniformity [is required] in any regulation of baseball and its reserve system." 316 F. Supp., at 280. The Court of Appeals, in affirming, stated, "[A]s the burden on interstate commerce outweighs the states' interests in regulating baseball's reserve system, the Commerce Clause precludes the application here of state antitrust law." 443 F. 2d, at 268. As applied to organized baseball, and in the light of this Court's observations and holdings in Federal Baseball, in Toolson, in Shubert, in International Boxing, and in Radovich, and despite baseball's allegedly inconsistent position taken in the past with respect to the application of state law,^[21] [285] these statements adequately dispose of the state law claims.

The conclusion we have reached makes it unnecessary for us to consider the respondents' additional argument that the reserve system is a mandatory subject of collective bargaining and that federal labor policy therefore exempts the reserve system from the operation of federal antitrust laws.^[22]

We repeat for this case what was said in Toolson:

"Without re-examination of the underlying issues, the [judgment] below [is] affirmed on the authority of Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, supra, so far as that decision determines that Congress had no intention of including the business of baseball within the scope of the federal antitrust laws." 346 U. S., at 357.

And what the Court said in Federal Baseball in 1922 and what it said in Toolson in 1953, we say again here in 1972: the remedy, if any is indicated, is for congressional, and not judicial, action.

The judgment of the Court of Appeals is

Affirmed.

MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion.

MR. JUSTICE POWELL took no part in the consideration or decision of this case.

MR. CHIEF JUSTICE BURGER, concurring.

I concur in all but Part I of the Court's opinion but, like MR. JUSTICE DOUGLAS, I have grave reservations [286] as to the correctness of Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953); as he notes in his dissent, he joined that holding but has "lived to regret it." The error, if such it be, is one on which the affairs of a great many people have rested for a long time. Courts are not the forum in which this tangled web ought to be unsnarled. I agree with MR. JUSTICE DOUGLAS that congressional inaction is not a solid base, but the least undesirable course now is to let the matter rest with Congress; it is time the Congress acted to solve this problem.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN concurs, dissenting.

This Court's decision in Federal Baseball Club v. National League, 259 U. S. 200, made in 1922, is a derelict in the stream of the law that we, its creator, should remove. Only a romantic view^[23] of a rather dismal business account over the last 50 years would keep that derelict in midstream.

In 1922 the Court had a narrow, parochial view of commerce. With the demise of the old landmarks of that era, particularly United States v. Knight Co., 156 U. S. 1, Hammer v. Dagenhart, 247 U. S. 251, and Paul v. Virginia, 8 Wall. 168, the whole concept of commerce has changed.

Under the modern decisions such as Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219; United States v. Darby, 312 U. S. 100; Wickard v. Filburn, 317 U. S. 111; United States v. South-Eastern Underwriters Assn., 322 U. S. 533, the power of Congress was recognized as broad enough to reach all phases of the vast operations of our national industrial system. [287] An industry so dependent on radio and television as is baseball and gleaning vast interstate revenues (see H. R. Rep. No. 2002, 82d Cong., 2d Sess., 4, 5 (1952)) would be hard put today to say with the Court in the Federal Baseball Club case that baseball was only a local exhibition, not trade or commerce.

Baseball is today big business that is packaged with beer, with broadcasting, and with other industries. The beneficiaries of the Federal Baseball Club decision are not the Babe Ruths, Ty Cobbs, and Lou Gehrigs.

The owners, whose records many say reveal a proclivity for predatory practices, do not come to us with equities. The equities are with the victims of the reserve clause. I use the word "victims" in the Sherman Act sense, since a contract which forbids anyone to practice his calling is commonly called an unreasonable restraint of trade.^[24] Gardella v. Chandler, 172 F. 2d 402 (CA2). And see Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers).

If congressional inaction is our guide, we should rely upon the fact that Congress has refused to enact bills broadly exempting professional sports from antitrust regulation.^[25] H. R. Rep. No. 2002, 82d Cong., 2d Sess. [288] (1952). The only statutory exemption granted by Congress to professional sports concerns broadcasting rights. 15 U. S. C. §§ 1291-1295. I would not ascribe a broader exemption through inaction than Congress has seen fit to grant explicitly.

There can be no doubt "that were we considering the question of baseball for the first time upon a clean slate"^[26] we would hold it to be subject to federal antitrust regulation. Radovich v. National Football League, 352 U. S. 445, 452. The unbroken silence of Congress should not prevent us from correcting our own mistakes.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins, dissenting.

Petitioner was a major league baseball player from 1956, when he signed a contract with the Cincinnati Reds, until 1969, when his 12-year career with the St. Louis Cardinals, which had obtained him from the Reds, ended and he was traded to the Philadelphia Phillies. He had no notice that the Cardinals were contemplating a trade, no opportunity to indicate the teams with which he would prefer playing, and no desire to go to Philadelphia. After receiving formal notification of the trade, petitioner wrote to the Commissioner of Baseball protesting that he was not [289] "a piece of property to be bought and sold irrespective of my wishes,"^[27] and urging that he had the right to consider offers from other teams than the Phillies. He requested that the Commissioner inform all of the major league teams that he was available for the 1970 season. His request was denied, and petitioner was informed that he had no choice but to play for Philadelphia or not to play at all.

To non-athletes it might appear that petitioner was virtually enslaved by the owners of major league baseball clubs who bartered among themselves for his services. But, athletes know that it was not servitude that bound petitioner to the club owners; it was the reserve system. The essence of that system is that a player is bound to the club with which he first signs a contract for the rest of his playing days.^[28] He cannot escape from the club except by retiring, and he cannot prevent the club from assigning his contract to any other club.

Petitioner brought this action in the United States District Court for the Southern District of New York. He alleged, among other things, that the reserve system was an unreasonable restraint of trade in violation of [290] federal antitrust laws.^[29] The District Court thought itself bound by prior decisions of this Court and found for the respondents after a full trial. 309 F. Supp. 793 (1970). The United States Court of Appeals for the Second Circuit affirmed. 443 F. 2d 264 (1971). We granted certiorari on October 19, 1971, 404 U. S. 880, in order to take a further look at the precedents relied upon by the lower courts.

This is a difficult case because we are torn between the principle of stare decisis and the knowledge that the decisions in Federal Baseball Club v. National League, 259 U. S. 200 (1922), and Toolson v. New York Yankees, Inc., 346 U. S. 356 (1953), are totally at odds with more recent and better reasoned cases.

In Federal Baseball Club, a team in the Federal League brought an antitrust action against the National and American Leagues and others. In his opinion for a unanimous Court, Mr. Justice Holmes wrote that the business being considered was "giving exhibitions of base ball, which are purely state affairs." 259 U. S., at 208. Hence, the Court held that baseball was not within the purview of the antitrust laws. Thirty-one years later, the Court reaffirmed this decision, without reexamining it, in Toolson, a one-paragraph per curiam opinion. Like this case, Toolson involved an attack on the reserve system. The Court said:

"The business has . . . been left for thirty years to develop, on the understanding that it was not [291] subject to existing antitrust legislation. The present cases ask us to overrule the prior decision and, with retrospective effect, hold the legislation applicable. We think that if there are evils in this field which now warrant application to it of the antitrust laws it should be by legislation." Id., at 357.

Much more time has passed since Toolson and Congress has not acted. We must now decide whether to adhere to the reasoning of Toolson—i. e., to refuse to re-examine the underlying basis of Federal Baseball Club— or to proceed with a re-examination and let the chips fall where they may.

In his answer to petitioner's complaint, the Commissioner of Baseball "admits that under present concepts of interstate commerce defendants are engaged therein." App. 40. There can be no doubt that the admission is warranted by today's reality. Since baseball is interstate commerce, if we re-examine baseball's antitrust exemption, the Court's decisions in United States v. Shubert, 348 U. S. 222 (1955), United States v. International Boxing Club, 348 U. S. 236 (1955), and Radovich v. National Football League, 352 U. S. 445 (1957), require that we bring baseball within the coverage of the antitrust laws. See also, Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers).

We have only recently had occasion to comment that:

"Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. . . . Implicit in such freedom is the notion that it cannot be foreclosed with respect to one sector of the economy [292] because certain private citizens or groups believe that such foreclosure might promote greater competition in a more important sector of the economy." United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972).

The importance of the antitrust laws to every citizen must not be minimized. They are as important to baseball players as they are to football players, lawyers, doctors, or members of any other class of workers. Baseball players cannot be denied the benefits of competition merely because club owners view other economic interests as being more important, unless Congress says so.

Has Congress acquiesced in our decisions in Federal Baseball Club and Toolson? I think not. Had the Court been consistent and treated all sports in the same way baseball was treated, Congress might have become concerned enough to take action. But, the Court was inconsistent, and baseball was isolated and distinguished from all other sports. In Toolson the Court refused to act because Congress had been silent. But the Court may have read too much into this legislative inaction.

Americans love baseball as they love all sports. Perhaps we become so enamored of athletics that we assume that they are foremost in the minds of legislators as well as fans. We must not forget, however, that there are only some 600 major league baseball players. Whatever muscle they might have been able to muster by combining forces with other athletes has been greatly impaired by the manner in which this Court has isolated them. It is this Court that has made them impotent, and this Court should correct its error.

We do not lightly overrule our prior constructions of federal statutes, but when our errors deny substantial federal rights, like the right to compete freely and effectively to the best of one's ability as guaranteed by the [293] antitrust laws, we must admit our error and correct it. We have done so before and we should do so again here. See, e. g., Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U. S. 313 (1971); Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, 241 (1970).^[30]

To the extent that there is concern over any reliance interests that club owners may assert, they can be satisfied by making our decision prospective only. Baseball should be covered by the antitrust laws beginning with otherwise.^[31]

Accordingly, I would overrule Federal Baseball Club and Toolson and reverse the decision of the Court of Appeals.^[32]

This does not mean that petitioner would necessarily prevail, however. Lurking in the background is a hurdle of recent vintage that petitioner still must overcome. [294] In 1966, the Major League Players Association was formed. It is the collective-bargaining representative for all major league baseball players. Respondents argue that the reserve system is now part and parcel of the collective-bargaining agreement and that because it is a mandatory subject of bargaining, the federal labor statutes are applicable, not the federal antitrust laws.^[33] The lower courts did not rule on this argument, having decided the case solely on the basis of the antitrust exemption.

This Court has faced the interrelationship between the antitrust laws and the labor laws before. The decisions make several things clear. First, "benefits to organized labor cannot be utilized as a cat's-paw to pull employer's chestnuts out of the antitrust fires." United States v. Women's Sportswear Manufacturers Assn., 336 U. S. 460, 464 (1949). See also Allen Bradley Co. v. Local Union No. 3, 325 U. S. 797 (1945). Second, the very nature of a collective-bargaining agreement mandates that the parties be able to "restrain" trade to a greater degree than management could do unilaterally. United States v. Hutcheson, 312 U. S. 219 (1941); United Mine Workers v. Pennington, 381 U. S. 657 (1965); Amalgamated Meat Cutters v. Jewel Tea, 381 U. S. 676 (1965); cf., Teamsters Union v. Oliver, 358 U. S. 283 (1959). Finally, it is clear that some cases can be resolved only by examining the purposes and the competing interests of the labor and antitrust statutes and by striking a balance.

It is apparent that none of the prior cases is precisely in point. They involve union-management agreements that work to the detriment of management's competitors. In this case, petitioner urges that the reserve system works to the detriment of labor.

[295] While there was evidence at trial concerning the collective-bargaining relationship of the parties, the issues surrounding that relationship have not been fully explored. As one commentary has suggested, this case "has been litigated with the implications for the institution of collective bargaining only dimly perceived. The labor law issues have been in the corners of the case— the courts below, for example, did not reach them— moving in and out of the shadows like an uninvited guest at a party whom one can't decide either to embrace or expel."^[34]

It is true that in Radovich v. National Football League, supra, the Court rejected a claim that federal labor statutes governed the relationship between a professional athlete and the professional sport. But, an examination of the briefs and record in that case indicates that the issue was not squarely faced. The issue is once again before this Court without being clearly focused. It should, therefore, be the subject of further inquiry in the District Court.

There is a surface appeal to respondents' argument that petitioner's sole remedy lies in filing a claim with the National Labor Relations Board, but this argument is premised on the notion that management and labor have agreed to accept the reserve clause. This notion is contradicted, in part, by the record in this case. Petitioner suggests that the reserve system was thrust upon the players by the owners and that the recently formed players' union has not had time to modify or eradicate it. If this is true, the question arises as to whether there would then be any exemption from the antitrust laws in this case. Petitioner also suggests that there are limits [296] to the antitrust violations to which labor and management can agree. These limits should also be explored.

In light of these consideration, I would remand this case to the District Court for consideration of whether petitioner can state a claim under the antitrust laws despite the collective-bargaining agreement, and, if so, for a determination of whether there has been an antitrust violation in this case.

[1] The reserve system, publicly introduced into baseball contracts in 1887, see Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890), centers in the uniformity of player contracts; the confinement of the player to the club that has him under the contract; the assignability of the player's contract; and the ability of the club annually to renew the contract unilaterally, subject to a stated salary minimum. Thus

A. Rule 3 of the Major League Rules provides in part:

"(a) UNIFORM CONTRACT. To preserve morale and to produce the similarity of conditions necessary to keen competition, the contracts between all clubs and their players in the Major Leagues shall be in a single form which shall be prescribed by the Major League Executive Council. No club shall make a contract different from the uniform contract or a contract containing a non-reserve clause, except with the written approval of the Commissioner. . . .

.....

"(g) TAMPERING. To preserve discipline and competition, and to prevent the enticement of players, coaches, managers and umpires, there shall be no negotiations or dealings respecting employment, either present or prospective, between any player, coach or manager and any club other than the club with which he is under contract or acceptance of terms, or by which he is reserved, or which has the player on its Negotiation List, or between any umpire and any league other than the league with which he is under contract or acceptance of terms, unless the club or league with which he is connected shall have, in writing, expressly authorized such negotiations or dealings prior to their commencement."

B. Rule 9 of the Major League Rules provides in part:

"(a) NOTICE. A club may assign to another club an existing contract with a player. The player, upon receipt of written notice of such assignment, is by his contract bound to serve the assignee.

.....

"After the date of such assignment all rights and obligations of the assignor clubs thereunder shall become the rights and obligations of the assignee club . . . ."

C. Rules 3 and 9 of the Professional Baseball Rules contain provisions parallel to those just quoted.

D. The Uniform Player's Contract provides in part:

"4. (a). . . The Player agrees that, in addition to other remedies, the Club shall be entitled to injunctive and other equitable relief to prevent a breach of this contract by the Player, including, among others, the right to enjoin the Player from playing baseball for any other person or organization during the term of this contract."

"5. (a). The Player agrees that, while under contract, and prior to expiration of the Club's right to renew this contract, he will not play baseball otherwise than for the Club, except that the Player may participate in post-season games under the conditions prescribed in the Major League Rules. . . ."

"6. (a) The Player agrees that this contract may be assigned by the Club (and reassigned by any assignee Club) to any other Club in accordance with the Major League Rules and the Professional Baseball Rules."

"10. (a) On or before January 15 (or if a Sunday, then the next preceding business day) of the year next following the last playing season covered by this contract, the Club may tender to the Player a contract for the term of that year by mailing the same to the Player at his address following his signature hereto, or if none be given, then at his last address of record with the Club. If prior to the March 1 next succeeding said January 15, the Player and the Club have not agreed upon the terms of such contract, then on or before 10 days after said March 1, the Club shall have the right by written notice to the Player at said address to renew this contract for the period of one year on the same terms, except that the amount payable to the Player shall be such as the club shall fix in said notice; provided, however, that said amount, if fixed by a Major League Club, shall be an amount payable at a rate not less than 80% of the rate stipulated for the preceding year.

"(b) The Club's right to renew this contract, as provided in sub-paragraph (a) of this paragraph 10, and the promise of the Player not to play otherwise than with the Club have been taken into consideration in determining the amount payable under paragraph 2 hereof."

[2] See generally The Baseball Encyclopedia (1969); L. Ritter, The Glory of Their Times (1966); 1 & 2 H. Seymour, Baseball (1960, 1971); 1 & 2 D. Voigt, American Baseball (1966, 1970).

[3] These are names only from earlier years. By mentioning some, one risks unintended omission of others equally celebrated.

[4] Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:

"I knew a cove who'd never heard of Washington and Lee,

Of Caesar and Napoleon from the ancient jamboree, But, bli'me, there are queerer things than anything like that,

For here's a cove who never heard of `Casey at the Bat'!

.....

"Ten million never heard of Keats, or Shelley, Burns or Poe; But they know `the air was shattered by the force of Casey's blow';

They never heard of Shakespeare, nor of Dickens, like as not, But they know the somber drama from old Mudville's haunted lot.

"He never heard of Casey! Am I dreaming? Is it true? Is fame but windblown ashes when the summer day is through?

Does greatness fade so quickly and is grandeur doomed to die That bloomed in early morning, ere the dusk rides down the sky?"

"He Never Heard of Casey" Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

[5] "These are the saddest of possible words, `Tinker to Evers to chance.'

Trio of bear cubs, and fleeter than birds, `Tinker to Evers to Chance.'

Ruthlessly pricking our gonfalon bubble, Making a Giant hit into a double— Words that are weighty with nothing but trouble: `Tinker to Evers to Chance.' "

Franklin Pierce Adams, Baseball's Sad Lexicon.

[6] George Bernard Shaw, The Sporting News, May 27, 1943, p. 15, col. 4.

[7] Concededly supported by the Major League Baseball Players Association, the players' collective-bargaining representative. Tr. of Oral Arg. 12.

[8] The parties agreed that Flood's participating in baseball in 1971 would be without prejudice to his case.

[9] "And properly so. Baseball's welfare and future should not be for politically insulated interpreters of technical antitrust statutes but rather should be for the voters through their elected representatives. If baseball is to be damaged by statutory regulation, let the congressman face his constituents the next November and also face the consequences of his baseball voting record." 443 F. 2d, at 272.

Cf. Judge Friendly's comments in Salerno v. American League, 429 F. 2d 1003, 1005 (CA2 1970), cert. denied, sub nom. Salerno v. Kuhn, 400 U. S. 1001 (1971):

"We freely acknowledge our belief that Federal Baseball was not one of Mr. Justice Holmes' happiest days, that the rationale of Toolson is extremely dubious and that, to use the Supreme Court's own adjectives, the distinction between baseball and other professional sports is `unrealistic,' `inconsistent' and `illogical.'. . . While we should not fall out of our chairs with surprise at the news that Federal Baseball and Toolson had been overruled, we are not at all certain the Court is ready to give them a happy despatch."

[10] "What really saved baseball, legally at least, for the next half century was the protective canopy spread over it by the United States Supreme Court's decision in the Baltimore Federal League anti-trust suit against Organized Baseball in 1922. In it Justice Holmes, speaking for a unanimous court, ruled that the business of giving baseball exhibitions for profit was not `trade or commerce in the commonly-accepted use of those words' because `personal effort, not related to production, is not a subject of commerce'; nor was it interstate, because the movement of ball clubs across state lines was merely `incidental' to the business. It should be noted that, contrary to what many believe, Holmes did call baseball a business; time and again those who have not troubled to read the text of the decision have claimed incorrectly that the court said baseball was a sport and not a business." 2 H. Seymour, Baseball 420 (1971).

[11] On remand of the Hart case the trial court dismissed the complaint at the close of the evidence. The Second Circuit affirmed on the ground that the plaintiff's evidence failed to establish that the interstate transportation was more than incidental. 12 F. 2d 341 (1926). This Court denied certiorari, 273 U. S. 703 (1926).

[12] Toolson v. New York Yankees, Inc., 101 F. Supp. 93 (SD Cal. 1951), aff'd, 200 F. 2d 198 (CA9 1952); Kowalski v. Chandler, 202 F. 2d 413 (CA6 1953). See Salerno v. American League, 429 F. 2d 1003 (CA2 1970), cert, denied, sub nom. Salerno v. Kuhn, 400 U. S. 1001 (1971). But cf. Gardella v. Chandler, 172 F. 2d 402 (CA2 1949) (this case, we are advised, was subsequently settled); Martin v. National League Baseball Club, 174 F. 2d 917 (CA2 1949).

[13] Corbett v. Chandler, 202 F. 2d 428 (Ca6 1953); Portland Baseball Club, Inc. v. Baltimore Baseball Club, Inc., 282 F. 2d 680 (CA9 1960); Niemiec v. Seattle Rainier Baseball Club, Inc., 67 F. Supp. 705 (WD Wash. 1946). See State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U. S. 990 (1966).

[14] The case's final chapter is International Boxing Club v. United States, 358 U. S. 242 (1959).

[15] See also Denver Rockets v. All-Pro Management, Inc., 325 F. Supp. 1049, 1060 (CD Cal. 1971); Washington Professional Basketball Corp. v. National Basketball Assn., 147 F. Supp. 154 (SDNY 1956).

[16] Neville, Baseball and the Antitrust Laws, 16 Fordham L. Rev. 208 (1947); Eckler, Baseball—Sport or Commerce?, 17 U. Chi. L. Rev. 56 (1949); Comment, Monopsony in Manpower: Organized Baseball Meets the Antitrust Laws, 62 Yale L. J. 576 (1953); P. Gregory, The Baseball Player, An Economic Study, c. 19 (1956); Note, The Super Bowl and the Sherman Act: Professional Team Sports and the Antitrust Laws, 81 Harv. L. Rev. 418 (1967); The Supreme Court, 1953 Term, 68 Harv. L. Rev. 105, 136-138 (1954); The Supreme Court, 1956 Term, 71 Harv. L. Rev. 94, 170-173 (1957); Note, 32 Va. L. Rev. 1164 (1946); Note, 24 Notre Dame Law. 372 (1949); Note, 53 Col. L. Rev. 242 (1953); Note, 22 U. Kan. City L. Rev. 173 (1954); Note, 25 Miss. L. J. 270 (1954); Note, 29 N. Y. U. L. Rev. 213 (1954); Note, 105 U. Pa. L. Rev. 110 (1956); Note, 32 Texas L. Rev. 890 (1954); Note, 35 B. U. L. Rev. 447 (1955); Note, 57 Col. L. Rev. 725 (1957); Note, 23 Geo. Wash. L. Rev. 606 (1955); Note, 1 How. L. J. 281 (1955); Note, 26 Miss. L. J. 271 (1955); Note, 9 Sw. L. J. 369 (1955); Note, 29 Temple L. Q. 103 (1955); Note, 29 Tul. L. Rev. 793 (1955); Note, 62 Dick. L. Rev. 96 (1957); Note, 11 Sw. L. J. 516 (1957); Note, 36 N. C. L. Rev. 315 (1958); Note, 35 Fordham L. Rev. 350 (1966); Note, 8 B. C. Ind. & Com. L. Rev. 341 (1967); Note, 13 Wayne L. Rev. 417 (1967); Note, 2 Rutgers-Camden L. J. 302 (1970); Note, 8 San Diego L. Rev. 92 (1970); Note, 12 B. C. Ind. & Com. L. Rev. 737 (1971); Note, 12 Wm. & Mary L. Rev. 859 (1971).

[17] Hearings on H. R. 5307 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 85th Cong., 1st Sess. (1957); Hearings on H. R. 10378 and S. 4070 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 85th Cong., 2d Sess. (1958); Hearings on H. R. 2370 et al. before the Antitrust Subcommittee of the House Committee on the Judiciary, 86th Cong., 1st Sess. (1959) (not printed); Hearings on S. 616 and S. 886 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 1st Sess. (1959); Hearings on S. 3483 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 86th Cong., 2d Sess. (1960); Hearings on S. 2391 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 88th Cong., 2d Sess. (1964); S. Rep. No. 1303, 88th Cong., 2d Sess. (1964); Hearings on S. 950 before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 89th Cong., 1st Sess. (1965); S. Rep. No. 462, 89th Cong., 1st Sess. (1965). Bills introduced in the 92d Cong., 1st Sess., and bearing on the subject are S. 2599, S. 2616, H. R. 2305, H. R. 11033, and H. R. 10825.

[18] Title 15 U. S. C. § 1294 reads:

"Nothing contained in this chapter shall be deemed to change, determine, or otherwise affect the applicability or nonapplicability of the antitrust laws to any act, contract, agreement, rule, course of conduct, or other activity by, between, or among persons engaging in, conducting, or participating in the organized professional team sports of football, baseball, basketball, or hockey, except the agreements to which section 1291 of this title shall apply." (Emphasis supplied.)

[19] Peto v. Madison Square Garden Corp., 1958 Trade Cases, ¶ 69,106 (SDNY 1958).

[20] Deesen v. Professional Golfers' Assn., 358 F. 2d 165 (CA9), cert. denied, 385 U. S. 846 (1966).

[21] See Brief for Respondent in Federal Baseball, No. 204, O. T. 1921, p. 67, and in Toolson, No. 18, O. T. 1953, p. 30. See also State v. Milwaukee Braves, Inc., 31 Wis. 2d 699, 144 N. W. 2d 1, cert. denied, 385 U. S. 990 (1966).

[22] See Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1 (1971), suggesting present-day irrelevancy of the antitrust issue.

[23] While I joined the Court's opinion in Toolson v. New York Yankees, Inc., 346 U. S. 356, I have lived to regret it; and I would now correct what I believe to be its fundamental error.

[24] Had this same group boycott occurred in another industry, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U. S. 207; United States v. Shubert, 348 U. S. 222; or even in another sport, Haywood v. National Basketball Assn., 401 U. S. 1204 (DOUGLAS, J., in chambers); Radovich v. National Football League, 352 U. S. 445; United States v. International Boxing Club, 348 U. S. 236; we would have no difficulty in sustaining petitioner's claim.

[25] The Court's reliance upon congressional inaction disregards the wisdom of Helvering v. Hallock, 309 U. S. 106, 119-121, where we said:

"Nor does want of specific Congressional repudiations . . . serve as an implied instruction by Congress to us not to reconsider, in the light of new experience . . . those decisions . . . . It would require very persuasive circumstances enveloping Congressional silence to debar this Court from re-examining its own doctrines. . . . Various considerations of parliamentary tactics and strategy might be suggested as reasons for the inaction of . . . Congress, but they would only be sufficient to indicate that we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle."

And see United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 556-561.

[26] This case gives us for the first time a full record showing the reserve clause in actual operation.

[27] Letter from Curt Flood to Bowie K. Kuhn, Dec. 24, 1969, App. 37.

[28] As MR. JUSTICE BLACKMUN points out, the reserve system is not novel. It has been employed since 1887. See Metropolitan Exhibition Co. v. Ewing, 42 F. 198, 202-204 (CC SDNY 1890). The club owners assert that it is necessary to preserve effective competition and to retain fan interest. The players do not agree and argue that the reserve system is overly restrictive. Before this lawsuit was instituted, the players refused to agree that the reserve system should be a part of the collective-bargaining contract. Instead, the owners and players agreed that the reserve system would temporarily remain in effect while they jointly investigated possible changes. Their activity along these lines has halted pending the outcome of this suit.

[29] Petitioner also alleged a violation of state antitrust laws, state civil rights laws, and of the common law, and claimed that he was forced into peonage and involuntary servitude in violation of the Thirteenth Amendment to the United States Constitution. Because I believe that federal antitrust laws govern baseball, I find that state law has been pre-empted in this area. Like the lower courts, I do not believe that there has been a violation of the Thirteenth Amendment.

[30] In the past this Court has not hesitated to change its view as to what constitutes interstate commerce. Compare United States v. Knight Co., 156 U. S. 1 (1895), with Mandeville Island Farms v. American Crystal Sugar Co., 334 U. S. 219 (1948), and United States v. Darby, 312 U. S. 100 (1941).

"The jurist concerned with `public confidence in, and acceptance of the judicial system' might well consider that, however admirable its resolute adherence to the law as it was, a decision contrary to the public sense of justice as it is, operates, so far as it is known, to diminish respect for the courts and for law itself." Szanton, Stare Decisis; A Dissenting View, 10 Hastings L. J. 394, 397 (1959).

[31] We said recently that "[i]n rare cases, decisions construing federal statutes might be denied full retroactive effect, as for instance where this Court overrules its own construction of a statute . . . ." United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970). Cf. Simpson v. Union Oil Co. of California, 377 U. S. 13, 25 (1964).

[32] The lower courts did not reach the question of whether, assuming the antitrust laws apply, they have been violated. This should be considered on remand.

[33] Cf. United States v. Hutcheson, 312 U. S. 219 (1941).

[34] Jacobs & Winter, Antitrust Principles and Collective Bargaining by Athletes: Of Superstars in Peonage, 81 Yale L. J. 1, 22 (1971).

511 U.S. 244 (1994)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

[245] [246] Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Kennedy and Thomas, JJ., joined, post, p. 286. Blackmun, J., filed a dissenting opinion, post, p. 294.

Eric Schnapper argued the cause for petitioner. On the briefs were Paul C. Saunders, Timothy B. Garrigan, Richard T. Seymour, and Sharon R. Vinick.

Solicitor General Days argued the cause for the United States et al. as amici curiae urging reversal. On the brief were Acting Solicitor General Bryson, Acting Assistant Attorney General Turner, Deputy Solicitor General Wallace, Robert A. Long, Jr., David K. Flynn, Dennis J. Dimsey, Rebecca K. Troth, and Donald R. Livingston.

[247] Glen D. Nager argued the cause for respondents. On the brief was David N. Shane.^[1]

Justice Stevens, delivered the opinion of the Court.

The Civil Rights Act of 1991 (1991 Act or Act) creates a right to recover compensatory and punitive damages for certain violations of Title VII of the Civil Rights Act of 1964. See Rev. Stat. § 1977A(a), 42 U. S. C. § 1981a(a) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act, Pub. L. 102-166, 105 Stat. 1072. The Act further provides that any party may demand a trial by jury if such damages are sought.^[2] We granted certiorari to decide whether these provisions apply to a Title VII case that was pending on appeal when the statute was enacted. We hold that they do not.

I

From September 4, 1984, through January 17, 1986, petitioner Barbara Landgraf was employed in the USI Film [248] Products (USI) plant in Tyler, Texas. She worked the 11 p.m. to 7 a.m. shift operating a machine that produced plastic bags. A fellow employee named John Williams repeatedly harassed her with inappropriate remarks and physical contact. Petitioner's complaints to her immediate supervisor brought her no relief,but when she reported the incidents to the personnel manager, he conducted an investigation, reprimanded Williams, and transferred him to another department. Four days later petitioner quit her job.

Petitioner filed a timely charge with the Equal Employment Opportunity Commission (EEOC or Commission). The Commission determined that petitioner had likely been the victim of sexual harassment creating a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq., but concluded that her employer had adequately remedied the violation. Accordingly, the Commission dismissed the charge and issued a notice of right to sue.

On July 21, 1989, petitioner commenced this action against USI, its corporate owner, and that company's successor in interest.^[3] After a bench trial, the District Court found that Williams had sexually harassed petitioner causing her to suffer mental anguish. However, the court concluded that she had not been constructively discharged. The court said:

"Although the harassment was serious enough to establish that a hostile work environment existed for Landgraf, it was not so severe that a reasonable person would have felt compelled to resign. This is particularly true in light of the fact that at the time Landgraf resigned from her job, USI had taken steps . . . to eliminate the hostile working environment arising from the sexual harassment. Landgraf voluntarily resigned [249] from her employment with USI for reasons unrelated to the sexual harassment in question." App. to Pet. for Cert. B-3-4.

Because the court found that petitioner's employment was not terminated in violation of Title VII, she was not entitled to equitable relief,and because Title VII did not then authorize any other form of relief, the court dismissed her complaint.

On November 21, 1991, while petitioner's appeal was pending, the President signed into law the Civil Rights Act of 1991. The Court of Appeals rejected petitioner's argument that her case should be remanded for a jury trial on damages pursuant to the 1991 Act. Its decision not to remand rested on the premise that "a court must `apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.' Bradley [v. School Bd. of Richmond, 416 U. S. 696, 711 (1974)]." 968 F. 2d 427, 432 (CA5 1992). Commenting first on the provision for a jury trial in § 102(c), the court stated that requiring the defendant "to retry this case because of a statutory change enacted after the trial was completed would be an injustice and a waste of judicial resources. We apply procedural rules to pending cases, but we do not invalidate procedures followed before the new rule was adopted." Id., at 432-433. The court then characterized the provision for compensatory and punitive damages in § 102 as "a seachange in employer liability for Title VII violations" and concluded that it would be unjust to apply this kind of additional and unforeseeable obligation to conduct occurring before the effective date of the Act. Id., at 433. Finding no clear error in the District Court's factual findings, the Court of Appeals affirmed the judgment for respondents.

We granted certiorari and set the case for argument with Rivers v. Roadway Express, Inc., post, p. 298. Our order limited argument to the question whether § 102 of the 1991 [250] Act applies to cases pending when it became law. 507 U. S. 908 (1993). Accordingly, for purposes of our decision, we assume that the District Court and the Court of Appeals properly applied the law in effect at the time of the discriminatory conduct and that the relevant findings of fact were correct. We therefore assume that petitioner was the victim of sexual harassment violative of Title VII, but that the law did not then authorize any recovery of damages even though she was injured. We also assume, arguendo, that if the same conduct were to occur today, petitioner would be entitled to a jury trial and that the jury might find that she was constructively discharged, or that her mental anguish or other injuries would support an award of damages against her former employer. Thus, the controlling question is whether the Court of Appeals should have applied the law in effect at the time the discriminatory conduct occurred, or at the time of its decision in July 1992.

II

Petitioner's primary submission is that the text of the 1991 Act requires that it be applied to cases pending on its enactment. Her argument, if accepted, would make the entire Act (with two narrow exceptions) applicable to conduct that occurred, and to cases that were filed, before the Act's effective date. Although only § 102 is at issue in this case, we preface our analysis with a brief description of the scope of the 1991 Act.

The 1991 Act is in large part a response to a series of decisions of this Court interpreting the Civil Rights Acts of 1866 and 1964. Section 3(4), 105 Stat. 1071, note following 42 U. S. C. § 1981, expressly identifies as one of the Act's purposes "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination." That section, as well as a specific finding in § 2(2), identifies Wards Cove Packing Co. v. Atonio, 490 U. S. 642 [251] (1989), as a decision that gave rise to special concerns.^[4] Section 105 of the Act, entitled "Burden of Proof in Disparate Impact Cases," is a direct response to Wards Cove.

Other sections of the Act were obviously drafted with "recent decisions of the Supreme Court" in mind. Thus, § 101 (which is at issue in Rivers, post, p. 298) amended the 1866 Civil Rights Act's prohibition of racial discrimination in the "mak[ing] and enforce[ment] [of] contracts," 42 U. S. C. § 1981 (1988 ed., Supp. IV), in response to Patterson v. McLean Credit Union, 491 U. S. 164 (1989); § 107 responds to Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), by setting forth standards applicable in "mixed motive" cases; § 108 responds to Martin v. Wilks, 490 U. S. 755 (1989), by prohibiting certain challenges to employment practices implementing consent decrees; § 109 responds to EEOC v. Arabian American Oil Co., 499 U. S. 244 (1991), by redefining the term "employee" as used in Title VII to include certain United States citizens working in foreign countries for United States employers; § 112 responds to Lorance v. AT&T; Technologies, Inc., 490 U. S. 900 (1989), by expanding employees' rights to challenge discriminatory seniority systems; § 113 responds to West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), by providing that an award of attorney's fees may include expert fees; and § 114 responds to Library of Congress v. Shaw, 478 U. S. 310 (1986), by allowing interest on judgments against the United States.

A number of important provisions in the Act, however, were not responses to Supreme Court decisions. For example, § 106 enacts a new prohibition against adjusting test [252] scores "on the basis of race, color, religion, sex, or national origin"; § 117 extends the coverage of Title VII to include the House of Representatives and certain employees of the Legislative Branch; and §§ 301-325 establish special procedures to protect Senate employees from discrimination. Among the provisions that did not directly respond to any Supreme Court decision is the one at issue in this case, § 102.

Entitled "Damages in Cases of Intentional Discrimination," § 102 provides in relevant part:

"(a) Right of Recovery.—

"(1) Civil Rights.—In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 (42 U. S. C. 2000e—5) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act (42 U. S. C. 2000e—2 or 2000e— 3), and provided that the complaining party cannot recover under section 1977 of the Revised Statutes (42 U. S. C. 1981), the complaining party may recover compensatory and punitive damages . . . in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent. . . . . .

"(c) Jury Trial.—If a complaining party seeks compensatory or punitive damages under this section—

"(1) any party may demand a trial by jury."

Before the enactment of the 1991 Act, Title VII afforded only "equitable" remedies. The primary form of monetary relief available was backpay.^[5] Title VII's backpay remedy,^[6] [253] modeled on that of the National Labor Relations Act, 29 U. S. C. § 160(c), is a "make-whole" remedy that resembles compensatory damages in some respects. See Albemarle Paper Co. v. Moody, 422 U. S. 405, 418-422 (1975). However, the new compensatory damages provision of the 1991 Act is "in addition to," and does not replace or duplicate, the backpay remedy allowed under prior law. Indeed, to prevent double recovery, the 1991 Act provides that compensatory damages "shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964." § 102(b)(2).

Section 102 significantly expands the monetary relief potentially available to plaintiffs who would have been entitled to backpay under prior law. Before 1991, for example, monetary relief for a discriminatorily discharged employee generally included "only an amount equal to the wages the employee would have earned from the date of discharge to the date of reinstatement, along with lost fringe benefits such as vacation pay and pension benefits." United States v. Burke, 504 U. S. 229, 239 (1992). Under § 102, however, a Title VII plaintiff who wins a backpay award may also seek compensatory damages for "future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses." § 102(b)(3). In addition, [254] when it is shown that the employer acted "with malice or with reckless indifference to the [plaintiff's] federally protected rights," § 102(b)(1), a plaintiff may recover punitive damages.^[7]

Section 102 also allows monetary relief for some forms of workplace discrimination that would not previously have justified any relief under Title VII. As this case illustrates, even if unlawful discrimination was proved, under prior law a Title VII plaintiff could not recover monetary relief unless the discrimination was also found to have some concrete effect on the plaintiff's employment status, such as a denied promotion, a differential in compensation, or termination. See Burke, 504 U. S., at 240. ("[T]he circumscribed remedies available under Title VII [before the 1991 Act] stand in marked contrast not only to those available under traditional tort law, but under other federal anti-discrimination statutes, as well"). Section 102, however, allows a plaintiff to recover in circumstances in which there has been unlawful discrimination in the "terms, conditions, or privileges of employment," 42 U. S. C. § 2000e—2(a)(1),^[8] even though the discrimination did not involve a discharge or a loss of pay. In short, to further Title VII's "central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination," Albemarle Paper Co., 422 U. S., at 421, § 102 of the [255] 1991 Act effects a major expansion in the relief available to victims of employment discrimination.

In 1990, a comprehensive civil rights bill passed both Houses of Congress. Although similar to the 1991 Act in many other respects, the 1990 bill differed in that it contained language expressly calling for application of many of its provisions, including the section providing for damages in cases of intentional employment discrimination, to cases arising before its (expected) enactment.^[9] The President vetoed [256] the 1990 legislation, however, citing the bill's "unfair retroactivity rules" as one reason for his disapproval.^[10] Congress narrowly failed to override the veto. See 136 Cong. Rec. S16589 (Oct. 24, 1990) (66 to 34 Senate vote in favor of override).

The absence of comparable language in the 1991 Act cannot realistically be attributed to oversight or to unawareness of the retroactivity issue. Rather, it seems likely that one of the compromises that made it possible to enact the 1991 version was an agreement not to include the kind of explicit retroactivity command found in the 1990 bill.

The omission of the elaborate retroactivity provision of the 1990 bill—which was by no means the only source of political controversy over that legislation—is not dispositive because it does not tell us precisely where the compromise was struck in the 1991 Act. The Legislature might, for example, have settled in 1991 on a less expansive form of retroactivity that, unlike the 1990 bill, did not reach cases already finally decided. See n. 8, supra. A decision to reach only cases still pending might explain Congress' failure to provide in the [257] 1991 Act, as it had in 1990, that certain sections would apply to proceedings pending on specific preenactment dates. Our first question, then, is whether the statutory text on which petitioner relies manifests an intent that the 1991 Act should be applied to cases that arose and went to trial before its enactment.

III

Petitioner's textual argument relies on three provisions of the 1991 Act: §§ 402(a), 402(b), and 109(c). Section 402(a), the only provision of the Act that speaks directly to the question before us, states:

"Except as otherwise specifically provided, this Act and the amendments made by this Act shall take effect upon enactment."

That language does not, by itself, resolve the question before us. A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.^[11] [258] Petitioner does not argue otherwise. Rather, she contends that the introductory clause of § 402(a) would be superfluous unless it refers to §§ 402(b) and 109(c), which provide for prospective application in limited contexts.

The parties agree that § 402(b) was intended to exempt a single disparate impact lawsuit against the Wards Cove Packing Company. Section 402(b) provides:

"(b) Certain Disparate Impact Cases.óNotwithstanding any other provision of this Act, nothing in this Act shall apply to any disparate impact case for which a complaint was filed before March 1, 1975, and for which an initial decision was rendered after October 30, 1983."

Section 109(c), part of the section extending Title VII to overseas employers, states:

"(c) Application of Amendments.—The amendments made by this section shall not apply with respect to conduct occurring before the date of the enactment of this Act."

According to petitioner, these two subsections are the "other provisions" contemplated in the first clause of § 402(a), and together create a strong negative inference that all sections of the Act not specifically declared prospective apply to pending cases that arose before November 21, 1991.

Before addressing the particulars of petitioner's argument, we observe that she places extraordinary weight on two comparatively minor and narrow provisions in a long and complex statute. Applying the entire Act to cases arising from preenactment conduct would have important consequences, including the possibility that trials completed before its enactment [259] would need to be retried and the possibility that employers would be liable for punitive damages for conduct antedating the Act's enactment. Purely prospective application, on the other hand, would prolong the life of a remedial scheme, and of judicial constructions of civil rights statutes, that Congress obviously found wanting. Given the high stakes of the retroactivity question, the broad coverage of the statute, and the prominent and specific retroactivity provisions in the 1990 bill, it would be surprising for Congress to have chosen to resolve that question through negative inferences drawn from two provisions of quite limited effect.

Petitioner, however, invokes the canon that a court should give effect to every provision of a statute and thus avoid redundancy among different provisions. See, e. g., Mackey v. Lanier Collection Agency & Service, Inc., 486 U. S. 825, 837, and n. 11 (1988). Unless the word "otherwise" in § 402(a) refers to either § 402(b) or § 109(c), she contends, the first five words in § 402(a) are entirely superfluous. Moreover, relying on the canon "[e]xpressio unius est exclusio alterius, " see Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163, 168 (1993), petitioner argues that because Congress provided specifically for prospectivity in two places (§§ 109(c) and 402(b)), we should infer that it intended the opposite for the remainder of the statute.

Petitioner emphasizes that § 402(a) begins: "Except as otherwise specifically provided." A scan of the statute for other "specific provisions" concerning effective dates reveals that §§ 402(b) and 109(c) are the most likely candidates. Since those provisions decree prospectivity, and since § 402(a) tells us that the specific provisions are exceptions, § 402(b) should be considered as prescribing a general rule of retroactivity. Petitioner's argument has some force, but we find it most unlikely that Congress intended the introductory clause to carry the critically important meaning petitioner assigns it. Had Congress wished § 402(a) to have such a determinate [260] meaning, it surely would have used language comparable to its reference to the predecessor Title VII damages provisions in the 1990 legislation: that the new provisions "shall apply to all proceedings pending on or commenced after the date of enactment of this Act." S. 2104, 101st Cong., 1st Sess. § 15(a)(4) (1990).

It is entirely possible that Congress inserted the "otherwise specifically provided" language not because it understood the "takes effect" clause to establish a rule of retroactivity to which only two "other specific provisions" would be exceptions, but instead to assure that any specific timing provisions in the Act would prevail over the general "take effect on enactment" command. The drafters of a complicated piece of legislation containing more than 50 separate sections may well have inserted the "except as otherwise provided" language merely to avoid the risk of an inadvertent conflict in the statute.^[12] If the introductory clause of § 402(a) was intended to refer specifically to §§ 402(b), 109(c), or both, it is difficult to understand why the drafters chose the word "otherwise" rather than either or both of the appropriate section numbers.

We are also unpersuaded by petitioner's argument that both §§ 402(b) and 109(c) merely duplicate the "take effect upon enactment" command of § 402(a) unless all other provisions, including the damages provisions of § 102, apply to pending cases. That argument depends on the assumption that all those other provisions must be treated uniformly for purposes of their application to pending cases based on preenactment conduct. That thesis, however, is by no [261] means an inevitable one. It is entirely possible—indeed, highly probable—that, because it was unable to resolve the retroactivity issue with the clarity of the 1990 legislation, Congress viewed the matter as an open issue to be resolved by the courts. Our precedents on retroactivity left doubts about what default rule would apply in the absence of congressional guidance, and suggested that some provisions might apply to cases arising before enactment while others might not.^[13] Compare Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), with Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974). See also Bennett v. New Jersey, 470 U. S. 632 (1985). The only matters Congress did not leave to the courts were set out with specificity in §§ 109(c) and 402(b). Congressional doubt concerning judicial retroactivity doctrine, coupled with the likelihood that the routine "take effect upon enactment" language would require courts to fall back upon that doctrine, provide a plausible explanation for both §§ 402(b) and 109(c) that makes neither provision redundant.

Turning to the text of § 402(b), it seems unlikely that the introductory phrase ("Notwithstanding any other provision of this Act") was meant to refer to the immediately preceding subsection. Since petitioner does not contend that any other provision speaks to the general effective date issue, the logic of her argument requires us to interpret that phrase to mean nothing more than "Notwithstanding § 402(a)." Petitioner's textual argument assumes that the drafters selected the indefinite word "otherwise" in § 402(a) to identify two [262] specific subsections and the even more indefinite term "any other provision" in § 402(b) to refer to nothing more than § 402(b)'s next-door neighbor—§ 402(a). Here again, petitioner's statutory argument would require us to assume that Congress chose a surprisingly indirect route to convey an important and easily expressed message concerning the Act's effect on pending cases.

The relevant legislative history of the 1991 Act reinforces our conclusion that §§ 402(a), 109(c), and 402(b) cannot bear the weight petitioner places upon them. The 1991 bill as originally introduced in the House contained explicit retroactivity provisions similar to those found in the 1990 bill.^[14] However, the Senate substitute that was agreed upon omitted those explicit retroactivity provisions.^[15] The legislative history discloses some frankly partisan statements about the meaning of the final effective date language, but those statements cannot plausibly be read as reflecting any general agreement.^[16] The history reveals no evidence that Members [263] believed that an agreement had been tacitly struck on the controversial retroactivity issue, and little to suggest that Congress understood or intended the interplay of §§ 402(a), 402(b), and 109(c) to have the decisive effect petitioner assigns them. Instead, the history of the 1991 Act conveys the impression that legislators agreed to disagree about whether and to what extent the Act would apply to preenactment conduct.

Although the passage of the 1990 bill may indicate that a majority of the 1991 Congress also favored retroactive application, even the will of the majority does not become law unless it follows the path charted in Article I, § 7, cl. 2, of the Constitution. See INS v. Chadha, 462 U. S. 919, 946-951 (1983). In the absence of the kind of unambiguous directive found in § 15 of the 1990 bill, we must look elsewhere for guidance on whether § 102 applies to this case.

IV

It is not uncommon to find "apparent tension" between different canons of statutory construction. As Professor Llewellyn famously illustrated, many of the traditional canons have equal opposites.^[17] In order to resolve the question left open by the 1991 Act, federal courts have labored to [264] reconcile two seemingly contradictory statements found in our decisions concerning the effect of intervening changes in the law. Each statement is framed as a generally applicable rule for interpreting statutes that do not specify their temporal reach. The first is the rule that "a court is to apply the law in effect at the time it renders its decision," Bradley, 416 U. S., at 711. The second is the axiom that "[r]etroactivity is not favored in the law," and its interpretive corollary that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Bowen, 488 U. S., at 208.

We have previously noted the "apparent tension" between those expressions. See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990); see also Bennett, 470 U. S., at 639-640. We found it unnecessary in Kaiser to resolve that seeming conflict "because under either view, where the congressional intent is clear, it governs," and the prejudgment interest statute at issue in that case evinced "clear congressional intent" that it was "not applicable to judgments entered before its effective date." 499 U. S., at 837-838. In the case before us today, however, we have concluded that the 1991 Act does not evince any clear expression of intent on § 102's application to cases arising before the Act's enactment. We must, therefore, focus on the apparent tension between the rules we have espoused for handling similar problems in the absence of an instruction from Congress.

We begin by noting that there is no tension between the holdings in Bradley and Bowen, both of which were unanimous decisions. Relying on another unanimous decision— Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969)—we held in Bradley that a statute authorizing the award of attorney's fees to successful civil rights plaintiffs applied in a case that was pending on appeal at the time the statute was enacted. Bowen held that the Department of Health and Human Services lacked statutory authority to [265] promulgate a rule requiring private hospitals to refund Medicare payments for services rendered before promulgation of the rule. Our opinion in Bowen did not purport to overrule Bradley or to limit its reach. In this light, we turn to the "apparent tension" between the two canons mindful of another canon of unquestionable vitality, the "maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used." Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

A

As Justice Scalia has demonstrated, the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic.^[18] Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.^[19] For that reason, the "principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal appeal." Kaiser, 494 U. S., at 855 (Scalia, J., concurring). In [266] a free, dynamic society, creativity in both commercial and artistic endeavors is fostered by a rule of law that gives people confidence about the legal consequences of their actions.

It is therefore not surprising that the antiretroactivity principle finds expression in several provisions of our Constitution. The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation.^[20] Article I, § 10, cl. 1, prohibits States from passing another type of retroactive legislation, laws "impairing the Obligation of Contracts." The Fifth Amendment's Takings Clause prevents the Legislature (and other government actors) from depriving private persons of vested property rights except for a "public use" and upon payment of "just compensation." The prohibitions on "Bills of Attainder" in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. See, e. g., United States v. Brown, 381 U. S. 437, 456-462 (1965). The Due Process Clause also protects the interests in fair notice and repose that may be compromised by retroactive legislation; a justification sufficient to validate a statute's prospective application under the Clause "may not suffice" to warrant its retroactive application. Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 17 (1976).

These provisions demonstrate that retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. As Justice Marshall observed in his opinion for the Court in Weaver v. Graham, 450 U. S. 24 (1981), the Ex Post Facto Clause not only ensures [267] that individuals have "fair warning" about the effect of criminal statutes, but also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id., at 28-29 (citations omitted).^[21]

The Constitution's restrictions, of course, are of limited scope. Absent a violation of one of those specific provisions, the potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.^[22] Retroactivity provisions often serve entirely [268] benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary. However, a requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness.

While statutory retroactivity has long been disfavored, deciding when a statute operates "retroactively" is not always a simple or mechanical task. Sitting on Circuit, Justice Story offered an influential definition in Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756 (No. 13,156) (CC NH 1814), a case construing a provision of the New Hampshire Constitution that broadly prohibits "retrospective" laws both criminal and civil.^[23] Justice Story first rejected the notion that the provision bars only explicitly retroactive legislation, i. e., "statutes . . . enacted to take effect from a time anterior to their passage." Id., at 767. Such a construction, he concluded, would be "utterly subversive of all the objects" of the prohibition. Ibid. Instead, the ban on retrospective legislation embraced "all statutes, which, though operating only from their passage, affect vested [269] rights and past transactions." Ibid. "Upon principle," Justice Story elaborated,

"every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective . . . ." Ibid. (citing Calder v. Bull, 3 Dall. 386 (1798), and Dash v. Van Kleeck, 7 Johns. *477 (N. Y. 1811)).

Though the formulas have varied, similar functional conceptions of legislative "retroactivity" have found voice in this Court's decisions and elsewhere.^[24]

A statute does not operate "retrospectively" merely because it is applied in a case arising from conduct antedating the statute's enactment, see Republic Nat. Bank of Miami v. United States, 506 U. S. 80, 100 (1992) (Thomas, J., concurring in part and concurring in judgment), or upsets expectations based in prior law.^[25] Rather, the court must ask [270] whether the new provision attaches new legal consequences to events completed before its enactment. The conclusion that a particular rule operates "retroactively" comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event. Any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have "sound . . . instinct[s]," see Danforth v. Groton Water Co., 178 Mass. 472, 476, 59 N. E. 1033, 1034 (1901) (Holmes, J.), and familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance.

Since the early days of this Court, we have declined to give retroactive effect to statutes burdening private rights unless Congress had made clear its intent. Thus, in United States v. Heth, 3 Cranch 399 (1806), we refused to apply a federal statute reducing the commissions of customs collectors to collections commenced before the statute's enactment because the statute lacked "clear, strong, and imperative" language requiring retroactive application, id., at 413 (opinion of Paterson, J.). The presumption against statutory retroactivity has consistently been explained by reference to the unfairness of imposing new burdens on persons after the fact. Indeed, at common law a contrary rule applied to statutes that merely removed a burden on private rights by repealing a penal provision (whether criminal or civil); such [271] repeals were understood to preclude punishment for acts antedating the repeal. See, e. g. ,United States v. Chambers, 291 U. S. 217, 223-224 (1934); Gulf, C. & S. F. R. Co. v. Dennis, 224 U. S. 503, 506 (1912); United States v. Tynen, 11 Wall. 88, 93-95 (1871); Norris v. Crocker, 13 How. 429, 440-441 (1852); Maryland ex rel. Washington Cty. v. Baltimore & Ohio R. Co., 3 How. 534, 552 (1845); Yeaton v. United States, 5 Cranch 281, 284 (1809). But see 1 U. S. C. § 109 (repealing common-law rule).

The largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance.^[26] The presumption has not, however, been limited to such cases. At issue in Chew Heong v. United States, 112 U. S. 536 (1884), for example, was a provision of the "Chinese Restriction Act" of 1882 barring Chinese laborers from reentering the United States without a certificate prepared when they exited this country. We held that the statute did not bar the reentry of a laborer who had left the United States before the certification requirement was promulgated. Justice Harlan's opinion for the Court observed that the law in effect before the 1882 enactment had accorded laborers a right to reenter without a certificate, and invoked the "uniformly" accepted rule against "giv[ing] to statutes a retrospective [272] operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature." Id., at 559.

Our statement in Bowen that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result," 488 U. S., at 208, was in step with this long line of cases.^[27] Bowen itself was a paradigmatic case of retroactivity in which a federal agency sought to recoup, under cost limit regulations issued in 1984, funds that had been paid to hospitals for services rendered earlier, see id., at 207; our search for clear congressional intent authorizing retroactivity was consistent with the approach taken in decisions spanning two centuries.

The presumption against statutory retroactivity had special force in the era in which courts tended to view legislative interference with property and contract rights circumspectly. In this century, legislation has come to supply the dominant means of legal ordering, and circumspection has given way to greater deference to legislative judgments. See Usery v. Turner Elkhorn Mining Co., 428 U. S., at 15-16; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398, 436-444 (1934). But while the constitutional impediments to retroactive civil legislation are now modest, prospectivity remains the appropriate default rule. Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price [273] to pay for the countervailing benefits. Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the proper temporal reach of statutes, and has the additional virtue of giving legislators a predictable background rule against which to legislate.

B

Although we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should "apply the law in effect at the time it renders its decision," Bradley, 416 U. S., at 711, even though that law was enacted after the events that gave rise to the suit. There is, of course, no conflict between that principle and a presumption against retroactivity when the statute in question is unambiguous. Chief Justice Marshall's opinion in United States v. Schooner Peggy, 1 Cranch 103 (1801), illustrates this point. Because a treaty signed on September 30, 1800, while the case was pending on appeal, unambiguously provided for the restoration of captured property "not yet definitively condemned," id., at 107 (emphasis in original), we reversed a decree entered on September 23, 1800, condemning a French vessel that had been seized in American waters. Our application of "the law in effect" at the time of our decision in Schooner Peggy was simply a response to the language of the statute. Id., at 109.

Even absent specific legislative authorization, application of new statutes passed after the events in suit is unquestionably proper in many situations. When the intervening statute authorizes or affects the propriety of prospective relief, application of the new provision is not retroactive. Thus, in American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184 (1921), we held that § 20 of the Clayton Act, enacted while the case was pending on appeal, governed the propriety of injunctive relief against labor picketing. In remanding the suit for application of the intervening statute, [274] we observed that "relief by injunction operates in futuro, " and that the plaintiff had no "vested right" in the decree entered by the trial court. 257 U. S., at 201. See also, e. g., Hall v. Beals, 396 U. S. 45, 48 (1969); Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921).

We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. Thus, in Bruner v. United States, 343 U. S. 112, 116-117 (1952), relying on our "consisten[t]" practice, we ordered an action dismissed because the jurisdictional statute under which it had been (properly) filed was subsequently repealed.^[28] See also Hallowell v. Commons, 239 U. S. 506, 508-509 (1916); Assessors v. Osbornes, 9 Wall. 567, 575 (1870). Conversely, in Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 607-608, n. 6 (1978), we held that, because a statute passed while the case was pending on appeal had eliminated the amount-in-controversy requirement for federal-question cases, the fact that respondent had failed to allege $10,000 in controversy at the commencement of the action was "now of no moment." See also United States v. Alabama, 362 U. S. 602, 604 (1960) (per curiam); Stephens v. Cherokee Nation, 174 U. S. 445, 478 (1899). Application of a new jurisdictional rule usually "takes away no substantive right but simply changes the tribunal that is to hear the case." Hallowell, 239 U. S., at 508. Present law normally governs in such situations because jurisdictional statutes "speak to the power of the court rather than to the rights or obligations of the parties," Republic Nat. Bank of Miami , 506 U. S., at 100 (Thomas, J., concurring).

[275] Changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. For example, in Ex parte Collett, 337 U. S. 55, 71 (1949), we held that 28 U. S. C. § 1404(a) governed the transfer of an action instituted prior to that statute's enactment. We noted the diminished reliance interests in matters of procedure. 337 U. S., at 71.^[29] Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive. Cf. McBurney v. Carson, 99 U. S. 567, 569 (1879).^[30]

[276] Petitioner relies principally upon Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974), and Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), in support of her argument that our ordinary interpretive rules support application of § 102 to her case. In Thorpe , we held that an agency circular requiring a local housing authority to give notice of reasons and opportunity to respond before evicting a tenant was applicable to an eviction proceeding commenced before the regulation issued. Thorpe shares much with both the "procedural" and "prospective-relief" cases. See supra, at 273-275. Thus, we noted in Thorpe that new hearing procedures did not affect either party's obligations under the lease agreement between the housing authority and the petitioner, 393 U. S., at 279, and, because the tenant had "not yet vacated," we saw no significance in the fact that the housing authority had "decided to evict her before the circular was issued," id., at 283. The Court in Thorpe viewed the new eviction procedures as "essential to remove a serious impediment to the successful protection of constitutional rights." Ibid.^[31] Cf. Youakim v. Miller, 425 U. S. 231, 237 (1976) (per curiam) (citing Thorpe for propriety of applying new law to avoiding necessity of deciding constitutionality of old one).

Our holding in Bradley is similarly compatible with the line of decisions disfavoring "retroactive" application of statutes. In Bradley, the District Court had awarded attorney's fees and costs, upon general equitable principles, to parents who had prevailed in an action seeking to desegregate the public schools of Richmond, Virginia. While the [277] case was pending before the Court of Appeals, Congress enacted § 718 of the Education Amendments of 1972, which authorized federal courts to award the prevailing parties in school desegregation cases a reasonable attorney's fee. The Court of Appeals held that the new fee provision did not authorize the award of fees for services rendered before the effective date of the amendments. This Court reversed. We concluded that the private parties could rely on § 718 to support their claim for attorney's fees, resting our decision "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." 416 U. S., at 711.

Although that language suggests a categorical presumption in favor of application of all new rules of law, we now make it clear that Bradley did not alter the well-settled presumption against application of the class of new statutes that would have genuinely "retroactive" effect. Like the new hearing requirement in Thorpe, the attorney's fee provision at issue in Bradley did not resemble the cases in which we have invoked the presumption against statutory retroactivity. Attorney's fee determinations, we have observed, are "collateral to the main cause of action" and "uniquely separable from the cause of action to be proved at trial." White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 451-452 (1982). See also Hutto v. Finney, 437 U. S. 678, 695, n. 24 (1978). Moreover, even before the enactment of § 718, federal courts had authority (which the District Court in Bradley had exercised) to award fees based upon equitable principles. As our opinion in Bradley made clear, it would be difficult to imagine a stronger equitable case for an attorney's fee award than a lawsuit in which the plaintiff parents would otherwise have to bear the costs of desegregating their children's public schools. See 416 U. S., at 718 (noting that the plaintiffs had brought the school board "into compliance with its constitutional mandate") (citing Brown v. Board [278] of Education, 347 U. S. 483, 494 (1954)). In light of the prior availability of a fee award, and the likelihood that fees would be assessed under pre-existing theories, we concluded that the new fee statute simply "d[id] not impose an additional or unforeseeable obligation" upon the school board. Bradley, 416 U. S., at 721.

In approving application of the new fee provision, Bradley did not take issue with the long line of decisions applying the presumption against retroactivity. Our opinion distinguished, but did not criticize, prior cases that had applied the antiretroactivity canon. See id. , at 720 (citing Greene v. United States, 376 U. S. 149, 160 (1964); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 164 (1944), and Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913)). The authorities we relied upon in Bradley lend further support to the conclusion that we did not intend to displace the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment. See Kaiser, 494 U. S., at 849-850 (Scalia, J., concurring). Bradley relied on Thorpe and on other precedents that are consistent with a presumption against statutory retroactivity, including decisions involving explicitly retroactive statutes, see 416 U. S., at 713, n. 17 (citing, inter alia, Freeborn v. Smith, 2 Wall. 160 (1865)),^[32] the retroactive application of intervening judicial decisions, see 416 U. S., at 713-714, n. 17 (citing, inter alia, 17 (1935)),^[33] statutes Patterson v. Alabama, 294 U. S. 600, 607 [279] altering jurisdiction, 416 U. S., at 713, n. 17 (citing, inter alia, United States v. Alabama, 362 U. S. 602 (1960)), and repeal of a criminal statute, 416 U. S., at 713, n. 17 (citing United States v. Chambers, 291 U. S. 217 (1934)). Moreover, in none of our decisions that have relied upon Bradley or Thorpe have we cast doubt on the traditional presumption against truly "retrospective" application of a statute.^[34]

[280] When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i. e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.

V

We now ask whether, given the absence of guiding instructions from Congress, § 102 of the Civil Rights Act of 1991 is the type of provision that should govern cases arising before its enactment. As we observed supra, at 260-261, and n. 12, there is no special reason to think that all the diverse provisions of the Act must be treated uniformly for such purposes. To the contrary, we understand the instruction that the provisions are to "take effect upon enactment" to mean that courts should evaluate each provision of the Act in light of ordinary judicial principles concerning the application of new rules to pending cases and preenactment conduct.

Two provisions of § 102 may be readily classified according to these principles. The jury trial right set out in § 102(c)(1) is plainly a procedural change of the sort that would ordinarily govern in trials conducted after its effective date. If § 102 did no more than introduce a right to jury trial in Title [281] VII cases, the provision would presumably apply to cases tried after November 21, 1991, regardless of when the underlying conduct occurred.^[35] However, because § 102(c) makes a jury trial available only "[i]f a complaining party seeks compensatory or punitive damages," the jury trial option must stand or fall with the attached damages provisions.

Section 102(b)(1) is clearly on the other side of the line. That subsection authorizes punitive damages if the plaintiff shows that the defendant "engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." The very labels given "punitive" or "exemplary" damages, as well as the rationales that support them, demonstrate that they share key characteristics of criminal sanctions. Retroactive imposition of punitive damages would raise a serious constitutional question. See Turner Elkhorn, 428 U. S., at 17 (Court would "hesitate to approve the retrospective imposition of liability on any theory of deterrence . . . or blameworthiness"); De Veau v. Braisted, 363 U. S. 144, 160 (1960) ("The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts"). See also Louis Vuitton S. A. v. Spencer Handbags Corp., 765 F. 2d 966, 972 (CA2 1985) (retroactive application of punitive treble damages provisions of Trademark Counterfeiting Act of 1984 "would present a potential ex post facto problem"). Before we entertained that question, we would have to be confronted with a statute that explicitly authorized punitive damages for preenactment conduct. The Civil Rights Act of 1991 contains no such explicit command.

The provision of § 102(a)(1) authorizing the recovery of compensatory damages is not easily classified. It does not [282] make unlawful conduct that was lawful when it occurred; as we have noted, supra, at 252-255, § 102 only reaches discriminatory conduct already prohibited by Title VII. Concerns about a lack of fair notice are further muted by the fact that such discrimination was in many cases (although not this one) already subject to monetary liability in the form of backpay. Nor could anyone seriously contend that the compensatory damages provisions smack of a "retributive" or other suspect legislative purpose. Section 102 reflects Congress' desire to afford victims of discrimination more complete redress for violations of rules established more than a generation ago in the Civil Rights Act of 1964. At least with respect to its compensatory damages provisions, then, § 102 is not in a category in which objections to retroactive application on grounds of fairness have their greatest force.

Nonetheless, the new compensatory damages provision would operate "retrospectively" if it were applied to conduct occurring before November 21, 1991. Unlike certain other forms of relief, compensatory damages are quintessentially backward looking. Compensatory damages may be intended less to sanction wrongdoers than to make victims whole, but they do so by a mechanism that affects the liabilities of defendants. They do not "compensate" by distributing funds from the public coffers, but by requiring particular employers to pay for harms they caused. The introduction of a right to compensatory damages is also the type of legal change that would have an impact on private parties' planning.^[36] In this case, the event to which the new damages [283] provision relates is the discriminatory conduct of respondents' agent John Williams; if applied here, that provision would attach an important new legal burden to that conduct. The new damages remedy in § 102, we conclude, is the kind of provision that does not apply to events antedating its enactment in the absence of clear congressional intent.

In cases like this one, in which prior law afforded no relief, § 102 can be seen as creating a new cause of action, and its impact on parties' rights is especially pronounced. Section 102 confers a new right to monetary relief on persons like petitioner who were victims of a hostile work environment but were not constructively discharged, and the novel prospect of damages liability for their employers. Because Title VII previously authorized recovery of backpay in some cases, and because compensatory damages under § 102(a) are in addition to any backpay recoverable, the new provision also resembles a statute increasing the amount of damages available under a preestablished cause of action. Even under that view, however, the provision would, if applied in cases arising before the Act's effective date, undoubtedly impose on employers found liable a "new disability" in respect to past events. See Society for Propagation of the Gospel, 22 F. Cas., at 767. The extent of a party's liability, in the civil context as well as the criminal, is an important legal [284] consequence that cannot be ignored.^[37] Neither in Bradley itself, nor in any case before or since in which Congress had not clearly spoken, have we read a statute substantially increasing the monetary liability of a private party to apply to conduct occurring before the statute's enactment. See Winfree v. Northern Pacific R. Co., 227 U. S. 296, 301 (1913) (statute creating new federal cause of action for wrongful death inapplicable to case arising before enactment in absence of "explicit words" or "clear implication"); United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells [285] Co. , 209 U. S. 306, 314-315 (1908) (construing statute restricting subcontractors' rights to recover damages from prime contractors as prospective in absence of "clear, strong and imperative" language from Congress favoring retroactivity).^[38]

It will frequently be true, as petitioner and amici forcefully argue here, that retroactive application of a new statute would vindicate its purpose more fully.^[39] That consideration, [286] however, is not sufficient to rebut the presumption against retroactivity. Statutes are seldom crafted to pursue a single goal, and compromises necessary to their enactment may require adopting means other than those that would most effectively pursue the main goal. A legislator who supported a prospective statute might reasonably oppose retroactive application of the same statute. Indeed, there is reason to believe that the omission of the 1990 version's express retroactivity provisions was a factor in the passage of the 1991 bill. Section 102 is plainly not the sort of provision that must be understood to operate retroactively because a contrary reading would render it ineffective.

The presumption against statutory retroactivity is founded upon sound considerations of general policy and practice, and accords with long held and widely shared expectations about the usual operation of legislation. We are satisfied that it applies to § 102. Because we have found no clear evidence of congressional intent that § 102 of the Civil Rights Act of 1991 should apply to cases arising before its enactment, we conclude that the judgment of the Court of Appeals must be affirmed.

It is so ordered.

Justice Scalia, with whom Justice Kennedy and Justice Thomas join, concurring in the judgments.^[40]

I

I of course agree with the Court that there exists a judicial presumption, of great antiquity, that a legislative enactment affecting substantive rights does not apply retroactively absent clear statement to the contrary. See generally Kaiser [287] Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 840 (1990) (Scalia, J., concurring). The Court, however, is willing to let that clear statement be supplied, not by the text of the law in question, but by individual legislators who participated in the enactment of the law, and even legislators in an earlier Congress which tried and failed to enact a similar law. For the Court not only combs the floor debate and Committee Reports of the statute at issue, the Civil Rights Act of 1991 (1991 Act), Pub. L. 102-166, 105 Stat. 1071, see ante, at 262-263, but also reviews the procedural history of an earlier, unsuccessful, attempt by a different Congress to enact similar legislation, the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), see ante, at 255-257, 263.

This effectively converts the "clear statement" rule into a "discernible legislative intent" rule—and even that understates the difference. The Court's rejection of the floor statements of certain Senators because they are "frankly partisan" and "cannot plausibly be read as reflecting any general agreement," ante, at 262, reads like any other exercise in the soft science of legislative historicizing,^[41] undisciplined by any distinctive "clear statement" requirement. If it is a "clear statement" we are seeking, surely it is not enough to insist that the statement can "plausibly be read as reflecting general agreement"; the statement must clearly reflect general agreement. No legislative history can do that, of course, but only the text of the statute itself. That has been the meaning of the "clear statement" retroactivity rule from the earliest times. See, e. g., United States v. Heth, 3 Cranch 399, 408 (1806) (Johnson, J.) ("Unless, therefore, the words are too imperious to admit of a different construction, [the Court should] restric[t] the words of the law to a future [288] operation"); id. , at 414 (Cushing, J.)("[I]t [is] unreasonable, in my opinion, to give the law a construction, which would have such a retrospective effect, unless it contained express words to that purpose"); Murray v. Gibson, 15 How. 421, 423 (1854) (statutes do not operate retroactively unless "required by express command or by necessary and unavoidable implication"); Shwab v. Doyle, 258 U. S. 529, 537 (1922) ("[A] statute should not be given a retrospective operation unless its words make that imperative"); see also Bonjorno, supra, at 842-844 (concurring opinion) (collecting cases applying the clear statement test). I do not deem that clear rule to be changed by the Court's dicta regarding legislative history in the present case.

The 1991 Act does not expressly state that it operates retroactively, but petitioner contends that its specification of prospective-only application for two sections, §§ 109(c) and 402(b), implies that its other provisions are retroactive. More precisely, petitioner argues that since § 402(a) states that "[e]xcept as otherwise specifically provided, [the 1991 Act] shall take effect upon enactment"; and since §§ 109(c) and 402(b) specifically provide that those sections shall operate only prospectively; the term "shall take effect upon enactment" in § 402(a) must mean retroactive effect. The short response to this refined and subtle argument is that refinement and subtlety are no substitute for clear statement. "[S]hall take effect upon enactment" is presumed to mean "shall have prospective effect upon enactment," and that presumption is too strong to be overcome by any negative inference derived from §§ 109(c) and 402(b).^[42]

[289] II

The Court's opinion begins with an evaluation of petitioner's argument that the text of the statute dictates its retroactive application. The Court's rejection of that argument cannot be as forceful as it ought, so long as it insists upon compromising the clarity of the ancient and constant assumption that legislation is prospective, by attributing a comparable pedigree to the nouveau Bradley presumption in favor of applying the law in effect at the time of decision. See Bradley v. School Bd. of Richmond, 416 U. S. 696, 711-716 (1974). As I have demonstrated elsewhere and need not repeat here, Bradley and Thorpe v. Housing Authority of Durham, 393 U. S. 268 (1969), simply misread our precedents and invented an utterly new and erroneous rule. See generally Bonjorno, supra, at 840 (Scalia, J., concurring).

Besides embellishing the pedigree of the Bradley -Thorpe presumption, the Court goes out of its way to reaffirm the holdings of those cases. I see nothing to be gained by overruling them, but neither do I think the indefensible should needlessly be defended. And Thorpe, at least, is really indefensible. The regulation at issue there required that "before instituting an eviction proceeding local housing authorities . . . should inform the tenant . . . of the reasons for the eviction . . . ." Thorpe, supra, at 272, and n. 8 (emphasis added). The Court imposed that requirement on an eviction proceeding instituted 18 months before the regulation is- sued. That application was plainly retroactive and was wrong. The result in Bradley presents a closer question; application of an attorney's fees provision to ongoing litigation is arguably not retroactive. If it were retroactive, however, it would surely not be saved (as the Court suggests) by the existence of another theory under which attorney's fees might have been discretionarily awarded, see ante, at 277-278.

[290] III

My last, and most significant, disagreement with the Court's analysis of this case pertains to the meaning of retroactivity. The Court adopts as its own the definition crafted by Justice Story in a case involving a provision of the New Hampshire Constitution that prohibited "retrospective" laws: a law is retroactive only if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past." Society for Propagation of the Gospel v. Wheeler, 22 F. Cas. 756, 767 (No. 13,156) (CC NH 1814) (Story, J.).

One might expect from this "vested rights" focus that the Court would hold all changes in rules of procedure (as opposed to matters of substance) to apply retroactively. And one would draw the same conclusion from the Court's formulation of the test as being "whether the new provision attaches new legal consequences to events completed before its enactment"—a test borrowed directly from our Ex Post Facto Clause jurisprudence, see, e. g., Miller v. Florida, 482 U. S. 423, 430 (1987), where we have adopted a substantiveprocedural line, see id., at 433 ("[N]o ex post facto violation occurs if the change in the law is merely procedural"). In fact, however, the Court shrinks from faithfully applying the test that it has announced. It first seemingly defends the procedural-substantive distinction that a "vested rights" theory entails, ante, at 275 ("Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive"). But it soon acknowledges a broad and illdefined (indeed, utterly undefined) exception: "[T]he mere fact that a new rule is procedural does not mean that it applies to every pending case." Ante, at 275, n. 29. Under this exception, "a new rule concerning the filing of complaints would not govern an action in which the complaint [291] had already been properly filed," ibid., and "the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge," ante, at 281, n. 34. It is hard to see how either of these refusals to allow retroactive application preserves any "vested right." "`No one has a vested right in any given mode of procedure.' " Ex parte Collett, 337 U. S. 55, 71 (1949), quoting Crane v. Hahlo, 258 U. S. 142, 147 (1922).

The seemingly random exceptions to the Court's "vested rights" (substance-vs. -procedure) criterion must be made, I suggest, because that criterion is fundamentally wrong. It may well be that the upsetting of "vested substantive rights" was the proper touchstone for interpretation of New Hampshire's constitutional prohibition, as it is for interpretation of the United States Constitution's Ex Post Facto Clauses, see ante, at 275, n. 28. But Idoubt that it has anything to do with the more mundane question before us here: absent clear statement to the contrary, what is the presumed temporal application of a statute? For purposes of that question, a procedural change should no more be presumed to be retroactive than a substantive one. The critical issue, I think, is not whether the rule affects "vested rights," or governs substance or procedure, but rather what is the relevant activity that the rule regulates. Absent clear statement otherwise, only such relevant activity which occurs after the effective date of the statute is covered. Most statutes are meant to regulate primary conduct, and hence will not be applied in trials involving conduct that occurred before their effective date. But other statutes have a different purpose and therefore a different relevant retroactivity event. A new rule of evidence governing expert testimony, for example, is aimed at regulating the conduct of trial, and the event relevant to retroactivity of the rule is introduction of the testimony. Even though it is a procedural rule, it would unquestionably not be applied to testimony already taken — reversing a case on appeal, for example, because the new [292] rule had not been applied at a trial which antedated the statute.

The inadequacy of the Court's "vested rights" approach becomes apparent when a change in one of the incidents of trial alters substantive entitlements. The opinion classifies attorney's fees provisions as procedural and permits "retroactive" application (in the sense of application to cases involving preenactment conduct). See ante, at 277-278. It seems to me, however, that holding a person liable for attorney's fees affects a "substantive right" no less than holding him liable for compensatory or punitive damages, which the Court treats as affecting a vested right. If attorney's fees can be awarded in a suit involving conduct that antedated the fee-authorizing statute, it is because the purpose of the fee award is not to affect that conduct, but to encourage suit for the vindication of certain rights—so that the retroactivity event is the filing of suit, whereafter encouragement is no longer needed. Or perhaps because the purpose of the fee award is to facilitate suit—so that the retroactivity event is the termination of suit, whereafter facilitation can no longer be achieved.

The "vested rights" test does not square with our consistent practice of giving immediate effect to statutes that alter a court's jurisdiction. See, e. g., Bruner v. United States, 343 U. S. 112, 116-117, and n. 8 (1952); Hallowell v. Commons, 239 U. S. 506 (1916); cf. Ex parte McCardle, 7 Wall. 506, 514 (1869); Insurance Co. v. Ritchie , 5 Wall. 541, 544-545 (1867); see also King v. Justices of the Peace of London, 3 Burr. 1456, 97 Eng. Rep. 924 (K. B. 1764). The Court explains this aspect of our retroactivity jurisprudence by noting that "a new jurisdictional rule" will often not involve retroactivity in Justice Story's sense because it "`takes away no substantive right but simply changes the tribunal that is to hear the case.' " Ante, at 274, quoting Hallowell, supra, at 508. That may be true sometimes, but surely not always. A jurisdictional rule can deny a litigant a forum for his claim [293] entirely, see Portal-to-Portal Act of 1947, 61 Stat. 84, as amended, 29 U. S. C. §§ 251-262, or may leave him with an alternate forum that will deny relief for some collateral reason (e. g., a statute of limitations bar). Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power—so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised. Thus, applying a jurisdiction-eliminating statute to undo past judicial action would be applying it retroactively; but applying it to prevent any judicial action after the statute takes effect is applying it prospectively.

Finally, statutes eliminating previously available forms of prospective relief provide another challenge to the Court's approach. Courts traditionally withhold requested injunctions that are not authorized by then-current law, even if they were authorized at the time suit commenced and at the time the primary conduct sought to be enjoined was first engaged in. See, e. g., American Steel Foundries v. TriCity Central Trades Council, 257 U. S. 184 (1921); Duplex Printing Press Co. v. Deering, 254 U. S. 443, 464 (1921). The reason, which has nothing to do with whether it is possible to have a vested right to prospective relief, is that "[o]bviously, this form of relief operates only in futuro, " ibid. Since the purpose of prospective relief is to affect the future rather than remedy the past, the relevant time for judging its retroactivity is the very moment at which it is ordered.^[43]

[294] I do not maintain that it will always be easy to determine, from the statute's purpose, the relevant event for assessing its retroactivity. As I have suggested, for example, a statutory provision for attorney's fees presents a difficult case. Ordinarily, however, the answer is clear—as it is in both Landgraf and Rivers v. Roadway Express, Inc., post, p. 298. Unlike the Court, I do not think that any of the provisions at issue is "not easily classified," ante, at 281. They are all directed at the regulation of primary conduct, and the occurrence of the primary conduct is the relevant event.

Justice Blackmun, dissenting.

Perhaps from an eagerness to resolve the "apparent tension," see Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 837 (1990), between Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974), and Bowen v. Georgetown Univ. Hospital, 488 U. S. 204 (1988), the Court rejects the "most logical reading," Kaiser, 494 U. S., at 838, of the Civil Rights Act of 1991, 105 Stat. 1071 (Act), and resorts to a presumption against retroactivity. This approach seems to me to pay insufficient fidelity to the settled principle that the "starting point for interpretation of a statute `is the language of the statute itself,' " Kaiser, 494 U. S., at 835, quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980), and extends the presumption against retroactive legislation beyond its historical reach and purpose.

A straightforward textual analysis of the Act indicates that § 102's provision of compensatory damages and its attendant right to a jury trial apply to cases pending on appeal on the date of enactment. This analysis begins with § 402(a) of the Act, 105 Stat. 1099: "Except as otherwise specifically provided, this Act and the amendments made by this Act [295] shall take effect upon enactment." Under the "settled rule that a statute must, if possible, be construed in such fashion that every word has operative effect," United States v. Nordic Village, Inc., 503 U. S. 30, 36 (1992), citing United States v. Menasche, 348 U. S. 528, 538-539 (1955), § 402(a)'s qualifying clause, "[e]xcept as otherwise specifically provided," cannot be dismissed as mere surplusage or an "insurance policy" against future judicial interpretation. Cf. Gersman v. Group Health Assn., Inc., 975 F. 2d 886, 890 (CADC 1992). Instead, it most logically refers to the Act's two sections "specifically provid[ing]" that the statute does not apply to cases pending on the date of enactment: (a) § 402(b), 105 Stat. 1099, which provides, in effect, that the Act did not apply to the then-pending case of Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989), and (b) § 109(c), 105 Stat. 1078, which states that the Act's protections of overseas employment "shall not apply with respect to conduct occurring before the date of the enactment of this Act." Self-evidently, if the entire Act were inapplicable to pending cases, §§ 402(b) and 109(c) would be "entirely redundant." Kungys v. United States, 485 U. S. 759, 778 (1988) (plurality opinion). Thus, the clear implication is that, while §§ 402(b) and 109(c) do not apply to pending cases, other provisions—including § 102— do.^[44] "`Absent a clearly expressed legislative intention to the contrary, [this] language must . . . be regarded as conclusive.' " Kaiser , 494 U. S., at 835, quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S., at 108. The legislative history of the Act, featuring a welter of conflicting and "some frankly partisan" floor statements, ante, at 262, but no committee report, evinces no such contrary [296] legislative intent.^[45] Thus, I see no reason to dismiss as "unlikely," ante, at 259, the most natural reading of the statute, in order to embrace some other reading that is also "possible," ante, at 260.

Even if the language of the statute did not answer the retroactivity question, it would be appropriate under our precedents to apply § 102 to pending cases.^[46] The wellestablished presumption against retroactive legislation, which serves to protect settled expectations, is grounded in a respect for vested rights. See, e. g., Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775, 784 (1936) (retroactivity [297] doctrine developed as an "inhibition against a construction which . . . would violate vested rights"). This presumption need not be applied to remedial legislation, such as § 102, that does not proscribe any conduct that was previously legal. See Sampeyreac v. United States, 7 Pet. 222, 238 (1833) ("Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed"); Hastings v. Earth Satellite Corp., 628 F. 2d 85, 93 (CADC) ("Modification of remedy merely adjusts the extent, or method of enforcement, of liability in instances in which the possibility of liability previously was known"), cert. denied, 449 U. S. 905 (1980); 1 J. Kent, Commentaries on American Law *455—*456 (Chancellor Kent's objection to a law "affecting and changing vested rights" is "not understood to apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts, or disturb absolute vested rights").

At no time within the last generation has an employer had a vested right to engage in or to permit sexual harassment; "`there is no such thing as a vested right to do wrong.' " Freeborn v. Smith, 2 Wall. 160, 175 (1865). See also 2 N. Singer, Sutherland on Statutory Construction § 41.04, p. 349 (4th rev. ed. 1986) (procedural and remedial statutes that do not take away vested rights are presumed to apply to pending actions). Section 102 of the Act expands the remedies available for acts of intentional discrimination, but does not alter the scope of the employee's basic right to be free from discrimination or the employer's corresponding legal duty. There is nothing unjust about holding an employer responsible for injuries caused by conduct that has been illegal for almost 30 years.

Accordingly, I respectfully dissent.

[1] Briefs of amici curiae urging reversal were filed for the Asian American Legal Defense and Education Fund et al. by Denny Chin, Doreena Wong, and Angelo N. Ancheta; and for the National Women's Law Center et al. by Judith E. Schaeffer and Ellen J. Vargyas.

Briefs of amici curiae urging affirmance were filed for the American Trucking Associations et al. by James D. Holzhauer, Andrew L. Frey, Kenneth S. Geller, Javier H. Rubinstein, Daniel R. Barney, and Kenneth P. Kolson; and for Motor Express, Inc., by Alan J. Thiemann.

Briefs of amici curiae were filed for the Equal Employment Advisory Council et al. by Robert E. Williams, Douglas S. McDowell, and Mona C. Zeiberg; for the National Association for the Advancement of Colored People et al. by Marc L. Fleischaker, David L. Kelleher, Steven S. Zaleznick, Cathy Ventrell-Monsees, Steven M. Freeman, Michael Lieberman, Dennis Courtland Hayes, Willie Abrams, Samuel Rabinove, and Richard Foltin; and for Wards Cove Packing Co. by Douglas M. Fryer, Douglas M. Duncan, and Richard L. Phillips.

[2] See Rev. Stat. § 1977A(c), 42 U. S. C. § 1981a(c) (1988 ed., Supp. IV), as added by § 102 of the 1991 Act. For simplicity, and in conformity with the practice of the parties, we will refer to the damages and jury trial provisions as §§ 102(a) and (c), respectively.

[3] Respondent Quantum Chemical Corporation owned the USI plant when petitioner worked there. Respondent Bonar Packaging, Inc., subsequently purchased the operation.

[4] Section 2(2)finds that the Wards Cove decision "has weakened the scope and effectiveness of Federal civilrights protections,"and § 3(2) expresses Congress' intent "to codify" certain concepts enunciated in "Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989)." We take note of the express references to that case because it is the focus of § 402(b),on which petitioner places particular reliance. See infra, at 258-263.

[5] We have not decided whether a plaintiff seeking backpay under Title VII is entitled to a jury trial. See, e. g., Lytle v. Household Mfg., Inc., 494 U. S. 545, 549, n. 1 (1990) (assuming without deciding no right to jury trial); Teamsters v. Terry, 494 U. S. 558, 572 (1990) (same). Because petitioner does not argue that she had a right to jury trial even under pre-1991 law, again we need not address this question.

[6] "If the court finds that the respondent has intentionally engaged in . . . an unlawful employment practice charged in the complaint, the court may... order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay .. .or any other equitable reliefas thecourt deems appropriate. Back pay liabilityshall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable." Civil Rights Act of 1964, § 706(g),as amended, 42 U. S. C. § 2000e—5(g) (1988 ed., Supp. IV).

[7] Section 102(b)(3) imposes limits, varying with the size of the employer, on the amount of compensatory and punitive damages that may be awarded to an individual plaintiff.Thus, the sum of such damages awarded a plaintiff may not exceed $50,000 for employers with between 14 and 100 employees; $100,000 for employers with between 101 and 200 employees; $200,000 for employers with between 200 and 500 employees; and $300,000 for employers with more than 500 employees.

[8] See Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (discrimination in "terms, conditions, or privileges of employment" actionable under Title VII "is not limited to `economic' or `tangible' discrimination") (citations and internal quotation marks omitted).

[9] The relevant section of the Civil Rights Act of 1990, S. 2104, 101st Cong., 1st Sess. (1990), provided: ìSec. 15. Application of Amendments and Transition Rules.

"(a) Application of Amendments.—The amendments made by—

"(1) section 4 shall apply to all proceedings pending on or commenced after June 5, 1989 [the date of Wards Cove Packing Co. v. Atonio, 490 U. S. 642];

"(2) section 5 shall apply to all proceedings pending on or commenced after May 1, 1989 [the date of Price Waterhouse v. Hopkins, 490 U. S. 228];

"(3) section 6 shall apply to all proceedings pending on or commenced after June 12, 1989 [the date of Martin v. Wilks, 490 U. S. 755];

"(4) sections 7(a)(1), 7(a)(3) and 7(a)(4), 7(b), 8 [providing for compensatory and punitive damages for intentional discrimination], 9, 10, and 11 shall apply to all proceedings pending on or commenced after the date of enactment of this Act;

"(5) section 7(a)(2) shall apply to all proceedings pending on or after June 12, 1989 [the date of Lorance v. AT&T; Technologies, Inc., 490 U. S. 900]; and

"(6) section 12 shall apply to all proceedings pending on or commenced after June 15, 1989 [the date of Patterson v. McLean Credit Union, 491 U. S. 164].

"(b) Transition Rules.ó

"(1) In General.—Any orders entered by a court between the effective dates described in subsection (a) and the date of enactment of this Act that are inconsistent with the amendments made by sections 4, 5, 7(a)(2), or 12, shall be vacated if, not later than 1 year after such date of enactment, a request for such relief is made.

. . . . .

"(3) Final Judgments.—Pursuant to paragraphs (1) and (2), any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested, where the time for seeking further judicial review of such judgment has otherwise expired pursuant to title 28 of the United States Code, the Federal Rules of Civil Procedure, and the Federal Rules of Appellate Procedure, shall be vacated in whole or in part if justice requires pursuant to rule 60(b)(6) of the Federal Rules of Civil Procedure or other appropriate authority, and consistent with the constitutional requirements of due process of law."

[10] See President's Message to the Senate Returning Without Approval the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doc. 1632-1634 (Oct. 22, 1990), reprinted in 136 Cong. Rec. S16418, S16419 (Oct. 22, 1990). The President's veto message referred to the bill's "retroactivity" only briefly; the Attorney General's Memorandum to which the President referred was no more expansive, and may be read to refer only to the bill's special provision for reopening final judgments, see n. 8, supra, rather than its provisions covering pending cases. See Memorandum of the Attorney General to the President (Oct. 22, 1990) in App. to Brief for Petitioner A-13 ("And Section 15 unfairly applies the changes in the law made by S. 2104 to cases already decided ") (emphasis added).

[11] The history of prior amendments to Title VII suggests that the "effective-upon-enactment" formula would have been an especially inapt way to reach pending cases. When it amended Title VII in the Equal Employment Opportunity Act of 1972, Congress explicitly provided:

"The amendments made by this Act to section 706 of the Civil Rights Act of 1964 shall be applicable with respect to charges pending with the Commission on the date of enactment of this Act and all charges filed thereafter." Pub. L. 92-261, § 14, 86 Stat. 113.

In contrast, in amending Title VII to bar discrimination on the basis of pregnancy in 1978, Congress provided:

"Except as provided in subsection (b), the amendment made by this Act shall be effective on the date of enactment." § 2(a), 92 Stat. 2076. The only Courts of Appeals to consider whether the 1978 amendments applied to pending cases concluded that they did not. See Schwabenbauer v. Board of Ed. of School Dist. of Olean, 667 F. 2d 305, 310, n. 7 (CA2 1981); Condit v. United Air Lines, Inc., 631 F. 2d 1136, 1139-1140 (CA4 1980). See also Jensen v. Gulf Oil Refining & Marketing Co., 623 F. 2d 406, 410 (CA5 1980) (Age Discrimination in Employment Act amendments designated to "take effect on the date of enactment of this Act" inapplicable to case arising before enactment); Sikora v. American Can Co., 622 F. 2d 1116, 1119-1124 (CA3 1980) (same).

If we assume that Congress was familiar with those decisions, cf.Cannon v.University of Chicago, 441 U. S. 677, 698-699 (1979),its choice of language in § 402(a) would imply nonretroactivity.

[12] There is some evidence that the drafters of the 1991 Act did not devote particular attention to the interplay of the Act's "effective date" provisions. Section 110, which directs the EEOC to establish a "Technical Assistance Training Institute" to assist employers in complying with antidiscrimination laws and regulations, contains a subsection providing that it "shall take effect on the date of the enactment of this Act." § 110(b). That provision and § 402(a) are unavoidably redundant.

[13] This point also diminishes the force of petitioner's "expressio unius " argument. Once one abandons the unsupported assumption that Congress expected that all of the Act's provisions would be treated alike, and takes account of uncertainty about the applicable default rule,§§ 109(c) and 402(b) do not carry the negative implication petitioner draws from them. We do not read either provision as doing anything more than definitively rejecting retroactivity with respect to the specific matters covered by its plain language.

[14] See, e. g., H. R. 1, 102d Cong., 1st Sess. § 113 (1991), reprinted in 137 Cong. Rec. H3924—H3925 (Jan. 3, 1991). The prospectivity proviso to the section extending Title VII to overseas employers was first added to legislation that generally was to apply to pending cases. See H. R. 1, 102d Cong., 1st Sess. § 119(c) (1991), reprinted in 137 Cong. Rec. H3925—H3926 (June 5, 1991). Thus, at the time its language was introduced, the provision that became § 109(c) was surely not redundant.

[15] On the other hand, two proposals that would have provided explicitly for prospectivity also foundered. See 137 Cong. Rec. S3021, S3023 (Mar. 12, 1991); id., at 13255, 13265-13266.

[16] For example, in an "interpretive memorandum" introduced on behalf of seven Republican sponsors of S. 1745, the bill that became the 1991 Act, Senator Danforth stated that "[t]he bill provides that, unless otherwise specified, the provisions of this legislation shall take effect upon enactment and shall not apply retroactively. " Id., at 29047 (emphasis added). Senator Kennedy responded that it "will be up to the courts to determine the extent to which the bill will apply to cases and claims that were pending on the date of enactment." Ibid. (citing Bradley v. School Bd. of Richmond, 416 U. S. 696 (1974)). The legislative history reveals other partisan statements on the proper meaning of the Act's "effective date" provisions. Senator Danforth observed that such statements carry little weight as legislative history. As he put it:

"[A] court would be well advised to take with a large grain of salt floor debate and statements placed in the Congressional Record which purport to create an interpretation for the legislation that is before us." 137 Cong. Rec. S15325 (Oct. 29, 1991).

[17] See Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950). Llewellyn's article identified the apparent conflict between the canon that

"[a] statute imposing a new penalty or forfeiture, or a new liability or disability, or creating a new right of action will not be construed as having a retroactive effect" and the countervailing rule that

"[r]emedial statutes are to be liberally construed and if a retroactive interpretation will promote the ends of justice, they should receive such construction." Id. , at 402 (citations omitted).

[18] See Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U. S. 827, 842-844, 855-856 (1990) (Scalia, J., concurring). See also, e. g., Dash v. Van Kleeck, 7 Johns. *477, *503 (N. Y. 1811) ("It is a principle of the English common law, as ancient as the law itself, that a statute, even of its omnipotent parliament, is not to have a retrospective effect") (Kent, C. J.); Smead, The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 (1936).

[19] See General Motors Corp. v. Romein, 503 U. S. 181, 191 (1992) ("Retroactive legislation presents problems of unfairness that are more serious than those posed by prospective legislation, because it can deprive citizens of legitimate expectations and upset settled transactions"); Munzer, A Theory of Retroactive Legislation, 61 Texas L. Rev. 425, 471 (1982) ("The rule of law . . . is a defeasible entitlement of persons to have their behavior governed by rules publicly fixed in advance"). See also L. Fuller, The Morality of Law 51-62 (1964) (hereinafter Fuller).

[20] ArticleI contains two Ex Post Facto Clauses, one directed to Congress (§ 9,cl.3), the other to the States (§ 10, cl. 1).We have construed the Clauses as applicable only to penal legislation. See Calder v. Bull, 3 Dall. 386, 390-391 (1798) (opinion of Chase, J.).

[21] See Richmond v. J. A. Croson Co. , 488 U. S. 469, 513-514 (1989) ("Legislatures are primarily policymaking bodies that promulgate rules to govern future conduct. The constitutional prohibitions against the enactment of ex post facto laws and bills of attainder reflect a valid concern about the use of the political process to punish or characterize past conduct of private citizens. It is the judicial system, rather than the legislative process, that is best equipped to identify past wrongdoers and to fashion remedies that will create the conditions that presumably would have existed had no wrong been committed") (Stevens, J., concurring in part and concurring in judgment); James v. United States, 366 U. S. 213, 247, n. 3 (1961) (retroactive punitive measures may reflect "a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons").

James Madison argued that retroactive legislation also offered special opportunities for the powerful to obtain special and improper legislative benefits. According to Madison, "[b]ills of attainder, ex post facto laws, and laws impairing the obligation of contracts" were "contrary to the first principles of the social compact, and to every principle of sound legislation," in part because such measures invited the "influential" to "speculat[e] on public measures," to the detriment of the "more industrious and less informed part of the community." The Federalist No. 44, p. 301 (J. Cooke ed. 1961). See Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 693 (1960) (a retroactive statute "may be passed with an exact knowledge of who will benefit from it").

[22] In some cases, however, the interest in avoiding the adjudication of constitutional questions will counsel against a retroactive application. For if a challenged statute is to be given retroactive effect, the regulatory interest that supports prospective application will not necessarily also sustain its application to past events. See Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717, 730 (1984); Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 17 (1976). In this case the punitive damages provision may raise a question, but for present purposes we assume that Congress has ample power to provide for retroactive application of § 102.

[23] Article 23 of the New Hampshire Bill of Rights provides: "Retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for the decision of civil causes or the punishment of offenses." At issue in the Society case was a new statute that reversed a common-law rule by allowing certain wrongful possessors of land, upon being ejected by the rightful owner, to obtain compensation for improvements made on the land. Justice Story held that the new statute impaired the owner's rights and thus could not, consistently with Article 23, be applied to require compensation for improvements made before the statute's enactment. See 22 F. Cas., at 766-769.

[24] See, e. g., Miller v. Florida, 482 U. S. 423, 430 (1987) ("A law is retrospective if it `changes the legal consequences of acts completed before its effective date' ") (quoting Weaver v. Graham, 450 U. S. 24, 31 (1981)); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S. 190, 199 (1913) (retroactive statute gives "a quality or effect to acts or conduct which they did not have or did not contemplate when they were performed"); Sturges v. Carter, 114 U. S. 511, 519 (1885) (a retroactive statute is one that "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability"). See also Black's Law Dictionary 1184 (5th ed. 1979) (quoting Justice Story's definition from Society ); 2 N. Singer, Sutherland on Statutory Construction § 41.01, p. 337 (5th rev. ed. 1993) ("The terms `retroactive' and `retrospective' are synonymous in judicial usage . . . . They describe acts which operate on transactions which have occurred or rights and obligations which existed before passage of the act").

[25] Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property; a new law banning gambling harms the person who had begun to construct a casino before the law's enactment or spent his life learning to count cards. See Fuller 60 ("If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever"). Moreover, a statute "is not made retroactive merely because it draws upon antecedent facts for its operation." Cox v.Hart, 260 U. S. 427, 435 (1922). See Reynolds v. United States, 292 U. S. 443, 444-449 (1934); Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67, 73 (1915).

[26] See, e. g., United States v. Security Industrial Bank, 459 U. S. 70, 79-82 (1982); Claridge Apartments Co. v. Commissioner, 323 U. S. 141, 164 (1944); United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926); Holt v. Henley, 232 U. S. 637,639 (1914); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U. S.,at 199; Twenty per Cent. Cases, 20 Wall. 179, 187 (1874); Sohn v. Waterson, 17 Wall. 596, 599 (1873); Carroll v. Lessee of Carroll, 16 How. 275 (1854). While the great majority of our decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties, we have applied the presumption in cases involving new monetary obligations that fell only on the government. See United States v. Magnolia Petroleum Co., 276 U. S. 160 (1928); White v. United States, 191 U. S. 545 (1903).

[27] See also, e. g., Greene v. United States , 376 U. S. 149, 160 (1964); White v. United States, 191 U. S. 545 (1903); United States v. Moore, 95 U. S. 760, 762 (1878); Murray v. Gibson, 15 How. 421, 423 (1854); Ladiga v. Roland, 2 How. 581, 589 (1844).

[28] In Bruner, we specifically noted:

"This jurisdictional rule does not affect the general principle that a statute is not to be given retroactive effect unless such construction is required by explicit language or by necessary implication. Compare United States v. St. Louis, S. F. & T. R. Co., 270 U. S. 1, 3 (1926), with Smallwood v. Gallardo, 275 U. S. 56, 61 (1927)." 343 U. S., at 117, n. 8.

[29] While we have strictly construed the Ex Post Facto Clause to prohibit application of new statutes creating or increasing punishments after the fact, we have upheld intervening procedural changes even if application of the new rule operated to a defendant's disadvantage in the particular case. See, e. g., Dobbert v. Florida, 432 U. S. 282, 293-294 (1977); see also Collins v. Youngblood, 497 U. S. 37 (1990); Beazell v. Ohio, 269 U. S. 167 (1925).

[30] Of course, the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under the old regime, and the promulgation of a new rule of evidence would not require an appellate remand for a new trial. Our orders approving amendments to federal procedural rules reflect the commonsense notion that the applicability of such provisions ordinarily depends on the posture of the particular case. See, e. g., Order Amending Federal Rules of Criminal Procedure, 495 U. S. 969 (1990) (amendments applicable to pending cases "insofar as just and practicable"); Order Amending Federal Rules of Civil Procedure, 456 U. S. 1015 (1982) (same); Order Amending Bankruptcy Rules and Forms, 421 U. S. 1021 (1975) (amendments applicable to pending cases "except to the extent that in the opinion of the court their application in a particular proceeding then pending would not be feasible or would work injustice"). Contrary to Justice Scalia's suggestion, post, at 290, we do not restrict the presumption against statutory retroactivity to cases involving "vested rights." (Neither is Justice Story's definition of retroactivity, quoted supra, at 269, so restricted.) Nor do we suggest that concerns about retroactivity have no application to procedural rules.

[31] Thorpe is consistent with the principle, analogous to that at work in the common-law presumption about repeals of criminal statutes, that the government should accord grace to private parties disadvantaged by an old rule when it adopts a new and more generous one. Cf. DeGurules v. INS, 833 F. 2d 861, 862-863 (CA9 1987). Indeed, Thorpe twice cited United States v. Chambers, 291 U. S. 217 (1934), which ordered dismissal of prosecutions pending when the National Prohibition Act was repealed. See Thorpe, 393 U. S., at 281, n. 38; id., at 282, n.40.

[32] In Bradley, we cited Schooner Peggy for the "current law" principle, but we recognized that the law at issue in Schooner Peggy had expressly called for retroactive application. See 416 U. S., at 712, n. 16 (describing Schooner Peggy as holding that Court was obligated to "apply the terms of the convention," which had recited that it applied to all vessels not yet "definitively condemned") (emphasis in convention).

[33] At the time Bradley was decided, it was by no means a truism to point out that rules announced in intervening judicial decisions should normally be applied to a case pending when the intervening decision came down. In 1974, our doctrine on judicial retroactivity involved a substantial measure of discretion, guided by equitable standards resembling the Bradley "manifest injustice" test itself. See Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (1971); Linkletter v. Walker, 381 U. S. 618, 636 (1965). While it was accurate in 1974 to say that a new rule announced in a judicial decision was only presumptively applicable to pending cases, we have since established a firm rule of retroactivity. See Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993); Griffith v. Kentucky, 479 U. S. 314 (1987).

[34] See, e. g., Treasury Employees v. Von Raab, 489 U. S. 656, 661-662, and n. 1 (1989) (considering intervening regulations in injunctive action challenging agency's drug testing policy under Fourth Amendment) (citing Thorpe ); Goodman v. Lukens Steel Co., 482 U. S. 656, 662 (1987) (applying rule announced in judicial decision to case arising before the decision and citing Bradley for the "usual rule . . . that federal cases should be decided in accordance with the law existing at the time of the decision"); Saint Francis College v. Al-Khazraji, 481 U. S. 604, 608 (1987) (in case involving retroactivity of judicial decision, citing Thorpe for same "usual rule"); Hutto v. Finney, 437 U. S., at 694, n. 23 (relying on "general practice" and Bradley to uphold award of attorney's fees under statute passed after the services had been rendered but while case was still pending); Youakim, 425 U. S., at 237 (per curiam) (remanding for reconsideration of constitutional claim for injunctive relief in light of intervening state regulations) (citing Thorpe ); Cort v. Ash, 422 U. S. 66, 77 (1975) (stating that Bradley warranted application of intervening statute transferring to administrative agency jurisdiction over claim for injunctive relief); Hamling v. United States, 418 U. S. 87, 101-102 (1974) (reviewing obscenity conviction in light of subsequent First Amendment decision of this Court) (citing Bradley ); California Bankers Assn. v. Shultz, 416 U. S. 21, 49, n. 21 (1974) (in action for injunction against enforcement of banking disclosure statute, citing Thorpe for proposition that Court should consider constitutional question in light of regulations issued after commencement of suit); Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 414 (1972) (citing Thorpe in holding that intervening repeal of a state tax exemption for certain church property rendered "inappropriate" petitioner's request for injunctive relief based on the Establishment Clause); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U. S. 402, 419 (1971) (refusing to remand to agency under Thorpe for administrative findings required by new regulation because administrative record was already adequate for judicial review); Hall v. Beals, 396 U. S. 45, 48 (1969) (in action for injunctive relief from state election statute, citing Thorpe as authority for considering intervening amendment of statute).

[35] As the Court of Appeals recognized, however, the promulgation of a new jury trial rule would ordinarily not warrant retrial of cases that had previously been tried to a judge. See n. 29, supra. Thus, customary practice would not support remand for a jury trial in this case.

[36] As petitioner and amici suggest, concerns of unfair surprise and upsetting expectations are attenuated in the case of intentional employment discrimination, which has been unlawful for more than a generation. However, fairness concerns would not be entirely absent if the damages provisions of § 102 were to apply to events preceding its enactment, as the facts of this case illustrate. Respondent USI's management, when apprised of the wrongful conduct of petitioner's co-worker, took timely action to remedy the problem. The law then in effect imposed no liability on an employer who corrected discriminatory work conditions before the conditions became so severe as to result in the victim's constructive discharge. Assessing damages against respondents on a theory of respondeat superior would thus entail an element of surprise. Even when the conduct in question is morally reprehensible or illegal, a degree of unfairness is inherent whenever the law imposes additional burdens based on conduct that occurred in the past. Cf. Weaver, 450 U. S., at 28-30 (Ex Post Facto Clause assures fair notice and governmental restraint, and does not turn on "an individual's right to less punishment"). The new damages provisions of § 102 can be expected to give managers an added incentive to take preventive measures to ward off discriminatory conduct by subordinates before itoccurs, but that purpose is not served by applying the regime to preenactment conduct.

[37] The state courts have consistently held that statutes changing or abolishing limits on the amount of damages available in wrongful-death actions should not, in the absence of clear legislative intent, apply to actions arising before their enactment. See, e. g., Dempsey v. State, 451 A. 2d 273 (R. I. 1982) ("Every court which has considered the issue . . . has found that a subsequent change as to the amount or the elements of damage in the wrongful-death statute to be substantive rather than procedural or remedial, and thus any such change must be applied prospectively"); Kleibrink v. Missouri-Kansas-Texas R. Co., 224 Kan. 437, 444, 581 P. 2d 372, 378 (1978) (holding, in accord with the "great weight of authority," that "an increase, decrease or repeal of the statutory maximum recoverable in wrongful death actions is not retroactive" and thus should not apply in a case arising before the statute's enactment) (emphasis in original); Bradley v. Knutson, 62 Wis. 2d 432, 436, 215 N. W. 2d 369, 371 (1974) (refusing to apply increase in cap on damages for wrongful death to misconduct occurring before effective date; "statutory increases in damage[s] limitations are actually changes in substantive rights and not mere remedial changes"); State ex rel. St. Louis-San Francisco R. Co. v. Buder, 515 S. W. 2d 409, 411 (Mo. 1974) (statute removing wrongful-death liability limitation construed not to apply to preenactment conduct; "an act or transaction, to which certain legal effects were ascribed at the time they transpired, should not, without cogent reasons, thereafter be subject to a different set of effects which alter the rights and liabilities of the parties thereto"); Mihoy v. Proulx, 113 N. H. 698, 701, 313 A. 2d 723, 725 (1973) ("To apply the increased limit after the date of the accident would clearly enlarge the defendant's liability retrospectively. In the absence of an express provision, we cannot conclude that the legislature intended retrospective application"). See also Fann v. McGuffy, 534 S. W. 2d 770, 774, n. 19 (Ky. 1975); Muckler v. Buchl, 150 N. W. 2d 689, 697 (Minn. 1967).

[38] We have sometimes said that new "remedial" statutes, like new "procedural" ones, should presumptively apply to pending cases. See, e. g., Ex parte Collett, 337 U. S., at 71, and n. 38 ("Clearly, § 1404(a) is a remedial provision applicable to pending actions"); Beazell, 269 U. S., at 171 (Ex Post Facto Clause does not limit "legislative control of remedies and modes of procedure which do not affect matters of substance"). While that statement holds true for some kinds of remedies, see supra, at 273— 274 (discussing prospective relief), we have not classified a statute introducing damages liability as the sort of "remedial" change that should presumptively apply in pending cases. "Retroactive modification" of damages remedies may "normally harbo[r] much less potential for mischief than retroactive changes in the principles of liability," Hastings v. Earth Satellite Corp., 628 F. 2d 85, 93 (CADC), cert. denied, 449 U. S. 905 (1980), but that potential is nevertheless still significant.

[39] Petitioner argues that our decision in Franklin v. Gwinnett County Public Schools, 503 U. S. 60 (1992), supports application of § 102 to her case. Relying on the principle that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong,' " id., at 66 (quoting Bell v. Hood, 327 U. S. 678, 684 (1946)), we held in Franklin that the right of action under Title IX of the Education Amendments of 1972 included a claim for damages. Petitioner argues that Franklin supports her position because, if she cannot obtain damages pursuant to § 102, she will be left remediless despite an adjudged violation of her right under Title VII to be free of workplace discrimination. However, Title VII of the Civil Rights Act of 1964 is not a statute to which we would apply the "traditional presumption in favor of all available remedies." 503 U. S., at 72. That statute did not create a "general right to sue" for employment discrimination, but instead specified a set of "circumscribed remedies." See United States v. Burke, 504 U. S. 229, 240 (1992). Until the 1991 amendment, the Title VII scheme did not allow for damages. We are not free to fashion remedies that Congress has specifically chosen not to extend. See Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 97 (1981).

[40] [This opinion applies also to Rivers v. Roadway Express, Inc., No. 92— 938, post, p. 298.]

[41] In one respect, I must acknowledge, the Court's effort may be unique. There is novelty as well as irony in its supporting the judgment that the floor statements on the 1991 Act are unreliable by citing Senator Danforth's floor statement on the 1991 Act to the effect that floor statements on the 1991 Act are unreliable. See ante, at 262-263, n. 15.

[42] Petitioner suggests that in Pennsylvania v. Union Gas Co., 491 U. S. 1 (1989), the Court found the negative implication of language sufficient to satisfy the "clear statement" requirement for congressional subjection of the States to private suit, see Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985). However, in that case it was the express inclusion of States in the definition of potentially liable "person[s]," see 42 U. S. C. § 9601(21),as reinforced by the limitation of States' liability in certain limited circumstances, see § 9601(20)(D), that led the Court to find a plain statement of liability.See 491 U. S., at 11 (noting the "cascade of plain language" supporting liability); id., at 30 (Scalia, J., concurring in part and dissenting in part). There is nothing comparable here.

[43] A focus on the relevant retroactivity event also explains why the presumption against retroactivity is not violated by interpreting a statute to alter the future legal effect of past transactions—so-called secondary retroactivity, see Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 219— 220 (1988) (Scalia, J., concurring) (citing McNulty, Corporations and the Intertemporal Conflict of Laws, 55 Calif. L. Rev. 12, 58-60 (1967)); cf. Cox v. Hart, 260 U. S. 427, 435 (1922). A new ban on gambling applies to existing casinos and casinos under construction, see ante, at 269-270, n. 24, even though it "attaches a new disability" to those past investments. The relevant retroactivity event is the primary activity of gambling, not the primary activity of constructing casinos.

[44] It is, of course, an "unexceptional" proposition that "a particular statute may in some circumstances implicitly authorize retroactive [application]." Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 223 (1988) (concurring opinion) (emphasis added).

[45] Virtually every Court of Appeals to consider the application of the 1991 Act to pending cases has concluded that the legislative history provides no reliable guidance. See, e. g., Gersman v. Group Health Assn., Inc., 975 F. 2d 886 (CADC 1992); Mozee v. American Commercial Marine Service Co., 963 F. 2d 929 (CA7 1992).

The absence in the Act of the strong retroactivity language of the vetoed 1990 legislation, which would have applied the new law to final judgments as well as to pending cases, see H. R. 4000, 101st Cong., 2d Sess., § 15(b)(3) (1990), reprinted at 136 Cong. Rec. H6829 (Aug. 3, 1990) (providing that "any final judgment entered prior to the date of the enactment of this Act as to which the rights of any of the parties thereto have become fixed and vested . . . shall be vacated in whole or in part if justice requires" and the Constitution permits), is not instructive of Congress' intent with respect to pending cases alone. Significantly, Congress also rejected language that put pending claims beyond the reach of the 1990 or 1991 Act. See id., at H6747 (Michel-LaFalce amendment to 1990 Act) ("The amendments made by this Act shall not apply with respect to claims arising before the date of enactment of this Act"); id., at H6768 (Michel-LaFalce amendment rejected); 137 Cong. Rec. S3023 (daily ed. Mar. 12, 1991) (Sen. Dole's introduction of S. 611, which included the 1990 Act's retroactivity provision); id., at 13255, 13265-13266 (introduction and defeat of Michel substitute for H. R. 1).

[46] Directly at issue in this case are compensatory damages and the right to a jury trial. While there is little unfairness in requiring an employer to compensate the victims of intentional acts of discrimination, or to have a jury determine those damages, the imposition of punitive damages for preenactment conduct represents a more difficult question, one not squarely addressed in this case and one on which I express no opinion.

Virginia G. Villa, Assistant Federal Defender, Federal Defender Office, for appellants.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and STAHL, Circuit Judges.

LYNCH, Chief Judge.

[177] The Supreme Court has directed us, in light of United States v. Castleman, ___ U.S. ___, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of "misdemeanor crimes of domestic violence," as defined in 18 U.S.C. § 921(a)(33)(A), even though the state statutes allowed conviction based on a recklessness mens rea. Armstrong v. United States, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.); see United States v. Armstrong, 706 F.3d 1 (1st Cir. 2013); United States v. Voisine, 495 Fed. Appx. 101 (1st Cir.2013) (per curiam). If so, then their motions to dismiss their federal charges for possessing firearms after such convictions, in violation of 18 U.S.C. § 922(g)(9), were properly denied.

Our answer is informed by congressional recognition in § 922(g)(9) of the special risks posed by firearm possession by domestic abusers. "Domestic violence often escalates in severity over time ... and the presence of a firearm increases the likelihood that it will escalate to homicide...." Castleman, 134 S.Ct. at 1408. It is also informed by the congressional choice in the federal sentencing scheme to honor each state's choice as to how to define its own crimes, through statutory text and judicial decision.

As we see it, this case turns on the unique nature of § 922(g)(9). That section is meant to ensure that individuals who engage in the "seemingly minor act[s]" that actually constitute domestic violence, like squeezing and shoving, may not possess a firearm. Castleman, 134 S.Ct. at 1412. This range of predicate acts is broader than that found in other federal prohibitions involving the use of physical force. Applying the teachings of Castleman, we find that Maine's definition of reckless assault fits within § 922(g)(9).

We affirm the denial of the motion to dismiss the indictment and information here. That means the conditional guilty pleas the defendants entered are valid and their sentences stand. The question is close and we rule narrowly.

I.

A. Statutory Background

As the Supreme Court observed in Castleman, 18 U.S.C. § 922(g)(9) was enacted to close a loophole. "While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors." Castleman, 134 S.Ct. at 1409. No ban prevented those domestic abusers from possessing firearms, yet there is a "sobering" connection between domestic violence and homicide. Id. The "manifest purpose" of § 922(g)(9), the Lautenberg Amendment to the Gun Control Act of 1968, was to remedy the "potentially deadly combination" of "[f]irearms and domestic strife." United States v. Hayes, 555 U.S. 415, 426-27, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009).

Under § 922(g)(9), it is against federal law for any person "who has been convicted in any court of a misdemeanor crime of domestic violence" to "possess in or affecting commerce[] any firearm or ammunition." In turn, a "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) "has, as an element, the use or attempted use of physical force ... committed by a current or former spouse, parent, or guardian of the victim" or by a person in a similar domestic relationship with the victim.

The predicate offenses in these cases are convictions under Maine assault statutes. [178] Me.Rev.Stat. Ann. tit. 17-A, §§ 207(1)(A), 207-A(1)(A). Under Maine law, a "person is guilty of assault if[ t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person." Id. § 207(1)(A). A violation of § 207 constitutes misdemeanor domestic violence assault if the "victim is a family or household member." Id. § 207-A(1)(A).

Maine law explains that "[a] person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result." Id. § 35(3)(A). The statute goes on to give more meat to the "conscious disregard" definition. It refers to disregard of a risk, "when viewed in light of the nature and purpose of the person's conduct and the circumstances known to that person," that "involve[s] a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation." Id. § 35(3)(C).

B. Facts

William E. Armstrong III was convicted in 2002 and 2008 of assaulting his wife in violation of Maine's misdemeanor assault statutes, Me.Rev.Stat. Ann. tit. 17-A §§ 207(1)(A), 207-A(1)(A). In May 2010, twenty-nine months after the last domestic assault conviction, the Maine State Police searched the Armstrong residence for drug paraphernalia and marijuana. They discovered six firearms and ammunition. The police notified the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which executed a search. That search uncovered only ammunition, but Armstrong later explained that he had arranged for a friend to remove the guns. ATF agents observed the guns at the friend's home.

Armstrong was arrested and federally charged with being a prohibited person in possession of a firearm, in violation of § 922(g)(9). The indictment listed Armstrong's 2008 domestic violence assault conviction as the predicate offense.

Stephen L. Voisine was convicted in 2003 and 2005 of assaulting a woman with whom he was in a domestic relationship, in violation of Maine's assault statute. In 2009, acting on an anonymous tip, state and local law enforcement officials arrested Voisine on the federal misdemeanor charge of killing a bald eagle in violation of 16 U.S.C. § 668(a). When conducting a background check, they discovered his 2003 misdemeanor simple assault. As Voisine had turned a rifle over to the police during the investigation, the criminal information charged him with violating § 922(g)(9) as well as § 668(a).

C. Procedural History

Both Armstrong and Voisine moved to dismiss, arguing that their indictment and information did not charge a federal offense and that § 922(g)(9) violated the Constitution. The district court denied the motions, and both defendants entered guilty pleas conditioned on the right to appeal the district court's decision.^[1]

We consolidated Armstrong and Voisine's cases. In a January 18, 2013 opinion, we affirmed the district court's decisions. Armstrong, 706 F.3d at 1; see Voisine, 495 Fed.Appx. at 102 (incorporating the reasoning from Armstrong as [179] there were "no pertinent factual differences" distinguishing the two cases). The defendants had argued that a misdemeanor assault on the basis of offensive physical contact, as opposed to one causing bodily injury, is not a "use of physical force," and, concordantly, not a "misdemeanor crime of domestic violence." Relying on United States v. Booker, 644 F.3d 12 (1st Cir.2011), and United States v. Nason, 269 F.3d 10 (1st Cir.2001), we held that § 922(g)(9) did not distinguish between violent and nonviolent convictions, and the statute included the offensive physical contact portion of the Maine statute within its definition of "physical force." Armstrong, 706 F.3d at 6; Voisine, 495 Fed.Appx. at 101-02.

Second, the defendants argued that § 922(g)(9) violated the Second Amendment as applied to them. This argument was foreclosed by Booker, which denied an identical argument framed as a facial challenge. 644 F.3d at 22-26; see Armstrong, 706 F.3d at 7-8; Voisine, 495 Fed.Appx. at 101.

The defendants petitioned for certiorari. On March 31, 2014, the Supreme Court granted their petitions, vacated the judgments, and remanded "for further consideration in light of United States v. Castleman." Armstrong v. United States, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014) (Mem.). In Castleman, the Court had addressed the issue of whether the phrase "use of physical force" in § 921(a)(33)(A) required violence or could be satisfied by offensive touching. That issue had been the source of a circuit split. Castleman resolved the question in agreement with Nason, holding that "Congress incorporated the common-law meaning of `force' — namely, offensive touching — in § 921(a)(33)(A)'s definition of a `misdemeanor crime of domestic violence.'" Castleman, 134 S.Ct. at 1410. The Supreme Court left open whether a conviction with the mens rea of recklessness could serve as a § 922(g)(9) predicate. Id. at 1414. In footnote 8, the Court stated, "the Courts of Appeals have almost uniformly held that recklessness is not sufficient," and listed ten cases.^[2]Id. at 1414 n. 8. It then added, "But see United States v. Booker, 644 F.3d 12, 19-20 (C.A.1 2011)." Id. The footnote did not say Booker was wrong. It gave no further definition of recklessness. Nor did it account for the differences in the statutory sections being interpreted in the other cases cited.

This case comes to us following the Supreme Court's remand.

II.

In construing § 922(g)(9)'s applicability to a given case, we use the "categorical approach." Under that approach the elements of the predicate offense (here, the Maine assault statute) must be identical to or categorically within the description of the subsequent provision (here, § 922(g)(9)). See Castleman, 134 S.Ct. at 1413. Where, as here, the predicate statute is "divisible" into crimes with alternative sets of elements, we may consider whether the elements under which the defendant was convicted are still within the [180] subsequent provision, an inquiry known as the "modified categorical approach." Id. at 1414. The government concedes that the record here of the state proceedings is too sparse to "discern under which prong of Maine's statute" the defendants were convicted, and they urge us against "resort[ing] to the modified categorical approach." For us to affirm, we must find that the Maine statute — including the reckless acts it prohibits — categorically fits within § 922(g)(9).

The defendants frame the issue as whether a reckless act can constitute a "use of physical force" and rely on cases interpreting statutes other than § 922(g)(9). We do not agree that is the proper way to frame the question. That framing is predicated on the notion that particular statutory language must be interpreted identically in different sections across the U.S.Code. To the contrary, context matters, as the Supreme Court demonstrated in Castleman itself. 134 S.Ct. at 1410-12. The question is whether Maine's definition of recklessness fits within § 921(a)(33)(A)'s phrase "use of physical force." Section 921(a)(33)(A) is a provision crafted in the unique context of domestic violence, and it should be so interpreted. Castleman, 134 S.Ct. at 1410-12 & n. 4; Booker, 644 F.3d at 18-21.

This reframing of the question clarifies our approach to the two arguments raised by the defendants: that Castleman footnote 8 decides this case, and that Castleman's analysis of § 921(a)(33)(A) undermines our prior decisions. Castleman's emphasis on context reinforces, rather than undermines, our earlier decision.

A. Castleman Footnote 8

The defendants read too much into Castleman footnote 8, which expressly does not resolve the question before us. Nor is their argument made by reference to the cases cited for contrast in the footnote. Each of those cases^[3] construes a different [181] statutory definition, and all but one arose in a different context.

Footnote 8 begins by describing the issue as an open question, with a citation to Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In Leocal, the Supreme Court interpreted 18 U.S.C. § 16(a), the definition of the term "crime of violence." 543 U.S. at 8-10, 125 S.Ct. 377. Such a crime requires "use of physical force," and Leocal held that the term "use" suggests a mens rea higher than negligence, but it withheld judgment on whether recklessness is sufficient, Castleman, 134 S.Ct. at 1414 n. 8; Booker, 644 F.3d at 19-20.

Considering context, section 16(a) is not analogous to the section which concerns us, § 922(g)(9). Castleman itself distinguished the term "use of force" in § 16(a), a provision for undifferentiated violent crimes, from the term "use of physical force" in § 922(g)(9)'s domestic violence provision. "Domestic violence" is a "term of art" that "encompasses a range of force broader than that which constitutes `violence' simpliciter," including "acts that might not constitute `violence' in a non-domestic context." Castleman, 134 S.Ct. at 1411 & n. 4. A "crime of violence," by contrast, "suggests a category of violent, active crimes." Id. at 1411 n. 4 (quoting Johnson, 559 U.S. at 140, 130 S.Ct. 1265) (internal quotation mark omitted). As the Supreme Court explained, a "`squeeze of the arm [that] causes a bruise'" is "hard to describe as ... `violence'" within the meaning of § 16, but "easy to describe as `domestic violence'" within the meaning of § 922(g)(9). Id. at 1412 (alterations in original) (quoting Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir.2003)) (internal quotation marks omitted).

Unsurprisingly, the drafting history of § 922(g)(9) indicates that "Congress expressly rejected" the § 16(a) definition, instead developing the term "misdemeanor crime of violence" that was "`probably broader' than the definition" in § 16. Booker, 644 F.3d at 19 (citing a statement by Sen. Lautenberg). And where Congress wanted to define a domestic violence crime as a § 16 crime of violence occurring in the domestic context, it has done so — even in the same legislation that contained the Lautenberg Amendment. See, e.g., 8 U.S.C. § 1227(a)(2)(E). "That it did not do so here suggests, if anything, that it did not mean to." Castleman, 134 S.Ct. at 1412 n. 6.

The only case cited in Castleman footnote 8 from the domestic violence context is one in which Congress elected to define the crime with reference to § 16. In Fernandez-Ruiz v. Gonzales, the Ninth Circuit considered whether a reckless misdemeanor could serve as a predicate "crime of domestic violence." 466 F.3d 1121, 1124 (9th Cir.2006) (en banc) (citing 8 U.S.C. § 1227(a)(2)(E)(i)). Unlike § 922(g)(9), however, the relevant statute in Fernandez-Ruiz defined "crime of domestic violence" as a "crime of violence" (referencing § 16) committed against someone in a domestic relationship with the perpetrator. Id. at 1124-25. The Ninth Circuit accordingly conducted a § 16 analysis, applying Leocal and cases from other circuits to reach its conclusion. Id. at 1127-32. But even that result did not follow so obviously from Leocal, as four judges dissented emphasizing [182] the differences between domestic violence and other contexts. Id. at 1136 (Wardlaw, J., dissenting).

On remand of this case to us, the defendants' brief adds to the cases in the footnote by citing two other § 922(g)(9) cases, not mentioned in Castleman, which they say directly conflict with Booker. We disagree. In United States v. White, 258 F.3d 374 (5th Cir.2001), the relevant predicate statute criminalized reckless "conduct that places another in imminent danger of serious bodily injury." Id. at 381. The court found that the statute did not require a completed "use of physical force," since it was satisfied by a risk of injury, and the statute extended beyond an "attempted use of force" because attempt liability requires specific intent rather than recklessness. Id. at 382-84. Rather than construing the phrase "use of physical force," as Booker did, White relied on principles of attempt liability to rule out reckless predicate crimes.

In United States v. Howell, 531 F.3d 621 (8th Cir.2008), also added by the defendants, the predicate statute criminalized reckless "conduct which creates a grave risk of death or serious physical injury to another." Id. at 624. The court found this provision to be a "catch-all provision applicable to innumerable factual situations," so a completed "use of physical force" is not always or ordinarily present. Id.

Simply put, we are aware of no case — including the cases in Castleman footnote 8 — in conflict with Booker's holding that a reckless misdemeanor assault satisfies § 922(g)(9)'s particular definition of a "misdemeanor crime of domestic violence." Rather, § 922(g)(9)'s unique context, as described in Castleman and supported by the legislative history, suggests that § 922(g)(9) should be interpreted more broadly than other provisions, including § 16.

B. Structure of Castleman

The defendants present a second argument, which is that Castleman's analytical approach to the term "use of physical force" means the conduct of neither defendant here could meet that standard. Castleman held that Congress intended to incorporate the common law meaning of "force" in § 921(a)(33)(A), the definitional provision for "misdemeanor crime of domestic violence." 134 S.Ct. at 1410. "[A]bsent other indication, `Congress intends to incorporate the well-settled meaning of the common law terms it uses.'" Id. (quoting Sekhar v. United States, ___ U.S. ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)) (internal quotation mark omitted). As a result, the statutory term "physical force" is satisfied by "the degree of force that supports a common-law battery conviction." Id. at 1413. The parties agree that, under Castleman, the term "use of physical force" also incorporates the common law mens rea for battery.

The parties approach this as a generalized question. They disagree about whether reckless acts could or could not constitute batteries at common law, and each side marshals support for its view. See, e.g., Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (1921); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (1893); 2 Wayne R. LaFave, Substantive Criminal Law § 16.2(c)(2); 3 William Blackstone, Commentaries *120.

We decline the parties' invitation to define the mens rea of a common law battery independent of the interpretation Maine gives its own statute. Castleman explains that the term "use of physical force" includes "the type of conduct that supports a [183] common-law battery conviction." 134 S.Ct. at 1411. Castleman also explains that Congress incorporated "the common-law meaning of `force.'" Id. at 1410. Castleman holds that the term "use of physical force" includes both causing bodily injury and offensive contact. Defendants concede that reckless causation of bodily injury is a use of physical force. We see no reasoned argument that offensive physical contact does not similarly entail the use of force simply because it is inflicted recklessly as opposed to intentionally.

We follow the statutory scheme in evaluating whether a conviction under the Maine statute categorically counts as a "misdemeanor crime of domestic violence."

1. The Scope of a "Misdemeanor Crime of Domestic Violence"

As Castleman explained, § 922(g)(9) is a statute with a particular purpose: to ensure that domestic abusers convicted of misdemeanors, in addition to felonies, are barred from possessing firearms. 134 S.Ct. at 1408-12. "[B]ecause perpetrators of domestic violence are `routinely prosecuted under generally applicable assault or battery laws,'" id. at 1411 (quoting Hayes, 555 U.S. at 427, 129 S.Ct. 1079), we think Congress intended the firearm prohibition to apply to those convicted under typical misdemeanor assault or battery statutes. See id. at 1411, 1413. That encompasses assault statutes for those states that allow conviction with a mens rea of recklessness where recklessness is defined as including a degree of intentionality. A victim of domestic violence often encounters the perpetrator again, and a broader reading of § 922(g)(9)'s mens rea requirement better ensures that a perpetrator convicted of domestic assault is unable to use a gun in a subsequent domestic assault. If Congress had wanted to impose a higher mens rea, it could have done so explicitly, as it did in the immediately preceding section of the bill that established § 922(g)(9). Booker, 644 F.3d at 18 & n. 5.

This view is confirmed by the legislative history of § 922(g)(9). Senator Lautenberg explained that § 922(g)(9) was a broad prohibition covering "any person convicted of domestic violence," without reference to a particular mental state. 142 Cong. Rec. S10377-01 (1996). Another senator made statements to the same effect. See id. Additionally, Senator Lautenberg described the law's application to scenarios without clear intent, in which domestic arguments "get out of control," "the anger will get physical," and one partner will commit assault "almost without knowing what he is doing." 142 Cong. Rec. S11872-01 (Sept. 30, 1996). Such conduct may not be "knowing," but it nonetheless constitutes a "use" of physical force — whether it causes offensive contact or bodily harm.

2. Maine's Definition of "Recklessness"

Whatever the common law meaning of battery as to recklessness, Maine characterizes recklessness as a mens rea involving a substantial amount of deliberateness and intent. The statutory definition requires that a person "consciously disregard[] a risk that the person's conduct will cause" the result. Me.Rev.Stat. Ann. tit. 17-A § 35(3)(A) (emphasis added). The disregard of the risk is "viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person." Id. § 35(3)(C) (emphasis added). Further, it must "involve a gross deviation" from the standard of reasonable care. Id.

Maine's definition of "recklessly," like its definition of "knowingly," includes an element of intentionality and specificity. To act "knowingly" in Maine, the person must be aware that the result is "practically [184] certain" to occur. Id. § 35(2)(a). Maine's definitions of knowingly as contrasted with recklessly differ primarily in their description of the degree of the person's awareness of the likelihood that the result will occur. Cf. 2 LaFave, Substantive Criminal Law, § 5.4(f). To act knowingly and recklessly, but not negligently, the person must be aware of the risk: the recklessness definition requires reference to "the nature and purpose of the person's conduct and the circumstances known to the person." Maine's Supreme Judicial Court has made clear that the recklessness inquiry focuses on the person's "subjective state of mind." Stein v. Me. Criminal Justice Acad., 95 A.3d 612, 618 (Me.2014) (quoting State v. Goodall, 407 A.2d 268, 280 (Me. 1979)) (internal quotation mark omitted); see State v. Hicks, 495 A.2d 765, 771 (Me. 1985) (comparing the subjective test for recklessness with the objective test for negligence).

For example, the Maine Supreme Judicial Court has affirmed a conviction for "act[ing] recklessly when [the defendant] shot a powerful handgun into the woods in a residential area and in the direction of his next-door neighbor's home, knowing where it was located." State v. Kline, 66 A.3d 581, 584 (Me.2013) (citing Me.Rev. Stat. Ann. tit. 17-A § 35). It also affirmed a conviction for reckless conduct with the use of a dangerous weapon when the defendant "drove his van alongside the victim's vehicle, remaining there ... [,] used his van to push the victim's vehicle into heavy oncoming traffic, and made contact with that vehicle at least once." State v. York, 899 A.2d 780, 783 (Me.2006).

Maine's definition of recklessness includes a volitional component. In this, it is like other states. See Fernandez-Ruiz, 466 F.3d at 1141 (Wardlaw, J., dissenting) (collecting cases). Notwithstanding Leocal, some judges found that even § 16 encompassed reckless predicate convictions. In Fernandez-Ruiz, four dissenting judges of the Ninth Circuit observed that Arizona's definition of recklessness, like Maine's, requires that the person "be aware of a substantial and unjustifiable risk and affirmatively choose to act notwithstanding that risk." Id. Recklessness includes an "volitional, active decision, which necessarily involves `a higher degree of intent than negligent or merely accidental conduct.'" Id. (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377); accord Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 449-50 (4th Cir.2005) (Niemeyer, J., dissenting) ("Unlike a person who accidentally injures another person, a person who acts recklessly in bringing about harm to another is aware of the nature of his conduct and thus can be said to be `actively employ[ing]' the physical force that results in injury `against another.'" (alteration in original) (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377)).

3. Categorical Comparison

We conclude that reckless assault in Maine is "use of physical force" within the meaning of a "misdemeanor crime of domestic violence." As noted above, § 922(g)(9) is meant to embrace those seemingly minor predicate acts, occurring sometimes in moments of passion, where the perpetrator consciously disregarded a risk in light of known circumstances. This often constitutes domestic violence. Reckless assaults in Maine fit that congressional intent for § 922(g)(9), including the paradigm of a domestic assault as described by Senator Lautenberg. As the dissenting judges on the Ninth Circuit, concerned with a different federal statute, explained:

Domestic abusers may be drunk or otherwise incapacitated when they commit their crimes, and they may plea bargain down from a felony to a misdemeanor or from a statute that requires a mens rea [185] of intentionality to one that can be satisfied by recklessness. But this does not alter the nature of domestic violence as a crime involving the use of force against someone in a domestic relationship....

Fernandez-Ruiz, 466 F.3d at 1139 (Wardlaw, J., dissenting).

Defendants' position assumes that a reckless act cannot be an act of domestic violence because it lacks volition. But that is not true. For example, suppose Maine convicts a husband for throwing a knife toward his wife, intending to instill fear rather than to cause physical injury, but actually striking her. The mens rea of the conviction would likely be recklessness: in light of the circumstances known to the husband, he consciously disregarded the risk of harm. Such a reckless assault can "subject one intimate partner to the other's control," Castleman, 134 S.Ct. at 1411, and is the type of conduct included in § 922(g)(9) even though the husband did not intend to cause bodily injury or offensive contact. Similarly, if Maine prosecutes and convicts a parent for assault for waving a lit cigarette near a child in anger, the cigarette touching and burning the child, that conviction in context may well be an act of domestic violence.

The defendants focus their analysis on assaults involving reckless causation of offensive physical contact, rather than bodily injury. We do not see why that distinction is material to the analysis here. The issue is whether § 922(g)(9) encompasses reckless uses of force, regardless of whether the use of force results in bodily injury or an offensive physical contact. If the husband's knife grazes his wife or harms her grievously, it is an assault all the same.^[4]

As a practical matter, it is hard to identify a case of reckless assault in the domestic context that Maine would prosecute but that Congress did not intend to serve as a § 922(g)(9) predicate. See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (explaining that the categorical approach focuses on "the ordinary case," not "every conceivable factual offense covered by a statute"); United States v. Fish, 758 F.3d 1, 6 (1st Cir.2014) ("[I]n assessing whether the elements of the candidate proposed as a predicate crime are overbroad, we need not consider fanciful, hypothetical scenarios."). Maine will not prosecute all "[m]inor uses of force." Castleman, 134 S.Ct. at 1412; see Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003) (Evans, J., concurring) ("[P]eople don't get charged criminally for expending a newton of force against victims. [The defendant] actually beat his wife...."). But some grabbing and slapping "accumulat[es] ... over time," "subject[ing] one intimate partner to the other's control." Castleman, 134 S.Ct. at 1412. When it eventually "draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a `misdemeanor crime of domestic violence.'" Id. After all, not all assaults will serve as § 922(g)(9) predicates, but only those occurring in the domestic context.

[186] To be clear, we do not decide that, on the spectrum from negligence to intentional acts, recklessness is always closer to the latter. Cf. Fernandez-Ruiz, 466 F.3d at 1141-42 (Wardlaw, J., dissenting) ("Recklessness is a distinct mens rea, which lies closer to intentionality than to negligence."). We also do not decide that recklessness in the abstract is always enough to satisfy § 922(g)(9).^[5] We decide only that the Maine definition is sufficiently volitional that it falls within the definition of "use of physical force" applied in § 922(g)(9). See Booker, 644 F.3d at 18.

C. Our Recent Decision in Carter Does Not Help the Defendants

In United States v. Carter, 752 F.3d 8 (1st Cir.2014), we encountered similar facts to this case. We remanded for the district court to determine whether the defendant had indeed been convicted of a reckless assault. The opinion noted that Castleman "casts doubt" upon Booker, but it explicitly did "not decide" the question before this court. Id. at 18 & n. 11. Now, squarely presented with the issue and having reviewed Castleman, we resolve the question left open by Carter.

III.

The defendants make three constitutional arguments, none of which are successful.

First, the defendants renew their prior argument that § 922(g)(9) violates the Second Amendment as applied to them. They explicitly raise the argument only to preserve it, and for good reason: it is "foreclosed by binding precedent in this circuit." Carter, 752 F.3d at 13; see Armstrong, 706 F.3d at 7-8; Booker, 644 F.3d at 22-26.

Second, the defendants offer a "gloss" on their earlier argument. They suggest that Castleman held that the link between non-violent misdemeanors and domestic violence involving firearms is extremely tenuous, and they argue that such a tenuous link cannot support the law's constitutionality. To the contrary, Castleman explained that the link between non-violent misdemeanors and domestic violence involving firearms is "sobering," and hardly tenuous. 134 S.Ct. at 1409.

The defendants also raise an argument outside the scope of the Supreme Court's remand. They claim that § 922(g)(9) violates the Fifth Amendment, Sixth Amendment, and Ex Post Facto Clause because the determination that the predicate crime involves domestic violence is made at the time of the § 922(g)(9) conviction, rather than at the time of the predicate conviction.

We have discretion to reexamine issues beyond the scope of the Supreme Court's specific remand order when "necessary to avoid extreme injustice." United States v. Burnette, 423 F.3d 22, 25 n. 6 (1st Cir.2005) (quoting United States v. Estevez, 419 F.3d 77, 82 (1st Cir.2005)) (internal quotation mark omitted). But "[t]here is no injustice in refusing to reexamine a carefully considered decision based on the same arguments that we have already rejected." Id. at 25 n. 6. The Supreme Court has already rejected arguments very similar to the defendants' in [187] United States v. Hayes, 555 U.S. 415, 421, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009).

The defendants argue that Hayes was implicitly overruled by a recent Supreme Court decision, Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Hayes held that the determination that an earlier conviction involved a domestic relationship is an element of § 922(g)(9), not the predicate conviction. 555 U.S. at 418, 129 S.Ct. 1079. Descamps limited the extent to which courts can look at the facts underlying the predicate conviction to determine whether they fit the subsequent conviction, under the modified categorical approach. 133 S.Ct. at 2281-82. The defendants argue that, as in Descamps, the subsequent court may not evaluate the predicate conviction to determine a fact about it — here, whether it involved a domestic relationship.

We reject this argument. Whether the predicate conviction involved a domestic relationship is not a fact about the predicate conviction discerned through application of the modified categorical approach, in violation of Descamps. It is an element proved anew in the § 922(g)(9) proceeding.

IV.

The question before us is a narrow one. We are asked to decide whether a conviction for reckless assault against a person in a domestic relationship in Maine constitutes a federal "misdemeanor crime of domestic violence." Congress in passing the Lautenberg Amendment recognized that guns and domestic violence are a lethal combination, and singled out firearm possession by those convicted of domestic violence offenses from firearm possession in other contexts. Castleman recognizes as much.

For the reasons stated above, we affirm the judgments of guilt.

So ordered.

TORRUELLA, Circuit Judge, Dissenting.

The majority fails to adequately justify its departure from the Supreme Court's direction and the analogous decisions of our sister circuits. Indeed, the Supreme Court's message is clear. In United States v. Castleman, ___ U.S. ___, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), the Court noted that we are the only outlying circuit on this question: our prior precedent is inconsistent with every other circuit court to consider the issue. See id. at 1414 n. 8 (contrasting our past position with that of the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Courts of Appeals, which have "uniformly held that recklessness is not sufficient" to "constitute a `use' of force"). The Court then remanded the instant cases for reconsideration in light of Castleman, see Armstrong v. United States, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), implicitly suggesting that we bring our holdings in line with the other federal circuit courts of appeals. We are obligated to heed the Supreme Court's direction. See McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir.1991) ("[F]ederal appellate courts are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement."). Not only are the Supreme Court's instructions mandatory, but the legal reasoning and analysis in the cases cited by the Court are also correct.

On remand, this case requires us to answer, at the very least, one question of statutory interpretation: whether a Maine [188] conviction for the "reckless" causation of an "offensive physical contact" necessarily involves the "use or attempted use of physical force" as required to establish a "misdemeanor crime of domestic violence" for purposes of 18 U.S.C. § 922(g)(9). The majority fails to persuasively explain why, in all cases, the merely reckless causation of offensive physical contact categorically must involve the "use or attempted use of physical force," 18 U.S.C. § 921(a)(33)(A), particularly in light of the host of cases strongly suggesting otherwise. As explained herein, these cases hold that the "use" of physical force requires the active or intentional employment of force, which cannot be satisfied by merely reckless conduct.

Confronting this question, we are not acting upon an empty stage; rather, we must start with the backdrop painted by the Supreme Court in Castleman, which is the basis for the instant remand. Indeed, the Castleman Court questioned whether the "merely reckless causation" of even bodily injury — much less offensive physical contact — could constitute the "use" of force, noting that "the Courts of Appeals have almost uniformly held that recklessness is not sufficient," because the "use" of force requires a greater degree of intentionality. Castleman, 134 S.Ct. at 1414 & n. 8.

Although the majority opinion correctly observes that those circuit court cases involved different statutes, the operative language is nearly identical and the majority fails to persuasively explain why the result should be different here. All of the analogous cases involved the "use" of "force," and most interpreted 18 U.S.C. § 16. See id. at 1414 n. 8 (listing cases). Several of these cases^[6] analyzed § 16(a), which defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a). That language is materially indistinguishable, as relevant here, from the Lautenberg Amendment's definition of a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force." 18 U.S.C. § 922(g)(9); id. § 921(a)(33)(A). "[W]hen Congress uses the same language in two statutes having similar purposes, ... it is appropriate to presume that Congress intended that text to have the same meaning in both statutes." Smith v. City of Jackson, Miss., 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005).^[7]

[189] The majority opinion concedes that this case presents a "close" question. Ante, at 177. I agree. Given the Supreme Court and circuit court cases interpreting similar statutes and holding that merely reckless conduct is insufficient to constitute the "use" of physical force, I believe that the rule of lenity also forecloses the defendants' convictions here. Indeed, it is a "familiar principle" that "`ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity'" towards the accused. Skilling v. United States, 561 U.S. 358, 410, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010) (quoting Cleveland v. United States, 531 U.S. 12, 25, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000)).<sup>[8]</sup> The rule of lenity bars courts from giving the text of a criminal statute "a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant." Burrage v. United States, ___ U.S. ___, 134 S.Ct. 881, 891, 187 L.Ed.2d 715 (2014). In my view, by permitting a conviction based on the reckless causation of offensive physical contact, the government and the majority seek to give the "use ... of physical force" a meaning different from that phrase's ordinary meaning. The ordinary meaning of the "use" of physical force requires the intentional employment of force, and not the merely accidental, negligent, or reckless use of such force. Cf. Leocal v. Ashcroft, 543 U.S. 1, 4, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (giving an ordinary and natural reading to the phrase "`use ... of physical force against the person or property of another,'" and holding that this phrase requires "a higher degree of intent than negligent or merely accidental conduct" (quoting 18 U.S.C. § 16(a))); id. (explaining that "`use' requires active employment," and reasoning that "a person would `use ... physical force against' another when pushing him... [but not] by stumbling and falling into him"); García v. Gonzales, 455 F.3d 465, 468 (4th Cir.2006) (holding that "the use... of physical force" requires the intentional employment of physical force). Moreover, given that the Supreme Court has stated that (1) "the merely reckless causation of bodily injury ... may not be a `use' of force," and (2) "the Courts of Appeals have almost uniformly held that recklessness is not sufficient" to constitute the "use" of force, Castleman, 134 S.Ct. at 1414 & n. 8, I cannot see how the proper application of the rule of lenity permits affirmance of the defendants' convictions.

I express no opinion here on whether the "use" of physical force is satisfied by either the reckless causation of bodily injury or the intentional or knowing causation of offensive physical contact. Rather, I confine my inquiry to one subsumed offense under the Maine assault statutes: the reckless causation of offensive physical [190] contact. Although the majority states that they fail to see why the distinction between "bodily injury" and "offensive physical contact" "is material to the analysis here," ante, at 185, I explain herein why that distinction matters. See infra Section II(B)(1). Namely, even if recklessness were a sufficient mens rea for purposes of bodily injury, a conviction under the Lautenberg Amendment nonetheless cannot rest on the reckless causation of offensive physical conduct in Maine.^[9]

The Supreme Court has stated that, under the Lautenberg Amendment, Congress classified as a "`misdemeanor crime of domestic violence'" "the type of conduct that supports a common-law battery conviction." Castleman, 134 S.Ct. at 1411. The Supreme Court has further explained that "the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another." Johnson v. United States, 559 U.S. 133, 139, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (emphasis added); see also United States v. Bayes, 210 F.3d 64, 69 (1st Cir. 2000) ("[T]he common law provided that an assault committed by way of a battery did not require an intent to cause or to threaten an injury as long as the defendant touched another in a deliberately offensive manner without a valid reason to do so.") (emphasis added); State v. Rembert, 658 A.2d 656, 658 (Me.1995) (stating that "[u]npermitted and intentional contacts... [are] actionable as an offensive contact") (emphasis added); cf. Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(c)(2) n. 32 (2d ed.) ("[W]ith the tort of battery an intention to injure or touch offensively is needed"); Black's Law Dictionary 182 (10th ed.2014) (defining tortious battery as a "nonconsensual, intentional, and offensive touching of another without lawful justification") (emphasis added). To trigger a violation of the Lautenberg Amendment, therefore, the relevant precedent counsels that the offensive touch must be caused intentionally and not merely recklessly. By contrast, the Maine statutes at issue here permit conviction for recklessly causing an offensive touch.^[10] Therefore, a conviction under either of the Maine assault statutes implicated here does not categorically establish a violation [191] of the Lautenberg Amendment. Given that the record does not permit a conclusion that the defendants' Maine convictions rested on a subsumed offense that does constitute a violation of the Lautenberg Amendment, the federal convictions at issue here cannot stand.^[11]

After giving careful consideration to the issues involved, engaging in the necessary statutory interpretation and legal analysis, and applying the relevant precedent, I heed the Supreme Court's direction and follow the lead of our sister circuits in disagreeing with the majority's conclusion. Therefore, I respectfully dissent.

I. Legal Background

A. The Statutory Framework

1. The Lautenberg Amendment

The defendants here were charged with violating the Lautenberg Amendment to the Gun Control Act of 1968, now codified at 18 U.S.C. § 922(g)(9) (the "Lautenberg Amendment" or "§ 922(g)(9)"). Under the Lautenberg Amendment, it is unlawful for any person "who has been convicted in any court of a misdemeanor crime of domestic violence, to ... possess in or affecting commerce, any firearm or ammunition." 18 U.S.C. § 922(g)(9). For these purposes, a "misdemeanor crime of domestic violence" is further defined in 18 U.S.C. § 921(a)(33)(A) as an offense that:

(I) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a [192] child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim[.]

Id. § 921(a)(33)(A) (emphases added).

2. The Relevant Maine Assault Statutes

The defendants argue that the relevant Maine assault statutes do not "ha[ve], as an element, the use or attempted use of physical force." See id. Under Maine law, a defendant is guilty of "domestic violence assault" if (1) the defendant violates the Maine simple assault provision, and (2) "the victim is a family or household member." See Me.Rev.Stat. tit. 17-A, § 207-A(1)(A).

Turning to the simple assault provision in the Maine Criminal Code, a person is guilty of "assault" if "[t]he person intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person." See § 207(1)(A). Thus, there are six different, divisible permutations of the Maine simple assault statute, each of which can form the basis for a section 207 assault conviction. United States v. Carter, 752 F.3d 8, 17-18 (1st Cir.2014) ("The Maine general-purpose assault statute is divisible into six permutations of subsumed offenses, based on the combination of one element from each of two categories: (1) mens rea (`intentionally, knowingly or recklessly'), and (2) actus reus (`causes bodily injury or offensive physical contact to another person')." (quoting § 207(1)(A))). These six subsumed offenses are illustrated in the following chart:

The six variants of the Maine simple assault statute: [[ chart removed ]]

In Maine state court, Armstrong was convicted of Maine domestic-violence assault under section 207-A, and Voisine was convicted of Maine simple assault under section 207.^[12] These prior convictions served as the predicate offenses for the defendants' § 922(g)(9) charges, which are the subject of the instant appeal. A simple assault statute lacking a domestic-relationship element (such as Voisine's prior offense of conviction in Maine) can nonetheless serve as the predicate offense for a misdemeanor crime of domestic violence, so long as the domestic-relationship element [193] is proved in the subsequent federal prosecution. See United States v. Hayes, 555 U.S. 415, 418, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009) (holding "that the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense").

B. The Categorical and Modified Categorical Approaches

Given the foregoing statutory framework, we must analyze whether the elements of the Maine assault statute necessarily fulfill the requirements of the Lautenberg Amendment. In cases such as this — where a court must decide whether a prior conviction for an earlier offense (like assault) satisfies one of the elements of the offense in a subsequent prosecution (here, for example, whether the earlier offense "has, as an element, the use ... of physical force," 18 U.S.C. § 921(a)(33)(A)) — the court determines whether it is appropriate to apply the categorical approach or the modified categorical approach.

1. The Categorical Approach

In Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court described the categorical approach, under which courts "look[] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." See also United States v. Dávila-Felix, 667 F.3d 47, 56 (1st Cir.2011) (same). If the "statutory definition" of the prior offense necessarily meets the requirements of the subsequent offense at issue, then the court can determine that a conviction for the prior offense categorically constitutes a valid predicate offense for purposes of the later prosecution. See Castleman, 134 S.Ct. at 1414.

2. The Modified Categorical Approach

Some statutes, like the Maine assault statutes at issue here, are "divisible": they "set[] out one or more elements of the offense in the alternative." See Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). For these statutes, some permutations or variants of the subsumed offenses may categorically meet the requirements of the subsequent offense, whereas others may not. Accordingly, for these divisible statutes, courts may apply the "modified categorical approach" to determine which variant or subsumed offense formed the basis for the prior conviction, and thus whether that prior conviction can serve as a valid predicate offense for the subsequent prosecution. See Castleman, 134 S.Ct. at 1414. Under this approach, a court may "consult[] the trial record — including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms" — in order to "determine which statutory phrase was the basis for the conviction" under such a divisible statute. Johnson, 559 U.S. at 144, 130 S.Ct. 1265. These documents are often called "Shepard documents," after Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (plurality opinion). See, e.g., Carter, 752 F.3d at 19-20 & 19 n. 12.

3. Application

Under established precedent not called into doubt by Castleman and not challenged here, certain subsumed offenses under the Maine assault statutes (such as the intentional or knowing causation of bodily injury) are unequivocally valid predicate [194] offenses for the Lautenberg Amendment. See Castleman, 134 S.Ct. at 1415 ("It is impossible to cause bodily injury without applying force in the common-law sense," and "the knowing or intentional application of force is a `use' of force."). If the Shepard documents showed that the defendants' prior assault convictions were for those particular subsumed offenses, for example, then we would be able to apply the modified categorical approach and affirm the defendants' Lautenberg Amendment convictions without reaching the recklessness issue. See Carter, 752 F.3d at 18 n. 11 (reasoning that under the modified categorical approach, if the Shepard documents showed that the defendant's prior Maine conviction was for intentional or knowing conduct, then the court could affirm his conviction under the Lautenberg Amendment). The parties agree, however, that the Shepard documents for Armstrong's and Voisine's underlying Maine convictions are inconclusive and do not reveal which variants of the Maine assault statutes served as the bases for their convictions. Therefore, the modified categorical approach cannot resolve this appeal.

Rather, we must apply the categorical approach to determine whether the statutory definitions of the Maine assault provisions necessarily include the "use or attempted use of physical force." See 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9); see also Castleman, 134 S.Ct. at 1414. Under the categorical approach, if any one of the six variants of the Maine assault statute does not necessarily constitute the "use ... of physical force," then the defendants' convictions must be reversed. Put differently, to affirm the defendants' convictions under the categorical approach, all of the subsumed offenses under the Maine statute must have the "use or attempted use of physical force" as an element. 18 U.S.C. §§ 921(a)(33)(A); see also United States v. Holloway, 630 F.3d 252, 257 (1st Cir.2011) (stating that under the categorical approach, "the [prior] conviction may only serve as a predicate offense if each of the possible offenses of conviction would qualify" as individually satisfying the offense in the subsequent prosecution (citing Shepard, 544 U.S. at 26, 125 S.Ct. 1254)). The defendants focus their argument on the sixth and least severe subsumed offense: the "reckless" causation of "offensive physical contact." Therefore, we must apply the governing precedent to decide whether this statutory definition necessarily involves the "use ... of physical force."

C. The Supreme Court's Decisions in Leocal and Johnson

The Supreme Court's opinions in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), and Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), provided foundational reasoning for subsequent cases relevant to this appeal. In both of these cases, the Supreme Court engaged in statutory interpretation to determine whether the offenses underlying prior state convictions had, as an element, the "use" of physical force as required for purposes of a subsequent federal proceeding.

1. Leocal

In Leocal, the Supreme Court examined a similar question to that facing us today, regarding parallel language in the statutory definition of a "crime of violence" under 18 U.S.C. § 16(a). Under that statute, a "crime of violence" includes "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a) (emphasis added). The petitioner in Leocal had previously been convicted in Florida state court for driving under the influence of alcohol (DUI) and causing serious bodily injury. Leocal, 543 [195] U.S. at 3, 125 S.Ct. 377. The Supreme Court held that the petitioner's DUI conviction was not a crime of violence under 18 U.S.C. § 16. Id. at 4, 125 S.Ct. 377. In so holding, the Court explained that "`use' requires active employment," reasoning that "a person would `use ... physical force against' another when pushing him... [but not] by stumbling and falling into him." Id. Giving the operative phrase in 18 U.S.C. § 16(a) its ordinary and natural reading, in context, the Leocal Court held that the "`use ... of physical force against the person or property of another'" requires "a higher degree of intent than negligent or merely accidental conduct." Id. (quoting 18 U.S.C. § 16(a)). The Court also interpreted parallel language in 18 U.S.C. § 16(b), giving that language "an identical construction" and "requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense." Id. at 11, 125 S.Ct. 377.

Additionally, the Court considered the fact that it was "ultimately ... determining the meaning of the term `crime of violence.'" Id. It reasoned that "[t]he ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person ... suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses." Id. Therefore, the Court concluded that "[i]nterpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the `violent' crimes Congress sought to distinguish for heightened punishment and other crimes." Id. Importantly for the instant case, the Leocal Court held only that negligent and accidental conduct did not constitute the "use" of force and thus a crime of violence under 18 U.S.C. § 16; the Court did not reach the question whether reckless conduct would be sufficient. Id. at 13, 125 S.Ct. 377 ("This case does not present us with the question whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16.").

2. Johnson

In Johnson, the Supreme Court considered a related question: "whether the Florida felony offense of battery by `[a]ctually and intentionally touch[ing]' another person, Fla. Stat. § 784.03(1)(a), (2) (2003), `has as an element the use ... of physical force against the person of another,' 18 U.S.C. § 924(e)(2)(B)(I), and thus constitutes a `violent felony' under the Armed Career Criminal Act, § 924(e)(1)." Johnson, 559 U.S. at 135, 130 S.Ct. 1265 (alterations in original). The Court observed that "the element of `actually and intentionally touching' under Florida's battery law is satisfied by any intentional physical contact, `no matter how slight.'" Id. at 138, 130 S.Ct. 1265 (quoting State v. Hearns, 961 So.2d 211, 218 (Fla.2007)). Even "[t]he most `nominal contact,' such as a `ta[p] ... on the shoulder without consent,'" is sufficient to constitute a violation of the Florida law. Id. (second and third alterations in original) (quoting Hearns, 961 So.2d at 219).

In determining the definition of "physical force" under the Armed Career Criminal Act ("ACCA"), the Court sought to give the phrase "its ordinary meaning" while keeping in mind the context of its inquiry: defining the statutory category of violent felonies. Id. at 138-40, 130 S.Ct. 1265. In that context, the Court thought "it clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265. The Johnson Court explicitly limited its holding to the ACCA, asserting that its decision would not extend to the [196] Lautenberg Amendment. See id. at 143-44, 130 S.Ct. 1265 ("We have interpreted the phrase `physical force' only in the context of a statutory definition of `violent felony.' We do not decide that the phrase has the same meaning in the context of defining a misdemeanor crime of domestic violence. The issue is not before us, so we do not decide it.").

D. Pre-Castleman First Circuit Precedent: Nason, Booker, Armstrong I, and Voisine I

Prior to the Supreme Court's decision in Castleman, the defendants' arguments were squarely foreclosed by First Circuit precedent; it is this precedent that the Supreme Court has instructed us to reconsider.

In United States v. Nason, 269 F.3d 10 (1st Cir.2001), which also considered the interplay between the Maine simple assault statute and the Lautenberg Amendment, we held that the actus reus of "offensive physical contact" necessarily involved the "use or attempted use of physical force," id. at 11-12, 21. Synthesizing the definitions of "physical force" from Black's Law Dictionary and other dictionaries, we determined that "physical force may be characterized as power, violence, or pressure directed against another person's body." Id. at 16. We thus held that § 922(g)(9) does not require that the predicate offense involve "bodily injury," but rather can be satisfied by "any physical force" — including offensive physical contact — "regardless of whether that force resulted in bodily injury or risk of harm." Id. at 16-18. Therefore, Nason established that either actus reus prong of the Maine assault statute — bodily injury or offensive physical contact — could serve as a valid predicate conviction for purposes of § 922(g)(9). Id. at 21 ("[B]oth [actus reus] variants of assault regulated under Maine's general-purpose assault statute necessarily involve the use of physical force.").

Whereas Nason focused on the actus reus variants of the Maine assault statute for purposes of the Lautenberg Amendment, we later focused on the mens rea variants in United States v. Booker, 644 F.3d 12 (1st Cir.2011). In Booker, we rejected the argument that only an intentional offense could constitute a misdemeanor crime of domestic violence under § 922(g)(9). Id. at 13-14. The appellants in Booker sought to rely on the Supreme Court's decisions in Leocal and Johnson, analogizing to the definition of "crime of violence" under 18 U.S.C. § 16 and the definition of "violent felony" under the ACCA, 18 U.S.C. § 924(e). Id. at 18-19. We held that those other statutes were not sufficiently analogous to dictate the result in Booker, reasoning that, for example, "[w]hereas the ACCA seeks to protect society at large from a diffuse risk of injury or fatality at the hands of armed, recidivist felons, § 922(g)(9) addresses an acute risk to an identifiable class of victims — those in a relationship with a perpetrator of domestic violence." Id. at 21. We thus turned to the "plain, unambiguous language of § 922(g)(9)," finding that "the statutory definition of `misdemeanor crime of domestic violence' does not prescribe an intentional mens rea." Id. (quoting 18 U.S.C. § 922(g)(9)). Therefore, we held "that an offense with a mens rea of recklessness may qualify as a `misdemeanor crime of domestic violence' under § 922(g)(9)." Id. (quoting 18 U.S.C. § 922(g)(9)).

On the initial appeal in this case, United States v. Armstrong, 706 F.3d 1, 5 (1st Cir.2013) ("Armstrong I"), vacated, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014), we considered Armstrong's arguments that the Lautenberg Amendment's prohibition on gun ownership does not apply [197] to non-violent offensive physical contact. We found the defendant's argument on this issue to be squarely foreclosed by our prior decisions in Nason and Booker. Id. at 2 (citing Booker, 644 F.3d 12; Nason, 269 F.3d 10). On that basis, we rejected Armstrong's statutory interpretation arguments and affirmed the decision of the district court. Id. at 2-6, 8. That same day, we issued an opinion in United States v. Voisine, 495 Fed.Appx. 101 (1st Cir.2013) (per curiam) ("Voisine I"), vacated sub nom., Armstrong v. United States, ___ U.S. ___, 134 S.Ct. 1759, 188 L.Ed.2d 590 (2014). In a per curiam opinion, we stated that Voisine had raised "the exact same arguments" as those raised in Armstrong I. Id. Because there were "no pertinent factual differences distinguishing" Voisine I from Armstrong I, we incorporated Armstrong I's reasoning into the Voisine I per curiam opinion and affirmed the district court's decision. Id. at 102. Both defendants appealed our decisions in to the Supreme Court.

E. Castleman and Its Aftermath

1. The Supreme Court's Castleman Opinion

Approximately one year later, while the petitions for writs of certiorari were pending in Armstrong I and Voisine I, the Supreme Court issued its opinion in Castleman, 134 S.Ct. 1405. The defendant in Castleman had pleaded guilty to a Tennessee offense for "intentionally or knowingly caus[ing] bodily injury to" the mother of his child. Id. at 1408-09. After federal authorities subsequently learned that he was selling firearms on the black market, Castleman was indicted on two counts of violating the Lautenberg Amendment. Id. at 1409. He argued that the Tennessee statute did not have the use, or attempted use, of physical force as an element of the offense. Id. (citing 18 U.S.C. § 921(a)(33)(A)(ii)). The Sixth Circuit affirmed the dismissal of Castleman's convictions on the § 922(g)(9) counts, holding that the Tennessee conviction was not a valid predicate offense because Castleman might have been convicted for "`caus[ing] a slight, nonserious physical injury with conduct that cannot be described as violent.'" See id. at 1409-10 (quoting United States v. Castleman, 695 F.3d 582, 590 (6th Cir.2012)). The Supreme Court reversed, reasoning that Castleman had pleaded guilty to intentionally or knowingly causing bodily injury, which "necessarily involves the use of physical force." Castleman, 134 S.Ct. at 1414.

The Court explained that "physical force" for purposes of § 922(g)(9) encompasses "the common-law meaning of `force' — namely, offensive touching." Id. at 1410. The Court explained that "`[d]omestic violence' is not merely a type of `violence'; it is a term of art encompassing acts that one might not characterize as `violent' in a nondomestic context" — acts like slapping, shoving, pushing, grabbing, hair-pulling, and spitting. Id. at 1411 & n. 5.

The Castleman Court further explained that there are two main categories of assault or battery laws generally used to prosecute domestic abusers: "those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter." Id. at 1413. Interpreting "physical force" to exclude a mere "offensive touching" would have rendered the Lautenberg Amendment "ineffectual in at least 10 States — home to nearly thirty percent of the Nation's population — at the time of its enactment." Id. (footnote omitted). Therefore, the Court held that the "physical force" requirement is satisfied "by the degree of force that supports a common-law battery conviction" — including an offensive touching. Id.

[198] The Court considered whether it could apply the "categorical approach" articulated in Taylor, 495 U.S. 575, 110 S.Ct. 2143, to resolve the issue, asking if the elements of the Tennessee statute necessarily met the requirements of § 922(g)(9). Castleman, 134 S.Ct. at 1414. If the answer were in the affirmative, then the Court could conclude that "a domestic assault conviction in Tennessee categorically constitutes a `misdemeanor crime of domestic violence.'" Id.

Expressing skepticism regarding such a categorical conclusion, the Court stated that "[i]t does not appear that every type of assault defined by [the Tennessee statute] necessarily involves `the use or attempted use of physical force, or the threatened use of a deadly weapon.'" Id. at 1413-14 (quoting 18 U.S.C. § 921(a)(33)(A)). For example, the Court reasoned that under the Tennessee statute, "[a] threat ... may not necessarily involve a deadly weapon, and the merely reckless causation of bodily injury ... may not be a `use' of force." Id. at 1414. The Court noted that in Leocal it had "reserved the question whether a reckless application of force could constitute a `use' of force," id. at 1414 n. 8 (citing Leocal, 543 U.S. 1, 125 S.Ct. 377), but emphasized that "the Courts of Appeals have almost uniformly held that recklessness is not sufficient," id. (contrasting our holding in Booker, 644 F.3d 12, with the decisions of ten of our sister courts of appeals: the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits). The Court declined to hold that a conviction under the Tennessee statute categorically constitutes a misdemeanor crime of domestic violence for purposes of § 922(g)(9). See id. at 1414.

On the heels of its Castleman opinion, the Supreme Court vacated our prior decisions in Voisine I and Armstrong I, and it remanded those two cases for reconsideration in light of its decision in Castleman. See Armstrong, 134 S.Ct. 1759 ("Judgment vacated, and case remanded to the United States Court of Appeals for the First Circuit for further consideration in light of United States v. Castleman, [134 S.Ct. 1405] (2014)."). There is little disagreement that this remand order calls for us to consider the impact of Castleman's Footnote Eight on our prior precedent, particularly Booker and Nason. In that footnote, the Supreme Court contrasted our Booker holding with the decisions of ten of our sister circuits, noting that "the Courts of Appeals have almost uniformly held that recklessness is not sufficient" to "constitute a `use' of force." Id. at 1414 n. 8.

2. The First Circuit's Carter Opinion

In the wake of Castleman and the Supreme Court's remand of the instant cases, we issued an opinion in United States v. Carter, 752 F.3d 8 (1st Cir.2014). Among other arguments, the defendant in that case, Wayne Carter, raised similar issues to those examined in Armstrong I. Id. at 9-10. Carter had been convicted in 1997 of a misdemeanor assault in Maine, after his live-in girlfriend at the time, Annie Eagan, told police officers that Carter spit in her face and shoved her right shoulder. Id. at 10. Eagan reported that she was not hurt, that she did not want Carter arrested or charged with an offense, and that she only wanted him removed from the house. Id. at 10-11. Nonetheless, the Maine state prosecutor charged Carter under Maine's general-purpose assault statute, to which Carter pleaded guilty and was sentenced to time served: thirty days in jail. Id. at 11.

Approximately thirteen years later, in 2010, Carter obtained a loan by pawning a rifle that he had inherited from his dead father. Id. at 10. A records check and [199] further investigation in connection with his pawning activities revealed Carter's prior misdemeanor assault conviction. Id. The pawn shop's records showed that Carter had pawned and redeemed three separate rifles multiple times between 2007 and 2010. Id. at 11. All of the rifles were inherited from his father. Id. at 11 n. 2. "The firearms were kept in a locked cabinet at his mother's house, and Carter only physically possessed the rifles in connection with pawning them." Id. Based on the foregoing, Carter was charged in a one-count indictment for violating the Lautenberg Amendment's prohibition on gun possession by those convicted of a misdemeanor crime of domestic violence. Id. at 11. After entering a conditional guilty plea, reserving his right to appeal, Carter was sentenced by the district court to be imprisoned for twelve months and one day — a downward variance from the bottom of the Sentencing Guidelines range: eighteen months. Id. at 9, 12. He then appealed, arguing, among other things, that the commission of simple assault by recklessly causing offensive physical contact does not constitute the "use ... of physical force" as required to establish a misdemeanor crime of domestic violence under the Lautenberg Amendment. Id. at 10.

On appeal, we noted that although this argument was previously foreclosed by our holding in Booker, "the Supreme Court's recent decision in Castleman casts doubt upon this holding." Id. at 18 (citing Castleman, 134 S.Ct. at 1414 & n. 8). In support of that assertion, we cited the Supreme Court's statements that "`the merely reckless causation of bodily injury under [the Tennessee assault statute] may not be a "use" of force,'" id. (alteration in original) (quoting Castleman, 134 S.Ct. at 1414), and that "`the Courts of Appeals have almost uniformly held that recklessness is not sufficient' to `constitute a "use" of force,'" id. (quoting Castleman, 134 S.Ct. at 1414 n. 8). Although Castleman had not directly overruled our prior decision in Booker, we noted that these statements from the Supreme Court provided a "`sound reason' for thinking that the Booker panel might well `change its collective mind' in light of Castleman." Id. at 18 n. 11 (quoting United States v. Rodriguez-Pacheco, 475 F.3d 434, 442 (1st Cir. 2007)).

Despite the Supreme Court's statements in Castleman calling into question our prior precedent on this question, it was unnecessary in Carter to answer the recklessness issue, because Carter potentially could have been resolved via the modified categorical approach: the underlying Shepard documents might have "ultimately show[n] that Carter's conviction was under one of the other two mens-rea prongs of the statute — `intentionally' or `knowingly.'" Id. We thus observed that under Castleman, "the validity of Carter's § 922(g)(9) conviction may depend on which mens-rea prong of the Maine general-purpose assault statute served as the basis for his guilty plea and conviction." Id. at 18. Examining the record for Shepard documents that could determine which variant of the Maine assault statute was the basis for Carter's conviction, we found the record incomplete and undeveloped: it was unclear whether such documents existed. See id. at 20-21 ("It is not clear ... whether there are any other `approved' Shepard documents or comparable judicial records available with respect to Carter's prior assault conviction.... [T]he record is insufficiently developed to determine which variant of the Maine general-purpose assault statute served as the basis for Carter's conviction."). Accordingly, we "remand[ed] the case to the district court to allow the parties to further develop the record on this issue," consistent with the [200] Supreme Court's opinion in Castleman. Id. at 21. In so doing, we reserved the question presented by the Supreme Court's vacatur of Armstrong I and Voisine I in light of Castleman, allowing us to squarely address that issue in the instant remand.

3. District Courts' Application of Castleman and Carter

To date, three different district court judges in the First Circuit have applied the reasoning of Castleman's Footnote Eight regarding these issues; all three opinions concluded that a recklessly committed Maine assault does not necessarily involve the "use" of physical force and thus is not categorically a misdemeanor crime of domestic violence. United States v. Sales, No. 2:13-CR-137-NT, 2014 WL 3405658 (D.Me. July 11, 2014); United States v. Carter, No. 2:10-cr-00155-GZS, 2014 WL 3345045 (D.Me. July 8, 2014); United States v. Hines, No. 1:12-cr-00204-JAW, 2014 WL 1875164 (D.Me. May 9, 2014). Each of these three cases is examined below, in the order that they were decided.

a. Hines

The first district court case to apply the decisions in Castleman and Carter to these issues was Hines, 2014 WL 1875164. The defendant in Hines had pleaded guilty in Maine state court to violating the domestic violence assault statute; the Shepard documents revealed no further details regarding the conduct underlying this offense. Id. at *2. Before the district court, the defendant argued, among other things, that a mens rea of recklessness could not satisfy the "use of force" requirement under the Lautenberg Amendment. Id. at *4. The district court noted that pre-Castleman First Circuit precedent had previously foreclosed this argument, and "[t]he question is how Castleman affects the resolution of the issues [the defendant] has raised." Id. at *7.

Examining Castleman's Footnote Eight, the court observed that "[t]his footnote, which cited ten circuit courts as concluding that reckless conduct did not constitute `use of physical force,' strongly hinted that the First Circuit's Booker decision was an outlier." Id. at *8. The district court then considered the Supreme Court's vacatur of Armstrong I in light of Castleman. Id. The court explained that "[r]eading Supreme Court tea leaves is chancy, but the First Circuit decision in Armstrong I was consistent with Castleman except for the Circuit Court's brief recklessness analysis." Id. Thus, the court found that "[i]t is a short logical step to conclude that the reason the Supreme Court vacated the First Circuit decision in Armstrong I was to pull the First Circuit in line with the other ten circuit courts in the recklessness analysis." Id. Accordingly, on the basis of Castleman, the vacatur of Armstrong I, and Carter, the district court concluded that it is "questionable" whether a Maine conviction for domestic assault — "without more" — qualifies as a valid predicate conviction for the Lautenberg Amendment. Id. at *9.

b. Carter

Following our remand instructions in Carter, the district court permitted the parties to further develop the record with Shepard documents to determine which subsumed variant of the Maine assault statute formed the basis of Carter's prior state misdemeanor conviction. Carter, 2014 WL 3345045, at *6. The only additional document available was a transcript of Carter's plea colloquy in Maine state court, in which Carter's attorney stated that "`discovery shows that this was no more than a push on the right shoulder, that it [201] was nothing more serious than that.'" Id. at *7. Accordingly, on the basis of all the Shepard documents, the district court was "unable to identify the offense of Carter's conviction." Id.

The district court cited Hines, including the statement that "`[i]t is a short logical step to conclude that the reason the Supreme Court vacated the First Circuit decision in [Armstrong I] was to pull the First Circuit in line with the other ten circuit courts in the recklessness analysis.'" Id. at *5 (quoting Hines, 2014 WL 1875164, at *8). The court further observed that "while the statement in Castleman was via dictum in a footnote, `it is much more than an offhand comment.... [C]arefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative.'" Id. at *6 (quoting Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir.2004)) (internal quotation marks omitted). Stating that it "cannot ignore the guidance of the Supreme Court and the First Circuit in Castleman, Armstrong and Carter," the district court concluded that "Carter's conviction may only stand if it was premised on more than accidental, negligent or reckless conduct." Id. Faced with the absence of any Shepard documents permitting such a finding, the district court granted Carter's motion to dismiss the indictment, holding that his 1997 conviction could not serve as a predicate misdemeanor for the Lautenberg Amendment. Id. at *7.

c. Sales

Sales, 2014 WL 3405658, is the third and, to date, final district court case to apply Castleman and Carter. The defendant in that case, Kenneth Sales, had pleaded guilty in Vermont state court to one count of "assault-simple-mutual affray" because he "engaged in a fight or scuffle entered into by mutual consent." Id. at *1 (citing Vt. Stat. Ann. tit. 13, § 1023). In that plea colloquy, the Vermont Superior Court judge explained that Sales "recklessly caused bodily injury to a person, and that it was in a fight or scuffle entered into by mutual consent." Id. The judge further explained that "there was a physical altercation between [Sales] and [his girlfriend] ... and that in the course of it [he] at least recklessly ... caused bodily injury to her, being ... a scratch or a sort of cut that she received." Id. Explaining the actus reus of bodily injury, the judge stated that "[b]odily injury is any sort of injury, it doesn't have to be a broken bone or anything like that, it can be a bruise, a cut, kind of anything that hurts." Id. With respect to the mens rea, the judge explained that "[r]ecklessly means you did not have to intend a particular result, but you engaged in conduct that was not what a reasonable person would do in these circumstances, and had a very high risk that the result would happen." Id. Subsequent to this assault conviction in Vermont state court, Sales was charged with a violation of the Lautenberg Amendment in federal district court in Maine. Id. at *2.

The district court reviewed the governing precedent, including Castleman, Carter, and the previous two district court decisions described above, Hines and Carter. Id. at *2-3. Observing that the Castleman court emphasized Leocal's holding that "use" requires active employment, the district court further highlighted that "[t]he Supreme Court also pointed out that Booker is out of step with other circuit courts that have held that recklessness is not sufficient to constitute a `use' of force." Id. at *3 (citing Castleman, 134 S.Ct. at 1414 n. 8). Accordingly, the district court opined that "the Supreme Court's remand of Armstrong `in light of Castleman' is fairly construed as a directive to the First Circuit to reconsider whether an assault committed recklessly is sufficient to meet the federal definition of a misdemeanor [202] crime of domestic violence." Id. The district court agreed with Chief Judge Woodcock that "`[r]eading Supreme Court tea leaves is chancy,'" id. at *4 (quoting Hines, 2014 WL 1875164, at *8), but concluded that "it is hard to miss the message here," id. The court observed that the First Circuit may yet "decide that recklessness is sufficient," but that it would be "presumptuous" for the district court "to make that determination." Id. Therefore, the district court dismissed the defendant's indictment. Id.

II. Discussion

On remand, the relevant inquiry is whether the "reckless" causation of "offensive physical contact" under Maine law necessarily constitutes the "use or attempted use of physical force" for purposes of the Lautenberg Amendment. Compare Me.Rev.Stat. tit. 17-A, § 207, with 18 U.S.C. §§ 921(a)(33)(A), 922(g)(9). As a matter of statutory interpretation, we need to compare the text of each side of the equation: (a) the definition of the "reckless" causation of "offensive physical conduct" under the Maine assault statutes; and (b) the definition of the "use ... of physical force" under the federal Lautenberg Amendment. The former inquiry is a question of Maine state law, while the latter is a question of federal law. Applying the relevant precedent, this discussion concludes that the reckless causation of offensive physical contact in Maine does not necessarily constitute the "use" of physical force and thus is not categorically a "misdemeanor crime of domestic violence" under the Lautenberg Amendment.

A. The Meaning of the "Reckless" Causation of "Offensive Physical Contact" Under Maine Law

1. The Meaning of "Reckless"

Under the applicable definition in the Maine Criminal Code, "[a] person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result." Me.Rev. Stat. tit. 17-A, § 35(3)(A). Additionally, "the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation." Id. § 35(3)(C).

The majority opinion describes this definition of "recklessness" as involving "a substantial amount of deliberateness and intent." Ante, at 183. To support this assertion, the majority follows the government's brief in emphasizing that the definition requires that a person "consciously" disregard the risk involved, and that this disregard involves a "gross deviation" from the standard of reasonable and prudent conduct. Id. at 183-84. Relying on this language, the government argues that "recklessness lies rather close to `knowingly'" on the "volitional scale," and that recklessness "is arguably part and parcel of `willfully.'" Continuing, the government asserts that "[r]ecklessly is more akin to deliberately or knowingly." I disagree.

Contrary to the claim that the Maine definition of recklessness involves "a substantial amount of deliberateness and intent," the Maine definition is in fact a textbook definition of recklessness, falling squarely within the standard definitions of recklessness in various jurisdictions and as defined by multiple authorities. Indeed, the Maine definition is materially indistinguishable from the definition of recklessness in the Model Penal Code. Cf. Model Penal Code § 2.02(2)(c) ("A person acts recklessly with respect to a material element [203] of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation."). This Model Penal Code definition contains all of the elements and precise language highlighted by the majority as supposedly establishing "a substantial amount of deliberateness and intent." Cf. ante, at 183-84 ("consciously" disregards, "nature and purpose of the person's conduct and the circumstances known to [him]," and "gross deviation" from the standard of care) (emphases supplied by the majority).

As revealed in the chart below, the Maine definition of recklessness is also consistent with the equivalent definitions in the Model Penal Code, Black's Law Dictionary, and the majority of First Circuit jurisdictions. 

[[ chart removed ]]

 The definitions of "recklessness" in the preceding chart demonstrate that the Maine definition is a perfectly ordinary, textbook definition of the term. There is nothing about the Maine statute that sets it above and beyond the standard definitions provided in the Model Penal Code, Black's Law Dictionary, and the other jurisdictions in the First Circuit. Nor does it seem that the Model Penal Code and the First Circuit jurisdictions are unique in their definitions of recklessness. See, e.g., Ariz.Rev.Stat. § 13-105 ("`Recklessly' means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will [205] occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation....") (emphases added); N.Y. Penal Law § 15.05(3) ("A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.") (emphases added). Thus, the Maine definition of "recklessness" is far from extraordinary, but rather embraces the standard, generally accepted definition of the term.

Applying that definition, I disagree with the government's assertion that "[r]ecklessly is more akin to deliberately or knowingly" than negligently. The majority opinion echoes this claim, arguing that "Maine's definitions of knowingly as contrasted with recklessly differ primarily in their description of the degree of the person's awareness of the likelihood that the result will occur." Ante, at 184. The Supreme Court has held that negligent conduct cannot constitute the "use" of force. See Castleman, 134 S.Ct. at 1414 n. 8; Leocal, 543 U.S. at 9, 125 S.Ct. 377. On a volitional spectrum from "negligently" (clearly insufficient to constitute the "use" of force) to "intentionally" (clearly sufficient), the government and the majority seeks to place "recklessly" closer to the latter end. Yet the differences between the definitions of "recklessly" and "criminal negligence" are just as small as (if not smaller than) the differences between "knowingly" and "recklessly." See Fernandez-Ruiz, 466 F.3d at 1130 ("To the extent recklessness differs from criminal negligence, `[t]he difference between them is that criminal negligence requires only a failure to perceive a risk, as compared to the recklessness requirement of an awareness and conscious disregard of the risk.'" (quoting In re William G., 192 Ariz. 208, 963 P.2d 287, 292 n. 1 (Ariz.Ct.App.1997))); see also 1 Charles E. Torcia, Wharton's Criminal Law § 27 (15th ed.1993). Indeed, just as Maine's definitions of knowingly and recklessly "differ primarily in their description of the degree of the person's awareness of the likelihood that the result will occur," ante, at 184 (emphasis added), so too do Maine's definitions of recklessness and negligence "differ primarily in their description of the degree of the person's awareness of the likelihood that the result will occur," id. Compare Me.Rev.Stat. tit. 17-A, § 35(3)(A) ("A person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result."), with id. § 35(4)(A) ("A person acts with criminal negligence with respect to a result of the person's conduct when the person fails to be aware of a risk that the person's conduct will cause such a result."). Therefore, I find the attempt by the government and the majority to establish that "reckless" conduct in Maine is akin to knowing, willful, or intentional conduct, or involves a "a substantial amount of deliberateness and intent," to be unavailing.

2. The Meaning of "Offensive Physical Contact"

In this context, the actus reus of "offensive physical contact" has two constituent elements: first, there must be "physical contact," and second, the physical contact must also be "offensive." Under Maine law, the physical contact required is "not limited to direct touchings, but also c[an] [206] be effected by indirect touchings (e.g., the touching of items intimately connected to the body, such as clothing or a cane, customarily regarded as part and parcel of an individual's `person')." Nason, 269 F.3d at 19 (citing State v. Rembert, 658 A.2d 656, 658 (Me.1995)).

Determining whether the physical contact is "offensive" is an objective test: courts ask whether a reasonable person would find the physical contact to be offensive, under the particular circumstances involved. See United States v. Pettengill, 682 F.Supp.2d 49, 56 (D.Me. 2010) (stating that "`offensive physical contact' means `physical contact which a reasonable person would find offensive under the circumstances'" (quoting Donald G. Alexander, Maine Jury Instruction Manual § 6-59 (4th ed.2003)); see also State v. Pozzuoli, 693 A.2d 745, 747 (Me. 1997)) ("[T]he question is whether a reasonable person would find the contact to be offensive...."); Restatement (Second) of Torts § 19 ("A bodily contact is offensive if it offends a reasonable sense of personal dignity."). Offensive physical contact, therefore, involves "`something less than bodily injury ... but requires more than a mere touching of another.'" Nason, 269 F.3d at 19 (alteration in original) (quoting Pozzuoli, 693 A.2d at 747). In examining the Maine assault statute, we have previously observed that "[t]wo factors distinguish mere touchings from offensive physical contacts: the mens rea requirement, and the application of a `reasonable person' standard to determine whether a contact is offensive." Nason, 269 F.3d at 19 (citations omitted). Accordingly, to recklessly cause an offensive physical contact in Maine, a person must consciously disregard a risk that his or her conduct will cause physical contact — something more than a mere touching — that a reasonable person would find to be offensive under the circumstances. See Me. Rev.Stat. tit. 17-A, § 35(3)(A); Nason, 269 F.3d at 19; Pettengill, 682 F.Supp.2d at 56; Pozzuoli, 693 A.2d at 747. Moreover, the disregard of that risk "when viewed in light of the nature and purpose of the person's conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation." Me. Rev.Stat. tit. 17-A, § 35(3)(C).

B. The Meaning of "Use ... of Physical Force" Under Federal Law

1. The "Use" of "Force" and Common-Law Battery

The following discussion demonstrates that under the Lautenberg Amendment, the use-of-force requirement can be satisfied by an actus reus of an offensive touching, but such an offensive touch must be committed with a mens rea of intent rather than mere recklessness. In Castleman, the Supreme Court held that "force," for purposes of the Lautenberg Amendment, incorporates the common-law meaning of "force." Castleman, 134 S.Ct. at 1410-11. The Court further stated that "it makes sense for Congress to have classified as a `misdemeanor crime of domestic violence' the type of conduct that supports a common-law battery conviction." Id. at 1411. On that basis, the Court held that "the requirement of `physical force' is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction" — including an offensive touching. Id. at 1413.

I agree with the government's contention that "it makes sense for Congress to have classified as a `misdemeanor crime of domestic violence'" not only "the type of conduct that supports a common-law battery conviction," id. at 1411, but also the culpable mental states that support a battery [207] conviction under the common law. See, e.g., Freed, 401 U.S. at 607-08, 91 S.Ct. 1112 ("`(W)here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.'" (alteration in original) (quoting Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952))); see also Sekhar v. United States, ___ U.S. ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013) ("It is a settled principle of interpretation that, absent other indication, `Congress intends to incorporate the well-settled meaning of the common-law terms it uses.'" (quoting Neder v. United States, 527 U.S. 1, 23, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999))). Thus, as urged by both parties here and as suggested by the Supreme Court in Castleman, I turn to examine the culpable mental states that attach to the common-law crime of battery. See Castleman, 134 S.Ct. at 1410-11.

In Johnson, the Supreme Court explained that "the common-law crime of battery ... consisted of the intentional application of unlawful force against the person of another." Johnson, 559 U.S. at 139, 130 S.Ct. 1265 (emphasis added). According to Supreme Court precedent, therefore, although the Lautenberg Amendment's "force" requirement can be satisfied by an actus reus of an offensive touching, such offensive contact must involve a mens rea of intent rather than mere recklessness. See id.; see also Bailey v. United States, 516 U.S. 137, 143, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (defining the word "use" for purposes of the pre-1998 text of 18 U.S.C. § 924(c) — which had provided certain penalties if the defendant "uses or carries a firearm" during a crime of violence — and holding that such "use" required "active employment" and not "mere possession of a firearm"), superseded by statute, Bailey Fix Act, Pub.L. No. 105386, 112 Stat. 3469 (1998), as recognized in Abbott v. United States, 562 U.S. 8, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010); Rembert, 658 A.2d at 658 (stating that "[u]npermitted and intentional contacts... [are] actionable as an offensive contact"); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427, 428 (Va.1921) ("To constitute battery there must be some touching of the person of another, but not every such touching will amount to the offense. Whether it does or not will depend, not upon the amount of force applied, but upon the intent of the actor."); id. at 428 (reasoning that when a man placed his hand on a woman's shoulder after she already rejected his romantic advances, the evidence was sufficient to justify a verdict of guilt for battery due to the defendant's "willful violation of the sanctity of her person" (emphasis added)); Black's Law Dictionary 182 (10th ed.2014) (defining tortious battery as a "nonconsensual, intentional, and offensive touching of another without lawful justification").

The sources cited by the government do not demonstrate otherwise. These sources suggest, at best, that a common-law battery by "bodily injury" or "infliction of harm" can be committed recklessly; they do not establish that a common-law battery by "offensive physical contact" can be committed recklessly. See, e.g., Model Penal Code § 211.1(1)(a) ("A person is guilty of assault if he ... attempts to cause or purposely, knowingly or recklessly causes bodily injury to another...."); Wayne R. LaFave, 2 Substantive Criminal Law § 16.2(a) (2d ed.) ("The modern approach, as reflected in the Model Penal Code, is to limit battery to instances of physical injury and cover unwanted sexual advances by [208] other statutes."); id. § 16.2(c)(2) n. 32 ("[W]ith the tort of battery an intention to injure or touch offensively is needed"); see also Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (1893) (stating that "the intent necessary to constitute" an offense of assault and battery is the "intentional doing of an action which, by reason of its wanton or grossly negligent character, exposes another to personal injury, and causes such an injury," without saying anything regarding whether such an offense could be committed by causing offensive physical contact).

The weakness of the government's argument is revealed by its selective citation and selective quoting. For example, the government quotes a criminal law treatise for the proposition that "a substantial majority of the battery-type statutes" in modern criminal codes "expressly state that the crime may be committed by recklessness," but conveniently omits the immediately following clause at the end of that sentence: "— that is, where there is subjective awareness of the high risk of physical injury." LaFave, supra, § 16.2(c)(2) (emphasis added). The unabridged sentence says nothing about whether a battery by offensive touching can be committed by recklessness. Indeed, in the same section, the cited treatise states that the modern approach "limit[s] battery to instances of physical injury." Id. § 16.2(a). Furthermore, the treatise explains that the Model Penal Code's assault provision "covers only causing `bodily injury,' on the ground that `offensive touching is not sufficiently serious to be made criminal, except in the case of sexual assaults as provided' elsewhere in the Code." Id. § 16.2(a) n. 6 (quoting Model Penal Code § 211.1 cmt. at 185 (1980)). Given the foregoing, there is no justification for the majority's heavy reliance on the legislative history of the Lautenberg Amendment. See, e.g., Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) ("When we find the terms of a statute unambiguous, judicial inquiry is complete, except `in rare and exceptional circumstances.'" (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 187 n. 33, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)) (internal quotation marks and citation omitted)).

Contrary to the government's arguments, our decision in United States v. Bayes, 210 F.3d 64 (1st Cir.2000), supports the conclusion that battery by offensive touching requires intent and not mere recklessness with respect to the offensiveness of the contact. In Bayes, we evaluated the defendant's challenge to the sufficiency of the evidence to support his conviction for simple assault under 18 U.S.C. § 113(a)(5). Bayes, 210 F.3d at 65. The factual basis for the offense was that the defendant, Christopher Bayes, while on a Delta Airlines flight from Atlanta to England, "`put his hand on [a flight attendant's] buttocks and rubbed [her] buttocks and grabbed at the bottom of [her] buttocks,'" which a nearby passenger described as Bayes "`reaching behind the flight attendant and grabbing her in the rear end'" and "`squeezing.'" Id. at 66 (second and third alterations in original) (quoting trial testimony). "Bayes persisted in being unruly despite periodic warnings from members of the crew." Id. "A scuffle ensued, ending only after the captain dumped thousands of gallons of fuel, diverted the aircraft in mid-flight, and made an unscheduled landing [in Maine] so that Bayes could be taken off the plane...." Id.

Bayes argued that simple assault required "a specific kind of intent that the government failed to prove." Id. Namely, Bayes contended that "the government did not prove that he intended to injure [the flight attendant] or to threaten her with harm when he touched her on the buttocks." [209] Id. at 67. Because the statute in question, § 113(a)(5), criminalized "[s]imple assault" but did "not define that term in any way," we "turn[ed] to the common law for additional guidance." Id. at 67-68. We stated that "the common law provided that an assault committed by way of a battery did not require an intent to cause or to threaten an injury as long as the defendant touched another in a deliberately offensive manner without a valid reason to do so." Id. at 69 (emphasis added). We reviewed prior opinions and determined that they "support the conclusion that, in a prosecution for simple assault under § 113(a)(5), it is sufficient to show that the defendant deliberately touched another in a patently offensive manner without justification or excuse." Id. (emphases added). Therefore, we held that the evidence supported Bayes's conviction because "the jury was entitled to conclude that Bayes had groped [the flight attendant] in a way that could not have been accidental, that must have been deliberate, and that was patently offensive." Id. (emphases added).

The preceding language from Bayes reveals that the mens rea required for a § 113(a)(5) battery-by-offensive-touching conviction is intent and not mere recklessness: the defendant must "deliberately" (and not accidentally) touch the victim in a "deliberately offensive" manner. See id. By contrast, under the Maine assault statutes, a defendant can commit the offense recklessly by merely disregarding (a) the risk that his conduct will cause physical contact (more than a mere touching) to occur, and (b) the risk that a reasonable person would find that physical contact to be offensive. See Me.Rev.Stat. tit. 17-A, § 35(3)(A). The "deliberate" intent that we required in Bayes is thus not necessary for a conviction for recklessly committed assault or domestic-violence assault in Maine.

Therefore, the following conclusion must be drawn: under the Lautenberg Amendment, the "force" requirement can be satisfied by an actus reus of an offensive touching, but such an offensive touch must involve a mens rea of intent rather than mere recklessness. That is, the defendant must intend to touch and intend that the touch be offensive, rather than merely disregard the risk that a touch will occur and be considered offensive. By contrast, the Maine statutes at issue permit conviction when the defendant merely disregards a risk that his or her conduct will cause physical contact that a reasonable person would find to be offensive. Accordingly, applying a categorical approach and the Supreme Court's statements in Castleman and Johnson, a conviction under either of the Maine assault statutes encompasses conduct beyond the common-law definition of battery, and thus does not necessarily establish a misdemeanor crime of domestic violence under the Lautenberg Amendment. This conclusion mandates reversal here and is further supported by Footnote Eight of Castleman and the circuit court cases cited therein, as explained below.

2. Castleman's Footnote Eight

In Castleman, the Supreme Court opined that the "merely reckless causation of bodily injury under the [Tennessee assault statute] may not be a `use' of force." Castleman, 134 S.Ct. at 1414. The Court explained this statement in Footnote Eight, noting that Leocal held that "`"use" requires active employment.'" Id. at 1414 n. 8 (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377). The Court then stated that "the Courts of Appeals have almost uniformly held that recklessness is not sufficient," contrasting decisions from ten other circuit courts of appeals against our opinion in Booker, which the Supreme Court [210] listed as the only outlier.^[14] Together, as explained in more detail below, these cases establish that a predicate "crime of violence" under 18 U.S.C. § 16 and analogous provisions must be committed with a degree of intentionality greater than recklessness. Although § 16 is a different federal statute, its language is substantially similar to the definition of a misdemeanor crime of domestic violence for purposes of the Lautenberg Amendment. In particular, the definition in § 16(a) is nearly identical to the equivalent definition for § 922(g)(9). Compare 18 U.S.C. § 16(a) (defining the term "crime of violence" to mean "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"), with 18 U.S.C. § 921(a)(33)(A) (defining a "misdemeanor crime of domestic violence" as an misdemeanor offense that "has, as an element, the use or attempted use of physical force"). Keeping the similarity of the analogous statutes in mind, I review below each case cited by the Supreme Court in Castleman's Footnote Eight.

a. Second Circuit

The Second Circuit considered the issue in Jobson v. Ashcroft, 326 F.3d 367, 369 (2d Cir.2003), which examined whether second-degree manslaughter in New York constituted a crime of violence under 18 U.S.C. § 16(b). A "crime of violence" is defined in § 16(b) as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b).^[15] The Second Circuit reiterated its previous holding that "the verb `use' in section 16(b), particularly when modified by the phrase `in the course of committing the offense,' suggests that section 16(b) `contemplates only intentional conduct and [211] refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force.'" Jobson, 326 F.3d at 373 (internal quotation marks omitted) (quoting Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir. 2001)).

To satisfy § 16(b)'s definition of "crime of violence," therefore, a defendant must have risked having to intentionally use force to commit the offense. Id. at 374; see also id. at 373 ("[T]he risk in section 16(b) concerns the defendant's likely use of violent force as a means to an end."). "By contrast, a defendant who is convicted of second-degree manslaughter, like other offenses of pure recklessness, may lack any `intent, desire or willingness to use force or cause harm at all.'" Id. at 374 (quoting United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992), abrogated on other grounds by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). Accordingly, the Second Circuit concluded that second-degree manslaughter in New York is not a crime a violence under § 16(b) and thus is not an aggravated felony justifying removal under the immigration laws. Id. at 376.

b. Third Circuit

The Third Circuit reached a similar result in Oyebanji v. Gonzales, 418 F.3d 260, 263 (3d Cir.2005), which also involved immigration removal proceedings premised upon the definition of "crime of violence" under § 16(b). The petitioner's underlying conviction was for vehicular homicide under New Jersey law, which requires proof of recklessness. Id. The Third Circuit thus stated that it was "required to decide the very question that the Leocal Court did not reach" — "`whether a state or federal offense that requires proof of the reckless use of force against a person or property of another qualifies as a crime of violence under 18 U.S.C. § 16.'" Id. (quoting Leocal, 543 U.S. at 13, 125 S.Ct. 377).

Citing the Leocal Court's distinction between "violent" crime and merely "accidental" conduct, the Third Circuit explained that "[t]he quintessential violent crimes — murder, assault, battery, rape, etc. — involve the intentional use of actual or threatened force against another's person, and the term `accidental' is most often used to describe events that did not `occur [] as a result of anyone's purposeful act.'" Id. at 264 (second alteration in original) (citing Black's Law Dictionary 16 (8th ed.1999)). The Third Circuit reasoned that "accidental" conduct "is not enough to qualify as a crime of violence" under Leocal, and it decided that such "accidental" conduct "would seem to include reckless conduct." Id. The panel further stated that the Third Circuit ought to follow the Supreme Court's "`considered dicta'" in Leocal, id. at 265 (quoting McCoy, 950 F.2d at 19), and that while the panel "appreciate[d]" the government's arguments, it "believe[d] that those arguments must be directed to the Supreme Court or Congress." Id.

c. Fourth Circuit

The Fourth Circuit considered these issues in Garcia v. Gonzales, 455 F.3d 465 (4th Cir.2006). Garcia also involved removal proceedings and whether a certain predicate offense qualified as an aggravated felony by virtue of being "a crime of violence" under 18 U.S.C. § 16. Id. at 468. The predicate offense considered in Garcia was reckless assault in the second degree under New York law, which provides that "`[a] person is guilty of assault in the second degree when ... (4) He recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.'" Id. [212] (alterations in original) (quoting N.Y. Penal Law § 120.05). The Fourth Circuit summarily determined that the first definition of "a crime of violence" under § 16(a) — "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" — did not apply to the New York second-degree reckless assault conviction. Id. at 468 (quoting 18 U.S.C. § 16(a)). The court reasoned that the definition of the New York offense "does not contain an element that there be the intentional employment of physical force against a person or thing, and thus is beyond the scope of 18 U.S.C. § 16(a)." Id. (emphasis added). Therefore, according to the Fourth Circuit, "the use ... of physical force" requires the intentional employment of physical force. See id.

Turning to the definition in § 16(b), the Fourth Circuit held that "recklessness, like negligence, is not enough to support a determination that a crime is a `crime of violence.'" Id. at 469. In making this determination, the Fourth Circuit held that in order to satisfy § 16(b)'s requirement that the predicate offense "involve a substantial risk that physical force against the person or property of another may be used," the force must "be applied as a means to an end." Id. (quoting Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir.2005)) (internal quotation marks omitted); see also id. ("[W]e are of opinion that 18 U.S.C. § 16(b) requires that the substantial risk involved be a substantial risk that force will be employed as a means to an end in the commission of the crime, not merely that reckless conduct could result in injury.").

d. Fifth Circuit

The Fifth Circuit considered the definition of "crime of violence" under 18 U.S.C. § 16(b) in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001). In that case, the Fifth Circuit reasoned that § 16(b) requires that "the offender intentionally use the force against the person or property of another." Id. at 927. Because "[i]ntentional force against another's person or property is virtually never employed to commit" the offense of felony driving while intoxicated ("DWI") in Texas, the court held that "felony DWI is not a crime of violence as defined by 18 U.S.C. § 16(b)." Id.

e. Sixth Circuit

In United States v. Portela, 469 F.3d 496, 499 (6th Cir.2006), the Sixth Circuit followed the "`considered dicta'" of Leocal and the reasoning of the Third and Fourth Circuits to hold that "a crime requiring only recklessness does not qualify as a `crime of violence' under 18 U.S.C. § 16," nor, because it "uses identical language," under U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1).

f. Seventh Circuit

Similarly, the Seventh Circuit followed its sister circuits in holding that "reckless crimes are not crimes of violence under Section 16(b)." Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th Cir.2008). The Seventh Circuit found persuasive the Third Circuit's reasoning in Oyebanji that the use of physical force requires active employment and not merely negligent or accidental conduct. Id. (citing Oyebanji, 418 F.3d at 263). The Seventh Circuit further reasoned that "accidental and reckless crimes are not the type of `violent' crimes Congress intended to distinguish as worthy of removal." Id. To support its holding, the Seventh Circuit emphasized the "primary distinction" that crimes of violence involve intentional conduct whereas most crimes of recklessness involve [213] non-purposeful conduct. See id. at 561-62.

g. Eighth Circuit

Likewise, the Eighth Circuit stated that the Leocal "Court's reasoning suggests that crimes requiring only reckless disregard for the risk of physical injury to another are not crimes of violence under § 16." United States v. Torres-Villalobos, 487 F.3d 607, 615 (8th Cir.2007). Examining Minnesota law, the Eighth Circuit determined that "a person can commit second-degree manslaughter without using force or risking the intentional use of force," because the crime can be committed recklessly. Id. at 616. Giving examples, the court explained that:

A person can commit this crime by recklessly leaving a child alone with lit candles that later start a fire, by allowing a child to die of dehydration while in the person's care, by leaving explosives and blasting caps stored in an automobile where they are later ignited by the use of jumper cables, and, indeed, by driving drunk with `culpable negligence' in a manner that causes the death of a passenger.

Id. (internal citations omitted). Therefore, the court held, "the `use of force,' as Leocal interpreted that phrase, is not an element of a second-degree manslaughter conviction," meaning that the Minnesota second-degree manslaughter offense is not a crime of violence under § 16(a). Id. Turning to § 16(b), the court also held that second-degree manslaughter under Minnesota law does not "involve a risk that the perpetrator will intentionally use physical force in the course of committing the offense." Id. at 616-17. Because Minnesota second-degree manslaughter can be committed recklessly without the intentional use of force or risking the intentional use of force, the Eighth Circuit held that it is not a crime of violence under § 16. Id. at 617.

h. Ninth Circuit

In Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir.2006) (en banc), the Ninth Circuit held that a prior Arizona assault conviction did not constitute a crime of violence under § 16(a) because that federal statute "covers only those crimes involving intentional conduct," and thus the merely reckless use of force (as covered by the Arizona statute) was insufficient to establish a violation. See also id. ("Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply."). In so holding, the court "agree[d] with [its] sister circuits that the reasoning of Leocal — which merely holds that using force negligently or less is not a crime of violence — extends to crimes involving the reckless use of force." Id. at 1129. The Ninth Circuit reasoned that Leocal emphasized that crimes of violence cannot be "`accidental.'" Id. (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377). The court defined "accidental" as "`[n]ot having occurred as a result of anyone's purposeful act,'" and it defined "purposeful" as "`[d]one with a specific purpose in mind.'" Id. at 1129-30 (alterations in original) (citing Black's Law Dictionary 16, 1298 (8th ed.2004)). The Ninth Circuit further concluded that "[r]eckless conduct, as generally defined, is not purposeful." Id. at 1130.

"Even more clearly, reckless conduct as defined by Arizona law is not purposeful." Id. As support for this statement, the Ninth Circuit cited the Arizona criminal statute defining recklessness. Id. Under that statute, "`[r]ecklessly' means ... that [214] a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." Ariz.Rev.Stat. Ann. § 13-105(10)(c). That "risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Id. This definition of recklessness is substantially similar to the equivalent Maine definition, as well as the other definitions outlined in the chart in Part II(A)(1), supra. For purposes of § 16, the Ninth Circuit saw no important differences between negligence and recklessness, considering each mens rea to constitute the type of non-purposeful conduct that Leocal held was insufficient to establish a crime of violence involving the "use" of force. Fernandez-Ruiz, 466 F.3d at 1129-30. The court reasoned that the "plain meaning" of the word "use" denotes that "physical force is instrumental to carrying out the crime." Id. By contrast, the "subjective awareness" of risk that characterizes a reckless act "is not the same as the intentional use of physical force against the person of another." Id. The court further explained that "[t]he bedrock principle of Leocal is that to constitute a federal crime of violence an offense must involve the intentional use of force against the person or property of another." Id. at 1132. Therefore, the Ninth Circuit concluded that recklessness is not "a sufficient mens rea to establish that a conviction is for a crime of violence under § 16." Id. at 1130.

i. Tenth Circuit

In United States v. Zúñiga-Soto, 527 F.3d 1110, 1113 (10th Cir.2008), the Tenth Circuit considered whether the "crime of violence" enhancement provision under U.S.S.G. § 2L1.2 applied to the appellant's prior Texas state conviction for assaulting a public servant. Applying the commentary to this U.S.S.G. provision, the Tenth Circuit's "sole task" was to whether the appellant's "prior felony conviction qualifies as a crime of violence because the offense had as an element the use of physical force." Id. at 1115. Under the appellant's offense of conviction, a person commits an assault if he or she "intentionally, knowingly, or recklessly causes bodily injury to another." Tex. Penal Code Ann. § 22.01(a)(1). On appeal to the Tenth Circuit, the appellant argued that "his prior conviction did not have as an element the use of physical force because the Texas assault statute's mens rea component could be satisfied by recklessness." Zúñiga-Soto, 527 F.3d at 1115. The Tenth Circuit agreed, citing Leocal, its own precedent, and "the persuasive reasoning of [its] sister circuits." Id. at 1113, 1123.

j. Eleventh Circuit

Finally, applying similar reasoning, the Eleventh Circuit also relied on Leocal and the decisions of the other circuit courts to hold that "a conviction predicated on a mens rea of recklessness does not satisfy the `use of physical force' requirement under [U.S.S.G.] § 2L1.2's definition of `crime of violence.'" United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir.2010). Citing "the near unanimity of the circuit courts on this issue," the Eleventh Circuit concluded that Leocal "plainly suggests that crimes requiring only a reckless[] disregard for the risk of physical injury to others are not crimes of violence." Id. at 1336 n. 16. The Eleventh Circuit further explained that "[b]ecause Arizona law defines recklessness as nothing more than the conscious disregard of a substantial and unjustifiable risk, this is more akin to negligence and cannot be said to require the intentional use of force." Id. at 1336 (internal citation omitted). Therefore, the court held that an Arizona [215] conviction "predicated on the reckless causation of physical injury does not qualify as a crime of violence under [U.S.S.G.] § 2L1.2." Id.

C. Comparison of Analogous Statutory Language

As is evident from the discussion above, most of our sister circuits have held that the "use ... of physical force" requires the type of intentional conduct for which mere recklessness cannot suffice. Although these cases involved different provisions than the Lautenberg Amendment, the statutory texts involved are not materially different, and in many cases, are virtually identical. As referenced herein, analogous provisions to the definition of "misdemeanor crime of domestic violence" for purposes of the Lautenberg Amendment are compared in the following chart:

 [[ chart removed ]]

It is readily apparent that the language involved in most of the preceding provisions is nearly identical, and for present purposes is materially indistinguishable.^[16] [216] Moreover, I do not doubt that the Supreme Court was well aware that the cases it cited in Castleman's Footnote Eight involved different provisions, yet the Court nonetheless contrasted the holdings of our sister circuits in those cases with our holding in Booker before remanding the instant cases to us for reconsideration in light of Castleman. See Castleman, 134 S.Ct. at 1414 n. 8. Thus, to the Supreme Court, these cases and provisions were sufficiently analogous to justify the instant remand. Cf. Smith, 544 U.S. at 233, 125 S.Ct. 1536 ("[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes."); Northcross v. Bd. of Educ. of Memphis City Sch., 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam) (stating that "[t]he similarity of language" in two statutory provisions sharing "a common raison d'etre" constitutes "a strong indication that the two statutes should be interpreted pari passu"). The government and the majority fail to persuasively establish that the meaning of "the use ... of physical force" in these various federal definitions of a "crime of violence" should be so similar in every other context, yet so different as to be outcome-determinative in the instant context. For those reasons, I find the foregoing precedent more persuasive than the majority opinion here. I thus agree with our sister circuits that the "use ... of physical force" for a "crime of violence" requires the intentional, and not merely reckless, employment of physical force. I find this conclusion to be particularly true for the subsumed offense at issue in the instant case: the combination of a mens rea of "recklessness" with an actus reus of "offensive physical contact." Cf. Nason, 269 F.3d at 19 (stating that the mens rea requirement is one of two factors that "distinguish mere touchings from offensive physical contacts").

III. Conclusion

Despite the foregoing precedent from the Supreme Court and our sister circuits, the majority opinion nonetheless seeks to hew to our prior decision in Booker and to resolve these cases, yet again, exactly as we did in Armstrong I and Voisine I. With due respect, for the reasons explained above, I believe that the majority is wrong.

The Lautenberg Amendment is premised upon grave concerns and laudable purposes, as articulated both by the Supreme Court in Castleman and by the majority in this case. I share those concerns and strongly agree with those purposes. However, a general agreement with those goals need not dictate the result here. This case does not present a litmus test for judges, asking whether we oppose domestic violence and gun violence. Were our job so simple, it would be an easy matter to decide in favor of the government. But that is not our role. Our judicial obligations preclude us from such results-oriented decisionmaking.

Rather than deciding on the basis of personal beliefs and policy preferences, or seeking to ensure that the Lautenberg Amendment encompass the broadest possible swath of conduct within its ambit, this case requires us to engage in statutory interpretation. This legal task implicates the difference between Congress's broad policy goals versus the precise statutory language employed to achieve those ends. That is, does the language chosen by Congress — the "use or attempted use of physical force" — necessarily apply to all Maine misdemeanor assault convictions for recklessly causing offensive physical contact? Applying the relevant precedent to this question of statutory interpretation counsels [217] that we answer this inquiry in the negative and resolve this appeal in favor of the defendants. I conclude that the particular subsumed Maine offense at issue here, the reckless causation of offensive physical contact, does not necessarily require the "use ... of physical force" and thus does not categorically constitute a misdemeanor crime of domestic violence under the Lautenberg Amendment.

For the reasons stated herein, I would reverse the defendants' convictions. Indeed, I believe that the Supreme Court has obligated us to do so. Therefore, I respectfully dissent.

[1] In February 2012, Armstrong was sentenced to three years of probation and a fine and special assessment totaling $2,600. Also in February 2012, Voisine was sentenced to a year and a day imprisonment on the § 922(g)(9) charge with two years supervised release, concurrent with nine months imprisonment and one year supervised release on the § 668(a) charge, and $125 in special assessments.

[2] United States v. Palomino Garcia, 606 F.3d 1317, 1335-36 (11th Cir.2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th Cir. 2008); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir.2008); United States v. Torres-Villalobos, 487 F.3d 607, 615-16 (8th Cir.2007); United States v. Portela, 469 F.3d 496, 499 (6th Cir.2006); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127-32 (9th Cir. 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir.2006); Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir.2005) (Alito, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.2001).

[3] All but one of the ten cases cited in Castleman footnote 8 as deciding the § 922(g)(9) mens rea issue in fact considered other statutes in other contexts and followed the reasoning of Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). Six cases analyzed 18 U.S.C. § 16. In Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir.2005) (Alito, J.), the Third Circuit read Leocal to apply to § 16(b), which offered an alternative definition of "crime of violence" to § 16(a), and decided that reckless crimes cannot be crimes of violence under that section. Three other cases from the footnote did the same. See Garcia v. Gonzales, 455 F.3d 465, 467-69 (4th Cir.2006) (interpreting § 16(b), as referenced in an immigration statute); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 559-62 (7th Cir.2008) (same); United States v. Torres-Villalobos, 487 F.3d 607, 614-17 (8th Cir. 2007) (same). Two more interpreted the same provision, but without relying on Leocal, which had yet to be decided. See Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir.2003); United States v. Chapa-Garza, 243 F.3d 921, 926-27 (5th Cir.2001). All of these cases interpreted the term "crime of violence" as part of an aggravated felony statute, and Castleman is clear that the interpretive rules governing felonies do not apply to misdemeanor crimes of domestic violence. 134 S.Ct. at 1411.

Three of the remaining four cases interpreted the term "use of physical force" in the context of a Sentencing Guidelines provision imposing an enhancement for defendants who were deported after committing a felony "crime of violence," U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A). Each of those cases analyzed the provision by analogizing to § 16 and applying Leocal. For example, in United States v. Palomino Garcia, the Eleventh Circuit explained that both § 16 and the Guidelines provision define the phrase "crime of violence," and they are "almost identically worded." 606 F.3d 1317, 1335 (11th Cir. 2010). It then cited Leocal and the other § 16 cases mentioned above to conclude that a "use of physical force" cannot be reckless. Id. at 1335-36; see also United States v. Portela, 469 F.3d 496, 498-99 (6th Cir.2006); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir.2008).

Even if § 16 were analogous to § 922(g)(9), that would not resolve the matter. The Third Circuit has explained that some reckless convictions can serve as predicates for § 16 offenses, depending on the nature of the recklessness. Aguilar v. Att'y Gen., 663 F.3d 692, 698-700 (3d Cir.2011); cf. United States v. Espinoza, 733 F.3d 568, 572-74 (5th Cir. 2013) (allowing a reckless conviction to be a predicate for a violent felony under the Armed Career Criminal Act).

[4] The dissent wrongly relies on our decision in United States v. Bayes, 210 F.3d 64 (1st Cir.2000), for the proposition the federal assault statute requires deliberate action. Id. at 69 (citing 18 U.S.C. § 113(a)(5)). Bayes says that "it is sufficient to show the defendant deliberately touched another in a patently offensive manner without justification or excuse." Id. In deciding that the statute did not require specific intent, Bayes did not pass on whether recklessness would satisfy the statute. Further, the dissent relies on the rule of lenity, an argument not made by the defendants.

[5] As recognized at 2 LaFave, Substantive Criminal Law, § 5.4 n. 6, "usage of the term [recklessness] has not been consistent." See, e.g., United States v. Meeks, 664 F.3d 1067, 1070-71 & n. 2 (6th Cir.2012) (explaining that "recklessness" in Kentucky is a lower standard than "being aware of and consciously disregarding a substantial and unjustifiable risk"). As the dissent observes, while the Model Penal Code definition is similar to Maine's (though not identical), Puerto Rico's definition — until the new statute is in effect — has language quite different from the Maine statute.

[6] See United States v. Torres-Villalobos, 487 F.3d 607, 616-17 (8th Cir.2007) (holding that Minnesota second-degree manslaughter can be committed recklessly without the intentional use of force, and therefore is not a crime of violence under § 16(a)); Fernández-Ruiz v. Gonzales, 466 F.3d 1121, 1123 (9th Cir.2006) (holding that reckless conduct cannot constitute the "use" of force for purposes of § 16(a)); García v. Gonzales, 455 F.3d 465, 468 (4th Cir.2006) (reasoning that the "use" of "physical force" requires the intentional employment of physical force, and therefore holding that a New York second-degree reckless assault conviction is "beyond the scope" of § 16(a)).

[7] Moreover, the cases involving § 16(b) provide even stronger support for the defendants' position here, as § 16(b) involves language more susceptible than that of § 16(a) or the Lautenberg Amendment to a reading that encompasses reckless conduct. Compare 18 U.S.C. § 16(b) (defining a "crime of violence" as a felony that "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"), with Model Penal Code § 2.02(2)(c) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."). Yet most courts nonetheless have rejected arguments that § 16(b) can be satisfied by a predicate offense with a mens rea of recklessness. See, e.g., Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003) ("[T]he verb `use' in section 16(b), particularly when modified by the phrase `in the course of committing the offense,' suggests that section 16(b) `contemplates only intentional conduct and refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force.'" (internal quotation marks omitted) (quoting Dalton v. Ashcroft, 257 F.3d 200, 208 (2d Cir.2001))).

[8] In addition to its acknowledgment that this is a "close" case, the majority's reliance on legislative history also suggests that the statutory text is ambiguous. Cf. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978) ("When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning."). Furthermore, the contrasting results reached by the First Circuit and our sister circuits on the interpretation of the phrase "use ... of physical force" provide additional evidence of that statutory text's ambiguity.

[9] All of the examples cited by the majority — squeezing, shoving, a squeeze of the arm that causes a bruise, shooting a powerful handgun in the direction of a neighbor's home, driving a van to make contact with another vehicle and to push the victim's vehicle into heavy oncoming traffic, a husband throwing a knife towards his wife intending to instill fear but actually striking her, and waving a lit cigarette near a child in anger so that the cigarette touches and burns the child, ante, at 177, 181, 183-84, 184-85 involve intentional conduct that is reckless as to the result, which in nearly all of those examples is bodily injury. By contrast, the Maine statutes at issue here permits conviction for far less culpable conduct: merely reckless conduct that is also reckless as to the result of offensive physical contact. In so doing, the majority conflates mens rea as to the result with mens rea as to the underlying conduct that causes the result. It is this distinction that explains why common-law battery permits conviction for (1) intentional conduct that is reckless as to the result of bodily injury and (2) intentional conduct that is intentional as to the result of bodily injury or offensive touching, but does not permit conviction for (3) reckless conduct that is merely reckless as to the result of an offensive touching.

[10] To recklessly cause an offensive physical contact in Maine, a person must consciously disregard a risk that his or her conduct will cause physical contact — something more than a mere touching — that a reasonable person would find to be offensive under the circumstances. See Me.Rev.Stat. tit. 17-A, § 35(3) (defining recklessness); id. § 207(1)(A) (simple assault); id. § 207-A(1)(A) (domestic violence assault). Therefore, to sustain a Maine conviction for this subsumed offense, the defendant need not intend that physical contact occur nor intend that the contact be considered offensive.

[11] Despite the foregoing, the majority opinion offhandedly rejects the relevance of the mens rea for battery under the common law. See ante, at 182-83 ("The parties agree that, under Castleman, the term `use of physical force' also incorporates the common law mens rea for battery.... They disagree about whether reckless acts could or could not constitute batteries at common law, and each side marshals support for its view. We decline the parties' invitation to define the mens rea of a common law battery....") (citations omitted). At the same time, the majority cites Castleman for the proposition that the "use" of physical force includes offensive contact, due to the common-law meaning of "force" for purposes of battery. Id. The majority opinion thus relies on the actus reus for battery under the common law, but simultaneously rejects the relevance of the accompanying mens rea for common-law battery. See id. In so doing, the majority fails to sufficiently justify its decision to "decline" the parties' "invitation" to consider the import of the mens rea of common-law battery to the question at bar. Such a decision requires justification, particularly because the Supreme Court in Castleman also extended an "invitation" for us to consider this issue when it explained that Congress intended to classify as a "`misdemeanor crime of domestic violence' the type of conduct that supports a common-law battery conviction." See Castleman, 134 S.Ct. at 1411.

Nothing in Castleman suggests that the phrase "type of conduct" refers only to the actus reus for battery and not also the accompanying mens rea. Indeed, the contrary conclusion makes far more sense. If Congress meant to incorporate the common-law crime of battery, it most likely meant to incorporate both the actus reus and its accompanying mens rea. See, e.g., United States v. Zhen Zhou Wu, 711 F.3d 1, 18 (1st Cir.2013) ("`In the criminal law, both a culpable mens rea and a criminal actus reus are generally required for an offense to occur.'" (quoting United States v. Apfelbaum, 445 U.S. 115, 131, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980))); United States v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006) (stating that "most crimes ... require[] both mens rea and actus reus"); cf. United States v. Freed, 401 U.S. 601, 607-08, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971) (explaining that when "Congress borrows terms of art" from the common law, "it presumably knows and adopts the cluster of ideas that were attached to each borrowed word" (internal quotation marks and citation omitted)).

[12] Violation of either provision — the general assault offense or "domestic violence assault" — constitutes a "Class D" crime under the Maine Criminal Code, which is equivalent to a misdemeanor. See State v. Allen, 377 A.2d 472, 475 n. 4 (Me.1977) ("We therefore deem Class D and Class E crimes to be the Criminal Code equivalents of misdemeanors.").

[13] The situation in Puerto Rico merits some further explanation. Historically, under Puerto Rico's Penal Code, there were two culpable mental states: "intent" and "negligence." See P.R. Laws Ann. tit. 33, §§ 4650-4652 (2004). The definition of "intent" included three variants, generally corresponding to the concepts of "purposeful," "knowing," and "reckless" conduct under the Model Penal Code. See id. § 4651; see also Dora Nevares-Muniz, Recodification of Criminal Law in a Mixed Jurisdiction: The Case of Puerto Rico, 12.1 Elec. J. Comp. L. 16 (May 2008), available at http://www.ejcl.org/121/art121-14.pdf. In the 2012 version of the Puerto Rico Penal Code, the third definition of "intent" covered reckless conduct: "when the actor has foreseen or is conscious that there exists a high probability that his conduct will produce the criminal act." P.R. Laws Ann. tit. 33, § 5035 (2012) (unofficial translation supplied).

In 2014, a new law was proposed, passed by both the Puerto Rico Senate and the House of Representatives, and sent to the Governor for his approval. See S.B. 1210 (P.R.2014). That law was signed and approved on December 26, 2014, and it takes effect on March 26, 2015. See 2014 P.R. Laws No. 246. Article 12 of the new law eliminates the old culpable mental states (intent and negligence) and explicitly replaces them with the four mental states in the Model Penal Code: purposely, knowingly, recklessly, and negligently. Compare id. art. 12 (modifying art. 22 of Law No. 146-2012), with Model Penal Code § 2.02(2); see also P.R. House of Representatives, P. del S. 1210 Informe Positivo 9 (Nov. 13, 2014), http://www.tucamarapr.org/dnncamara/Documents/Measures/9fda6cce-88d9-4e39-a6ae-0dc163f421dc.pdf.

[14] Id. To illustrate contrast with our holding in United States v. Booker, 644 F.3d 12, 19-20 (1st Cir.2011), the Supreme Court cited the following circuit court decisions in Castleman's Footnote Eight: United States v. Palomino Garcia, 606 F.3d 1317, 1335-36 (11th Cir.2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (7th Cir.2008); United States v. Zúñiga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008); United States v. Torres-Villalobos, 487 F.3d 607, 615-16 (8th Cir.2007); United States v. Portela, 469 F.3d 496, 499 (6th Cir. 2006); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127-32 (9th Cir.2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir.2006); Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir.2005); Jobson v. Ashcroft, 326 F.3d 367, 373 (2d Cir.2003); United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir.2001).

[15] Given that § 16(b)'s definition includes offenses that merely "involve[] a substantial risk that physical force ... may be used," id. (emphasis added), its language is far more susceptible to a reading that it encompasses reckless conduct than is the equivalent language for § 16(a) and § 922(g)(9), which both require the "use" or "attempted use" of "physical force." See supra n. 2; see also 18 U.S.C. § 16(a); id. § 922(g)(9); id. § 921(a)(33)(A); Me.Rev.Stat. tit. 17-A, § 35(3) ("A person acts recklessly with respect to a result of the person's conduct when the person consciously disregards a risk that the person's conduct will cause such a result...."); Model Penal Code § 2.02(2)(c) ("A person acts recklessly ... when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct."). Therefore, the cases holding that reckless conduct is insufficient to support a subsequent § 16(b) conviction provide even stronger support for the defendants' position than do the cases involving § 16(a). Cf. Garcia, 455 F.3d at 468 (reasoning that the "use" of "physical force" requires the intentional employment of physical force, and therefore holding that a New York second-degree reckless assault conviction "does not contain an element that there be the intentional employment of physical force against a person or thing, and thus is beyond the scope of 18 U.S.C. § 16(a)").

[16] The majority claims that § 16(a) is "not analogous" to § 922(g)(9). Ante, at 181. I disagree, given that these two provisions contain nearly identical language. Section 16(a) defines a "crime of violence," whereas § 922(g)(9) involves a "misdemeanor crime of domestic violence." The relevant definition for § 922(g)(9) is an offense that "has, as an element, the use or attempted use of physical force." 18 U.S.C. § 921(a)(33)(A). The definition under § 16(a) is materially indistinguishable: an offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Id. § 16(a). This definition differs only in the addition of the "threatened use" of physical force as an alternative, and the explanation that the force be used "against the person or property of another." The former difference (the inclusion of "threatened use") is neither implicated in the current case nor in any of the analogous precedents referenced herein. The latter change appears to be largely a distinction without a difference, as it is difficult to contemplate how or why the "use of physical force" for purposes of § 922(g)(9) would mean force used in any way other than "against the person or property of another."

[1408] Melissa Arbus Sherry, Washington, DC, for Petitioner.

Charles A. Rothfeld, Washington, DC, for Respondent.

Steven L. West, West & West Attorneys, Huntingdon, TN, Eugene R. Fidell, New Haven, CT, Charles A. Rothfeld, Counsel of Record, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, Mayer Brown LLP, Washington, DC, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Melissa Arbus Sherry, Assistant to the Solicitor General, Counsel of Record, Joseph C. Wyderko, Washington, DC, for Petitioner.

Justice SOTOMAYOR delivered the opinion of the Court.

Recognizing that "[f]irearms and domestic strife are a potentially deadly combination," United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), Congress forbade the possession of firearms by anyone convicted of "a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having "intentionally or knowingly cause[d] bodily injury to" the mother of his child. App. 27. The question before us is whether this conviction qualifies as "a misdemeanor crime of domestic violence." We hold that it does.

I

A

This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year.^[1] See Georgia v. Randolph, 547 U.S. 103, 117-118, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13-15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9-12, and the presence of a firearm increases the likelihood that it will escalate to homicide, see id., at 14-15; Campbell et al., Assessing [1409] Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) ("When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed"). "[A]ll too often," as one Senator noted during the debate over § 922(g)(9), "the only difference between a battered woman and a dead woman is the presence of a gun." 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone).

Congress enacted § 922(g)(9), in light of these sobering facts, to "`close [a] dangerous loophole'" in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U.S., at 418, 426, 129 S.Ct. 1079. Section 922(g)(9) provides, as relevant, that any person "who has been convicted ... of a misdemeanor crime of domestic violence" may not "possess in or affecting commerc[e] any firearm or ammunition." With exceptions that do not apply here, the statute defines a "misdemeanor crime of domestic violence" as

"an offense that ... (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." § 921(a)(33)(A).

This case concerns the meaning of one phrase in this definition: "the use ... of physical force."

B

In 2001, Castleman was charged in a Tennessee court with having "intentionally or knowingly cause[d] bodily injury to" the mother of his child, in violation of Tenn. Code Ann. § 39-13-111(b) (Supp.2002). App. 27. He pleaded guilty. Id., at 29.

In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating § 922(g)(9) and on other charges not relevant here. Id., at 13-16.

Castleman moved to dismiss the § 922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not "ha[ve], as an element, the use ... of physical force," § 921(a)(33)(A)(ii). The District Court agreed, on the theory that "the `use of physical force' for § 922(g)(9) purposes" must entail "violent contact with the victim." App. to Pet. for Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a "misdemeanor crime of domestic violence" because one can cause bodily injury without "violent contact" — for example, by "deceiving [the victim] into drinking a poisoned beverage." Id., at 41a.

A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F.3d 582 (2012). The majority held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as required by § 924(e)(2)(B)(i), which defines "violent felony." Id., at 587. Applying our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held that § 924(e)(2)(B)(i) requires "violent force," id., at 140, 130 S.Ct. 1265, the majority held that Castleman's conviction did not qualify as a "misdemeanor crime of domestic violence" because Castleman could have been convicted for "caus[ing] a slight, nonserious [1410] physical injury with conduct that cannot be described as violent." 695 F.3d, at 590. Judge McKEAGUE dissented, arguing both that the majority erred in extending Johnson's definition of a "violent felony" to the context of a "misdemeanor crime of domestic violence" and that, in any event, Castleman's conviction satisfied the Johnson standard. Id., at 593-597.

The Sixth Circuit's decision deepened a split of authority among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F.3d 10, 18 (C.A.1 2001) (§ 922(g)(9) "encompass[es] crimes characterized by the application of any physical force"), with United States v. Belless, 338 F.3d 1063, 1068 (C.A.9 2003) (§ 922(g)(9) covers only "the violent use of force"). We granted certiorari to resolve this split, 570 U.S. ___, 134 S.Ct. 49, 186 L.Ed.2d 962 (2013), and now reverse the Sixth Circuit's judgment.

II

A

"It is a settled principle of interpretation that, absent other indication, `Congress intends to incorporate the wellsettled meaning of the common-law terms it uses.'" Sekhar v. United States, 570 U.S. ___, ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013). Seeing no "other indication" here, we hold that Congress incorporated the common-law meaning of "force" — namely, offensive touching — in § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence."

Johnson resolves this case in the Government's favor — not, as the Sixth Circuit held, in Castleman's. In Johnson, we considered whether a battery conviction was a "violent felony" under the Armed Career Criminal Act (ACCA), § 924(e)(1). As here, ACCA defines such a crime as one that "has as an element the use ... of physical force," § 924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of battery was "satisfied by even the slightest offensive touching." 559 U.S., at 139, 130 S.Ct. 1265 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)).^[2] And we recognized the general rule that "a common-law term of art should be given its established common-law meaning," except "where that meaning does not fit." 559 U.S., at 139, 130 S.Ct. 1265. We declined to read the common-law meaning of "force" into ACCA's definition of a "violent felony," because we found it a "comical misfit with the defined term." Id., at 145, 130 S.Ct. 1265; see United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ("[A]n unclear definitional phrase may take meaning from the term to be defined"). In defining a "`violent felony,'" we held, "the phrase `physical force'" must "mea[n] violent force." Johnson, 559 U.S., at 140, 130 S.Ct. 1265. But here, the common-law meaning of "force" fits perfectly: The very reasons we gave for rejecting that meaning in defining a "violent felony" are reasons to embrace it in defining a "misdemeanor crime of domestic violence."^[3]

[1411] First, because perpetrators of domestic violence are "routinely prosecuted under generally applicable assault or battery laws," Hayes, 555 U.S., at 427, 129 S.Ct. 1079, it makes sense for Congress to have classified as a "misdemeanor crime of domestic violence" the type of conduct that supports a common-law battery conviction. Whereas it was "unlikely" that Congress meant to incorporate in the definition of a "`violent felony' a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor," Johnson, 559 U.S., at 141, 130 S.Ct. 1265, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of "force" in defining a "misdemeanor crime of domestic violence."

Second, whereas the word "violent" or "violence" standing alone "connotes a substantial degree of force," id., at 140, 130 S.Ct. 1265,^[4] that is not true of "domestic violence." "Domestic violence" is not merely a type of "violence"; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. See Brief for National Network to End Domestic Violence et al. as Amici Curiae 4-9; DOJ, Office on Violence Against Women, Domestic Violence (defining physical forms of domestic violence to include "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling"), online at http://www.ovw.usdoj.gov/domviolence.htm.^[5] Indeed, "most physical [1412] assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting." DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000).

Minor uses of force may not constitute "violence" in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it was "hard to describe ... as `violence'" "a squeeze of the arm [that] causes a bruise." Flores v. Ashcroft, 350 F.3d 666, 670 (2003). But an act of this nature is easy to describe as "domestic violence," when the accumulation of such acts over time can subject one intimate partner to the other's control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a "misdemeanor crime of domestic violence."

Justice SCALIA'S concurrence discounts our reference to social-science definitions of "domestic violence," including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 1420-1422. It is important to keep in mind, however, that the operative phrase we are construing is not "domestic violence"; it is "physical force." § 921(a)(33)(A). "Physical force" has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a "misdemeanor crime of domestic violence."^[6]

A third reason for distinguishing Johnson's definition of "physical force" is that unlike in Johnson — where a determination that the defendant's crime was a "violent felony" would have classified him as an "armed career criminal" — the statute here groups those convicted of "misdemeanor crimes of domestic violence" with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone "addicted to any controlled substance," § 922(g)(3); by most people who have "been admitted to the United States under a nonimmigrant visa," § 922(g)(5)(B); by anyone who has renounced United States citizenship, § 922(g)(7); and by anyone subject to a domestic restraining order, § 922(g)(8). Whereas we have hesitated (as in Johnson) to apply the Armed Career Criminal Act to "crimes which, though dangerous, are not typically committed by those whom one normally labels `armed career criminals,'" Begay v. United States, 553 U.S. 137, 146, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom § 922(g) disqualifies from gun ownership.

[1413] An additional reason to read the statute as we do is that a contrary reading would have rendered § 922(g)(9) inoperative in many States at the time of its enactment. The "assault or battery laws" under which "domestic abusers were ... routinely prosecuted" when Congress enacted § 922(g)(9), and under which many are still prosecuted today, Hayes, 555 U.S., at 427, 129 S.Ct. 1079, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36-38. Whether or not the causation of bodily injury necessarily entails violent force — a question we do not reach — mere offensive touching does not. See Johnson, 559 U.S., at 139-140, 130 S.Ct. 1265. So if offensive touching did not constitute "force" under § 921(a)(33)(A), then § 922(g)(9) would have been ineffectual in at least 10 States — home to nearly thirty percent of the Nation's population^[7] — at the time of its enactment. See post, at 1419, and n. 5 (SCALIA, J., concurring in part and concurring in judgment) (acknowledging that § 922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a-16a (listing statutes prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U.S., at 427, 129 S.Ct. 1079 (rejecting an interpretation under which "§ 922(g)(9) would have been `a dead letter' in some two-thirds of the States from the very moment of its enactment").

In sum, Johnson requires that we attribute the common-law meaning of "force" to § 921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force." We therefore hold that the requirement of "physical force" is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.

B

Applying this definition of "physical force," we conclude that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." In doing so, we follow the analytic approach of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). We begin with Taylor's categorical approach, under which we look to the statute of Castleman's conviction to determine whether that conviction necessarily "ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A).

The Tennessee statute under which Castleman was convicted made it a crime to "commi[t] an assault ... against" a "family or household member" — in Castleman's case, the mother of his child. Tenn.Code Ann. § 39-13-111(b). A provision incorporated by reference, § 39-13-101, defined three types of assault: "(1) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) [i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with another" in a manner that a "reasonable person would regard ... as extremely offensive or provocative." § 39-13-101(a).

It does not appear that every type of assault defined by § 39-13-101 necessarily [1414] involves "the use or attempted use of physical force, or the threatened use of a deadly weapon," § 921(a)(33)(A). A threat under § 39-13-101(2) may not necessarily involve a deadly weapon, and the merely reckless causation of bodily injury under § 39-13-101(1) may not be a "use" of force.^[8]

But we need not decide whether a domestic assault conviction in Tennessee categorically constitutes a "misdemeanor crime of domestic violence," because the parties do not contest that § 39-13-101 is a "`divisible statute,'" Descamps v. United States, 570 U.S. ___, ___, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense. Id., at ___, 133 S.Ct., at 2281-2282; see Shepard, 544 U.S., at 26, 125 S.Ct. 1254. Here, that analysis is straightforward: Castleman pleaded guilty to having "intentionally or knowingly cause[d] bodily injury" to the mother of his child, App. 27, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force.

First, a "bodily injury" must result from "physical force." Under Tennessee law, "bodily injury" is a broad term: It "includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty." Tenn.Code Ann. § 39-11-106(a)(2) (1997). Justice SCALIA'S concurrence suggests that these forms of injury necessitate violent force, under Johnson's definition of that phrase. Post, at 1417. But whether or not that is so — a question we do not decide — these forms of injury do necessitate force in the common-law sense.

The District Court thought otherwise, reasoning that one can cause bodily injury "without the `use of physical force'" — for example, by "deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind." App. to Pet. for Cert. 41a. But as we explained in Johnson, "physical force" is simply "force exerted by and through concrete bodies," as opposed to "intellectual force or emotional force." 559 U.S., at 138, 130 S.Ct. 1265. And the common-law concept of "force" encompasses even its indirect application. "Force" in this sense "describ[es] one of the elements of the common-law crime of battery," id., at 139, 130 S.Ct. 1265, and "[t]he force used" in battery "need not be applied directly to the body of the victim." 2 W. LaFave, Substantive Criminal Law § 16.2(b) (2d ed. 2003). "[A] battery may be committed by administering a poison or by infecting with [1415] a disease, or even by resort to some intangible substance," such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N.C. 677, 28 S.E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va.App. 463, 534 S.E.2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense.

Second, the knowing or intentional application of force is a "use" of force. Castleman is correct that under Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), the word "use" "conveys the idea that the thing used (here, `physical force') has been made the user's instrument." Brief for Respondent 37. But he errs in arguing that although "[p]oison may have `forceful physical properties' as a matter of organic chemistry,... no one would say that a poisoner `employs' force or `carries out a purpose by means of force' when he or she sprinkles poison in a victim's drink," ibid. The "use of force" in Castleman's example is not the act of "sprinkl[ing]" the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman's logic, after all, one could say that pulling the trigger on a gun is not a "use of force" because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the "use" of force must entail "a higher degree of intent than negligent or merely accidental conduct," 543 U.S., at 9, 125 S.Ct. 377; it did not hold that the word "use" somehow alters the meaning of "force."

Because Castleman's indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a "misdemeanor crime of domestic violence."

III

We are not persuaded by Castleman's nontextual arguments against our interpretation of § 922(g)(9).

A

First, Castleman invokes § 922(g)(9)'s legislative history to suggest that Congress could not have intended for the provision to apply to acts involving minimal force. But to the extent that legislative history can aid in the interpretation of this statute, Castleman's reliance on it is unpersuasive.

Castleman begins by observing that during the debate over § 922(g)(9), several Senators argued that the provision would help to prevent gun violence by perpetrators of severe domestic abuse. Senator Lautenberg referred to "serious spousal or child abuse" and to "violent individuals"; Senator Hutchison to "`people who batter their wives'"; Senator Wellstone to people who "brutalize" their wives or children; and Senator Feinstein to "severe and recurring domestic violence." 142 Cong. Rec. 22985-22986, 22988. But as we noted above, see supra, at 1414, the impetus of § 922(g)(9) was that even perpetrators of severe domestic violence are often convicted "under generally applicable assault or battery laws." Hayes, 555 U.S., at 427, 129 S.Ct. 1079. So nothing about these Senators' isolated references to severe domestic violence suggests that they would not have wanted § 922(g)(9) to apply to a misdemeanor assault conviction like Castleman's.

Castleman next observes that § 922(g)(9) is the product of a legislative compromise. The provision originally barred gun possession for any "crime of domestic violence," defined as any "felony or misdemeanor crime of violence, regardless of length, term, or manner of punishment." [1416] 142 Cong. Rec. 5840. Congress rewrote the provision to require the use of physical force in response to the concern "that the term crime of violence was too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors," id., at 26675. See Hayes, 555 U.S., at 428, 129 S.Ct. 1079. Castleman would have us conclude that Congress thus meant "to narrow the scope of the statute to convictions based on especially severe conduct." Brief for Respondent 24. But all Congress meant to do was address the fear that § 922(g)(9) might be triggered by offenses in which no force at all was directed at a person. As Senator Lautenberg noted, the revised text was not only "more precise" than the original but also "probably broader." 142 Cong. Rec. 26675.

B

We are similarly unmoved by Castleman's invocation of the rule of lenity. Castleman is correct that our "construction of a criminal statute must be guided by the need for fair warning." Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990). But "the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended." Barber v. Thomas, 560 U.S. 474, 488, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (citation and internal quotation marks omitted). That is not the case here.

C

Finally, Castleman suggests — in a single paragraph — that we should read § 922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of § 922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.

* * *

Castleman's conviction for having "intentionally or knowingly cause[d] bodily injury to" the mother of his child qualifies as a "misdemeanor crime of domestic violence." The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice SCALIA, concurring in part and concurring in the judgment.

I agree with the Court that intentionally or knowingly causing bodily injury to a family member "has, as an element, the use ... of physical force," 18 U.S.C. § § 921(a)(33)(A)(ii), and thus constitutes a "misdemeanor crime of domestic violence," § 922(g)(9). I write separately, however, because I reach that conclusion on narrower grounds.

I

Our decision in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), is the natural place to begin. Johnson is significant here because it concluded that "the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person." Id., at 140, 130 S.Ct. 1265 (second emphasis added). This is an easy case if the phrase "physical force" has the same meaning in § 921(a)(33)(A)(ii), the provision that defines "misdemeanor crime of domestic violence" for purposes of § 922(g)(9), as it does in § 924(e)(2)(B)(ii), the provision interpreted in Johnson, since it is impossible to cause bodily injury without [1417] using force "capable of" producing that result.

There are good reasons to give the phrase Johnson's interpretation. One is the presumption of consistent usage — the rule of thumb that a term generally means the same thing each time it is used. Although the presumption is most commonly applied to terms appearing in the same enactment, e.g., IBP, Inc. v. Alvarez, 546 U.S. 21, 33-34, 126 S.Ct. 514, 163 L.Ed.2d 288 (2005), it is equally relevant "when Congress uses the same language in two statutes having similar purposes," Smith v. City of Jackson, 544 U.S. 228, 233, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (plurality opinion); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam). This case is a textbook candidate for application of the Smith-Northcross branch of the rule. The "physical force" clauses at issue here and in Johnson are worded in nearly identical fashion: The former defines a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force," § 921(a)(33)(A)(ii), while the latter defines a "violent felony" as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i). And both statutes are designed to promote public safety by deterring a class of criminals from possessing firearms.

Respondent's arguments fail to overcome the presumption of consistent usage. In respondent's view, "physical force" cannot mean "any force that produces any pain or bodily injury," Brief for Respondent 25, because § 921(a)(33)(A)(ii) defines a violent crime and one can inflict all sorts of minor injuries — bruises, paper cuts, etc. — by engaging in nonviolent behavior. Respondent therefore reasons that § 921(a)(33)(A)(ii) requires force capable of inflicting "serious" bodily injury. That requirement is more demanding than both of the plausible meanings of "physical force" we identified in Johnson: common-law offensive touching (which Johnson rejected) and force capable of causing physical pain or injury, serious or otherwise. See 559 U.S., at 138-140, 130 S.Ct. 1265. It would be surpassing strange to read a statute defining a "misdemeanor crime of domestic violence" as requiring greater force than the similarly worded statute in Johnson, which defined a "violent felony," and respondent does not make a convincing case for taking that extraordinary step.

For these reasons, I would give "physical force" the same meaning in § 921(a)(33)(A)(ii) as in Johnson. The rest of the analysis is straightforward. Because "intentionally or knowingly caus[ing] bodily injury," App. 27, categorically involves the use of "force capable of causing physical pain or injury to another person," 559 U.S., at 140, 130 S.Ct. 1265, respondent's 2001 domestic-assault conviction qualifies as a "misdemeanor crime of domestic violence" under § 922(g)(9).^[9] I would reverse the judgment below on that basis and remand for further proceedings.

II

Unfortunately, the Court bypasses that narrower interpretation of § 921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition [1418] cannot be squared with relevant precedent or statutory text.

We have twice addressed the meaning of "physical force" in the context of provisions that define a class of violent crimes. Both times, we concluded that "physical force" means violent force. In Johnson, we thought it "clear that in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force." Id., at 140, 130 S.Ct. 1265. And we held that common-law offensive touching — the same type of force the Court today holds does constitute "physical force" — is not sufficiently violent to satisfy the Armed Career Criminal Act's "physical force" requirement. See id., at 140-144, 130 S.Ct. 1265. Our analysis in Johnson was premised in large part on our earlier interpretation of the generic federal "crime of violence" statute, 18 U.S.C. § 16. In Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), we observed that § 16(a) — which defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another" — comprehends "a category of violent, active crimes." The textual similarity between § 921(a)(33)(A)(ii)'s "physical force" clause and the clauses at issue in Johnson and Leocal thus raises the question: Why should the same meaning not apply here?

The Court gives four responses that merit discussion, none of which withstands scrutiny. First, the Court invokes the "`settled principle of interpretation that, absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses."'" Ante, at 1410 (quoting Sekhar v. United States, 570 U.S. ___, ___, 133 S.Ct. 2720, 2724, 186 L.Ed.2d 794 (2013)). That principle is of limited relevance, since the presumption of consistent statutory meaning is precisely "other indication" that § 921(a)(33)(A)(ii) does not incorporate the common-law meaning. Anyway, a more accurate formulation of the principle cited by the Court is that when "`a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.'" Sekhar, supra, at ___, 133 S.Ct., at 2724 (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947); emphasis added). Section 921(a)(33)(A)(ii) was enacted after the statutes involved in Johnson and Leocal,^[10] and its "physical force" clause is quite obviously modeled on theirs.

Second, the Court asserts that any interpretation of "physical force" that excludes offensive touching "would have rendered § 922(g)(9) inoperative in many States at the time of its enactment." Ante, at 1413. But there is no interpretive principle to the effect that statutes must be given their broadest possible application, and § 922(g)(9) without offensive touching would have had application in four-fifths of the States. Although domestic violence was "routinely prosecuted" under misdemeanor assault or battery statutes when Congress enacted § 922(g)(9), United States v. Hayes, 555 U.S. 415, 427, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009), and such statutes generally prohibited "both offensive touching and the causation of bodily injury" or "only the latter," ante, at 1412-1413, it does not follow that interpreting "physical force" to mean violent force would have rendered § 922(g)(9) a [1419] practical nullity. To the contrary, § 922(g)(9) would have worked perfectly well in 38 of the 48 States that had misdemeanor assault or battery statutes at the time of § 922(g)(9)'s enactment. At that point, 19 States had statutes that covered infliction of bodily injury but not offensive touching,^[11] and 19 more had statutes that prohibited both of types of conduct, but did so in a divisible manner — thus making it possible to identify the basis for a conviction by inspecting charging documents and similar materials, see Descamps v. United States, 570 U.S. ___, ___, 133 S.Ct. 2276, 2283-2285, 186 L.Ed.2d 438 (2013).^[12] That leaves only 10 States whose misdemeanor assault or battery statutes (1) prohibited offensive touching, and (2) were framed in such a way that offensive touching was indivisible from physical violence.^[13] The fact that § 922(g)(9) would not have applied immediately in 10 States is hardly enough to trigger the presumption against ineffectiveness — the idea that Congress presumably does not enact useless laws. Compare Hayes, supra, at 427, 129 S.Ct. 1079 (rejecting an interpretation that supposedly would have rendered § 922(g)(9) "`a dead letter' in some two-thirds of the States"). I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of "domestic violence" that included the slightest unwanted touching.

Third, the Court seizes on the one and only meaningful distinction between § 921(a)(33)(A)(ii) and the other provisions referred to above: that it defines a violent "misdemeanor" rather than a "violent felony" or an undifferentiated "crime of violence." Ante, at 1410-1411. We properly take account of the term being defined when interpreting "an unclear definitional phrase." United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010); but see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 [1420] U.S. 687, 717-719, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (SCALIA, J., dissenting). But when we do so, we consider the entire term being defined, not just part of it. Here, the term being defined is "misdemeanor crime of domestic violence." Applying the term-to-be-defined canon thus yields the unremarkable conclusion that "physical force" in § 921(a)(33)(A)(ii) refers to the type of force involved in violent misdemeanors (such as bodily-injury offenses) rather than nonviolent ones (such as offensive touching).

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that "`domestic violence' encompasses a range of force broader than that which constitutes `violence' simpliciter." Ante, at 1411, n. 4. That is to say, an act need not be violent to qualify as "domestic violence." That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of "domestic violence" from the period surrounding § 921(a)(33)(A)(ii)'s enactment. At the time, dictionaries defined "domestic violence" as, for instance, "[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another," Black's Law Dictionary 1564 (7th ed. 1999), and "[v]iolence toward or physical abuse of one's spouse or domestic partner," American Heritage Dictionary 534 (4th ed. 2000).^[14] Those definitions, combined with the absence of "domestic violence" entries in earlier dictionaries, see, e.g., Black's Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a "term of art" definition "encompassing acts that one might not characterize as `violent' in a nondomestic context," ante, at 1411.

The Court's inventive, nonviolent definition fares no better when judged against other accepted sources of meaning. Current dictionaries give "domestic violence" the same meaning as above: ordinary violence that occurs in a domestic context. See, e.g., American Heritage Dictionary 533 (5th ed. 2011) ("[p]hysical abuse of a household member, especially one's spouse or domestic partner"). The same goes for definitions of "domestic violence" found in other federal statutes.^[15] Indeed, Congress defined "crime of domestic violence" as a "crime of violence" in another section of the same bill that enacted § 921(a)(33)(A)(ii). See § 350(a), 110 Stat. 3009-639, codified at 8 U.S.C. § 1227(a)(2)(E)(i).

The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network to End Domestic Violence and other private organizations,^[16] and two publications issued [1421] by the Department of Justice's Office on Violence Against Women. The amicus brief provides a series of definitions — drawn from law-review articles, foreign-government bureaus, and similar sources — that include such a wide range of nonviolent and even nonphysical conduct that they cannot possibly be relevant to the meaning of a statute requiring "physical force," or to the legal meaning of "domestic violence" (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici's definitions describe as "domestic violence" acts that "humiliate, isolate, frighten, ... [and] blame ... someone"; "acts of omission"; "excessive monitoring of a woman's behavior, repeated accusations of infidelity, and controlling with whom she has contact." Brief for National Network to End Domestic Violence et al. as Amici Curiae 5-8, and nn. 7, 11. The offerings of the Department of Justice's Office on Violence Against Women are equally capacious and (to put it mildly) unconventional. Its publications define "domestic violence" as "a pattern of abusive behavior ... used by one partner to gain or maintain power and control over another," including "[u]ndermining an individual's sense of self-worth," "name-calling," and "damaging one's relationship with his or her children." See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court's case file).^[17]

Of course these private organizations and the Department of Justice's (nonprosecuting) Office are entitled to define "domestic violence" any way they want for their own purposes — purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.

Although the Justice Department's definitions ought to be deemed unreliable in toto on the basis of their extravagant extensions alone (falsus in uno, falsus in omnibus), the Court chooses to focus only upon the physical actions that they include, viz., "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling." Ibid. None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury. Cf. Johnson, 559 U.S., at [1422] 143, 130 S.Ct. 1265 (identifying "a slap in the face" as conduct that might rise to the level of violent force). And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. See Gonzales v. Oregon, 546 U.S. 243, 264, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (citing Crandon v. United States, 494 U.S. 152, 177, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990) (SCALIA, J., concurring in judgment)). The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of "domestic violence" in order to broaden the base of individuals eligible for support services.^[18]

* * *

This is a straightforward statutory-interpretation case that the parties and the Court have needlessly complicated. Precedent, text, and common sense all dictate that the term "physical force," when used to define a "misdemeanor crime of domestic violence," requires force capable of causing physical pain or bodily injury.

Justice ALITO, with whom Justice THOMAS joins, concurring in the judgment.

The decision in this case turns on the meaning of the phrase "has, as an element, the use ... of physical force." 18 U.S.C. § 921(a)(33)(A)(ii). In Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Court interpreted the very same language and held that "physical force" means "violent force." Id., at 140, 130 S.Ct. 1265. I disagreed and concluded that the phrase incorporated the well-established meaning of "force" under the common law of battery, which did not require violent force. See id., at 146, 130 S.Ct. 1265 (dissenting opinion).

The Court of Appeals in the present case understandably followed the reasoning of Johnson, but now this Court holds that Johnson actually dictates that the identical statutory language be interpreted in exactly the same way that the Johnson majority rejected. See ante, at 1410.

In my view, the meaning of the contested statutory language is the same now as it was four years ago in Johnson, and therefore, for the reasons set out in my Johnson dissent, I would not extend the reasoning of Johnson to the question presented here, on which the Johnson Court specifically reserved judgment. 559 U.S., at 143-144, 130 S.Ct. 1265.

[1] See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J. Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct. 2013) (Table 1) (1,259,390 incidents of domestic violence in 2012), online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet materials as visited Mar. 19, 2014, and available in Clerk of Court's case file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner Violence, 1993-2001, p. 1 (Feb. 2003) (violence among intimate partners caused deaths of 1,247 women and 440 men in 2000), online at http://www.bjs.gov/content/pub/pdf/ipv01.pdf.

[2] We explained that the word "physical" did not add much to the word "force," except to distinguish "force exerted by and through concrete bodies ... from, for example, intellectual force or emotional force." Johnson, 559 U.S., at 138, 130 S.Ct. 1265.

[3] Johnson specifically reserved the question whether our definition of "physical force" would extend to 18 U.S.C. § 922(g)(9). 559 U.S., at 143-144, 130 S.Ct. 1265. And these reasons for declining to extend Johnson's definition to § 922(g)(9) serve equally to rebut the "presumption of consistent usage" on which Justice SCALIA'S concurrence heavily relies, post, at 1416-1417, 1418.

[4] This portion of Johnson's analysis relied heavily on Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), in which we interpreted the meaning of a "crime of violence" under 18 U.S.C. § 16. As in Johnson and here, the statute defines a "crime of violence" in part as one "that has as an element the use ... of physical force," § 16(a). In support of our holding in Johnson, we quoted Leocal's observation that "`[t]he ordinary meaning of [a "crime of violence"]... suggests a category of violent, active crimes.'" 559 U.S., at 140, 130 S.Ct. 1265 (quoting 543 U.S., at 11, 125 S.Ct. 377).

The Courts of Appeals have generally held that mere offensive touching cannot constitute the "physical force" necessary to a "crime of violence," just as we held in Johnson that it could not constitute the "physical force" necessary to a "violent felony." See Karimi v. Holder, 715 F.3d 561, 566-568 (C.A.4 2013); Singh v. Ashcroft, 386 F.3d 1228, 1233 (C.A.9 2004); Flores v. Ashcroft, 350 F.3d 666, 672 (C.A.7 2003); United States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (C.A.10 2003); United States v. Landeros-Gonzales, 262 F.3d 424, 426 (C.A.5 2001); see also United States v. Rede-Mendez, 680 F.3d 552, 558 (C.A.6 2012) (commenting generally that "[i]n the crime of violence context, `the phrase "physical force" means violent force'"); United States v. Haileselassie, 668 F.3d 1033, 1035 (C.A.8 2012) (dicta). But see Hernandez v. U.S. Attorney General, 513 F.3d 1336, 1340, n. 3 (C.A.11 2008) (per curiam). The Board of Immigration Appeals has similarly extended Johnson's requirement of violent force to the context of a "crime of violence" under § 16. Matter of Velasquez, 25 I. & N. Dec. 278, 282 (2010). Nothing in today's opinion casts doubt on these holdings, because — as we explain — "domestic violence" encompasses a range of force broader than that which constitutes "violence" simpliciter.

We note, as does Justice SCALIA'S concurrence, post, at 1420, and n. 7, that federal law elsewhere defines "domestic violence" in more limited terms: For example, a provision of the Immigration and Nationality Act defines a "`crime of domestic violence'" as "any crime of violence (as defined by [18 U.S.C. § 16])" committed against a qualifying relation. 8 U.S.C. § 1227(a)(2)(E)(i). Our view that "domestic violence" encompasses acts that might not constitute "violence" in a nondomestic context does not extend to a provision like this, which specifically defines "domestic violence" by reference to a generic "crime of violence."

[5] See also A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996), online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/improving_healthcare_manual_1.pdf (physical forms of domestic violence "may include spitting, scratching, biting, grabbing, shaking, shoving, pushing, restraining, throwing, twisting, [or] slapping"); M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (noting that physical forms of domestic violence "may begin with relatively minor assaults such as painful pinching or squeezing").

[6] The concurrence's reliance on definitions of "domestic violence" in other statutory provisions, see post, at 1420, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define "domestic violence" as a type of "violence" simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U.S. 485, 492, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). This also answers the concurrence's suggestion, post, at 1421, that our holding will somehow make it difficult for Congress to define "domestic violence" — where it wants to — as requiring violent force.

[7] See U.S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (estimating state and national populations as of July 1, 1996).

[8] We held in Leocal that "`use' requires active employment," rather "than negligent or merely accidental conduct." 543 U.S., at 9, 125 S.Ct. 377. Although Leocal reserved the question whether a reckless application of force could constitute a "use" of force, id., at 13, 125 S.Ct. 377, the Courts of Appeals have almost uniformly held that recklessness is not sufficient. See United States v. Palomino Garcia, 606 F.3d 1317, 1335-1336 (C.A.11 2010); Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 560 (C.A.7 2008); United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (C.A.10 2008); United States v. Torres-Villalobos, 487 F.3d 607, 615-616 (C.A.8 2007); United States v. Portela, 469 F.3d 496, 499 (C.A.6 2006); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1127-1132 (C.A.9 2006) (en banc); Garcia v. Gonzales, 455 F.3d 465, 468-469 (C.A.4 2006); Oyebanji v. Gonzales, 418 F.3d 260, 263-265 (C.A.3 2005) (ALITO, J.); Jobson v. Ashcroft, 326 F.3d 367, 373 (C.A.2 2003); United States v. Chapa-Garza, 243 F.3d 921, 926 (C.A.5 2001). But see United States v. Booker, 644 F.3d 12, 19-20 (C.A.1 2011) (noting that the First Circuit had not resolved the recklessness issue under Leocal, but declining to extend Leocal's analysis to § 922(g)(9)).

[9] Respondent argues at length that Tenn.Code Ann. § 39-13-111(b) (2013 Supp.) does not require the "use" of physical force, since it is possible to cause bodily injury through deceit or other nonviolent means. Brief for Respondent 30-42. The argument fails for the reasons given by the Court. See ante, at 1414-1415.

[10] Section § 921(a)(33)(A)(ii) was enacted in 1996. See § 658, 110 Stat. 3009-371. The Armed Career Criminal Act provision interpreted in Johnson was enacted in 1986, see § 1402, 100 Stat. 3207-39, and the "crime of violence" statute discussed in Leocal was enacted in 1984, see § 1001, 98 Stat. 2136.

[11] See Ala.Code § 13A-6-22 (1995); Alaska Stat. § 11.41.230 (1996); Ark.Code Ann. § 5-13-203 (1993); Colo.Rev.Stat. Ann. § 18-3-204 (Westlaw 1996); Conn. Gen.Stat. § 53a-61 (1996); Haw.Rev.Stat. Ann. § 707-712 (1994); Ky.Rev.Stat. Ann. § 508.030 (Michie 1990); Minn.Stat. § 609.224 (Westlaw 1995); Miss.Code Ann. § 97-3-7 (Westlaw 1995); Neb.Rev.Stat. § 28-310 (1995); N.J. Stat. Ann. § 2C:12-1 (West 1995); N.Y. Penal Law Ann. § 120.00 (Westlaw 1995); N.D. Cent. Code Ann. § 12.1-17-01 (Westlaw 1995); Ohio Rev.Code Ann. § 2903.13 (Lexis 1993); Ore.Rev.Stat. § 163.160 (1991); 18 Pa. Cons. Stat. Ann. § 2701 (Westlaw 1995); S.D. Codified Laws § 22-18-1 (1988); Vt. Stat. Ann., Tit. 13, § 1023 (1995); Wis. Stat. Ann. § 940.19 (West Cum. Supp. 1995).

[12] See Ariz.Rev.Stat. Ann. § 13-1203 (Westlaw 1995); Del.Code Ann., Tit. 11, §§ 601, 611 (1995); Fla. Stat. § 784.03 (Westlaw 1995); Ga.Code Ann. § 16-5-23 (1996); Idaho Code § 18-903 (Westlaw 1996); Ill. Comp. Stat., ch. 720, § 5/12-3 (West 1994); Ind.Code § 35-42-2-1 (Michie 1994); Iowa Code § 708.1 (Westlaw 1996); Kan. Stat. Ann. § 21-3142 (1995); Me.Rev.Stat. Ann., Tit. 17-A, § 207 (Westlaw 1996); Mo.Rev.Stat. § 565.070 (Westlaw 1996); Mont.Code Ann. § 45-5-201 (1995); N.H.Rev.Stat. Ann. § 631:2-a (West 1996); N.M. Stat. Ann. §§ 30-3-4, 30-3-5 (Westlaw 1996); Tenn. Code Ann. § 39-13-101 (1991); Tex. Penal Code Ann. § 22.01 (Westlaw 1996); Utah Code Ann. § 76-5-102 (Lexis 1995); W. Va. Code Ann. § 61-2-9 (Lexis 1992); Wyo. Stat. Ann. § 6-2-501 (1996).

[13] See Cal.Penal Code Ann. § 242 (Westlaw 1996); La.Rev.Stat. Ann. § 14:33 (Westlaw 1996); Mass. Gen. Laws, ch. 265, § 13A (West 1994); Mich. Comp. Laws § 750.81 (1991); Nev.Rev.Stat. Ann. § 200.481 (West Cum. Supp. 1995); N.C. Gen.Stat. Ann. § 14-33 (Lexis 1993); Okla. Stat., Tit. 21, § 642 (West 1991); R.I. Gen. Laws § 11-5-3 (Michie 1994); Va.Code Ann. § 18.2-57 (Michie 1996); Wash. Rev.Code Ann. § 9A.36.041 (Michie 1994).

[14] Definitions of "physical force" from the same period are also at odds with the Court's nonviolent interpretation of that phrase. See Black's Law Dictionary 656 (7th ed. 1999) ("[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim"); id., at 1147 (6th ed. 1990) ("[f]orce applied to the body; actual violence").

[15] See, e.g., 18 U.S.C. § 2261(a)(1) (defining as "[i]nterstate domestic violence" certain "crime[s] of violence"); § 3561(b) ("The term `domestic violence crime' means a crime of violence ... in which the victim or intended victim is the [defendant's] spouse" or other qualifying relation); 25 U.S.C.A. § 1304(a)(2) ("The term `domestic violence' means violence committed by a current or former spouse or" other qualifying relation); 42 U.S.C.A. § 13925(a)(8) (Sept. 2013 Supp.) ("The term `domestic violence' includes felony or misdemeanor crimes of violence committed by a current or former spouse" or other qualifying relation).

[16] The other organizations on the brief are the National Domestic Violence Hotline, the Domestic Violence Legal Empowerment and Appeals Project, Legal Momentum, and innumerable state organizations against domestic violence.

[17] The Court refers in a footnote to two additional social-science definitions, neither of which aids the Court's cause. See ante, at 1411-1412, n. 5. The first is drawn from a health-care manual that provides "a behavioral definition of domestic violence ... rather than a legal definition, since a behavioral definition is more comprehensive and more relevant to the health care setting." A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996) (emphasis added), online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/improving_healthcare_manual_1.pdf. Here, of course, we are concerned with the less comprehensive legal definition. The second definition referred to in the footnote equates domestic violence with "overt violence," which in its least serious form consists of "painful pinching or squeezing." M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (emphasis added). That meaning is consistent with Johnson's definition of "physical force," but it plainly does not include harmless offensive touching.

[18] See, e.g., National Network to End Domestic Violence, Reauthorize The Family Violence Prevention and Services Act 1 (Sept. 22, 2010) (advocating the expansion of a program assisting victims of domestic violence to include victims of "dating violence" and thereby "ensure that all victims in danger can access services"), online at http://nnedv.org/downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.