3 Federal Judicial Powers and Limits 3 Federal Judicial Powers and Limits

3.1 The Power of Judicial Review - Introduction to Judicial Review 3.1 The Power of Judicial Review - Introduction to Judicial Review

3.1.1 Marbury v. Madison, 5 U.S. 137 (1803) 3.1.1 Marbury v. Madison, 5 U.S. 137 (1803)

5 U.S. 137
Supreme Court of the United States

Marbury v. Madison

February 1, 1803

MARSHALL, J., delivered the opinion of the court.

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st. Has the applicant a right to the commission he demands?

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3dly. If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of inquiry is,

1st. Has the applicant a right to the commission he demands?

This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission; still the commission is not necessarily the appointment, though conclusive evidence of it.

In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential.

It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff.

The transmission of the commission is a practice directed by convenience, but not by law

It is, therefore, decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state.

Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.

The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second inquiry; which is,

2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

It follows, then, that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.

If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.

[W]here the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

It is, then, the opinion of the court,

1st. That by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of peace for the county of Washington, in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

2dly. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be inquired whether,

3dly. He is entitled to the remedy for which he applies. This depends on,

1st. The nature of the writ applied for; and,

2dly. The power of this court.

1st. The nature of the writ.

This writ, if awarded, would be directed to an officer of government, and its mandate to him would be, to use the words of Blackstone, “to do a particular thing therein specified, which appertains to his office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice.” Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an office of public concern, and is kept out of possession of that right.

These circumstances certainly concur in this case.

Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.

The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.

If one of the heads of departments commits any illegal act, under colour of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the president . . . [t]his, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme court “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that “the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.”

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words, the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.

It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.

When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternative there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares “that no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavours to preserve?

“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.”

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or, to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

3.1.2 Summaries of Martin v. Hunter’s Lessee and Cohen’s v. Virginia 3.1.2 Summaries of Martin v. Hunter’s Lessee and Cohen’s v. Virginia

Summaries of Martin v. Hunter’s Lessee and Cohen’s v. Virginia

Marbury v Madison establishes only the authority for judicial review of federal executive and legislative actions. The authority for judicial review of state court decisions was established in two decisions early in the nineteenth century: Martin v. Hunter’s Lessee and Cohens v. Virginia.

MARTIN v. HUNTER’S LESSEE, 14 U.S. (1 Wheat.) 404 (1816): There were two competing claims to certain land within the state of Virginia. Martin claimed title to the land based on inheritance from Lord Fairfax, a British citizen who owned the property. The United States and England had entered into two treaties protecting the rights of British citizens to own land in the United States. However, Hunter claimed that Virginia had taken the land before the treaties came into effect and, hence, Martin did not have a valid claim to the property.

The Virginia Court of Appeals ruled in favor of Hunter and, in essence, in favor of the state’s authority to have taken and disposed of the land. The U.S Supreme Court issued a writ of error and reversed the Virginia decision. The Supreme Court held that the federal treaty was controlling and that it established Lord Fairfax’s ownership and thus the validity of inheritance pursuant his will. The Virginia Court of Appeals, however, declared that the Supreme Court lacked the authority to review state court decisions. The Virginia court stated that the “Courts of the United States, therefore, belonging to one sovereignty, cannot be appellate Courts in relation to the State Courts, which belong to a different sovereignty-and, of course, their commands or instructions impose no obligation.”

The U.S Supreme Court again granted review and declared the authority to review state court judgements. Justice Joseph Story wrote the opinion for the Court. Chief Justice John Marshall did not participate because he and his brother contracted to purchase a large part of the Fairfax estate that was at the issue in the litigation.

Justice Story argued that the structure of the Constitution presumes that the Supreme Court may review state court decisions. Story argued that the Constitution presumes that the Supreme Court may review state court decisions. Story argued that the Constitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts. But if Congress chose not to establish such tribunals, then the supreme Court would be powerless to hear any cases, except for the few fitting within its original jurisdiction, unless it could review state rulings.

Additionally, Justice Story explained the importance of Supreme Court review of state courts. Justice Story said that although he assumed that “judges of the state courts are, and always will be, of as much learning, integrity, and wisdom as those of courts of the United States”, the constitution is based on a recognition that “state attachments, state prejudices, state jealousies, and state interests might sometimes obstruct, or control, or be supposed to obstruct o control, the regular administration of justice”. Furthermore, Justice Story observed that Supreme Court review is essential to ensure uniformity in the interpretation of federal law. Justice Story concluded that the very nature of the Constitution, the contemporaneous understanding of it, and many years of experience all established the Supreme Court’s authority to review state court decisions.

COHENS v. VIRGINIA, 19 U.S (6 Wheat.) 264 (1821): Two brothers were convicted in Virginia state court of selling District of Columbia lottery tickets in violation of Virginia law. The defendants sought review in the United States Supreme Court because they claimed the Constitution prevented their prosecution for selling tickets authorized by Congress. Virginia argued: (1) in general, the Supreme Court had no authority to review state court decisions; and (2) in particular, review was not allowed in criminal cases and in cases where a state government was a party.

The Supreme Court, in an opinion by Chief Justice John Marshall, reaffirmed the constitutionality of §25 of the judiciary Act and the authority of the Supreme Court to review state court judgements. The court emphasized that state courts often could not be trusted to adequately protect federal rights because “[i]n many states the judges are dependent for office and for salary on the will of the legislature”. The Court thus declared that criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Constitution.

3.1.3 Cooper v. Aaron, 358 U.S. 1 (1958) 3.1.3 Cooper v. Aaron, 358 U.S. 1 (1958)

Note on Cooper v. Aaron

Note on Cooper v. Aaron, 358 U.S. 1 (1958)

Cooper v. Aaron

358 U.S. 1 (1958)

[Following the ruling in Brown v. Board of Education, 347 U.S. 483 (1954), that official racial segregation in public schooling was unconstitutional, Little Rock, Arkansas, sought to integrate the public schools in accordance with a plan approved by a federal district court. Arkansas Governor Faubus called out the National Guard to prevent school integration and was then enjoined from this action. The schools were integrated under the protective umbrella of army paratroopers, but the following year the Little Rock schools sought to delay integration to avoid further “chaos, bedlam, and turmoil.” The district court granted the delay, which was reversed by the Eighth Circuit. The Supreme Court affirmed. Governor Faubus and the Arkansas Legislature insisted that they were not bound by the Supreme Court’s decision in Brown because they were not parties to the case. The Court, in the dicta following, addressed that collateral contention.]

CHIEF JUSTICE WARREN AND JUSTICES BLACK, FRANKFUTER, DOUGLAS, BURTON, CLARK, HARLAN, BRENNAN, AND WHITAKER, for the court.

[We] answer the [contention] of the Governor and Legislature that they are not bound by our holding in the Brown case.

[Article] VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in [Marbury] that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” The decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that the principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by the Court in the Brown case is the supreme las of the land, and Art. VI of the Constitution makes it a binding effect on the States “any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.” [Chief] Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy, the rights acquired under those judgements, the constitution itself becomes a solemn mockery.” United States v. Peters, [9 U.S. (5 Cranch) 115 (1809)]. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases” Sterling v. Constantin, 287 U.S. 378, 397-398 [(1932)].

NOTE

Was the Cooper v. Aaron Court correct? Consider the following views.

Justice Felix Frankfurter.“The ultimate touchstone of constitutionality is the constitution itself and not what we have said about it.” Graves v. O’Keefe, 306 U.S. 466, 491-492 (1938) (Frankfurter, J., concurring). But is the meaning of the Constitution self-evident? Constant over time? Does Frankfurter mean to suggest that stare decisishas no role in constitutional adjudication?
Constitutional scholars.Thomas Cooley, the preeminent constitutional scholar of the nineteenth century:

[T]he judiciary is the final authority in the construction of the Constitution…, and its construction should be received and followed by the other departments [of government]. Their judgments become the law of the land on the points covered by them, and a disregard of them, whether by private citizens or by officers of the government, could only result in new controversy, to be finally determined by the judiciary in the same way.

Cooley, the General Principles of Constitutional Law 158 (1898). Two current constitutional scholars emphatically agree:

The accepted wisdom is that Cooper’s statement of judicial supremacy was an overstatement, politically necessary in its context but indefensible as a general claim of judicial interpretive authority. To the contrary, we defend Cooper and its assertion of judicial primacy without qualification [because judicial primacy] provides the benefits of authoritative settlement [of constitutional disputes] as well as the related benefits of inducing socially beneficial cooperative behavior.

Alexander and Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1362, 1371 (1997). Is practicality an adequate reason for deference to the Court’s constitutional interpretations as final?

President Thomas Jefferson.“[To grant] to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch.” Letter to Abigail Adams, Sept. 11, 1804 (8 The Writings of Thomas Jefferson 310 (Ford ed., 1899)). Was Jefferson right? Is the judiciary despotic?
President Andrew Jackson.The following is an excerpt from Jackson’s 1832 veto message, when he vetoed the bill re-chartering the Second Bank of the United States. Earlier, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Court had ruled that creation of the bank was a “necessary and proper” means employed by Congress to effectuate its expressly delegated powers.

It is maintained by advocates of the bank that its constitutionality in all its features ought to be considered as settled [by] the decision of the Supreme Court [in McCulloch]. To this conclusion I cannot assent…[The] opinion of the Supreme Court [ought] not to control the coordinate authorities of this Government. [It] is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill [that] may be presented to them for passage [as] it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control congress or the Executive when acting in their legislature capacities, but to have only such influence as the force of their reasoning may deserve.

2 Messages and Papers of the Presidents 576, 581-583 (Richardson ed., 1896). Would Jackson’s reasoning be equally applicable if Congress had enacted the bank charter bill into law over his veto and Jackson had then refused to expend appropriated money to breathe life into the Second Bank?

President Abraham Lincoln.In Scott v. Sandford (Dred Scott), 60 U.S. (19 How.) 393 (1897), the Supreme Court held that the right of whites to own black slaves was a constitutionally guaranteed property right and thus ruled that Congress could not bar the introduction of slavery into the territories, nor could black be citizens. Two days before the decision was announced, President James Buchanan in his inaugural address said that “the question of domestic slavery in the Territories [is] a judicial question which legitimately belongs to the Supreme Court, [and] will be speedily and finally settled.” Recall Alexander and Schauer’s comments on the “settlement function” of the Court, above.

In the wake of Dred Scott, the binding quality of the Court’s decision became a political issue. In his first inaugural address, of March 4, 1861, Lincoln addressed this issue:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to the very high respect and consideration in all parallel cases by all other departments of the Government. [At] the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

6 Messages and Papers of the Presidents 5, 9-10 (Richardson ed., 1897). The Dred Scott case decided the question of whether Scott was a slave or was free, and in doing so the Court declared its opinion that the federal government could not bar the introduction of slavery into the territories. Suppose that prior to secession and civil war, Lincoln had urged Congress to outlaw slavery in all federal territories and Congress had done so. Whose interpretation of the constitutionality of this action should be dispositive?

Supreme Court of the United States

358 U.S. 1, 3 L. Ed. 2d 5, 78 S. Ct. 1401, 1958 U.S. LEXIS 657, SCDB 1958-002

No. 1

1958-09-12

COOPER et al., MEMBERS OF THE BOARD OF DIRECTORS OF THE LITTLE ROCK, ARKANSAS, INDEPENDENT SCHOOL DISTRICT, et al. v. AARON et al.

No. 1.

Argued September 11, 1958.

Decided September 12, 1958.

Opinion announced September 29, 1958.

*3Richard C. Butler argued the cause for petitioners. With him on the brief were A. F. House and, by special leave of Court, John H. Haley, pro hac vice.

Thurgood Marshall argued the cause for respondents. With him on the brief were Wiley A. Branton, William Coleman, Jr., Jack Greenberg and Louis H. Poliak.

Solicitor General Rankin, at the invitation of the Court, post, p. 27, argued the cause for the United States, as amicus curiae, urging that the relief sought by respondents should be granted. With him on the brief were Oscar H. Davis, Philip Elman and Ralph S. Spritzer.

*4Opinion of the Court by The Chief Justice, Mr. Justice Black, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Burton, Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Brennan, and Mr. Justice Whittaker.

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U. S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.

The case was argued before us on September 11, 1958. On the following day we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, 257 F. 2d 33, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F. Supp. 13. The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board’s court-approved desegregation program. In order that the School Board *5might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date* This opinion of all of the members of the Court embodies those views.

The following are the facts and circumstances so far as necessary to show how the legal questions are presented.

On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education, *6347 U. S. 483. The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, 349 U. S. 294. In the formulation of that decree the Court recognized that good faith compliance with the principles declared in Brown might in some situations “call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision.” Id., at 300. The Court went on to state:

“Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

“While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.” 349 U. S., at 300-301.

*7Under such circumstances, the District Courts were directed to require “a prompt and reasonable start toward full compliance,” and to take such action as was necessary to bring about the end of racial segregation in the public schools “with all deliberate speed.” Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.

On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled “Supreme Court Decision — Segregation in Public Schools.” In this statement the Board recognized that

“It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed.”

*8Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that “a large majority of the residents” of Little Rock were of “the belief . . . that the Plan, although objectionable in principle,” from the point of view of those supporting segregated schools, “was still the best for the interests of all pupils in the District.”

Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board’s plan, Aaron v. Cooper, 143 F. Supp. 855. The Court of Appeals affirmed. 243 F. 2d 361. Review of that judgment was not sought here.

While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose “in every Constitutional manner the Un-consti-*9tutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court,” Ark. Const., Amend. 44, and, through the initiative, a pupil assignment law, Ark. Stat. 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark. Stat. 80-1525, and a law establishing a State Sovereignty Commission, Ark. Stat. 6-801 to 6-824, were enacted by the General Assembly in February 1957.

The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth transition of this first stage of desegregation, were undertaken.

On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central High School grounds and placed the school “off limits” to colored students. As found by the District Court in subsequent proceedings, the Governor’s action had not been requested by the school authorities, and was entirely unheralded. The findings were these:

“Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appro*10priate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.” Aaron v. Cooper, 156 F. Supp. 220, 225.

The Board's petition for postponement in this proceeding states: “The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and from that date hostility to the Plan was increased and criticism of the officials of the [School] District has become more bitter and unrestrained.” The Governor’s action caused the School Board to request the Negro students on September 2 not to attend the high school “until the legal dilemma was solved.” The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board’s *11request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.

On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard “acting pursuant to the Governor’s order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students . . . from entering,” as they continued to do every school day during the following three weeks. 156 F. Supp., at 225.

That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court’s direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program.

Upon completion of the United States Attorney’s investigation, he and the Attorney General of the United States, at the District Court’s request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court’s order. After hearings on the petition, the District Court found that the School Board’s plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on Septem*12ber 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F. Supp. 220, affirmed, Faubus v. United States, 254 F. 2d 797. The National Guard was then withdrawn from the school.

The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F. Supp., at 16. On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.

We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed a petition in the District Court seeking a postponement of -their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be with*13drawn and sent to segregated schools, and that all further steps to carry out the Board’s desegregation program be postponed for a period later suggested by the Board to be two and one-half years.

After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of “chaos, bedlam and turmoil”; that there were “repeated incidents of more or less serious violence directed against the Negro students and their property”; that there was “tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters’ parents, which inevitably had an adverse effect upon the educational program”; that a school official was threatened with violence; that a “serious financial burden” had been cast on the School District; that the education of the students had suffered “and under existing conditions will continue to suffer”; that the Board would continue to need “military assistance or its equivalent”; that the local police department would not be able “to detail enough men to afford the necessary protection”; and that the situation was “intolerable.” 163 F. Supp., at 20-26.

The District Court’s judgment was dated June 20,1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court’s judgment. At the same time they filed a petition for certiorari in this Court asking us to review the District Court’s judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. 357 U. S. 566. The Court of Appeals did not act on the petition for a stay, but, on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, 257 F. 2d 33. On August 21, 1958, the Court of Appeals stayed its mandate *14to permit the School Board to petition this Court for cer-tiorari. Pending the filing of the School Board’s petition for certiorari, the Negro respondents, on August 23, 1958, applied to Mr. Justice Whittaker, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate and also to stay the District Court’s judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, 357 U. S. 566, 567, we convened in Special Term on August 28, 1958, and heard oral argument on the respondents’ motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals’ judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents’ application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board’s petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11, 1958, post, p. 29, and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion, ante, p. 5.

In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the *15Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequence of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue.

The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court’s decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: “The legislative, executive, and judicial departments of the state government opposed the desegregation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.”

One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board’s good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board’s legal position. Had Central High School been under the direct management of the State itself, it could hardly be sug*16gested that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult or impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand iri this litigation as the agents of the State.

The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: “It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.'’' Buchanan v. Warley, 245 U. S. 60, 81. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board’s difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.

The controlling legal principles are plain. The command of the Fourteenth Amendment is that no “State” shall deny to any person within its jurisdiction the equal protection of the laws. “A State acts by its legislative, its executive, or its judicial authorities. It can act in no *17other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.” Ex parte Virginia, 100 U. S. 339, 347. Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U. S. 313; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230; Shelley v. Kraemer, 334 U. S. 1; or whatever the guise in which it is taken, see Derrington v. Plummer, 240 F. 2d 922; Department of Conservation and Development v. Tate, 231 F. 2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U. S. 128, 132.

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

*18Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its “authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a *19power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U. S. 378, 397-398.

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U. S. 497. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, *20are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

The following was the Court’s per curiam opinion:

“Per Curiam.

“The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, 257 F. 2d 33, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course.

“It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, 257 F. 2d 33, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, 163 F. Supp. 13, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, see 143 F. Supp. 855, and September 3, 1957, enforcing the School Board’s plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U. S. 483, 349 U. S. 294, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.

“The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas.”

Concurring opinion of

Mr. Justice Frankfurter.*

While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.

By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court’s decree in Brown v. Board of Education, 349 U. S. 294. The Little Rock School Board had embarked on an educational effort “to obtain public acceptance” of its plan. Thus the process of the community’s accommodation to new demands of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted:

“14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had *21frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.” 156 F. Supp. 220, 225.

All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty.

The use of force to further obedience to law is in any event a last resort and oné not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one *22of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board’s and the State’s constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.

We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the School Board had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness, and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution? For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State “must . . . yield to an authority that is paramount to the State.” This language of command to a State is Mr. Justice Holmes’, speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice Mc-Reynolds, Mr. Justice Brandéis, Mr. Justice Sutherland, *23Mr. Justice Butler, and Mr. Justice Stone. Wisconsin v. Illinois, 281 U. S. 179, 197.

When defiance of law judicially pronounced was last sought to be justified before this Court, views were expressed which are now especially relevant:

“The historic phrase 'a government of laws and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. 'A government of laws and not of men’ was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may be challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfully again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.

“But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. 'Civilization involves subjection of force to reason, and the agency of this subjection is law.’ (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this *24Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be ‘as free, impartial, and independent as the lot of humanity will admit.’ So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for.” United States v. United Mine Workers, 330 U. S. 258, 307-309 (concurring opinion).

The duty to abstain from resistance to “the supreme Law of the Land,” U. S. Const., Art. VI, ¶ 2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is “the supreme Law of the Land.” (See President Andrew Jackson’s Message to Congress of January 16, 1833, II Richardson, Messages and Papers of the Presidents (1896 ed.), 610, 623.) Particularly is this so where the declaration of what “the supreme Law” commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the *25merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will yield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.

The process of ending unconstitutional exclusion of pupils from the common school system — “common” meaning shared alike — solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose — violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim — nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.

For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two *26lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board’s request, on the basis of the circumstances that gave rise to it, for a suspension of the Board’s non-segregation plan, would be but the beginning of a series of delays calculated to nullify this Court’s adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools?

That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with Negro populations of large proportions. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.

Lincoln’s appeal to “the better angels of our nature” failed to avert a fratricidal war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.

3.2 Doctrine of Independent and Adequate State Grounds - Introduction 3.2 Doctrine of Independent and Adequate State Grounds - Introduction

3.2.1 Introduction to Doctrine on Independent and Adequate State Grounds[1] 3.2.1 Introduction to Doctrine on Independent and Adequate State Grounds[1]

Introduction to Doctrine on Independent and Adequate State Grounds[1]

The doctrine on [independent and adequate state grounds] provides that the [Supreme] Court will not review state court decisions that rest on independent and adequate state grounds—even if they also rest on federal grounds. If either the federal or the state ground would have been dispositive, the Court has no jurisdiction.

This limitation on the Court’s jurisdiction stems from the division of power between the state and federal courts, as well as a desire to avoid “advisory opinions.” A major premise of the dual sovereign system is that federal courts generally lack the power to decide state issues. The Court has no power to review state determinations of purely state law or to review federal issues that can have no effect on the state court’s judgment. Therefore, the Court will not review a decision resting on adequate and independent nonfederal grounds even if the state court has presented an erroneous view of the federal law.

Because the Court does not have the power to review state laws that can support a judgment, resolving an independent federal ground could not affect the judgment and would be “advisory.” Herb v. Pitcairn, 324 U.S. 117 (1945): “We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.”

The Court seems to be using the term “advisory opinion” in this context to refer to decisions that might not ultimately affect the parties in a suit rather than the more traditional Article III definition requiring that it review only live controversies or cases between actual parties. It might be suggested that the Court’s desire not to decide federal questions when the decision ultimately may be decided on state grounds stems from a desire to avoid premature considerations of constitutional issues whenever possible. The Court does not wish to render an opinion unnecessarily because a state issue turns out to be determinative.

The Supreme Court Is Final Arbiter of Whether State Grounds Are Independent and Adequate

The Court has the sole responsibility to determine ultimately whether the state decision rests on adequate and independent grounds. Likewise, the Court will determine whether a procedural rule provides an adequate and independent state ground barring review of the federal issue. However, the Court will not intervene if the independent and adequate state grounds are clear and express.

That the court could have, but did not, evoke substantive state law to dispose of a case will not prevent the Court from reviewing a case that rests solely on federal grounds. Accordingly, the Court reviewed a case in which the state court chose to discuss a constitutional privilege that appeared to rest on the First Amendment grounds even though the petitioner’s complaint raised a state law issue of right of publicity. See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 568, 97 S. Ct. 2849, 53 L. Ed. 2d 965 (1977) (that state supreme court might have, but did not, invoke state law on arriving at its decision did not prevent court review).

A state court’s reliance upon law of the case is not an adequate and independent state ground barring Court review. The Court has the jurisdiction to review all substantial federal questions determined in earlier stages of a state proceeding. This rule is necessary to assure that the Court is able ultimately to review interlocutory state court rulings, given that its jurisdiction is limited to final state court judgments. The Court will not review cases in which its seems “clear from the face of the [state] opinion” that a state court’s analysis is an adequate and independent state ground.

“Independent” and “Adequate” State Law Grounds for Decision Preclude Supreme Court Review

[a] Categories of “Independent” and “Adequate” State Law May Overlap

The concepts of “independence” and “adequacy” are related: the Court may not review state law decisions that are both independent (not resting on federal law) and adequate (able to stand alone on state law grounds). Therefore, a decision that intermingles both state and federal law cannot be considered independent in that its state law discussion cannot be separated from its federal law. Additionally, such a decision may not be adequate because, for the same reason (its state law could not be separated from its federal law), the state law could not stand alone. Both these grounds may apply. For example, jurisdiction will not be foreclosed merely because a court could have, but did not, invoke substantive state law to dispose of a case and thus conceivably could have relied on nonfederal law; or a state court could have, but did not, find a case procedurally barred and thus could conceivably have relied on adequate state grounds.

The Court often refers to the two words in tandem (“independent and adequate” or “adequate or independent”) in ruling upon its jurisdiction to review a case without determining whether the decision rests on one or the other. For instance, the possibility that a state court might have reached the same conclusion had it decided a matter on purely state law rather than considered with federal law, did not constitute, for the Court, an adequate and independent state ground.

[b] “Independent” State Law

[i] Supreme Court Determines Whether Law Rests on Federal or State Law

The Court will determine whether an issue is a federal or state issue. See, e.g., Angel v. Bullington, 330 U.S. 183, 189 (1947) (whether claims based on federal or local right “is itself a federal question on which this Court … has the last say”). In making its determination, the Court will examine the precise grounds for judgment rather than any broad opinions aired by the state court.

When it is not clear whether a case rests on federal or state law, the Court applies a presumption first enunciated in Michigan v. Long: if the federal law is “interwoven” with state law or only “fairly appears” to rely on federal law, in the absence of a plain statement to the contrary, the Court will presume the federal law was relied upon and review the case. [We will review Michigan v. Long on this point.]

[ii] Supreme Court Will Not Review State Court Decisions Relying Exclusively Upon Specific State Law

In order for federal issues to escape Court review, the state judgment must be independent of the federal law. Matters of state law are not the Court’s concern; see, e.g., Radio Station WOW, Inc. v. Johnson, 326 U.S. 120, 129 (1945); rather, the state courts are the appropriate tribunals to decide questions arising under their local law.

[iii] Supreme Court May Review State Court Decisions Relying on, or Influenced by, Federal Law

The Court is not barred from reviewing cases in which it is clear the decision rested on federal grounds. When a state court does not decide against a petitioner on independent state grounds, but bases its determination of state law on the application of federal law, or determines that a federal question is before it and decides it, the Court has jurisdiction to review the judgment.

In addition, the Court stated that “it is well established … that this Court retains a role when a state court’s interpretation of state law has been influenced by an accompanying interpretation of federal law.” The Court will be involved in cases in which states narrowly construed state law to avoid “perceived conflict[s]” with federal statutory or constitutional requirements, as well as cases in which state courts construed state law broadly in the belief there were no federal law “barrier[s].”

Similarly, the Court may review a state court’s decision that is based on state and federal constitutional law, if the decision expressly applies the same analysis under both state and federal law.

The Court also has reviewed state rulings in which the federal-law holding was integral to the matter, on the basis that such rulings could not be deemed “advisory.” Thus the Court has reviewed cases in which application of the procedural bar implicated federal law.

[c] “Adequate” State Ground

[i] State Ground Must Support Judgment in Absence of Federal Ground

The state court judgment must be “broad enough to sustain its judgment” on its own without reliance on the federal issue. When the nonfederal ground has “fair support” the Court must accept the decision.

[ii] State Court Cannot Deny Federal Right in Absence of Neutral or Valid Excuse

The general doctrine that the Court cannot review cases in which there is an adequate and independent state ground protects states against federal intrusion; conversely, that a state law inconsistent with federal law cannot be deemed adequate protects the federal laws. State courts cannot refuse to apply federal laws simply because they, for instance, disagree with them, but rather must treat federal laws as if their own legislatures enacted them. However, the adequate state ground requirement “accords respect to state courts as decisionmakers by honoring their modes of procedure,” and state courts are the first to evaluate federal questions arising from state cases. There are three premises “fundamental” to federalism:

When a case is properly before it, a state court cannot deny a federal right “in the absence of a “valid excuse.”

Reasons that are inconsistent with or violate federal law cannot be valid.

The Court will act with “utmost caution” before requiring a state court to decide a claim when it refuses jurisdiction on the basis of a “neutral state rule regarding the administration of the courts.”

[iii] State Procedural Grounds “Strictly or Regularly Followed” May Be Considered Adequate

The requirement of adequacy applies to procedural, as well as substantive, grounds. The Court examines state law to determine whether a procedural bar provides an adequate and independent state ground: “ ‘[W]e have consistently held that the question of when and how defaults in compliance with state procedural rules can preclude our consideration of a federal question is itself a federal question.’ ” Thus failure to comply with a state procedural rule may constitute an independent and adequate state ground that bars the Court from reviewing a federal question. . Hathorn v. Lovorn, 457 U.S. 255, 263 (1982) (failure to comply with state procedure may bar Court review).

A state court must actually apply the procedural bar in order that the Court refuse review. The mere fact a state procedural bar exists is not enough.

A state procedural ground will not be deemed adequate unless the procedural rule is “strictly or regularly followed,” and state courts may not avoid deciding federal issues by invoking procedural rules that are not applied evenhandedly to all similar claims.

A state may not, for example apply a procedural rule previously unknown to a petitioner to bar Court review of federal issues:

Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.

Thus when prior state cases do not suggest one procedural method is exclusive—even if in retrospect it appears that a certain procedure was followed—a state supreme court applying such procedure to bar a petitioner who could not “fairly be deemed to have been apprised of its existence” does not rely upon an adequate state ground.

The Court also will not consider adequate procedural rules applied for the first time with “pointless severity” by the state court. The Court has examined state law background in detail to determine that a state practice is not firmly established and regularly followed. Therefore, the Court will closely examine a state court’s actions.

A state procedural rule barring appellate review of an issue not raised below will be considered adequate, even if there is an exception to that rule for important matters of public policy, as long as the exception is applied consistently.

The court has said that procedural rules cannot bar Court review unless compliance serves a “legitimate state interest.” However, the Court has not consistently required parties to prove legitimate state interests for the application of a state procedural rule in a particular case, where the rule in general has been seen as adequate. States can apply their own neutral procedural rules to federal claims unless preempted by federal law. A requirement of neutrality presumably would not require parties to prove the merit of their procedures in a particular case. The doctrine requiring proof that a procedural rule serve a legitimate state interest has not applied in federal habeas corpus decisions.

[4] “Plain Statement” Rule Applies When It Is Not Clear Whether Decision Rests on State or Federal Grounds

[a] Supreme Court Presumes Decision Rests On Federal Question in Absence of Plain Statement to Contrary

State courts can emphasize that their decisions were not based upon federal law through “plain statements.”47 If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. Rather than continue to rely on ad hoc or unsatisfactory methods to evaluate whether ambiguous state court decisions rested on adequate and independent state grounds (interpreting state law, requesting clarification, dismissing case), the Michigan v. Long Court formulated another response to improve “justice and judicial administration:”

[W]hen … a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.

In other words, if a decision either “fairly appears” to rely on, or is “interwoven” with, federal law and there is no “clear” indication that the case rested on adequate and independent state grounds, the Court will presume the state court relied on federal law and take jurisdiction.48.1 The Court will not review state court decisions that “clearly and expressly” indicated they were also based on bona fide independent and adequate state grounds.49

[b] Court Has Repeatedly Applied Plain Statement Requirement

[i] Court Has Looked to Number and Kind of References to State and Federal Law

The Court has “repeatedly” applied the plain statement requirement. See, e.g, Arizona v. Evans, 514 U.S. 1, 8 n.2, (1994) (Court has repeatedly applied plain statement requirement); see also Harris v. Reed, 489 U.S. 255, 261 n.7,(1989). In applying the presumption that federal law applies unless the state court makes a plain statement to the contrary, the Court will assess the number and kind of references in the state court opinions to state versus federal law. The Court will consider such factors such as reliance on other state court decisions that in turn construe federal law. The Court has even applied the Michigan v. Long test to the state court cases relied upon by the state court decision in question.

Sometimes, language by the state court does not constitute a plain statement. But, the Court has found a plain statement where the state court “clearly and expressly” indicated that the issue of errors in jury instructions was not objected to at trial, as required by state law, and consequently was not preserved for appeal. Sochor v. Florida, 504 U.S. 527 (1992) (Court relied on alternative holding when errors in jury instructions were not objected to at trial).

[1] This Introduction is from Drew Days III, 22 Moore's Federal Practice - Civil § 406.20, Supreme Court Generally Will Not Review State Court Decisions Based on Independent and Adequate State Grounds (it quotes the article with some sections and most citations omitted for formatting purposes)

3.2.2 Michigan v. Long, 463 U.S. 1034 (1983) 3.2.2 Michigan v. Long, 463 U.S. 1034 (1983)

Michigan v. Long [excerpt]

463 U.S. 1032 (1983)

Justice O'CONNOR delivered the opinion of the Court.

[R]espondent David Long was convicted for possession of marijuana found by police in the passenger compartment and trunk of the automobile that he was driving. The police searched the passenger compartment because they had reason to believe that the vehicle contained weapons potentially dangerous to the officers. [This case is an appeal from a decision of the Michigan Supreme Court, which reversed Long’s conviction. The court held that “the sole justification of the Terry search, protection of the police officers and others nearby, cannot justify the search in this case.” The court stated that the marijuana found in Long's trunk was the “fruit” of the illegal search of the interior, and was also suppressed.] [We] examine Long's argument that the decision below rests upon an adequate and independent state ground, and we decide in favor of our jurisdiction.

...

Before reaching the merits, we must consider Long's argument that we are without jurisdiction to decide this case because the decision below rests on an adequate and independent state ground. The court below referred twice to the state constitution in its opinion, but otherwise relied exclusively on federal law.[3] Long argues that the Michigan courts have provided greater protection from searches and seizures under the state constitution than is afforded under the Fourth Amendment, and the references to the state constitution therefore establish an adequate and independent ground for the decision below.

It is, of course, “incumbent upon this Court ... to ascertain for itself ... whether the asserted non-federal ground independently and adequately supports the judgment.” Although we have announced a number of principles in order to help us determine whether various forms of references to state law constitute adequate and independent state grounds,[4] we openly admit that we have thus far not developed a satisfying and consistent approach for resolving this vexing issue. In some instances, we have taken the strict view that if the ground of decision was at all unclear, we would dismiss the case. In other instances, we have vacated or continued a case to obtain clarification about the nature of a state court decision. In more recent cases, we have ourselves examined state law to determine whether state courts have used federal law to guide their application of state law or to provide the actual basis for the decision that was reached. In Oregon v. Kennedy, 456 U.S. 667, 670–671 (1982), we rejected an invitation to remand to the state court for clarification even when the decision rested in part on a case from the state court, because we determined that the state case itself rested upon federal grounds. We added that “[e]ven if the case admitted of more doubt as to whether federal and state grounds for decision were intermixed, the fact that the state court relied to the extent it did on federal grounds requires us to reach the merits.”

This ad hoc method of dealing with cases that involve possible adequate and independent state grounds is antithetical to the doctrinal consistency that is required when sensitive issues of federal-state relations are involved. Moreover, none of the various methods of disposition that we have employed thus far recommends itself as the preferred method that we should apply to the exclusion of others, and we therefore determine that it is appropriate to reexamine our treatment of this jurisdictional issue in order to achieve the consistency that is necessary.

The process of examining state law is unsatisfactory because it requires us to interpret state laws with which we are generally unfamiliar, and which often, as in this case, have not been discussed at length by the parties. Vacation and continuance for clarification have also been unsatisfactory both because of the delay and decrease in efficiency of judicial administration and, more important, because these methods of disposition place significant burdens on state courts to demonstrate the presence or absence of our jurisdiction. Finally, outright dismissal of cases is clearly not a panacea because it cannot be doubted that there is an important need for uniformity in federal law, and that this need goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion. We have long recognized that dismissal is inappropriate “where there is strong indication ... that the federal constitution as judicially construed controlled the decision below.”

Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground. It is precisely because of this respect for state courts, and this desire to avoid advisory opinions, that we do not wish to continue to decide issues of state law that go beyond the opinion that we review, or to require state courts to reconsider cases to clarify the grounds of their decisions. Accordingly, when, as in this case, a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so. If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached. In this way, both justice and judicial administration will be greatly improved. If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.

This approach obviates in most instances the need to examine state law in order to decide the nature of the state court decision, and will at the same time avoid the danger of our rendering advisory opinions. It also avoids the unsatisfactory and intrusive practice of requiring state courts to clarify their decisions to the satisfaction of this Court. We believe that such an approach will provide state judges with a clearer opportunity to develop state jurisprudence unimpeded by federal interference, and yet will preserve the integrity of federal law. “It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.” The principle that we will not review judgments of state courts that rest on adequate and independent state grounds is based, in part, on “the limitations of our own jurisdiction.” The jurisdictional concern is that we not “render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Our requirement of a “plain statement” that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions. Rather, in determining, as we must, whether we have jurisdiction to review a case that is alleged to rest on adequate and independent state grounds, we merely assume that there are no such grounds when it is not clear from the opinion itself that the state court relied upon an adequate and independent state ground and when it fairly appears that the state court rested its decision primarily on federal law.

Our review of the decision below under this framework leaves us unconvinced that it rests upon an independent state ground. Apart from its two citations to the state constitution, the court below relied exclusively on its understanding of Terry and other federal cases. Not a single state case was cited to support the state court's holding that the search of the passenger compartment was unconstitutional. Indeed, the court declared that the search in this case was unconstitutional because “[t]he Court of Appeals erroneously applied the principles of Terry v. Ohio ... to the search of the interior of the vehicle in this case.” The references to the state constitution in no way indicate that the decision below rested on grounds in any way independent from the state court's interpretation of federal law. Even if we accept that the Michigan constitution has been interpreted to provide independent protection for certain rights also secured under the Fourth Amendment, it fairly appears in this case that the Michigan Supreme Court rested its decision primarily on federal law.

Rather than dismissing the case, or requiring that the state court reconsider its decision on our behalf solely because of a mere possibility that an adequate and independent ground supports the judgment, we find that we have jurisdiction in the absence of a plain statement that the decision below rested on an adequate and independent state ground. It appears to us that the state court “felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner it did.”

...

The decision of the Michigan Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Concurrence

Justice BLACKMUN, concurring in part and concurring in the judgment.

[Omitted.]

Dissent I of II

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

[Omitted]

Dissent II of II

Justice STEVENS, dissenting.

The jurisprudential questions presented in this case are far more important than the question whether the Michigan police officer's search of respondent's car violated the Fourth Amendment. The case raises profoundly significant questions concerning the relationship between two sovereigns—the State of Michigan and the United States of America.

The Supreme Court of the State of Michigan expressly held “that the deputies' search of the vehicle was proscribed by the Fourth Amendment of the United States Constitution and art. 1, § 11 of the Michigan Constitution.” The state law ground is clearly adequate to support the judgment, but the question whether it is independent of the Michigan Supreme Court's understanding of federal law is more difficult. Four possible ways of resolving that question present themselves: (1) asking the Michigan Supreme Court directly, (2) attempting to infer from all possible sources of state law what the Michigan Supreme Court meant, (3) presuming that adequate state grounds are independent unless it clearly appears otherwise, or (4) presuming that adequate state grounds are not independent unless it clearly appears otherwise. This Court has, on different occasions, employed each of the first three approaches; never until today has it even hinted at the fourth. In order to “achieve the consistency that is necessary,” the Court today undertakes a reexamination of all the possibilities. It rejects the first approach as inefficient and unduly burdensome for state courts, and rejects the second approach as an inappropriate expenditure of our resources. Although I find both of those decisions defensible in themselves, I cannot accept the Court's decision to choose the fourth approach over the third—to presume that adequate state grounds are intended to be dependent on federal law unless the record plainly shows otherwise. I must therefore dissent.

...

In this case the State of Michigan has arrested one of its citizens and the Michigan Supreme Court has decided to turn him loose. The respondent is a United States citizen as well as a Michigan citizen, but since there is no claim that he has been mistreated by the State of Michigan, the final outcome of the state processes offended no federal interest whatever. Michigan simply provided greater protection to one of its citizens than some other State might provide or, indeed, than this Court might require throughout the country.

I believe that in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard. That belief resonates with statements in many of our prior cases

...

The Court offers only one reason for asserting authority over cases such as the one presented today: “an important need for uniformity in federal law [that] goes unsatisfied when we fail to review an opinion that rests primarily upon federal grounds and where the independence of an alleged state ground is not apparent from the four corners of the opinion.” Of course, the supposed need to “review an opinion” clashes directly with our oft-repeated reminder that “our power is to correct wrong judgments, not to revise opinions.” The clash is not merely one of form: the “need for uniformity in federal law” is truly an ungovernable engine. That same need is no less present when it is perfectly clear that a state ground is both independent and adequate. In fact, it is equally present if a state prosecutor announces that he believes a certain policy of nonenforcement is commanded by federal law. Yet we have never claimed jurisdiction to correct such errors, no matter how egregious they may be, and no matter how much they may thwart the desires of the state electorate. We do not sit to expound our understanding of the Constitution to interested listeners in the legal community; we sit to resolve disputes. If it is not apparent that our views would affect the outcome of a particular case, we cannot presume to interfere. Finally, I am thoroughly baffled by the Court's suggestion that it must stretch its jurisdiction and reverse the judgment of the Michigan Supreme Court in order to show “[r]espect for the independence of state courts.”

...

I respectfully dissent.

Majority Footnotes:

1. On the first occasion, the court merely cited in a footnote both the state and federal constitutions. On the second occasion, at the conclusion of the opinion, the court stated: "We hold, therefore, that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, § 11 of the Michigan Constitution."

2. For example, we have long recognized that “where the judgment of a state court rests upon two grounds, one of which is federal and the other non-federal in character, our jurisdiction fails if the non-federal ground is independent of the federal ground and adequate to support the judgment.” We may review a state case decided on a federal ground even if it is clear that there was an available state ground for decision on which the state court could properly have relied. Also, if, in our view, the state court “ ‘felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner that it did,’ ” then we will not treat a normally adequate state ground as independent, and there will be no question about our jurisdiction. Finally, “where the non-federal ground is so interwoven with the [federal ground] as not to be an independent matter, or is not of sufficient breadth to sustain the judgment without any decision of the other, our jurisdiction is plain.”

3.2.3 People v. Torres 3.2.3 People v. Torres

New York Court of Appeals

74 N.Y.2d 224

1989-07-11

The People of the State of New York, Respondent, v Miguel Torres, Appellant.

Argued May 2, 1989;

decided July 11, 1989

*225POINTS OF COUNSEL

Norman L. Reimer for appellant.

I. The forceable stop and frisk of appellant, solely on the basis of an anonymous telephone tip, absent any inquiry, absent any fact corroborative of criminality and absent any evasive or suspicious conduct at the scene, was an unlawful search and seizure. (People v Hicks, 68 NY2d 234; People v McRay, 51 NY2d 594; People v Salaman, 71 NY2d 869; People v Davis, 64 NY2d 1143; People v Harrison, 57 NY2d 470; People v De Bour, 40 NY2d 210; Terry v Ohio, 392 US 1; People v Stewart, 41 NY2d 65; People v Russ, 61 NY2d 693; People v Klass, 55 NY2d 821.) II. Even assuming the initial stop was lawful, the ensuing removal from the car and search of appellant’s property, after appellant and his companion were searched with negative results, and without any inquiry or the development of any indicia of criminal or suspicious conduct, was unlawful under both the United States and New York Constitutions. (New York v Belton, 453 US 454; People v Belton, 55 NY2d 49; People v Fernandez, 86 AD2d 416, 58 NY2d 791; People v Brooks, 110 AD2d 571, 65 NY2d 1021; People v De Jesus, 92 AD2d 521; Michigan v Long, 463 US 1032; Adams v Williams, 407 US 143; Chimel v California, 395 US 752; People v De Santis, 46 NY2d 82, 443 US 912; People v Weintraub, 35 NY2d 351.)

Robert M. Morgenthau, District Attorney (Maryjane C. Shimsky and Norman Barclay of counsel), for respondent.

The lower courts’ findings that Detectives Turner and Crescente were justified in conducting a stop and frisk involve factual questions supported by the record and therefore beyond this court’s review. (People v De Bour, 40 NY2d 210; People v Stewart, 41 NY2d 65; People v Hicks, 68 NY2d 234; Terry v Ohio, 392 US 1; People v Russ, 61 NY2d 693; People v Benjamin, 51 NY2d 267; People v Brooks, 65 NY2d 1021; People v Clarke, 60 NY2d 568; People v Harrison, 57 NY2d 470; People v Van Luven, 64 NY2d 625.)

*226OPINION OF THE COURT

Titone, J.

A police officer acting on reasonable suspicion that criminal activity is afoot and on an articulable basis to fear for his own safety may intrude upon the person or personal effects of the suspect only to the extent that is actually necessary to protect himself from harm while he conducts the inquiry authorized by CPL 140.50 (1). In People v Lindsay (72 NY2d 843, 845), we left open the question whether under article I, § 12 of our State Constitution such an intrusion may extend to items within the passenger compartment of the suspects’ vehicle solely on the theory that "if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and will then have access to any weapons inside” (Michigan v Long, 463 US 1032, 1052). Having been squarely presented with the issue by the parties’ submissions on this appeal, we now answer that question in the negative and hold that, despite the Supreme Court’s approval of such intrusions in Michigan v Long (supra), our more protective State constitutional provisions prohibit them under the circumstances presented here (NY Const, art I, § 12).

At approximately 11:00 a.m. on the morning of October 25, 1985, the police received a telephone tip from an anonymous caller that an individual known as "Poppo,” who was wanted on homicide charges, could be found having his hair cut at a barber shop located at 116th Street and Third Avenue in Manhattan. The suspect was described as a large, six-foot tall Hispanic male wearing a white sweater, driving a black Eldorado and carrying a gun in a shoulder bag.

Arriving at the specified address shortly after this tip was received, two plain-clothes detectives saw defendant leave the barber shop with another man and enter a black Eldorado. Defendant, who fit the anonymous caller’s description, was wearing a white sweater and carrying a green nylon shoulder bag. The detectives approached the car with their guns drawn and, after identifying themselves, ordered the two occupants to exit and immediately frisked each of them. While defendant was still being frisked, the detective who had just patted down defendant’s companion reached into the car and took the shoulder bag from the front seat, where it had been left by defendant. Having immediately noticed its unusual weight, the detective felt the outside of the bag, discerned the shape of a gun and, upon unzipping the bag, discovered a three-inch Rossi revolver and several rounds of live ammunition.

*227Defendant pleaded guilty to third degree criminal possession of a weapon after his motion to suppress the physical evidence was denied. The suppression court held that the anonymous tip, coupled with the detectives’ on-the-scene observations, was sufficient to justify the detectives’ intrusive actions. On appeal from the judgment of conviction, a divided Appellate Division affirmed (143 AD2d 40).1 Dissenting alone, the Presiding Justice argued that, regardless of whether the initial frisk was proper, there was no basis for the detectives to reach into the car and remove the shoulder bag, since its presence presented no immediate threat to the officer’s safety (143 AD2d, at 42-44 [Murphy, P. J., dissenting]). We agree with the dissenter’s view and, accordingly, reverse.

On this record, there is room for disagreement as to whether the anonymous tip, coupled with the detectives’ on-the-scene observations, provided support for the finding below that the forcible stop and frisk was reasonable. However, even assuming the reasonableness of the detectives’ conduct in ordering the suspects out of the car and conducting a protective pat-down, once the detectives had frisked the two men, and had thereby satisfied themselves that there was no immediate threat to their safety, there was, as a matter of law, no justification for conducting a further, more intrusive search extending to the removal of personal effects on the front seat of defendant’s car. At most, the detectives may have had a reasonable basis for suspecting the presence of a gun. Their information plainly did not rise to the level of probable cause to search closed containers within the car’s passenger compartment for a weapon (People v Elwell, 50 NY2d 231; see, People v Belton, 55 NY2d 49 [on remand]). Thus, the actions of the detectives may be justified only if the expansive view of the Terry v Ohio (392 US 1) "stop and frisk” procedure that was adopted in Michigan v Long (463 US 1032, supra) is determined to be consistent with the privacy rights guaranteed by our State Constitution (NY Const, art I, § 12).

*228In concluding that it is not, we note that although the history and identical language of the State and Federal constitutional privacy guarantees (US Const 4th Amend; NY Const, art I, § 12) generally support a "policy of uniformity,” this court has demonstrated its willingness to adopt more protective standards under the State Constitution "when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens’ ” (People v P. J. Video, 68 NY2d 296, 304 [on remand], quoting People v Johnson, 66 NY2d 398, 407). Accordingly, we have in recent years carved out an independent body of principles to govern citizen-police encounters in a number of specific areas (see, e.g., People v P. J. Video, supra [warrant application requirements in obscenity cases]; People v Bigelow, 66 NY2d 417 [declining to follow "good faith” test outlined in United States v Leon (468 US 897) and Massachusetts v Sheppard (468 US 981)]; People v Johnson, 66 NY2d 398, supra [declining to apply "totality of circumstances” test outlined in Illinois v Gates (462 US 213) to warrantless arrests]; People v Class, 67 NY2d 431 [on remand] [search for vehicle identification number in connection with traffic stop]; People v Gokey, 60 NY2d 309 [warrant-less search incident to arrest]; People v Belton, 55 NY2d 49, supra [search of personal effects within automobile]; People v Landy, 59 NY2d 369 [reiterating Elwell rule]; People v Elwell, 50 NY2d 231, supra [probable cause predicated on informant’s tip]; see also, People v Stith, 69 NY2d 313, 316, n [exclusionary rule as it pertains to inevitable discovery doctrine]).

Our present decision to add to this emerging body of precedent rather than to follow the Federal position was foreshadowed by our analysis in People v Belton (55 NY2d 49, supra). Indeed, it is significant that Michigan v Long (supra), the decision on which the People’s and dissenter’s positions are premised,2 was, at least in part, an elaboration of the Supreme Court’s analysis in New York v Belton (453 US 454), an analysis which we have declined to follow (see, People v Belton, 55 NY2d 49, supra; see also, People v Gokey, supra).

*229In Belton, which involved a search of a closed container within the passenger compartment of an arrestee’s automobile, we invoked the State Constitution and held that, under our own "automobile exception” to the rule against warrant-less searches, an automobile’s passenger compartment, and closed containers within that compartment, may be searched "where police have validly arrested an occupant * * * and * * * have reason to believe that the car may contain evidence related to the crime for which the occupant was arrested or that a weapon may be discovered or a means of escape thwarted” (id., at 55). In adopting this position, we expressed our dissatisfaction with the Supreme Court’s position under the Fourth Amendment that such a search is permissible as an incident to a lawful arrest (id., at 52-53; see, New York v Belton, 453 US 454, supra). We noted that the Supreme Court’s position in Belton was a drastic departure from Chimel v California (395 US 752) and that "[o]nce the exception is employed to justify a warrantless search for objects outside an arrested person’s reach it no longer has any distinct spatial boundary” (55 NY2d, at 53). Quoting from then-Judge Wachtler’s opinion in People v Brosnan (32 NY2d 254, 267), we observed that " 'search and seizure law [becomes] uncontrollable when the rubric [is] adopted and the rationale discarded’ ” (55 NY2d, at 53). That observation is equally apt in this context.3

A police officer’s entry into a citizen’s automobile and his *230inspection of personal effects located within are significant encroachments upon that citizen’s privacy interests (cf., People v Class, 63 NY2d 491, 495, revd 475 US 106, adhered to on remand 67 NY2d 431, supra). Under our own long-standing precedent, such intrusions must be both justified in their inception and reasonably related in scope and intensity to the circumstances which rendered their initiation permissible (People v De Bour, 40 NY2d 210, 215). While there are certainly legitimate law enforcement concerns that would justify such an intrusion (see, People v Blasich, 73 NY2d 673; People v Belton, 55 NY2d 49, 55, supra), such concerns were simply not present here.

The need here, as one commentator has noted, was "only to find implements which could be reached by the suspect during the brief face-to-face encounter, not to uncover items cleverly concealed and to which access could be gained only with considerable delay and difficulty” (1 La Fave & Israel, Criminal Procedure § 3.8 [e], at 309; see also, People v Smith, 59 NY2d 454, 458). In this instance, for example, the suspects had already been removed from the car, a permissible intrusion if there was reasonable suspicion of criminality in light of the need to protect the detectives’ safety (Pennsylvania v Mimms, 434 US 106; People v McLaurin, 70 NY2d 779). Further, the suspects had been patted down without incident. At that point, there was nothing to prevent these two armed detectives from questioning the two suspects with complete safety to themselves, since the suspects had been isolated from the interior of the car, where the nylon bag that supposedly contained the gun was located. Any residual fear that the detectives might have had about the suspects’ ability to break away and retrieve the bag could have been eliminated by taking the far less intrusive step of asking the suspects to move away from the vicinity of the car (see, 1 La Fave & Israel, op. cit, at 310). Finally, it is unrealistic to assume, as the Supreme Court did in Michigan v Long (supra, at 1051-1052), that having been stopped and questioned without incident, a suspect who is about to be released and permitted to proceed on his way would, upon reentry into his vehicle, reach for a concealed weapon and threaten the departing police officer’s safety. Certainly, such a far-fetched scenario is an *231insufficient basis upon which to predicate the substantial intrusion that occurred here (see, People v De Bour, supra). 4

For all of these reasons, we conclude that the detective’s conduct in reaching into defendant’s car and removing his bag, conduct which revealed the presence of a gun, was not reasonably related to the need to protect the officers’ safety in this street encounter. The detective’s actions were thus improper under article I, § 12 of our State Constitution, and the resulting evidence should have been suppressed.

Finally, addressing the dissent, we are not unmindful of the reality of the day, including the risks faced by police officers in street encounters in the course of discharging their official duties. Nor are we unmindful of the fact that what is at issue here is an anonymous tip. The rule we fashion asks only that, once the officers have taken steps to secure their own physical safety, they limit their intrusion to the inquiry permitted by CPL 140.50. Accordingly, the order of the Appellate Division should be reversed, the evidence suppressed and the indictment against defendant dismissed.

. The dissenter’s attempt to avoid the implications of Belton by characterizing this case as "partak[ing] mostly of a street and only incidentally and fortuitously of a vehicle encounter” is unpersuasive (see, dissenting opn, at 234). First, if this had been a true street encounter and defendant had simply dropped his bag on a park bench or automobile fender in response to the detectives’ lawful approach, the officers’ right to seize and inspect its contents would have been governed by the entirely separate body of case law involving abandoned property, as to which there is generally no expectation of privacy (see, 1 Ringel, Searches and Seizures § 8.4, at 8-32 — 8-37 [2d ed]; see generally, People v Boodle, 47 NY2d 398). It is precisely because an automobile was involved here that defendant had an expectation of privacy in personal effects not on his immediate person and the need for a constitutionally adequate justification for the intrusion arises. Thus, the presence of an automobile in this encounter is not, as the dissenter suggests an analytically insignificant part of this fact pattern (dissenting opn, at 234). Second, although the ultimate holding in Belton was based on the so-called "automobile exception” to the general rule requiring warrants, the aspect of the Belton analysis on which we rely concerns its insistence upon a logical and conceptual relationship between the property to he seized or searched and, the predicate for that action (55 NY2d, at 52-53). As is evident from our holding in People v Gokey, 60 NY2d 309), that portion of the Belton decision *230is not limited to automobile encounters, but rather extends to all so-called "grab area” searches.

. This is not to suggest that the degree of probable cause outlined in People v Belton (55 NY2d 49, 55) is always required as a predicate for conducting a limited intrusion and search of the passenger compartment of the suspect’s car. Indeed, there may well be circumstances where, following a lawful stop, facts revealed during a proper inquiry or other information gathered during the course of the encounter lead to the conclusion that a weapon located within the vehicle presents an actual and specific danger to the officers’ safety sufficient to justify a further intrusion, notwithstanding the suspect’s inability to gain immediate access to that weapon. Of course, in such circumstances, the police officers would have a right to take further steps to protect themselves so that their investigation could be completed without risk to themselves. What we reject here is simply the suggestion that the substantial intrusion involved in even a limited entry into and search of a suspect’s vehicle could be justified purely on the theoretical basis, adopted in Michigan v Long (463 US 1032), that harm could occur after the investigation is terminated and the suspect is permitted to reenter his vehicle.

Alexander, J.

(concurring). The majority concedes that on this record reasonable minds may differ over whether the anonymous tip, together with the observations of the detectives at the scene, provided reasonable suspicion for the forceable stop and frisk. Because I believe the actions of the detectives in converging on the defendant with guns drawn and ordering him out of the car without any inquiry or observation of criminal activity were unreasonable and alone justify reversal of defendant’s conviction, I need not and do *232not reach the issue that divides the court — whether the rationale of Michigan v Long (463 US 1032) should be adopted under our State Constitution. Moreover, I do not understand the majority’s holding to conclude that such a forceable detention — unsupported by observed indicia of criminality — is always reasonable under the Fourth Amendment whenever the noncriminal details of the anonymous tip are confirmed by observations at the scene. Accordingly, I concur in result only.

Bellacosa, J.

(dissenting). I would affirm the Appellate Division order upholding the conviction for criminal possession of a weapon in the third degree. Inasmuch as sufficient evidence was adduced at the hearing to support the lower courts’ findings that the police officers acted on verified detailed information and in their reasonable self-protection, the order of the Appellate Division should be affirmed (see, People v Salaman, 71 NY2d 869, 870-871; People v Jones, 69 NY2d 853, 855).

The court accepts for purposes of addressing the frisk of the bag with the gun that the basic stop and frisk of the person of the defendant were justified by a reasonable suspicion of ongoing criminality and, alternatively, by an articulable basis for the officers to fear for their safety. I thus proceed directly to the safety-based justification for also removing and securing the nylon bag, reportedly containing a gun, from the front seat of the defendant’s car. The finely spun and bifurcated analysis of the majority may work in the cloister, but it does not work and is not warranted for the hard streets. The dangers may be "far-fetched” (majority opn, at 230) to Judges in the protected enclave of the courthouse, but not to cops on the beat.

The conclusion by the reversing Judges is necessarily made as a matter of law, and it thus displaces the undisturbed, supportable lower courts’ findings of over-all reasonableness as to the police action in these circumstances. That conclusion substitutes a disembodied, retrospective judgment that the police officers here lacked a reasonable basis, in light of this particularly dangerous street encounter, to complete their concededly lawful approach and frisk by unrealistically and unnecessarily curtailing the officers’ authority to reach for and secure the reported weapon to insure their own contemporaneous safety (see, People v Salaman, 71 NY2d 869, 870, supra; People v De Bour, 40 NY2d 210, 223; see also, Adams v Williams, 407 US 143; Terry v Ohio, 392 US 1, 27).

*233The Appellate Division in this case affirmed the denial of suppression on a record establishing that the approach to this defendant was reasonably predicated on a very detailed anonymous tip taken and corroborated in many relevant details by two homicide detectives pursuant to what I accept in law and in the majority’s assumption as a lawful and official obligation to investigate. The tip included the defendant’s sex; ethnicity; large size; specific clothing; current activity; nickname; car make, model and color; that he was located at 116th Street and Third Avenue in Manhattan in a barber shop; that he was carrying a shoulder bag; that the hag contained a gun; and that he was a homicide suspect. The officers’ investigation corroborated all these details except the nickname, suspect status and gun possession. Based upon the number and specificity of the confirmed details and the character of the details yet to be corroborated — an armed homicide suspect named "Poppo” — the officers responded to the scene; saw defendant exit the barber shop with a companion; saw that the defendant was carrying the reported shoulder bag allegedly containing the gun; and saw him get into the black Cadillac Eldorado. Only then did they have an opportunity to approach, which they did with guns drawn. They ordered defendant to step out of the car, where he had only been momentarily seated, and frisked him. The majority nevertheless formalistically and arbitrarily draws a line against reasonable completion of the investigation and precautionary procedures. It condemns the officers for almost simultaneously reaching in to retrieve the shoulder bag from the front car seat where it had been placed only moments before when the suspect entered the car with it. Once the weight and outline of a gun were felt through the bag’s nylon material, the encounter escalated to probable cause and the police searched the bag and found the loaded revolver (see, People v Stewart, 41 NY2d 65, 66; People v De Bour, 40 NY2d 210, supra). Yet, the reversers unreasonably suppress the gun.

A police officer’s concededly lawful duty to investigate includes the right to protect his or her own survival, based commonsensically and reasonably on safety concerns not only for the officer but also for innocent bystanders; this embraces the right to frisk for weapons when the officer has a reasonably record-justified belief that the suspect may be armed (see, People v Salaman, 71 NY2d 869, 870, supra; People v Benjamin, 51 NY2d 267, 270; People v McLaurin, 56 AD2d 80, revd on dissenting opn 43 NY2d 902). A frisk for weapons, in turn, *234encompasses personal property capable of or reported as concealing a weapon within the suspect’s grabbable reach (see, People v Brooks, 65 NY2d 1021, 1023; People v Davis, 64 NY2d 1143, 1144; People v Pugach, 15 NY2d 65, 69).

The acknowledged duty to investigate, plus the right to inquire, plus the right to frisk authorized in this case, also includes, in my view, the concomitant right to frisk the bag in this case. Three theories support this reasonable action. First; under a realistic view, the present case partakes mostly of a street and only incidentally and fortuitously of a vehicle encounter because of the unity and contemporaneity of defendant’s person and the bag with the gun on the street. This particular bag was part of this person’s aura and, as such, falls flat within the majority’s primary rationale recognizing the legality of the frisk of the person (majority opn, at 231, n 4). As such, this is not a People v Belton (55 NY2d 49) automobile category search and we should not allow a hardening of the search categories to mechanically control and to displace the distinctive analytical composition of this fact pattern. Second, the real threat to these officers, acknowledged by the majority as a proper basis for a frisk of defendant, is in no respect dissipated or attenuated where the container within which a weapon is reportedly secreted is immediately and proximately accessible to the suspect upon reentering or even just reaching into a car (see, People v Lindsay, 72 NY2d 843, 845). Finally, the frisk of the bag was proper under Michigan v Long (463 US 1032). Indeed, "if the police officer possesses a reasonable belief based on 'specific articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous” and that a weapon may be contained within the car, the authorization for the expanded frisk is self-evident (id., at 1049, quoting Terry v Ohio, 392 US 1, 21). The police here are in at least as much danger, if not more, than police throughout this country. Thus, in these particular circumstances, there is no justification for bestowing a different and more onerous and far more dangerous rule of reason, operative only in the State of New York and based only on our State Constitution.

Thus, this case is not controlled by the postarrest, probable cause, automobile exception and container standards of People v Belton, but rather is supported in an indirect way by that case and its most recent progeny (55 NY2d 49, supra, on remand 453 US 454, revg 50 NY2d 447; see also, People v *235 Blasich, 73 NY2d 673). Belton was the occupant of a car stopped for speeding and he was arrested for marihuana possession. Relying on the automobile search exception, we upheld a subsequent warrantless search of the car and of Belton’s jacket, which was on the back seat, even though the occupants had been separated, arrested, searched, removed to a point distant and there was no evidence the arresting officer feared for his safety. The far different fact and legal category scenario here was that of a stop and frisk performed by officers investigating the detailed report of an armed homicide suspect. The predicate for frisking Torres — safety concerns arising from the presence of a weapon in the shoulder bag of a reported homicide suspect — was not increased or diminished by the incidental involvement of the automobile. The removal of the bag from its temporary resting place — not discernibly different from a park bench or car fender or hood for Fourth Amendment purposes or even for our article I, § 12 State Constitution purposes — does not implicate Belton and should not require a higher threshold for preventative protective measures.

Highly detailed information reported to the police and manifestly based on personal knowledge, corroborated in every observable aspect and coupled with yet-to-be confirmed data that the suspect is a violent felon — armed and suspected of murder — provides more than an adequate basis for upholding the reasonableness of the officers’ safeguarding actions (see, People v Lindsay, 72 NY2d 843, supra; People v Russ, 61 NY2d 693, 695; People v Benjamin, 51 NY2d 267, 270, supra; People v Kinlock, 43 NY2d 832; People v McLaurin, 56 AD2d 80, read on dissenting opn 43 NY2d 902, supra; People v Stroller, 42 NY2d 1052). The two courts below have so found and this court has no reasonable basis in law or in fact to conclude contrariwise (People v Harrison, 57 NY2d 470, 477).

I understand and accept that the majority is expressly not deciding but only assuming the legality of the threshold stop and frisk authorization — deeming it valid in order to use a separate dispositional path. To my mind, however, there is little question that firm legal authorities support the legality of the stop and frisk here and, thus, if we were to confront that issue, I would be on the opposite side of the views expressed in Judge Alexander’s separate concurring opinion.

Courts should face the reality of the day and gauge the reasonableness of police officers’ conduct in these circum*236stances in the full light of that harsh glare (cf., People v La Pene, 40 NY2d 210). It is not reasonable to hold that police officers — thrust into this kind of emergency situation where their official duty obligates them to act and where the difference between life and death is often measured in seconds— must differentiate on the spot between finely spun legal doctrines of authority to frisk based on a multiple choice test of the available categories. This case proves the point and turns the tactical and very dangerous advantage over to the suspected criminal. The officers’ and innocent bystanders’ safety concerns are not alleviated, in law and certainly not in fact, by a frisk of the person only, in this circumstance given the continuing, frighteningly real nature of the threat presented by the accessibility of the gun as soon as the defendant might reenter or reach into the car. The attribution of unreasonableness, of unreliability, and of suspicion in a gun-homicide case condemning police safeguarding actions based on especially detailed anonymous warnings and reports is not founded in empirical data or in sound legal principles. The majority rule allows persons, reasonably suspected of carrying a gun in a bag to avoid a frisk of the container by merely dropping the bag through a car window and unnecessarily leaves the investigating officer holding a different bag of continuing jeopardy.

Whether we dislike generally the police procedure of approaching vehicles with drawn weapons and without announced inquiry in the dangerous setting of cases like this is not determinative because those particular facets, even if viewed as unjustified in hindsight or even if viewed as preferable precautionary procedure — and I do not accept either in this case — do not eliminate the reasonable basis for the police acting as they were supposed to and as they did in their own and in others’ safety, under valid precedents and under all the evidence adduced (see, Michigan v Long, 463 US 1032, supra; People v Lindsay, 72 NY2d 843, supra; People v Salaman, 71 NY2d, 869, 870, supra; People v Chestnut, 51 NY2d 14).

Chief Judge Wachtler and Judges Simons, Kaye and Hancock, Jr., concur with Judge Titone; Judge Alexander concurs in result in a separate opinion; Judge Bellacosa dissents and votes to affirm in another opinion.

Order reversed, etc.

3.3 Interpretive Limits on Judicial Review 3.3 Interpretive Limits on Judicial Review

3.3.1 District of Columbia v. Heller 3.3.1 District of Columbia v. Heller

Supreme Court of the United States

554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637, 2008 U.S. LEXIS 5268, SCDB 2007-071

No. 07-290

2008-06-26

No. 07-290.

DISTRICT OF COLUMBIA et al. v. HELLER

Decided June 26, 2008

Argued March 18, 2008

Walter Dellinger argued the cause for petitioners. With him on the briefs were Peter J. Nickles, Attorney General for the District of Columbia, Linda Singer, former Attorney General for the District of Columbia, Alan B. Morrison, Todd S. Kim, Solicitor General, Donna M. Murasky, Deputy Solicitor General, Lutz Alexander Prager, Robert A. Long, Jr., Jonathan L. Marcus, Thomas C. Goldstein, Matthew M. Shors, and Mark S. Davies.

Alan Gura argued the cause for respondent. With him on the brief were Robert A. Levy and Clark M. Neily III.

Former Solicitor General Clement argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Garre, Assistant Attorney General Fisher, Acting Assistant Attorney General Bucholtz, Malcolm L. Stewart, and Stephen R. Rubenstein.*

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

& alia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Auto, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 636. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 681.

Briefs of amici curiae urging reversal were filed for the City of Chicago et al. by Andrew L. Frey, David M. Gossett, Benna Ruth Solomon, Patrick J. Rocks, and Lee Ann Lowder; for the American Academy of Pediatrics et al. by Bert H. Deixler and Lary Alan Rappaport; for the American Bar Association by William H. Neukom, Robert N. Weiner, and John A. Freedman; for the American Jewish Committee et al. by Jeffrey A. Lamken, Allyson N. Ho, D. Randall Benn, Jeffrey L. Kessler, William C. Heuer, Robert E. Cortes, and Sayre Weaver; for the Brady Center to Prevent Gun Violence et al. by John Payton, Jonathan G. Cedarbaum, Dennis A. Henigan, Brian J. Siebel, and Jonathan E. Lowy; for the DC Appleseed Center for Law and Justice et al. by Jonathan S. Franklin; for District Attorneys by Alexis S. Coil-Very, Simona G. Strauss, the Honorable Robert M. Morgenthau, Mark Dwyer, the Honorable Charles J. Hynes, and Laurie L. Levenson; for Former Department of Justice Officials by Messrs. Long and Marcus; for Major American Cities et al. by Jeffrey L. Bleich, George A. Nilson, William R. Phelan, Jr., Debra Lynn Gonzales, Michael A. Cardozo, Leonard J. Koerner, Richard Feder, Dennis J. Herrera, Danny Chou, and John Daniel Reaves; for Members of Congress by Scott E. Gant and Christopher L. Hayes; for the NAACP Legal Defense & Educational Fund, Inc., by Theodore M. Shaw, Jacqueline A. Berrien, Victor A. Bolden, Debo P. Adegbile, Michael B. due Leeuw, and Darcy M. Goddard; for the National Network to End Domestic Violence et al. by Bruce D. Sokler; for Professors of Criminal Justice by Albert W. Wallis; for Professors of Linguistics and English by Charles M. Dyke, Charles M. English, Jeffrey R. Gans, Elizabeth M. Walsh, and Frederick L. Whitmer; for the Violence Policy Center et al. by Daniel G. Jarcho; and for Jack N. Rakove et al. by Carl T. Bogus.

Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Andrew M. Cuomo, Attorney General of New York, Barbara D. Underwood, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Sasha Samberg-Champion, Assistant Solicitor General, by Roberto J. Sdnchez-Ramos, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Mark J. Bennett of Hawaii, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, and Anne Milgram of New Jersey; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Kent C. Sullivan, First Assistant Attorney General, David S. Morales, Deputy Attorney General for Civil Litigation, Sean D. Jordan, Deputy Solicitor General, Michael P. Murphy, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Talis J. Colberg of Alaska, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Bill McCollum of Florida, Thurbert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Steve Carter of Indiana, Stephen N. Six of Kansas, Jack Conway of Kentucky, James D. Caldwell of Louisiana, Michael A. Cox of Michigan, Lori Swanson of Minnesota, Jim Hood of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Kelly A. Ayotte of New Hampshire, Gary K. King of New Mexico, Wayne Stenehjem of North Dakota, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, Robert F. McDonnell of Virginia, Robert M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia, and Bruce A. Salzburg of Wyoming; for the State of Wisconsin by J. B. Van Hollen, Attorney General of Wisconsin, and Christopher G. Wren and Steven R Means, Assistant Attorneys General; for Academics et al. by Richard E. Gardiner; for Academics for the Second Amendment by David T. Hardy, Joseph Edward Olson, Daniel D. Polsby, Henry C. Karlson, Randy E. Barnett, and Michael Ian Krauss; for the Alaska Outdoor Council et al. by Jack Brian McGee; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, and James M. Henderson, Sr.; for the American Civil Rights Union by Peter J. Ferrara; for the American Legislative Exchange by Robert Dowlut; for the Association of American Physicians and Surgeons, Inc., by Andrew L. Schlafly; for the Cato Institute et al. by C. Kevin Marshall; for the Center for Individual Freedom by Renee L. Giachino; for the Citizens Committee for the Right to Keep and Bear Arms et al. by Jeffrey B. Teichert; for the Congress of Racial Equality by Stefan Bijan Tahmassebi; for Criminologists et al. by Marc James Ayers and Don B. Kates; for Disabled Veterans for Self-Defense et al. by James H. Warner; for the Eagle Forum Education & Legal Defense Fund by Douglas G. Smith; for the Foundation for Free Expression by Deborah J. Dewart and James L. Hirsen; for the Foundation for Moral Law by Gregory M. Jones and Benjamin D. DuPré; for the Goldwater Institute by Bradford A. Berenson, Ileana Maria Ciobanu, and Clint Bolick; for Grass Roots of South Carolina, Inc., by R. Jeffords Barham; for Gun Owners of America, Inc., et al. by Herbert W. Titus and William J. Olson; for the Heartland Institute by Richard K Willard; for the Institute for Justice by Erik S. Jaffe, William H. Mellor, and Steven M. Simpson; for the International Law Enforcement Educators and Trainers Association et al. by David B. Kopel and C. D. Michel; for International Scholars by James R. Schaller; for Jews for the Preservation of Firearms Ownership by Daniel L. Schmutter; for the Libertarian National Committee, Inc., by Bob Barr; for the Maricopa County Attorney’s Office et al. by Daryl Manhart, Andrew P. Thomas, Arthur E. Mallory, Hy Forgeron, and Bryan A. Skoric; for the Mountain States Legal Foundation by William Perry Pendley; for the National Rifle Association et al. by Stephen D. Poss, Kevin P. Martin, and Scott B. Nardi; for the National Shooting Sports Foundation, Inc., by Lawrence G. Keane, Christopher P. Johnson, and Kanchana Wangkeo Leung; for Ohio Concealed Carry Permitholders et al. by Jeanette M. Moll; for the Paragon Foundation, Inc., by Paul M. Kienzle III; for Pink Pistols et al. by Michael B. Minton; for Retired Military Officers by Andrew G. McBride; for the Rutherford Institute by John W. Whitehead; for the Second Amendment Foundation by Nelson Lund; for the Southeastern Legal Foundation, Inc., et al. by Shannon Lee Goessling; for State Firearm Associations by David J. Schenck; for Virginial774.org by Richard E. Hill, Jr.; for Major General John D. Altenburg, Jr., et al. by C. Allen Foster, Robert P. Charrow, John D. Altenburg, Jr., and John P. Einwechter; for Dr. Suzanna Gratia Hupp, D. C., et al. by Kelly J. Shackelford; for the President Pro Tempore of the Senate of Pennsylvania Joseph B. Scarnati III by John P. Krill, Jr., and Linda J. Shorey; and for 55 Members of the United States Senate et al. by Stephen P. Halbrook.

Briefs of amici curiae were filed for the American Public Health Association et al. by Alison M. Tucher; for GeorgiaCarry.Org, Inc., by John R. Monroe and Edward A. Stone; for Erwin Chemerinsky et al. by Mr. Chemerinsky, pro se; and for 126 Women State Legislators et al. by M. Carol Bambery.

Justice Scalia

delivered the opinion of the Court.

We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D. C. Code §§7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). Wholly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§22-4504(a), 22-4506. District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and disassembled or bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02.1

Respondent Dick Heller is a D. C. special police officer authorized to carry a handgun while on duty at the Thurgood Marshall Judiciary Building. He applied for a registration certificate for a handgun that he wished to keep at home, but the District refused. He thereafter filed a lawsuit in the Federal District Court for the District of Columbia seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on the registration of handguns, the licensing requirement insofar as it prohibits the carrying of a firearm in the home without a license, and the trigger-lock requirement insofar as it prohibits the use of “functional firearms within the home.” App. 59a. The District Court dismissed respondent’s complaint, see Parker v. District of Columbia, 311 F. Supp. 2d 103, 109 (2004). The Court of Appeals for the District of Columbia Circuit, construing his complaint as seeking the right to render a firearm operable and carry it about his home in that condition only when necessary for self-defense,2 reversed, see Parker v. District of Columbia, 478 F. 3d 370, 401 (2007). It held that the Second Amendment protects an individual right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right. See id., at 395, 399-401. The Court of Appeals directed the District Court to enter summary judgment for respondent.

We granted certiorari. 552 U. S. 1035 (2007).

We turn first to the meaning of the Second Amendment.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

The two sides in this case have set out very different interpretations of the Amendment. Petitioners and today’s dissenting Justices believe that it protects only the right to possess and carry a firearm in connection with militia service. See Brief for Petitioners 11-12; post, at 636-637 (Stevens, J., dissenting). Respondent argues that it protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. See Brief for Respondent 2-4.

The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief). Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace Second Amendment, 73 N. Y. U. L. Rev. 793, 814-821 (1998).

Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268-269 (P. Potter ed. 1871); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42-45 (2d ed. 1874).3 “ ‘It is nothing unusual in acts ... for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.'” J. Bishop, Commentaries on Written Laws and Their Interpretation § 51, p. 49 (1882) (quoting Rex v. Marks, 3 East 157, 165, 102 Eng. Rep. 557, 560 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4

1. Operative Clause.

a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5

Three provisions of the Constitution refer to “the people” in a context other than “rights” — the famous preamble (“We the people”), § 2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively— but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.6

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“ ‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people” — those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”

We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.

b. “Keep and Bear Arms.” We move now from the holder of the right — “the people” — to the substance of the right: “to keep and bear Arms.”

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “[wjeapons of of-fence, or armour of defence.” 1 Dictionary of the English Language 106 (4th ed.) (reprinted 1978) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary; see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XLIII, § 6, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed. 1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794) (emphasis added).

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e. g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e. g., Kyllo v. United States, 533 U. S. 27, 35-36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”

The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. William Blackstone, for example, wrote that Catholics convicted of not attending service in the Church of England suffered certain penalties, one of which was that they were not permitted to “keep arms in their houses.” 4 Commentaries on the Laws of England 55 (1769) (hereinafter Blackstone); see also 1 W. & M., ch. 15, §4, in 3 Eng. Stat. at Large 422 (1689) (“[N]o Papist... shall or may have or keep in his House ... any Arms ... ”); 1 W. Hawkins, Treatise on the Pleas of the Crown 26 (1771) (similar). Petitioners point to militia laws of the founding period that required militia members to “keep” arms in connection with militia service, and they conclude from this that the phrase “keep Arms” has a militia-related connotation. See Brief for Petitioners 16-17 (citing laws of Delaware, New Jersey, and Virginia). This is rather like saying that, since there are many statutes that authorize aggrieved employees to “file complaints” with federal agencies, the phrase “file complaints” has an employment-related connotation. “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else7

At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, Justice Ginsburg wrote that “[s]urely a most familiar meaning is, as the Constitution’s Second Amendment. . . indicate^]: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose ... of being armed and ready for offensive or defensive action in a case of conflict with another person.’ ” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1990)). We think that Justice Ginsburg accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization.

From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”8 It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house” — what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) (“Thus the right of self-defence [is] guaranteed by the [Ohio] constitution”); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.9 These provisions demonstrate — again, in the most analogous linguistic context — that “bear arms” was not limited to the carrying of arms in a militia.

The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” See Linguists’ Brief 18; post, at 646 (Stevens, J., dissenting). But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,” which was in turn followed by the target of the hostilities. See 2 Oxford 21. (That is how, for example, our Declaration of Independence ¶ 28 used the phrase: “He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country ....”) Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. See Linguists’ Brief 18-23. Without the preposition, “bear arms” normally meant (as it continues to mean today) what Justice Ginsburg’s opinion in Muscarello said.

In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving “bear Arms” its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war — an absurdity that no commentator has ever endorsed. See L. Levy, Origins of the Bill of Rights 135 (1999). Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

Petitioners justify their limitation of “bear arms” to the military context by pointing out the unremarkable fact that it was often used in that context — the same mistake they made with respect to “keep arms.” It is especially unremarkable that the phrase was often used in a military context in the federal legal sources (such as records of congressional debate) that have been the focus of petitioners’ inquiry. Those sources would have had little occasion to use it except in discussions about the standing army and the militia. And the phrases used primarily in those military discussions include not only “bear arms” but also “carry arms,” “possess arms,” and “have arms” — though no one thinks that those other phrases also had special military meanings. See Barnett, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia? 83 Texas L. Rev. 237, 261 (2004). The common references to those “fit to bear arms” in congressional discussions about the militia are matched by use of the same phrase in the few nonmilitary federal contexts where the concept would be relevant. See, e. g., 30 Journals of Continental Congress 349-351 (J. Fitzpatrick ed. 1934). Other legal sources frequently used “bear arms” in nonmilitary contexts.10 Cunningham’s legal dictionary, cited above, gave as an example of its usage a sentence unrelated to military affairs (“Servants and labourers shall use bows and arrows on Sundays, &c. and not bear other arms”). And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment? 6 Georgetown J. L. & Pub. Pol’y 511 (2008) (identifying numerous nonmilitary uses of “bear arms” from the founding period).

Justice Stevens points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 647-648, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is irrelevant. The amici also dismiss examples such as “‘bear arms ... for the purpose of killing game’” because those uses are “expressly qualified.” Linguists’ Brief 24. (Justice Stevens uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 647.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the Mad Hatter. Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use.11

Justice Stevens places great weight on James Madison’s inclusion of a conscientious-objector clause in his original draft of the Second Amendment: “but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Creating the Bill of Rights 12 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit). He argues that this clause establishes that the drafters of the Second Amendment intended “bear Arms” to refer only to military service. See post, at 660-661. It is always perilous to derive the meaning of an adopted provision from another provision deleted in the drafting process.12 In any case, what Justice Stevens would conclude from the deleted provision does not follow. It was not meant to exempt from military service those who objected to going to war but had no scruples about personal gunfights. Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever — so much so that Quaker frontiersmen were forbidden to use arms to defend their families, even though “[i]n such circumstances the temptation to seize a hunting rifle or knife in self-defense . . . must sometimes have been almost overwhelming.” P. Brock, Pacifism in the United States 359 (1968); see M. Hirst, The Quakers in Peace and War 336-339 (1923); 3 T. Clarkson, Portraiture of Quakerism 103-104 (3d ed. 1807). The Pennsylvania Militia Act of 1757 exempted from service those “scrupling the use of arms” — a phrase that no one contends had an idiomatic meaning. See 5 Stat. at Large of Pa. 613 (J. Mitchell & H. Flanders comm’rs 1898) (emphasis in original). Thus, the most natural interpretation of Madison's deleted text is that those opposed to carrying weapons for potential violent confrontation would not be “compelled to render military service,” in which such cárrying would be required.13

Finally, Justice Stevens suggests that “keep and bear Arms” was some sort of term of art, presumably akin to “hue and cry” or “cease and desist.” (This suggestion usefully evades the problem that there is no evidence whatsoever to support a military reading of “keep arms.”) Justice Stevens believes that the unitary meaning of “keep and bear Arms” is established by the Second Amendment’s calling it a “right” (singular) rather than “rights” (plural). See post, at 651. There is nothing to this. State constitutions of the founding period routinely grouped multiple (related) guarantees under a singular “right,” and the First Amendment protects the “right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.” See, e. g., Pa. Declaration of Rights §§ IX, XII, XVI, in 5 Thorpe 3083-3084; Ohio Const., Art. VIII, §§ 11, 19 (1802), in id., at 2910-2911.14 And even if “keep and bear Arms” were a unitary phrase, we find no evidence that it bore a military meaning. Although the phrase was not at all common (which would be unusual for a term of art), we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defence.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion. Id., at 467-468.15

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed . . . .”16

Between the Restoration and the Glorious Revolution, the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents. See J. Malcolm, To Keep and Bear Arms 31-53 (1994) (hereinafter Malcolm); L. Schwoerer, The Declaration of Rights, 1689, p. 76 (1981). Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies. See Malcolm 103-106. These experiences caused Englishmen to be extremely wary of concentrated military forces run by the state and to be jealous of their arms. They accordingly obtained an assurance from William and Mary, in the Declaration of Right (which was codified as the English Bill of Rights), that Protestants would never be disarmed: “That the Subjects which are Protestants, may have Arms for their Defence suitable to their Conditions, and as allowed by Law.” 1 W. & M., ch. 2, § 7, in 3 Eng. Stat. at Large 441. This right has long been understood to be the predecessor to our Second Amendment. See E. Dumbauld, The Bill of Rights and What It Means Today 51 (1957); W. Rawle, A View of the Constitution of the United States of America 122 (1825) (hereinafter Rawle). It was clearly an individual right, having nothing whatever to do with service in a militia. To be sure, it was an individual right not available to the whole population, given that it was restricted to Protestants, and like all written English rights it was held only against the Crown, not Parliament. See Schwoerer, To Hold and Bear Arms: The English Perspective, in Bogus 207, 218; but see 3 J. Story, Commentaries on the Constitution of the United States § 1858 (1833) (hereinafter Story) (contending that the “right to bear arms” is a “limitatio[n] upon the power of parliament” as well). But it was secured to them as individuals, according to “libertarian political principles,” not as members of a fighting force. Schwoerer, Declaration of Rights, at 283; see also id., at 78; G. Jellinek, The Declaration of the Rights of Man and of Citizens 49, and n. 7 (1901) (reprinted 1979).

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122-134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139-140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2-4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17-18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886-887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59-60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (0. Dickerson ed. 1936) (reprinted 1970); see also, e. g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1904) (reprinted 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Anti-federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145-146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31-32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e. g., United States v. Williams, 553 U. S. 285 (2008). Thus, we do not read, the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State .. . .”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.” That definition comports with founding-era sources. See, e. g., Webster (“The militia of a country are the able bodied men organized into companies, regiments and brigades . . . and required by law to attend military exercises on certain days only, but at other times left to pursue their usual occupations”); The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands”); Letter to Destutt de Tracy (Jan. 26, 1811), in The Portable Thomas Jefferson 520, 524 (M. Peterson ed. 1975) (“the militia of the State, that is to say, of every man in it able to bear arms”).

Petitioners take a seemingly narrower view of the militia, stating that “[mjilitias are the state- and congressionallyregulated military forces described in the Militia Clauses (art. I, § 8, cls. 15-16).” Brief for Petitioners 12. Although we agree with petitioners’ interpretive assumption that “militia” means the same thing in Article I and the Second Amendment, we believe that petitioners identify the wrong thing, namely, the organized militia. Unlike armies and navies, which Congress is given the power to create (“to raise . . . Armies”; “to provide ... a Navy,” Art. I, § 8, cls. 12-13), the militia is assumed by Article I already to be in existence. Congress is given the power to “provide for calling forth the Militia,” § 8, cl. 15; and the power not to create, but to “organiz[eJ” it — and not to organize “a” militia, which is what one would expect if the militia were to be a federal creation, but to organize “the” militia, connoting a body already in existence, ibid., cl. 16. This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first Militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia.” Act of May 8,1792, 1 Stat. 271. To be sure, Congress need not conscript every able-bodied man into the militia, because nothing in Article I suggests that in exercising its power to organize, discipline, and arm the militia, Congress must focus upon the entire body. Although the militia consists of all able-bodied men, the federally organized militia may consist of a subset of them.

Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training. See Johnson 1619 (“Regulate”: “To adjust by rule or method”); Rawle 121-122; cf. Va. Declaration of Rights § 13 (1776), in 7 Thorpe 3812, 3814 (referring to “a well-regulated militia, composed of the body of the people, trained to arms”).

b. “Security of a Free State.” The phrase “security of a free State” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense it means the people composing a particular nation or community.” 1 Story § 208; see also 3 id., § 1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free State” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e. g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15,1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States — “each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.

There are many reasons why the militia was thought to be “necessary to the security of a free State.” See 3 Story § 1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary — an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.

3. Relationship Between Prefatory Clause and Operative Clause.

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.

The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution. During the 1788 ratification debates, the fear that the Federal Government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric. See, e. g., Letters from The Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981). John Smilie, for example, worried not only that Congress’s “command of the militia” could be used to create a “select militia,” or to have “no militia at all,” but also, as a separate concern, that “[w]hen a select militia is formed; the people in general may be disarmed.” 2 Documentary History of the Ratification of the Constitution 508-509 (M. Jensen ed. 1976) (hereinafter Documentary Hist.). Federalists responded that because Congress was given no power to abridge the ancient right of individuals to keep and bear arms, such a force could never oppress the people. See, e. g., A Pennsylvanian III (Feb. 20, 1788), in The Origin of the Second Amendment 275, 276 (D. Young ed., 2d ed. 2001) (hereinafter Young); White, To the Citizens of Virginia (Feb. 22,1788), in id., at 280, 281; A Citizen of America (Oct. 10,1787), in id., at 38, 40; Foreign Spectator, Remarks on the Amendments to the Federal Constitution, Nov. 7, 1788, in id., at 556. It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.

It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights — was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 714 (dissenting opinion), is profoundly mistaken. He bases that assertion solely upon the prologue— but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principle]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897), petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petitioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment’s guarantee — it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act's requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521-525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.

Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment. Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them — Pennsylvania and Vermont — clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves and the state . . . .” § XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, § XV, in 6 id., at 3741.

North Carolina also codified a right to bear arms in 1776: “That the people have a right to bear arms, for the defence of the State .. ..” Declaration of Rights § XVII, in 5 id., at 2787, 2788. This could plausibly be read to support only a right to bear arms in a militia — but that is a peculiar way to make the point in a constitution that elsewhere repeatedly mentions the militia explicitly. See N. C. Const., §§ XIV, XVIII, XXXV, in id., at 2789, 2791, 2793. Many colonial statutes required individual arms bearing for public-safety reasons — such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137-139 (A. Candler ed. 1911 (pt. 1)) (emphasis added). That broad public-safety understanding was the connotation given to the North Carolina right by that State’s Supreme Court in 1843. See State v. Huntly, 25 N. C. 418, 422-423.

The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. ...” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote: “The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313-314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts never read “common defence” to limit the use of weapons to militia service).

We therefore believe that the most likely reading of all four of these pre-Second Amendment state constitutional provisions is that they secured an individual right to bear arms for defensive purposes. Other States did not include rights to bear arms in their pre-1789 constitutions — although in Virginia a Second Amendment analogue was proposed (unsuccessfully) by Thomas Jefferson. (It read: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].”18 1 The Papers of Thomas Jefferson 344 (J. Boyd ed. 1950).)

Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States — Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, § 26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, § 16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II-D-2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for self-defense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an over-reading of the prefatory clause.

Justice Stevens relies on the drafting history of the Second Amendment — the various proposals in the state conventions and the debates in Congress. It is dubious to rely on such history to interpret a text that was widely understood to codify a pre-existing right, rather than to fashion a new one. But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record.

It is true, as Justice Stevens says, that there was concern that the Federal Government would abolish the institution of the state militia. See post, at 655. That concern found expression, however, not in the various Second Amendment precursors proposed in the state conventions, but in separate structural provisions that would have given the States concurrent and seemingly non-pre-emptible authority to organize, discipline, and arm the militia when the Federal Government failed to do so. See Veit 17, 20 (Virginia proposal); 4 J. Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 244, 245 (2d ed. 1836) (reprinted 1941) (North Carolina proposal); see also 2 Documentary Hist. 624 (Pennsylvania minority’s proposal). The Second Amendment precursors, by contrast, referred to the individual English right already codified in two (and probably four) state constitutions. The Federalist-dominated first Congress chose to reject virtually all major structural revisions favored by the Antifederalists, including the proposed militia amendments. Rather, it adopted primarily the popular and uncontroversial (though, in the Federalists’ view, unnecessary) individual-rights amendments. The Second Amendment right, protecting only individuals’ liberty to keep and carry arms, did nothing to assuage Antifederalists’ concerns about federal control of the militia. See, e. g., Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.

Justice Stevens thinks it significant that the Virginia, New York, and North Carolina Second Amendment proposals were “embedded ... within a group of principles that are distinctly military in meaning,” such as statements about the danger of standing armies. Post, at 657. But so was the highly influential minority proposal in Pennsylvania, yet that proposal, with its reference to hunting, plainly referred to an individual right. See 2 Documentary Hist. 624. Other than that erroneous point, Justice Stevens has brought forward absolutely no evidence that those proposals conferred only a right to carry arms in a militia. By contrast, New Hampshire’s proposal, the Pennsylvania minority’s proposal, and Samuel Adams’ proposal in Massachusetts unequivocally referred to individual rights, as did two state constitutional provisions at the time. See Veit 16, 17 (New Hampshire proposal); 6 Documentary Hist. 1452, 1453 (J. Kaminski & G. Saladino eds. 2000) (Samuel Adams’ proposal). Justice Stevens’ view thus relies on the proposition, unsupported by any evidence, that different people of the founding period had vastly different conceptions of the right to keep and bear arms. That simply does not comport with our longstanding view that the Bill of Rights codified venerable, widely understood liberties.

We now address how the Second Amendment was interpreted from immediately after its ratification through the end of the 19th century. Before proceeding, however, we take issue with Justice Stevens’ equating of these sources with postenactment legislative history, a comparison that betrays a fundamental misunderstanding of a court’s interpretive task. See post, at 662, n. 28. “ ‘[Legislative history,’ ” of course, refers to the preenactment statements of those who drafted or voted for a law; it is considered persuasive by some, not because they reflect the general understanding of the disputed terms, but because the legislators who heard or read those statements presumably voted with that understanding. Ibid. “[P]ostenactment legislative history,” ibid., a deprecatory contradiction in terms, refers to statements of those who drafted or voted for the law that are made after its enactment and hence could have had no effect on the congressional vote. It most certainly does not refer to the examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification. That sort of inquiry is a critical tool of constitutional interpretation. As we will show, virtually all interpreters of the Second Amendment in the century after its enactment interpreted the Amendment as we do.

1. Postratification Commentary.

Three important founding-era legal scholars interpreted the Second Amendment in published writings. All three understood it to protect an individual right unconnected with militia service.

St. George Tucker’s version of Blackstone’s Commentaries, as we explained above, conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty .... The right to self defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 id., at App. 300 (ellipsis in original). He believed that the English game laws had abridged the right by prohibiting “keeping a gun or other engine for the destruction of game.” Ibid.; see also 2 id., at 143, and nn. 40 and 41. He later grouped the right with some of the individual rights included in the First Amendment and said that if “a law be passed by congress, prohibiting” any of those rights, it would “be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused . . . .” 1 id., at App. 357. It is unlikely that Tucker was referring to a person’s being “accused” of violating a law making it a crime to bear arms in a state militia.19

In 1825, William Rawle, a prominent lawyer who had been a member of the Pennsylvania Assembly that ratified the Bill of Rights, published an influential treatise, which analyzed the Second Amendment as follows:

“The first [principle] is a declaration that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. . . .

“The corollary, from the first position is, that the right of the people to keep and bear arms shall not be infringed.

“The prohibition is general. No clause in the constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.” Rawle 121-122.20

Like Tucker, Rawle regarded the English game laws as violating the right codified in the Second Amendment. See id., at 122-123. Rawle clearly differentiated between the people’s right to bear arms and their service in a militia: “In a people permitted and accustomed to bear arms, we have the rudiments of a militia, which properly consists of armed citizens, divided into military bands, and instructed at least in part, in the use of arms for the purposes of war.” Id., at 140. Rawle further said that the Second Amendment right ought not “be abused to the disturbance of the public peace,” such as by assembling with other armed individuals “for an unlawful purpose” — statements that make no sense if the right does not extend to any individual purpose. Id., at 123.

Joseph Story published his famous Commentaries on the Constitution of the United States in 1833. Justice Stevens suggests that “[t]here is not so much as a whisper” in Story’s explanation of the Second Amendment that favors the individual-rights view. Post, at 668. That is wrong. Story explained that the English Bill of Rights had also included a “right to bear arms,” a right that, as we have discussed, had nothing to do with militia service. 3 Story § 1858. He then equated the English right with the Second Amendment:

“§1891. A similar provision [to the Second Amendment] in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, ‘that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.’ But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.” (Footnotes omitted.)

This comparison to the Declaration of Right would not make sense if the Second Amendment right was the right to use a gun in a militia, which was plainly not what the English right protected. As the Tennessee Supreme Court recognized 38 years after Story wrote his Commentaries, “[t]he passage from Story, shows clearly that this right was intended ... and was guaranteed to, and to be exercised and enjoyed by the citizen as such, and not by him as a soldier, or in defense solely of his political rights.” Andrews v. State, 50 Tenn. 165, 183-184 (1871). Story’s Commentaries also cite as support Tucker and Rawle, both of whom clearly viewed the right as unconnected to militia service. See 3 Story § 1890, n. 2, § 1891, n. 3. In addition, in a shorter 1840 work Story wrote: “One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.” A Familiar Exposition of the Constitution of the United States § 450 (reprinted 1986).

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone’s description of the right, wrote that “the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed.” A Treatise on the Unconstitutionality of American Slavery 117-118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables “personal defence”). In his famous Senate speech about the 1856 “Bleeding Kansas” conflict, Charles Sumner proclaimed:

“The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defense, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that The right of the people to keep and bear arms shall not be infringed,’ the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed — of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment.” The Crime Against Kansas, May 19-20, 1856, in American Speeches: Political Oratory From the Revolution to the Civil War 553, 606-607 (T. Widmer ed. 2006).

We have found only one early-19th-century commentator who clearly conditioned the right to keep and bear arms upon service in the militia — and he recognized that the prevailing view was to the contrary. “The provision of the constitution, declaring the right of the people to keep and bear arms, &c. was probably intended to apply to the right of the people to bear arms for such [militia-related] purposes only, and not to prevent congress or the legislatures of the different states from enacting laws to prevent the citizens from always going armed. A different construction however has been given to it.” B. Oliver, The Rights of an American Citizen 177 (1832).

2. Pre-Civil War Case Law.

The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. In Houston v. Moore, 5 Wheat. 1, 24 (1820), this Court held that States have concurrent power over the militia, at least where not pre-empted by Congress. Agreeing in dissent that States could “organize, arm, and discipline” the militia in the absence of conflicting federal regulation, Justice Story said that the Second Amendment “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 51-53. Of course, if the Amendment simply “protected] the right of the people of each of the several States to maintain a well-regulated militia,” post, at 637 (Stevens, J., dissenting), it would have enormous and obvious bearing on the point. But the Court and Story derived the States’ power over the militia from the nonexclusive nature of federal power, not from the Second Amendment, whose preamble merely “confirms and illustrates” the importance of the militia. Even clearer was Justice Baldwin. In the famous fugitive-slave case of Johnson v. Tompkins, 13 F. Cas. 840, 850, 852 (CC Pa. 1833), Baldwin, sitting as a Circuit Judge, cited both the Second Amendment and the Pennsylvania analogue for his conclusion that a citizen has “a right to carry arms in defence of his property or person, and to use them, if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either.”

Many early-19th century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained: “[N]umerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia.21 See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!” Ibid.

Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

Those who believe that the Second Amendment preserves only a militia-centered right place great reliance on the Tennessee Supreme Court’s 1840 decision in Aymette v. State, 21 Tenn. 154. The case does not stand for that broad proposition; in fact, the case does not mention the word “militia” at all, except in its quoting of the Second Amendment. Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons. The opinion first recognized that both the state right and the federal right were descendents of the 1689 English right, but (erroneously, and contrary to virtually all other authorities) read that right to refer only to “protection of] the public liberty” and “keeping) in awe those who are in power,” id., at 158. The court then adopted a sort of middle position, whereby citizens were permitted to carry arms openly, unconnected with any service in a formal militia, but were given the right to use them only for the military purpose of banding together to oppose tyranny. This odd reading of the right is, to be sure, not the one we adopt — but it is not petitioners’ reading either. More importantly, seven years earlier the Tennessee Supreme Court had treated the state constitutional provision as conferring a right “to all the free citizens of the State to keep and bear arms for their defence,” Simpson, 5 Yer., at 360; and 21 years later the court held that the “keep” portion of the state constitutional right included the right to personal self-defense: “[T]he right to keep arms involves, necessarily, the right to use such arms for all the ordinary purposes, and in all the ordinary modes usual in the country, and to which arms are adapted, limited by the duties of a good citizen in times of peace.” Andrews, 50 Tenn., at 178-179; see also ibid, (equating state provision with Second Amendment).

3. Post-Civil War Legislation.

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (1998) (hereinafter Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen’s Bureau in 1866 stated plainly: “[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities. . . . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st Sess., 233, 236. A joint congressional Report decried:

“[I]n some parts of [South Carolina,] armed parties are, without proper authority, engaged in seizing all firearms found in the hands of the freedmen. Such conduct is in plain and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that ‘the right of the people to keep and bear arms shall not be infringed.’ The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with firearms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals.” Joint Comm, on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).

The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that “[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves.” Halbrook 19.

Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14 stated:

“[T]he right... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens . . . without respect to race or color, or previous condition of slavery. ...” 14 Stat. 176-177.

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation “were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms/ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., 7-8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073.

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

4. Post-Civil War Commentators.

Every late-19th-century legal scholar that we have read interpreted the Second Amendment to secure an individual right unconnected with militia service. The most famous was the judge and professor Thomas Cooley, who wrote a massively popular 1868 Treatise on Constitutional Limitations. Concerning the Second Amendment it said:

“Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. . . . The alternative to a standing army is ‘a well-regulated militia/ but this cannot exist unless the people are trained to bearing arms. How far it is in the power of the legislature to regulate this right, we shall not undertake to say, as happily there has been very little occasion to discuss that subject by the courts.” Id., at 350.

That Cooley understood the right not as connected to militia service, but as securing the militia by ensuring a populace familiar with arms, is made even clearer in his 1880 work, General Principles of Constitutional Law. The Second Amendment, he said, “was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people.” Id., at 270. In a section entitled “The Right in General,” he continued:

“It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose. But this enables government to have a well-regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.” Id., at 271.

All other post-Civil War 19th-century sources we have found concurred with Cooley. One example from each decade will convey the general flavor:

“[The purpose of the Second Amendment is] to secure a well-armed militia. . . . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms____ The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.” J. Pomeroy, An Introduction to the Constitutional Law of the United States § 239, pp. 152-153 (1868) (hereinafter Pomeroy).

“As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (0. Holmes ed., 12th ed. 1873) (hereinafter Kent).

“Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practises in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott).

“The right to bear arms has always been the distinctive privilege of freemen. Aside from any necessity of self-protection to the person, it represents among all nations power coupled with the exercise of a certain jurisdiction. . . . [I]t was not necessary that the right to bear arms should be granted in the Constitution, for it had always existed.” J. Ordronaux, Constitutional Legislation in the United States 241-242 (1891).

We now ask whether any of our precedents forecloses the conclusions we have reached about the meaning of the Second Amendment.

United States v. Cruikskank, 92 U. S. 542, in the course of vacating the convictions of members of a white mob for depriving blacks of their right to keep and bear arms, held that the Second Amendment does not by its own force apply to anyone other than the Federal Government. The opinion explained that the right “is not a right granted by the Constitution [or] in any manner dependent upon that instrument for its existence. The second amendment... means no more than that it shall not be infringed by Congress.” Id., at 553. States, we said, were free to restrict or protect the right under their police powers. The limited discussion of the Second Amendment in Cruikshank supports, if anything, the individual-rights interpretation. There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack, see C. Lane, The Day Freedom Died 62 (2008). We described the right protected by the Second Amendment as “‘bearing arms for a lawful purpose’”22 and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. 92 U. S., at 553. That discussion makes little sense if it is only a right to bear arms in a state militia.23

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade “bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law.” Id., at 264-265. This does not refute the individual-rights interpretation of the Amendment; no one supporting that interpretation has contended that States may not ban such groups. Justice Stevens presses Presser into service to support his view that the right to bear arms is limited to service in the militia by joining Presser1s brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for Justice Stevens’ argument, that later portion deals with the Fourteenth Amendment; it was the Fourteenth Amendment to which the plaintiff’s nonmembership in the militia was relevant. Thus, Justice Stevens’ statement that Presser “suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia,” post, at 674-675, is simply wrong. Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.

Justice Stevens places overwhelming reliance upon this Court’s decision in Miller, 307 U. S. 174. “[H]undreds of judges,” we are told, “have relied on the view of the Amendment we endorsed there,” post, at 638, and “[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law,” post, at 639. And what is, according to Justice Stevens, the holding of Miller that demands such obeisance? That the Second Amendment “protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons.” Post, at 637.

Nothing so clearly demonstrates the weakness of Justice Stevens’ case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal indictment for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bearing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear suck an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. Justice Stevens can say again and again that Miller did not “turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 677, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. Justice Stevens claims, post, at 676-677, that the opinion reached its conclusion “[a]fter reviewing many of the same sources that are discussed at greater length by the Court today.” Not many, which was not entirely the Court’s fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court’s consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government’s brief spent two pages discussing English legal sources, concluding “that at least the carrying of weapons without lawful occasion or excuse was always a crime” and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) “the early English law did not guarantee an unrestricted right to bear arms.” Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawed-off shotguns, are not protected. See id., at 18-21. The Government’s Miller brief thus provided scant discussion of the history of the Second Amendment— and the Court was presented with no counterdiscussion. As for the text of the Court’s opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the nature of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-182. Not a word (not a word) about the history of the Second Amendment. This is the mighty rock upon which the dissent rests its case.24

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[0]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [smáll-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First Amendment’s guarantee of freedom of speech in 1931, almost 150 years after the Amendment was ratified, see Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and it was not until after World War II that we held a law invalid under the Establishment Clause, see Illinois ex rel. McCollum v. Board of Ed. of School Dish No. 71, Champaign Cty., 333 U. S. 203 (1948). Even a question as basic as the scope of proscribable libel was not addressed by this Court until 1964, nearly two centuries after the founding. See New York Times Co. v. Sullivan, 376 U. S. 254 (1964). It is demonstrably not true that, as Justice Stevens claims, post, at 676, “for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.” For most of our history the question did not present itself.

III

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service — M-16 rifles and the like — may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.

As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

New laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616-617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i. e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police. Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56-57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel . . . , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D. C. Code §7-2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978).28

Apart from his challenge to the handgun ban and the trigger-lock requirement respondent asked the District Court to enjoin petitioners from enforcing the separate licensing requirement “in such a manner as to forbid the carrying of a firearm within one’s home or possessed land without a license.” App. 59a. The Court of Appeals did not invalidate the licensing requirement, but held only that the District “may not prevent [a handgun] from being moved throughout one’s house.” 478 F. 3d, at 400. It then ordered the District Court to enter summary judgment “consistent with [respondent’s] prayer for relief.” Id., at 401. Before this Court petitioners have stated that “if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified,” by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not “have a problem with . . . licensing” and that the District’s law is permissible so long as it is “not enforced in an arbitrary and capricious manner.” Tr. of Oral Arg. 74-75. We therefore assume that petitioners’ issuance of a license will satisfy respondent’s prayer for relief and do not address the licensing requirement.

Justice Breyer has devoted most of his separate dissent to the handgun ban. He says that, even assuming the Second Amendment is a personal guarantee of the right to bear arms, the District’s prohibition is valid. He first tries to establish this by founding-era historical precedent, pointing to various restrictive laws in the colonial period. These demonstrate, in his view, that the District’s law “imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted.” Post, at 682. Of the laws he cites, only one offers even marginal support for his assertion. A 1783 Massachusetts law forbade the residents of Boston to “take into” or “receive into” “any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop or other Building” loaded firearms, and permitted the seizure of any loaded firearms that “shall be found” there. Act of Mar. 1, 1783, ch. XIII, 1783 Mass. Acts p. 218. That statute’s text and its prologue, which makes clear that the purpose of the prohibition was to eliminate the danger to firefighters posed by the “depositing of loaded Arms” in buildings, give reason to doubt that colonial Boston authorities would have enforced that general prohibition against someone who temporarily loaded a firearm to confront an intruder (despite the law’s application in that case). In any case, we would not stake our interpretation of the Second Amendment upon a single law, in effect in a single city, that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense of the home. The other laws Justice Breyer cites are gunpowder-storage laws that he concedes did not clearly prohibit loaded weapons, but required only that excess gunpowder be kept in a special container or on the top floor of the home. Post, at 686. Nothing about those fire-safety laws undermines our analysis; they do not remotely burden the right of self-defense as much as an absolute ban on handguns. Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.

Justice Breyer points to other founding-era laws that he says “restricted the firing of guns within the city limits to at least some degree” in Boston, Philadelphia, and New York. Post, at 683 (citing Churchill, Gun Regulation, the Police Power, and the Right to Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007)). Those laws provide no support for the severe restriction in the present case. The New York law levied a fine of 20 shillings on anyone who fired a gun in certain places (including houses) on New Year’s Eve and the first two days of January, and was aimed at preventing the “great Damages ... frequently done on [those days] by persons going House to House, with Guns and other Fire Arms and being often intoxicated with Liquor.” Ch. 1501, 5 Colonial Laws of New York 244-246 (1894). It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans. The Pennsylvania law to which Justice Breyer refers levied a fine of five shillings on one who fired a gun or set off fireworks in Philadelphia without first obtaining a license from the Governor. See Act of Aug. 26,1721, ch. CCXLV, § IV, in 3 Stat. at Large of Pa. 253-254 (1896). Given Justice Wilson’s explanation that the right to self-defense with arms was protected by the Pennsylvania Constitution, it is unlikely that this law (which in any event amounted to at most a licensing regime) would have been enforced against a person who used firearms for self-defense. Justice Breyer cites a Rhode Island law that simply levied a 5-shilling fine on those who fired guns in streets and taverns, a law obviously inapplicable to this case. See An Act for preventing Mischief being done in the town of Newport, or in any other Town in this Government, 1731 Rhode Island Session Laws pp. 240-241. Finally, Justice Breyer points to a Massachusetts law similar to the Pennsylvania law, prohibiting “discharging] any Gun or Pistol charged with Shot or Ball in the Town of Boston” Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay p. 208. It is again implausible that this would have been enforced against a citizen acting in self-defense, particularly given its preambulatory reference to “the indiscreet firing of Guns.” Ibid, (preamble) (emphasis added).

A broader point about the laws that Justice Breyer cites: All of them punished the discharge (or loading) of guns with a small fine and forfeiture of the weapon (or in a few cases a very brief stay in the local jail), not with significant criminal penalties.29 They are akin to modern penalties for minor public-safety infractions like speeding or jaywalking. And although such public-safety laws may not contain exceptions for self-defense, it is inconceivable that the threat of a jaywalking ticket would deter someone from disregarding a “Do Not Walk” sign in order to flee an attacker, or that the government would enforce those laws under such circumstances. Likewise, we do not think that a law imposing a 5-shilling fine and forfeiture of the gun would have prevented a person in the founding era from using a gun to protect himself or his family from violence, or that if he did so the law would be enforced against him. The District law, by contrast, far from imposing a minor fine, threatens citizens with a year in prison (five years for a second violation) for even obtaining a gun in the first place. See D. C. Code § 7-2507.06.

Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 689-690. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: Because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrongheaded views. The Second Amendment is no different. Like the First, it is the very product of an interest balancing by the people — which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 720-721. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

* * *

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 626-627, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

We affirm the judgment of the Court of Appeals.

It is so ordered.

There are minor exceptions to all of these prohibitions, none of which is relevant here.

That construction has not been challenged here.

As Sutherland explains, the key 18th-century English ease on the effect of preambles, Copeman v. Gallant, 1 P. Wms. 314, 24 Eng. Rep. 404 (1716), stated that “the preamble could not be used to restrict the effect of the words used in the purview.” 2A N. Singer, Sutherland on Statutory Construction § 47.04, pp. 145-146 (rev. 5th ed. 1992). This rule was modified in England in an 1826 ease to give more importance to the preamble, but in America “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” Id., at 146.

Justice Stevens says that we violate the general rule that every clause in a statute must have effect. Post, at 643. But where the text of a clause itself indicates that it does not have operative effect, such as “whereas” clauses in federal legislation or the Constitution’s preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues.

Justice Stevens criticizes us for discussing the prologue last. Ibid. But if a prologue can be used only to clarify an ambiguous operative provision, surely the first step must be to determine whether the operative provision is ambiguous. It might be argued, we suppose, that the prologue itself should be one of the factors that go into the determination of whether the operative provision is ambiguous — but that would cause the prologue to be used to produce ambiguity rather than just to resolve it. In any event, even if we considered the prologue along with the operative provision we would reach the same result we do today, since (as we explain) our interpretation of “the right of the people to keep and bear arms” furthers the purpose of an effective militia no less than (indeed, more than) the dissent’s interpretation. See infra, at 599-600.

Justice Stevens is of course correct, post, at 645, that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And Justice Stevens is dead wrong to think that the right to petition is “primarily collective in nature.” Ibid. See McDonald v. Smith, 472 U. S. 479, 482-484 (1985) (describing historical origins of right to petition).

If we look to other founding-era documents, we find that some state constitutions used the term “the people” to refer to the people collectively, in contrast to “citizen,” which was used to invoke individual rights. See Heyman, Natural Rights and the Second Amendment, in The Second Amendment in Law and History 179,193-195 (C. Bogus ed. 2000) (hereinafter Bogus). But that usage was not remotely uniform. See, e. g., N. C. Declaration of Rights § XIV (1776), in 5 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 2787,2788 (F. Thorpe ed. 1909) (hereinafter Thorpe) (jury trial); Md. Declaration of Rights § XVIII (1776), in 3 id., at 1686, 1688 (vicinage requirement); Vt. Declaration of Rights, ch. 1, §XI (1777), in 6 id., at 3737, 3741 (searches and seizures); Pa. Declaration of Rights § XII (1776), in 5 id., at 3082, 3083 (free speech). And, most importantly, it was clearly not the terminology used in the Federal Constitution, given the First, Fourth, and Ninth Amendments.

See, e.g., 3 A Compleat Collection of State-Tryals 185 (1719) (“Hath not every Subject power to keep Arms, as well as Servants in his House for defence of his Person?”); T. Wood, A New Institute of the Imperial or Civil Law 282 (4th ed. corrected 1730) (“Those are guilty of publick Force, who keep Arms in their Houses, and make use of them otherwise than upon Journeys or Hunting, or for Sale .. . ”); A Collection of All the Acts of Assembly, Now in Force, in the Colony of Virginia 596 (1733) (“Free Negros, Mulattos, or Indians, and Owners of Slaves, seated at Frontier Plantations, may obtain Licence from a Justice of Peace, for keeping Arms, c£e.”); J. Ayliffe, A New Pandect of Roman Civil Law 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); J. Trusler, A Concise View of the Common Law and Statute Law of England 270 (1781) (“[I]f [papists] keep arms in their houses, such arms may be seized by a justice of the peace”); Some Considerations on the Game Laws 54 (1796) (“Who has been deprived by [the law] of keeping arms for his own defence? What law forbids the veriest pauper, if he can raise a sum sufficient for the purchase of it, from mounting his Gun on his Chimney Piece . . . ?”); 3 B. Wilson, The Works of the Honourable James Wilson 84 (1804) (with reference to state constitutional right: “This is one of our many renewals of the Saxon regulations. ‘They were bound,’ says Mr. Selden, ‘to keep arms for the preservation of the kingdom, and of their own persons’ ”); W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31-32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation”); 3 R. Burn, Justice of the Peace and Parish Officer 88 (29th ed. 1845) (“It is, however, laid down by Serjeant Hawkins, . . . that if a lessee, after the end of the term, keep arms in his house to oppose the entry of the lessor,... ”); State v. Dempsey, 31 N. C. 384, 385 (1849) (citing 1840 state law making it a misdemeanor for a member of certain racial groups “to carry about his person or keep in his house any shot gun or other arms”).

See Pa. Declaration of Rights § XIII, in 5 Thorpe 3083 (“That the people have a right to bear arms for the defence of themselves and the state . . . ”); Vt. Declaration of Rights, ch. 1, § XV, in 6 id., at 3741 (“That the people have a right to bear arms for the defence of themselves and the State . . . ”); Ky. Const., Art. XII, § 23 (1792), in 3 id., at 1264, 1275 (“That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”); Ohio Const., Art. VIII, § 20 (1802), in 5 id., at 2901, 2911 (“That the people have a right to bear arms for the defence of themselves and the State ... ”); Ind. Const., Art. I, § 20 (1816), in 2 id., at 1057, 1059 (“That the people have a right to bear arms for the defense of themselves and the State ... ”); Miss. Const., Art. I, § 23 (1817), in 4 id., at 2032, 2034 (“Every citizen has a right to bear arms, in defence of himself and the State”); Conn. Const., Art. First, § 17 (1818), in 1 id., at 536, 538 (“Every citizen has a right to bear arms in defense of himself and the state”); Ala. Const., Art. I, § 23 (1819), in id., at 96, 98 (“Every citizen has a right to bear arms in defence of himself and the State”); Mo. Const., Art. XIII, § 3 (1820), in 4 id., at 2150, 2163 (“[T]hat their right to bear arms in defence of themselves and of the State cannot be questioned”). See generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Polities 191 (2006).

See Bliss v. Commonwealth, 2 Litt. 90, 91-92 (Ky. 1822); State v. Reid, 1 Ala. 612, 616-617 (1840); State v. Schoultz, 25 Mo. 128, 155 (1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (interpreting similar provision with “ ‘common defence’ ” purpose); State v. Huntly, 25 N. C. 418, 422-423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250-251 (1846) (construing Second Amendment); State v. Chandler, 5 La. Ann. 489, 489-490 (1850) (same).

See J. Brydall, Privilegia Magnatud apud Anglos 14 (1704) (Privilege XXXIII) (“In the 21st Year of King Edward the Third, a Proclamation Issued, that no Person should bear any Arms within London, and the Suburbs”); J. Bond, A Compleat Guide to Justices of the Peace 43 (3d ed. 1707) (“Sheriffs, and all other Officers in executing their Offices, and all other persons pursuing Hu[e] and Cry may lawfully bear Arms”); 1 An Abridgment of the Public Statutes in Force and Use Relative to Scotland (1755) (entry for “Arms”: “And if any person above described shall have in his custody, use, or bear arms, being thereof convicted before one justice of peace, or other judge competent, summarily, he shall for the first offense forfeit all such arms” (citing 1 Geo., ch. 54, § 1, in 5 Eng. Stat. at Large 90 (1668))); Statute Law of Scotland Abridged 132-133 (2d ed. 1769) (“Acts for disarming the highlands” but “exempting those who have particular licenses to bear arms”); E. de Vattel, The Law of Nations, or, Principles of the Law of Nature 144 (1792) (“Since custom has allowed persons of rank and gentlemen of the army to bear arms in time of peace, strict care should be taken that none but these should be allowed to wear swords”); E. Roche, Proceedings of a Court-Martial, Held at the Council-Chamber, in the City of Cork 3 (1798) (charge VI: “With having held traitorous conferences, and with having conspired, with the like intent, for the purpose of attacking and despoiling of the arms of several of the King’s subjects, qualified by law to bear arms”); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822) ("[I]n this country the constitution guarranties to all persons the right to bear arms; then it can only be a crime to exercise this right in such a manner, as to terrify people unnecessarily”).

Justice Stevens contends, post, at 650, that since we assert that adding “against” to “bear arms” gives it a military meaning we must concede that adding a purposive qualifying phrase to “bear arms” can alter its meaning. But the difference is that we do not maintain that “against” alters the meaning of “bear arms” but merely that it clarifies which of various meanings (one of which is military) is intended. Justice Stevens, however, argues that “[t]he term ‘bear arms’ is a familiar idiom; when used unadorned by any additional words, its meaning is ‘to serve as a soldier, do military service, fight.’” Post, at 646. He therefore must establish that adding a contradictory purposive phrase can alter a word’s meaning.

Justice Stevens finds support for his legislative history inference from the recorded views of one Antifederalist member of the House. Post, at 660, n. 25. “The claim that the best or most representative reading of the [language of the] amendments would conform to the understanding and concerns of [the Antifederalists] is . . . highly problematic.” Rakove, The Second Amendment: The Highest Stage of Originalism, in Bogus 74, 81.

The same applies to the conscientious-objector amendments proposed by Virginia and North Carolina, which said: “That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.” See Veit 19; 4 J. Eliot, The Debates in the Several State Constitutions on the Adoption of the Federal Constitution 243, 244 (2d ed. 1836) (reprinted 1941). Certainly their second use of the phrase (“bear arms in his stead”) refers, by reason of context, to compulsory bearing of arms for military duty. But their first use of the phrase (“any person religiously scrupulous of bearing arms”) assuredly did not refer to people whose God allowed them to bear arms for defense of themselves but not for defense of their country.

Faced with this clear historical usage, Justice Stevens resorts to the bizarre argument that because the word “to” is not included before “bear” (whereas it is included before “petition” in the First Amendment), the unitary meaning of “ ‘to keep and bear’ ” is established. Post, at 651, n. 13. We have never heard of the proposition that omitting repetition of the “to” causes two verbs with different meanings to become one. A promise “to support and to defend the Constitution of the United States” is not a whit different from a promise “to support and defend the Constitution of the United States.”

Cf. 21 Geo. II, ch. 34, § 3, in 7 Eng. Stat. at Large 126 (1748) (“That the Prohibition contained ... in this Act, of having, keeping, bearing, or wearing any Arms or Warlike Weapons . . . shall not extend ... to any Officers or their Assistants, employed in the Execution of Justice . . . ”).

Contrary to Justice Stevens’ wholly unsupported assertion, post, at 636, 652, there was no pre-existing right in English law “to use weapons for certain military purposes” or to use arms in an organized militia.

Article I, § 8, cl. 16, of the Constitution gives Congress the power “[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

It could not be clearer that Congress’s “organizing" power, unlike its “governing” power, can be invoked even for that part of the militia not “employed in the Service of the United States.” Justice Stevens provides no support whatever for his contrary view, see post, at 654, n. 20. Both the Federalists and Antifederalists read the provision as it was written, to permit the creation of a “select” militia. See The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961); Centinel, Revived, No. XXIX, Philadelphia Independent Gazetteer, Sept. 9, 1789, in Young 711, 712.

Justice Stevens says that the drafters of the Virginia Declaration of Rights rejected this proposal and adopted “instead” a provision written by George Mason stressing the importance of the militia. See post, at 659, and n. 24. There is no evidence that the drafters regarded the Mason proposal as a substitute for the Jefferson proposal.

Justice Stevens quotes some of Tucker’s unpublished notes, which he claims show that Tucker had ambiguous views about the Second Amendment. See post, at 666, and n. 32. But it is clear from the notes that Tucker located the power of States to arm their militias in the Tenth Amendment, and that he cited the Second Amendment for the proposition that such armament could not run afoul of any power of the Federal Government (since the Amendment prohibits Congress from ordering disarmament). Nothing in the passage implies that the Second Amendment pertains only to the carrying of arms in the organized militia.

Rawle, writing before our decision in Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 248 (1833), believed that the Second Amendment could be applied against the States. Such a belief would of course be nonsensical on petitioners’ view that it protected only a right to possess and carry arms when conscripted by the State itself into militia service.

Justice Stevens suggests that this is not obvious because free blacks in Virginia had been required to muster without arms. See post, at 663, n. 29 (citing Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 497 (1998)). But that could not have been the type of law referred to in Aldridge, because that practice had stopped 30 years earlier when blacks were excluded entirely from the militia by the first Militia Act. See Siegel, supra, at 498, n. 120. Justice Stevens further suggests that laws barring blacks from militia service could have been said to violate the “right to bear arms.” But under Justice Stevens’ reading of the Second Amendment (we think), the protected right is the right to carry arms to the extent one is enrolled in the militia, not the right to be in the militia. Perhaps Justice Stevens really does adopt the full-blown idiomatic meaning of “bear arms,” in which case every man and woman in this country has a right “to be a soldier” or even “to wage war.” In any case, it is clear to us that Aldridge’s allusion to the existing Virginia “restriction” upon the right of free blacks “to bear arms” could only have referred to “laws prohibiting free blacks from keeping weapons,” Siegel, supra, at 497-498.

Justice Stevens’ accusation that this is “not accurate,” post, at 673, is wrong. It is true it was the indictment that described the right as “bearing arms for a lawful purpose.” But, in explicit reference to the right described in the indictment, the Court stated that “[t]he second amendment declares that it [i. e., the right of bearing arms for a lawful purpose] shall not be infringed.” 92 U. S., at 553.

With respect to Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois, 116 U. S. 252, 265 (1886), and Miller v. Texas, 153 U. S. 535, 538 (1894), reaffirmed that the Second Amendment applies only to the Federal Government.

As for the “hundreds of judges,” post, at 638, who have relied on the view of the Second Amendment Justice Stevens claims we endorsed in Miller: If so, they overread Miller. And their erroneous reliance upon an uncontested and virtually unreasoned case cannot nullify the reliance of millions of Americans (as our historical analysis has shown) upon the true meaning of the right to keep and bear arms. In any event, it should not be thought that the cases decided by these judges would necessarily have come out differently under a proper interpretation of the right.

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller .. . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65-66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. Post, at 687-688. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. See, e. g., Engquist v. Oregon Dept. of Agriculture, 553 U. S. 591, 602 (2008). In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. See United States v. Carotene Products Co., 304 U. S. 144, 152, n. 4 (1938) (“There may be narrower scope for operation of the presumption of constitutionality [i. e., narrower than that provided by rational-basis review] when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments . . . ”). If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

McIntosh upheld the law against a claim that it violated the Equal Protection Clause by arbitrarily distinguishing between residences and businesses. See 395 A. 2d, at 755. One of the rational bases listed for that distinction was the legislative finding “that for each intruder stopped by a firearm there are four gun-related accidents within the home.” Ibid. That tradeoff would not bear mention if the statute did not prevent stopping intruders by firearms.

The Supreme Court of Pennsylvania described the amount of five shillings in a contract matter in 1792 as “nominal consideration.” Morris’s Lessee v. Smith, 4 Dali. 119, 120 (Pa. 1792). Many of the laws cited punished violation with fine in a similar amount; the 1783 Massachusetts gunpowder-storage law carried a somewhat larger fine of £10 (200 shillings) and forfeiture of the weapon.

Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer

join, dissenting.

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1934, Congress enacted the National Firearms Act, the first major federal firearms law.1 Sustaining an indictment under the Act, this Court held that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment we took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons — is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there;2 we ourselves affirmed it in 1980. See Lewis v. United States, 445 U. S. 55, 65-66, n. 8 (1980).3 No new evidence has surfaced since 1980 supporting the view that the Amendment was intended to curtail the power of Congress to regulate civilian use or misuse of weapons. Indeed, a review of the drafting history of the Amendment demonstrates that its Framers rejected proposals that would have broadened its coverage to include such uses.

The opinion the Court announces today fails to identify any new evidence supporting the view that the Amendment was intended to limit the power of Congress to regulate civilian uses of weapons. Unable to point to any such evidence, the Court stakes its holding on a strained and unpersuasive reading of the Amendment’s text; significantly different provisions in the 1689 English Bill of Rights, and in various 19th-century State Constitutions; postenactment commentary that was available to the Court when it decided Miller; and, ultimately, a feeble attempt to distinguish Miller that places more emphasis on the Court’s decisional process than on the reasoning in the opinion itself.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, see Mitchell v. W. T. Grant Co., 416 U. S. 600, 636 (1974) (Stewart, J., dissenting), would prevent most jurists from endorsing such a dramatic upheaval in the law.4 As Justice Cardozo observed years ago, the “labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” The Nature of the Judicial Process 149 (1921).

In this dissent I shall first explain why our decision in Miller was faithful to the text of the Second Amendment and the purposes revealed in its drafting history. I shall then comment on the postratification history of the Amendment, which makes abundantly clear that the Amendment should not be interpreted as limiting the authority of Congress to regulate the use or possession of firearms for purely civilian purposes.

The text of the Second Amendment is brief. It provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Three portions of that text merit special focus: the introductory language defining the Amendment’s purpose, the class of persons encompassed within its reach, and the unitary nature of the right that it protects.

“A well regulated Militia, being necessary to the security of a free State”

The preamble to the Second Amendment makes three important points. It identifies the preservation of the militia as the Amendment’s purpose; it explains that the militia is necessary to the security of a free State; and it recognizes that the militia must be “well regulated.” In all three respects it is comparable to provisions in several State Declarations of Rights that were adopted roughly contemporaneously with the Declaration of Independence.5 Those state provisions highlight the importance members of the founding generation attached to the maintenance of state militias; they also underscore the profound fear shared by many in that era of the dangers posed by standing armies.6 While the need for state militias has not been a matter of significant public interest for almost two centuries, that fact should not obscure the contemporary concerns that animated the Framers.

The parallels between the Second Amendment and these state declarations, and the Second Amendment’s omission of any statement of purpose related to the right to use firearms for hunting or personal self-defense, is especially striking in light of the fact that the Declarations of Rights of Pennsylvania and Vermont did expressly protect such civilian uses at the time. Article XIII of Pennsylvania’s 1776 Declaration of Rights announced that “the people have a right to bear arms for the defence of themselves and the state,” 1 Schwartz 266 (emphasis added); § 43 of the Declaration ensured that “[t]he inhabitants of this state shall have the liberty to fowl and hunt in seasonable times on the lands they hold, and on all other lands therein not inclosed,” id., at 274. And Article XV of the 1777 Vermont Declaration of Rights guaranteed “[t]hat the people have a right to bear arms for the defence of themselves and the State.” Id., at 324 (emphasis added). The contrast between those two declarations and the Second Amendment reinforces the clear statement of purpose announced in the Amendment’s preamble. It confirms that the Framers’ single-minded focus in crafting the constitutional guarantee “to keep and bear Arms” was on military uses of firearms, which they viewed in the context of service in state militias.

The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

The Court today tries to denigrate the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 578. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Ante, at 577.7 Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

“[TJhe right of the people”

The centerpiece of the Court’s textual argument is its insistence that the words “the people” as used in the Second Amendment must have the same meaning, and protect the same class of individuals, as when they are used in the First and Fourth Amendments. According to the Court, in all three provisions — as well as the Constitution’s preamble, § 2 of Article I, and the Tenth Amendment — “the term unambiguously refers to all members of the political community, not an unspecified subset.” Ante, at 580. But the Court itself reads the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments; when it finally drills down on the substantive meaning of the Second Amendment, the Court limits the protected class to “law-abiding, responsible citizens,” ante, at 635. But the class of persons protected by the First and Fourth Amendments is not so limited; for even felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions. The Court offers no way to harmonize its conflicting pronouncements.

The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

Similarly, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.

As used in the Fourth Amendment, “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment. For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment. Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment, the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

“[T]o keep and bear Arms”

Although the Court’s discussion of these words treats them as two “phrases” — as if they read “to keep” and “to bear” — they describe a unitary right: to possess arms if needed for military purposes and to use them in conjunction with military activities.

As a threshold matter, it is worth pausing to note an oddity in the Court’s interpretation of “to keep and bear Arms.” Unlike the Court of Appeals, the Court does not read that phrase to create a right to possess arms for “lawful, private purposes.” Parker v. District of Columbia, 478 F. 3d 370, 382 (CADC 2007). Instead, the Court limits the Amendment’s protection to the right “to possess and carry weapons in case of confrontation.” Ante, at 592. No party or amicus urged this interpretation; the Court appears to have fashioned it out of whole cloth. But although this novel limitation lacks support in the text of the Amendment, the Amendment’s text does justify a different limitation: The “right to keep and bear Arms” protects only a right to possess and use firearms in connection with service in a state-organized militia.

The term “bear arms” is a familiar idiom; when used unadorned by any additional words, its meaning is “to serve as a soldier, do military service, fight.” 1 Oxford English Dictionary 634 (2d ed. 1989). It is derived from the Latin arma ferre, which, translated literally, means “to bear [ferre] war equipment [arma]” Brief for Professors of Linguistics and English as Amici Curiae 19. One 18th-century dictionary defined “arms” as “[w]eapons of offence, or armour of defence,” 1 S. Johnson, A Dictionary of the English Language (1755), and another contemporaneous source explained that “[b]y arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive, on special occasions.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (3d ed. 1794).8 Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves,” as was done in the Pennsylvania and Vermont Declarations of Rights. The unmodified use of “bear arms,” by contrast, refers most naturally to a military purpose, as evidenced by its use in literally dozens of contemporary texts.9 The absence of any reference to civilian uses of weapons tailors the text of the Amendment to the purpose identified in its preamble.10 But when discussing these words, the Court simply ignores the preamble.

The Court argues that a “qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass.” Ante, at 589. But this fundamentally fails to grasp the point. The stand-alone phrase “bear arms” most naturally conveys a military meaning unless the addition of a qualifying phrase signals that a different meaning is intended. When, as in this case, there is no such qualifier, the most natural meaning is the military one; and, in the absence of any qualifier, it is all the more appropriate to look to the preamble to confirm the natural meaning of the text. 11 The Court’s objection is particularly puzzling in light of its own contention that the addition of the modifier “against” changes the meaning of “bear arms.” Compare ante, at 584 (defining “bear arms” to mean “carrying [a weapon] for a particular purpose — confrontation”), with ante, at 586 (“The phrase ‘bear Arms’ also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: to serve as a soldier, do military service, fight or to wage war. But it unequivocally bore that idiomatic meaning only when followed by the preposition ‘against’ ” (emphasis deleted; citations and some internal quotation marks omitted)).

The Amendment’s use of the term “keep” in no way contradicts the military meaning conveyed by the phrase “bear arms” and the Amendment’s preamble. To the contrary, a number of state militia laws in effect at the time of the Second Amendment’s drafting used the term “keep” to describe the requirement that militia members store their arms at their homes, ready to be used for service when necessary. The Virginia military law, for example, ordered that “every one of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer.” Act ... for Regulating and Disciplining the Militia, 1785 Va. Acts ch. 1, § III, p. 2 (emphasis added).12 “[K]eep and bear arms” thus perfectly describes the responsibilities of a framing-era militia member.

This reading is confirmed by the fact that the clause protects only one right, rather than two. It does not describe a right “to keep ... Arms” and a separate right “to bear . .. Arms.” Rather, the single right that it does describe is both a duty and a right to have arms available and ready for military service, and to use them for military purposes when necessary.13 Different language surely would have been used to protect nonmilitary use and possession of weapons from regulation if such an intent had played any role in the drafting of the Amendment.

* * *

When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden.14 And the Court’s emphatic reliance on the claim “that the Second Amendment . . . codified a pre-existing right,” ante, at 592, is of course beside the point because the right to keep and bear arms for service in a state militia was also a preexisting right.

Indeed, not a word in the constitutional text even arguably supports the Court’s overwrought and novel description of the Second Amendment as “elevat[ing] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 635.

The proper allocation of military power in the new Nation was an issue of central concern for the Framers. The compromises they ultimately reached, reflected in Article I’s Militia Clauses and the Second Amendment, represent quintessential examples of the Framers’ “splitting] the atom of sovereignty.”15

Two themes relevant to our current interpretive task ran through the debates on the original Constitution. “On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States.” Perpich v. Department of Defense, 496 U. S. 334, 340 (1990).16 Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members “as the primary means of providing for the common defense,” Perpich, 496 U. S., at 340; during the Revolutionary War, “[t]his force, though armed, was largely untrained, and its deficiencies were the subject of bitter complaint.” Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 182 (1940).17 In order to respond to those twin concerns, a compromise was reached: Congress would be authorized to raise and support a national Army18 and Navy, and also to organize, arm, discipline, and provide for the calling forth of “the Militia.” U. S. Const., Art. I, § 8, cls. 12-16. The President, at the same time, was empowered as the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Art. II, §2. But, with respect to the militia, a significant reservation was made to the States: Although Congress would have the power to call forth,19 organize, arm, and discipline the militia, as well as to govern “such Part of them as may be employed in the Service of the United States,” the States respectively would retain the right to appoint the officers and to train the militia in accordance with the discipline prescribed by Congress. Art. I, § 8, cl. 16.20

But the original Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless — by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” 3 Elliot 379.

This sentiment was echoed at a number of state ratification conventions; indeed, it was one of the primary objections to the original Constitution voiced by its opponents. The Antifederalists were ultimately unsuccessful in persuading state ratification conventions to condition their approval of the Constitution upon the eventual inclusion of any particular amendment. But a number of States did propose to the first Federal Congress amendments reflecting a desire to ensure that the institution of the militia would remain protected under the new Government. The proposed amendments sent by the States of Virginia, North Carolina, and New York focused on the importance of preserving the state militias and reiterated the dangers posed by standing armies. New Hampshire sent a proposal that differed significantly from the others; while also invoking the dangers of a standing army, it suggested that the Constitution should more broadly protect the use and possession of weapons, without tying such a guarantee expressly to the maintenance of the militia. The States of Maryland, Pennsylvania, and Massachusetts sent no relevant proposed amendments to Congress, but in each of those States a minority of the delegates advocated related amendments. While the Maryland minority proposals were exclusively concerned with standing armies and conscientious objectors, the unsuccessful proposals in both Massachusetts and Pennsylvania would have protected a more broadly worded right, less clearly tied to service in a state militia. Faced with all of these options, it is telling that James Madison chose to craft the Second Amendment as he did.

The relevant proposals sent by the Virginia Ratifying Convention read as follows:

“17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.” Id., at 659.

“19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.” Ibid.

North Carolina adopted Virginia’s proposals and sent them to Congress as its own, although it did not actually ratify the original Constitution until Congress had sent the proposed Bill of Rights to the States for ratification. 2 Schwartz 932-933; see The Complete Bill of Rights 182-183 (N. Cogan ed. 1997) (hereinafter Cogan).

New York produced a proposal with nearly identical language. It read:

“That the people have a' right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State. . . . That standing Armies, in time of Peace, are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be kept under strict Subordination to the civil Power.” 2 Schwartz 912.

Notably, each of these proposals used the phrase “keep and bear arms,” which was eventually adopted by Madison. And each proposal embedded the phrase within a group of principles that are distinctly military in meaning.21

By contrast, New Hampshire’s proposal, although it followed another proposed amendment that echoed the familiar concern about standing armies,22 described the protection involved in more clearly personal terms. Its proposal read:

“Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.” Id., at 758, 761.

The proposals considered in the other three States, although ultimately rejected by their respective ratification conventions, are also relevant to our historical inquiry. First, the Maryland proposal, endorsed by a minority of the delegates and later circulated in pamphlet form, read:

“4. That no standing army shall be kept up in time of peace, unless with the consent of two thirds of the members present of each branch of Congress.

“10. That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier.” Id., at 729, 735.

The rejected Pennsylvania proposal, which was later incorporated into a critique of the Constitution titled “The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents, 1787,” signed by a minority of the State’s delegates (those who had voted against ratification of the Constitution), id., at 628, 662, read:

“7. That the people have a right to bear arms for the defense of themselves and their own State, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.” Id., at 665.

Finally, after the delegates at the Massachusetts Ratification Convention had compiled a list of proposed amendments and alterations, a motion was made to add to the list the following language: “that the said Constitution be never construed to authorize Congress to . . . prevent the people of the United States, who are peaceable citizens, from keeping their own arms.” Cogan 181. This motion, however, failed to achieve the necessary support, and the proposal was ex-eluded from the list of amendments the State sent to Congress. 2 Schwartz 674-675.

Madison, charged with the task of assembling the proposals for amendments sent by the ratifying States, was the principal draftsman of the Second Amendment.23 He had before him, or at the very least would have been aware of, all of these proposed formulations. In addition, Madison had been a member, some years earlier, of the committee tasked with drafting the Virginia Declaration of Rights. That committee considered a proposal by Thomas Jefferson that would have included within the Virginia Declaration the following language: “No freeman shall ever be debarred the use of arms [within his own lands or tenements].” 1 Papers of Thomas Jefferson 363 (J. Boyd ed. 1950). But the committee rejected that language, adopting instead the provision drafted by George Mason.24

With all of these sources upon which to draw, it is strikingly significant that Madison’s first draft omitted any mention of nonmilitary use or possession of weapons. Rather, his original draft repeated the essence of the two proposed amendments sent by Virginia, combining the substance of the two provisions succinctly into one, which read: “The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.” Cogan 169.

Madison’s decision to model the Second Amendment on the distinctly military Virginia proposal is therefore revealing, since it is clear that he considered and rejected formulations that would have unambiguously protected civilian uses of firearms. When Madison prepared his first draft, and when that draft was debated and modified, it is reasonable to assume that all participants in the drafting process were fully aware of the other formulations that would have protected civilian use and possession of weapons and that their choice to craft the Amendment as they did represented a rejection of those alternative formulations.

Madison’s initial inclusion of an exemption for conscientious objectors sheds revelatory light on the purpose of the Amendment. It confirms an intent to describe a duty as well as a right, and it unequivocally identifies the military character of both. The objections voiced to the conscientious-objector clause only confirm the central meaning of the text. Although records of the debate in the Senate, which is where the conscientious-objector clause was removed, do not survive, the arguments raised in the House illuminate the perceived problems with the clause: Specifically, there was concern that Congress “can declare who are those religiously scrupulous, and prevent them from bearing arms.”25 The ultimate removal of the clause, therefore, only serves to confirm the purpose of the Amendment — to protect against congressional disarmament, by whatever means, of the States’ militias.

The Court also contends that because “Quakers opposed the use of arms not just for militia service, but for any violent purpose whatsoever,” ante, at 590, the inclusion of a conscientious-objector clause in the original draft of the Amendment does not support the conclusion that the phrase “bear Arms” was military in meaning. But that claim cannot be squared with the record. In the proposals cited supra, at 656, both Virginia and North Carolina included the following language: “That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead” (emphasis added).26 There is no plausible argument that the use of “bear arms” in those provisions was not unequivocally and exclusively military: The State simply does not compel its citizens to carry arms for the purpose of private “confrontation,” ante, at 584, or for self-defense.

The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed.27 As we explained in Miller: “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” 307 U. S., at 178. The evidence plainly refutes the claim that the Amendment was motivated by the Framers’ fears that Congress might act to regulate any civilian uses of weapons. And even if the historical record were genuinely ambiguous, the burden would remain on the parties advocating a change in the law to introduce facts or arguments “ ‘newly ascertained,’ ” Vasquez, 474 U. S., at 266; the Court is unable to identify any such facts or arguments.

Ill

Although it gives short shrift to the drafting history of the Second Amendment, the Court dwells at length on four other sources: the 17th-century English Bill of Rights; Blackstone’s Commentaries on the Laws of England; postenactment commentary on the Second Amendment; and post-Civil War legislative history.28 All of these sources shed only indirect light on the question before us, and in any event offer little support for the Court’s conclusion.29

The English Bill of Rights

The Court’s reliance on Article VII of the 1689 English Bill of Rights—which, like most of the evidence offered by the Court today, was considered in Miller30—is misguided both because Article VII was enacted in response to different concerns from those that motivated the Framers of the Second Amendment, and because the guarantees of the two provisions were by no means coextensive. Moreover, the English text contained no preamble or other provision identifying a narrow, militia-related purpose.

The English Bill of Rights responded to abuses by the Stuart monarchs; among the grievances set forth in the Bill of Rights was that the King had violated the law “[b]y causing several good Subjects being Protestants to be disarmed at the same time when Papists were both armed and Employed contrary to Law.” L. Sehwoerer, The Declaration of Rights, 1689, App. 1, p. 295 (1981). Article VII of the Bill of Rights was a response to that selective disarmament; it guaranteed that “the Subjects which are Protestants may have Armes for their defence Suitable to their condition and as allowed by Law.” Id., at 297. This grant did not establish a general right of all persons, or even of all Protestants, to possess weapons. Rather, the right was qualified in two distinct ways: First, it was restricted to those of adequate social and economic status (“suitable to their Condition”); second, it was only available subject to regulation by Parliament (“as allowed by Law”).31

The Court may well be correct that the English Bill of Rights protected the right of some English subjects to use some arms for personal self-defense free from restrictions by the Crown (but not Parliament). But that right — adopted in a different historical and political context and framed in markedly different language — tells us little about the meaning of the Second Amendment.

Blackstone’s Commentaries

The Court’s reliance on Blaekstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self-preservation,’ ” ante, at 594, and “ ‘the right of having and using arms for self-preservation and defence,’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.

What is important about Blackstone is the instruction he provided on reading the sort of text before us today. Blackstone described an interpretive approach that gave far more weight to preambles than the Court allows. Counseling that “[t]he fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable,” Blackstone explained: “If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.” 1 Commentaries on the Laws of England 59-60 (1765). In light of the Court’s invocation of Blackstone as “ ‘the preeminent authority on English law for the founding generation,’ ” ante, at 593-594 (quoting Alden v. Maine, 527 U. S. 706, 715 (1999)), its disregard for his guidance on matters of interpretation is striking.

Postenactment Commentary

The Court also excerpts, without any real analysis, commentary by a number of additional scholars, some near in time to the framing and others postdating it by close to a century. Those scholars are for the most part of limited relevance in construing the guarantee of the Second Amendment: Their views are not altogether clear,32 they tended to collapse the Second Amendment with Article VII of the English Bill of Rights, and they appear to have been unfamiliar with the drafting history of the Second Amendment.33

The most significant of these commentators was Joseph Story. Contrary to the Court’s assertions, however, Story actually supports the view that the Amendment was designed to protect the right of each of the States to maintain a well-regulated militia. When Story used the term “palladium” in discussions of the Second Amendment, he merely echoed the concerns that animated the Framers of the Amendment and led to its adoption. An excerpt from his 1833 Commentaries on the Constitution of the United States — the same passage cited by the Court in Miller34— merits reproducing at some length:

“The importance of [the Second Amendment] will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses with which they are attended and the facile means which they afford to ambitious and unprincipled rulers to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised that, among the American people, there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by the clause of our national bill of rights.” 2 J. Story, Commentaries on the Constitution of the United States § 1897, pp. 620-621 (4th ed. 1873) (footnote omitted).

Story thus began by tying the significance of the Amendment directly to the paramount importance of the militia. He then invoked the fear that drove the Framers of the Second Amendment — specifically, the threat to liberty posed by a standing army. An important check on that danger, he suggested, was a “well-regulated militia,” id., at 621, for which he assumed that arms would have to be kept and, when necessary, borne. There is not so much as a whisper in the passage above that Story believed that the right secured by the Amendment bore any relation to private use or possession of weapons for activities like hunting or personal self-defense.

After extolling the virtues of the militia as a bulwark against tyranny, Story went on to decry the “growing indifference to any system of militia discipline.” Ibid. When he wrote, “[h]ow it is practicable to keep the people duly armed without some organization it is difficult to see,” ibid., he underscored the degree to which he viewed the arming of the people and the militia as indissolubly linked. Story warned that the “growing indifference” he perceived would “gradually undermine all the protection intended by this clause of our national bill of rights,” ibid. In his view, the importance of the Amendment was directly related to the continuing vitality of an institution in the process of apparently becoming obsolete.

In an attempt to downplay the absence of any reference to nonmilitary uses of weapons in Story’s commentary, the Court relies on the fact that Story characterized Article VII of the English Declaration of Rights as a “‘similar provision,”’ ante, at 608. The two provisions were indeed similar, in that both protected some uses of firearms. But Story’s characterization in no way suggests that he believed that the provisions had the same scope. To the contrary, Story’s exclusive focus on the militia in his discussion of the Second Amendment confirms his understanding of the right protected by the Second Amendment as limited to military uses of arms.

Story’s writings as a Justice of this Court, to the extent that they shed light on this question, only confirm that Justice Story did not view the Amendment as conferring upon individuals any “self-defense” right disconnected from service in a state militia. Justice Story dissented from the Court’s decision in Houston v. Moore, 5 Wheat. 1, 24 (1820), which held that a state court “had a concurrent jurisdiction” with the federal courts “to try a militia man who had disobeyed the call of the President, and to enforce the laws of Congress against such delinquent.” Id., at 32. Justice Story believed that Congress’ power to provide for the organizing, arming, and disciplining of the militia was, when Congress acted, plenary; but he explained that in the absence of congressional action, “I am certainly not prepared to deny the legitimacy of such an exercise of [state] authority.” Id., at 52. As to the Second Amendment, he wrote that it “may not, perhaps, be thought to have any important bearing on this point. If it have, it confirms and illustrates, rather than impugns the reasoning already suggested.” Id., at 52-53. The Court contends that had Justice Story understood the Amendment to have a militia purpose, the Amendment would have had “enormous and obvious bearing on the point.” Ante, at 610. But the Court has it quite backwards: If Story had believed that the purpose of the Amendment was to permit civilians to keep firearms for activities like personal self-defense, what “confirm[ation] and illustration],” Houston, 5 Wheat., at 53, could the Amendment possibly have provided for the point that States retained the power to organize, arm, and discipline their own militias?

Post-Civil War Legislative History

The Court suggests that by the post-Civil War period, the Second Amendment was understood to secure a right to firearm use and ownership for purely private purposes like personal self-defense. While it is true that some of the legislative history on which the Court relies supports that contention, see ante, at 614-616, such sources are entitled to limited, if any, weight. All of the statements the Court cites were made long after the framing of the Amendment and cannot possibly supply any insight into the intent of the Framers; and all were made during pitched political debates, so that they are better characterized as advocacy than good-faith attempts at constitutional interpretation.

What is more, much of the evidence the Court offers is decidedly less clear than its discussion allows. The Court notes: “Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms.” Ante, at 614. The Court hastily concludes that “[n]eedless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia,” ibid. But some of the claims of the sort the Court cites may have been just that. In some Southern States, Reconstruction-era Republican governments created state militias in which both blacks and whites were permitted to serve. Because “[t]he decision to allow blacks to serve alongside whites meant that most southerners refused to join the new militia,” the bodies were dubbed “‘Negro militia[s].’’’ S. Cornell, A Well-Regulated Militia 177 (2006). The “arming of the Negro militias met with especially fierce resistance in South Carolina. .. . The sight of organized, armed freedmen incensed opponents of Reconstruction and led to an intensified campaign of Klan terror. Leading members of the Negro militia were beaten or lynched and their weapons stolen.” Id., at 176-177.

One particularly chilling account of Reconstruction-era Klan violence directed at a black militia member is recounted in the memoir of Louis F. Post, A “Carpetbagger” in South Carolina, 10 Journal of Negro History 10 (1925). Post describes the murder by local Klan members of Jim Williams, the captain of a “Negro militia company,” id., at 59, this way:

“[A] cavalcade of sixty cowardly white men, completely disguised with face masks and body gowns, rode up one night in March, 1871, to the house of Captain Williams ... in the wood [they] hanged [and shot] him . . . [and on his body they] then pinned a slip of paper inscribed, as I remember it, with these grim words: ‘Jim Williams gone to his last muster.’ ” Id., at 61.

In light of this evidence, it is quite possible that at least some of the statements on which the Court relies actually did mean to refer to the disarmament of black militia members.

The brilliance of the debates that resulted in the Second Amendment faded into oblivion during the ensuing years, for the concerns about Article I’s Militia Clauses that generated such pitched debate during the ratification process and led to the adoption of the Second Amendment were short lived.

In 1792, the year after the Amendment was ratified, Congress passed a statute that purported to establish “an Uniform Militia throughout the United States.” 1 Stat. 271. The statute commanded every able-bodied white male citizen between the ages of 18 and 45 to be enrolled therein and to “provide himself with a good musket or firelock” and other specified weaponry.35 Ibid. The statute is significant, for it confirmed the way those in the founding generation viewed firearm ownership: as a duty linked to military service. The statute they enacted, however, “was virtually ignored for more than a century,” and was finally repealed in 1901. See Perpich, 496 U. S., at 341.

The postratification history of the Second Amendment is strikingly similar. The Amendment played little role in any legislative debate about the civilian use of firearms for most of the 19th century, and it made few appearances in the decisions of this Court. Two 19th-century cases, however, bear mentioning.

In United States v. Cruikshank, 92 U. S. 542 (1876), the Court sustained a challenge to respondents’ convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “ ‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” Id., at 548. The Court wrote, as to counts 2 and 10 of respondents’ indictment:

“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.” Id., at 553.

The majority’s assertion that the Court in Cruikshank “described the right protected by the Second Amendment as “bearing arms for a lawful purpose,” ’ ” ante, at 620 (quoting Cruikshank, 92 U. S., at 553), is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment’s description of the right.

Moreover, it is entirely possible that the basis for the indictment’s counts 2 and 10, which charged respondents with depriving the victims of rights secured by the Second Amendment, was the prosecutor’s belief that the victims— members of a group of citizens, mostly black but also white, who were rounded up by the sheriff, sworn in as a posse to defend the local courthouse, and attacked by a white mob— bore sufficient resemblance to members of a state militia that they were brought within the reach of the Second Amendment. See generally C. Lane, The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction (2008).

Only one other 19th-century case in this Court, Presser v. Illinois, 116 U. S. 252 (1886), engaged in any significant discussion of the Second Amendment. The petitioner in Presser was convicted of violating a state statute that prohibited organizations other than the Illinois National Guard from associating together as military companies or parading with arms. Presser challenged his conviction, asserting, as relevant, that the statute violated both the Second and the Fourteenth Amendments. With respect to the Second Amendment, the Court wrote:

“We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States.” Id., at 264-265.

And in discussing the Fourteenth Amendment, the Court explained:

“The plaintiff in error was not a member of the organized volunteer militia of the State of Illinois, nor did he belong to the troops of the United States or to any organization under the militia law of the United States. On the contrary, the fact that he did not belong to the organized militia or the troops of the United States was an ingredient in the offence for which he was convicted and sentenced. The question is, therefore, had he a right as a citizen of the United States, in disobedience of the State law, to associate with others as a military company, and to drill and parade with arms in the towns and cities of the State? If the plaintiff in error has any such privilege he must be able to point to the provision of the Constitution or statutes of the United States by which it is conferred.” Id., at 266.

Presser, therefore, both affirmed Cruikskank’s holding that the Second Amendment posed no obstacle to regulation by state governments, and suggested that in any event nothing in the Constitution protected the use of arms outside the context of a militia “authorized by law” and organized by the State or Federal Government.36

In 1901, the President revitalized the militia by creating “‘the National Guard of the several States/” Perpick, 496 U. S., at 341, and nn. 9-10; meanwhile, the dominant understanding of the Second Amendment’s inapplicability to private gun ownership continued well into the 20th century. The first two federal laws directly restricting civilian use and possession of firearms—the 1927 Act prohibiting mail delivery of “pistols, revolvers, and other firearms capable of being concealed on the person,” eh. 75,44 Stat. 1059, and the 1934 Act prohibiting the possession of sawed-off shotguns and machineguns — were enacted over minor Second Amendment objections dismissed by the vast majority of the legislators who participated in the debates.37 Members of Congress clashed over the wisdom and efficacy of such laws as crime-control measures. But since the statutes did not infringe upon the military use or possession of weapons, for most legislators they did not even raise the specter of possible conflict with the Second Amendment.

Thus, for most of our history, the invalidity of Second-Amendment-based objections to firearms regulations has been well settled and uncontroversial.38 Indeed, the Second Amendment was not even mentioned in either full House of Congress during the legislative proceedings that led to the passage of the 1934 Act. Yet enforcement of that law produced the judicial decision that confirmed the status of the Amendment as limited in reach to military usage. After reviewing many of the same sources that are discussed at greater length by the Court today, the Miller Court unanimously concluded that the Second Amendment did not apply to the possession of a firearm that did not have “some reasonable relationship to the preservation or efficiency of a well regulated militia.” 307 U. S., at 178.

The key to that decision did not, as the Court belatedly suggests, ante, at 622-625, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire into the suitability of a particular weapon for self-defense purposes?

Perhaps in recognition of the weakness of its attempt to distinguish Miller, the Court argues in the alternative that Miller should be discounted because of its decisional history. It is true that the appellees in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, as our decision in Marbury v. Madison, 1 Cranch 137, in which only one side appeared and presented arguments, demonstrates, the absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed. 2005). Of course, if it can be demonstrated that new evidence or arguments were genuinely not available to an earlier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Court does not make that claim, because it cannot. Although it is true that the drafting history of the Amendment was not discussed in the Government’s brief, see ante, at 623-624, it is certainly not the drafting history that the Court’s decision today turns on. And those sources upon which the Court today relies most heavily were available to the Miller Court. The Government cited the English Bill of Rights and quoted a lengthy passage from Aymette v. State, 21 Tenn. 154 (1840), detailing the history leading to the English guarantee, Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 12-13; it also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15. The Court is reduced to critiquing the number of pages the Government devoted to exploring the English legal sources. Only two (in a brief 21 pages in length)! Would the Court be satisfied with four? Ten?

The Court is simply wrong when it intones that Miller contained “not a word” about the Amendment’s history. Ante, at 624. The Court plainly looked to history to construe the term “Militia,” and, on the best reading of Miller, the entire guarantee of the Second Amendment. After noting the original Constitution’s grant of power to Congress and to the States over the militia, the Court explained:

“With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia— civilians primarily, soldiers on occasion.

“The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.” Miller, 307 U. S., at 178-179.

The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.

The Court concludes its opinion by declaring that it is not the proper role of this Court to change the meaning of rights “enshrine[d]” in the Constitution. Ante, at 636. But the right the Court announces was not “enshrined” in the Second Amendment by the Framers; it is the product of today’s law-changing decision. The majority’s exegesis has utterly failed to establish that as a matter of text or history, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” is “elevate[d] above all other interests” by the Second Amendment. Ante, at 635.

Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” Ante, at 636. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.39

I do not know whether today’s decision will increase the labor of federal judges to the “breaking point” envisioned by Justice Cardozo, but it will surely give rise to a far more active judicial role in making vitally important national policy decisions than was envisioned at any time in the 18th, 19th, or 20th centuries.

The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice — the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun-control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.

For these reasons, I respectfully dissent.

There was some limited congressional activity earlier: A 10% federal excise tax on firearms was passed as part of the Revenue Act of 1918, 40 Stat. 1057, and in 1927 a statute was enacted prohibiting the shipment of handguns, revolvers, and other concealable weapons through the United States mails. Ch. 75, 44 Stat. 1059-1060 (hereinafter 1927 Act).

Until the Fifth Circuit’s decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes. See, e.g., United States v. Haney, 264 F. 3d 1161, 1164-1166 (CA10 2001); United States v. Napier, 233 F. 3d 394, 402-404 (CA6 2000); Gillespie v. Indianapolis, 185 F. 3d 693, 710-711 (CA7 1999); United States v. Scanio, No. 97-1584, 1998 WL 802060, *2 (CA2, Nov. 12, 1998) (unpublished opinion); United States v. Wright, 117 F. 3d 1265, 1271-1274 (CA11 1997); United States v. Rybar, 103 F. 3d 273, 285-286 (CA3 1996); Hickman v. Block, 81 F. 3d 98, 100-103 (CA9 1996); United States v. Hale, 978 F. 2d 1016, 1018-1020 (CA8 1992); Thomas v. City Council of Portland, 730 F. 2d 41, 42 (CA1 1984) (per curiam); United States v. Johnson, 497 F. 2d 548, 550 (CA4 1974) (per curiam); United States v. Johnson, 441 F. 2d 1134, 1136 (CA5 1971); see also Sandidge v. United States, 520 A. 2d 1057, 1058-1059 (DC App. 1987). And a number of courts have remained firm in their prior positions, even after considering Emerson. See, e. g., United States v. Lippman, 369 F. 3d 1039, 1043-1045 (CA8 2004); United States v. Parker, 362 F. 3d 1279, 1282-1284 (CA10 2004); United States v. Jackubowski, 63 Fed.Appx. 959, 961 (CA7 2003) (unpublished opinion); Silveira v. Lockyer, 312 F. 3d 1052, 1060-1066 (CA9 2002); United States v. Milheron, 231 F. Supp. 2d 376, 378 (Me. 2002); Bach v. Pataki, 289 F. Supp. 2d 217, 224-226 (NDNY 2003); United States v. Smith, 56 M. J. 711, 716 (Air Force Ct. Crim. App. 2001).

Our discussion in Leivis was brief but significant. Upholding a conviction for receipt of a firearm by a felon, we wrote: “These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” 445 U. S., at 65-66, n. 8.

See Vasquez v. Hillery, 474 U. S. 254, 265-266 (1986) (“[Stare decisis] permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged ‘to bring its opinions into agreement with experience and with facts newly ascertained.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)”); Pollock v. Farmers’ Loan & Trust Co., 157 U. S. 429, 652 (1895) (White, J., dissenting) (“The fundamental conception of a judicial body is that of one hedged about by precedents which are binding on the court without regard to the personality of its members. Break down this belief in judicial continuity, and let it be felt that on great constitutional questions this court is to depart from the settled conclusions of its predecessors, and to determine them all according to the mere opinion of those who temporarily fill its bench, and our Constitution will, in my judgment, be bereft of value and become a most dangerous instrument to the rights and liberties of the people”).

The Virginia Declaration of Rights ¶ 13 (1776) provided: “That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided, as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 B. Schwartz, The Bill of Rights 235 (1971) (hereinafter Schwartz).

Maryland’s Declaration of Rights, Arts. XXV-XXVII (1776), provided: “That a well-regulated militia is the proper and natural defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up, without consent of the Legislature”; “That in all cases, and at all times, the military ought to be under strict subordination to and control of the civil power.” 1 Schwartz 282.

Delaware’s Declaration of Rights §§ 18-20 (1776) provided: “That a well regulated militia is the proper, natural, and safe defence of a free government”; “That standing armies are dangerous to liberty, and ought not to be raised or kept up without the consent of the Legislature”; “That in all cases and at all times the military ought to be under strict subordination to and governed by the civil power.” 1 Schwartz 278.

Finally, New Hampshire’s Bill of Rights, Arts. XXIV-XXVI (1783), read: “A well regulated militia is the proper, natural, and sure defence of a state”; “Standing armies are dangerous to liberty, and ought not to be raised or kept up without consent of the legislature”; “In all cases, and at all times, the military ought to be under strict subordination to, and governed by the civil power.” 1 Schwartz 378. It elsewhere provided: “No person who is conscientiously scrupulous about the lawfulness of bearing arms, shall be compelled thereto, provided he will pay an equivalent.” Id., at 377 (Art. XIII).

The language of the Amendment’s preamble also closely tracks the language of a number of contemporaneous state militia statutes, many of which began with nearly identical statements. Georgia’s 1778 militia statute, for example, began, “[w]hereas a well ordered and disciplined Militia, is essentially necessary, to the Safety, peace and prosperity, of this State.” Act of Nov. 15, 1778, 19 Colonial Records of the State of Georgia 103 (Candler ed. 1911 (pt. 2)). North Carolina’s 1777 militia statute started with this language: “[w]jhereas a well regulated Militia is absolutely necessary for the defending and securing the Liberties of a free State.” N. C. Sess. Laws ch. 1, § I, p. 1. And Connecticut’s 1782 “Acts and Laws Regulating the Militia” began, “[w]hereas the Defence and Security of all free States depends (under God) upon the Exertions of a well regulated Militia, and the Laws heretofore enacted have proved inadequate to the End designed.” Conn. Acts and Laws p. 585 (hereinafter 1782 Conn. Acts).

These state militia statutes give content to the notion of a “well-regulated militia.” They identify those persons who compose the State’s militia; they create regiments, brigades, and divisions; they set forth command structures and provide for the appointment of officers; they describe how the militia will be assembled when necessary and provide for training; and they prescribe penalties for nonappearance, delinquency, and failure to keep the required weapons, ammunition, and other necessary equipment. The obligation of militia members to “keep” certain specified arms is detailed further, n. 12, infra, and accompanying text.

The sources the Court cites simply do not support the proposition that some “logical connection” between the two clauses is all that is required. The Dwarris treatise, for example, merely explains that “[t]he general purview of a statute is not . . . necessarily to be restrained by any words introductory to the enacting clauses.” F. Dwarris, A General Treatise on Statutes 268 (P. Potter ed. 1871) (emphasis added). The treatise proceeds to caution that “the preamble cannot control the enacting part of a statute, which is expressed in clear and unambiguous terms, yet, if any doubt arise on the words of the enacting part, the preamble may be resorted to, to explain it.” Id., at 269. Sutherland makes the same point. Explaining that “[i]n the United States preambles are not as important as they are in England,” the treatise notes that in the United States “the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms.” 2A N. Singer, Sutherland on Statutory Construction § 47.04, p. 146 (rev. 5th ed. 1992) (emphasis added). Surely not even the Court believes that the Amendment’s operative provision, which, though only 14 words in length, takes the Court the better part of 18 pages to parse, is perfectly “clear and unambiguous.”

The Court’s repeated citation to the dissenting opinion in Muscarello v. United States, 524 U. S. 125 (1998), ante, at 584, 586, as illuminating the meaning of “bear arms,” borders on the risible. At issue in Muscarello was the proper construction of the word “carries” in 18 U. S. C. § 924(c) (1994 ed.); the dissent in that case made passing reference to the Second Amendment only in the course of observing that both the Constitution and Black’s Law Dictionary suggested that something more active than placement of a gun in a glove compartment might be meant by the phrase “ ‘carries a firearm.’ ” 524 U. S., at 143.

Amici professors of linguistics and English reviewed uses of the term “bear arms” in a compilation of books, pamphlets, and other sources disseminated in the period between the Declaration of Independence and the adoption of the Second Amendment. See Brief for Professors of Linguistics and English 23-25. Amici determined that of 115 texts that employed the term, all but five usages were in a clearly military context, and in four of the remaining five instances, further qualifying language conveyed a different meaning.

The Court allows that the phrase “bear Arms” did have as an idiomatic meaning, “ ‘to serve as a soldier, do military service, fight,’ ” ante, at 586, but asserts that it “unequivocally bore that idiomatic meaning only when followed by the preposition ‘against,’ which was in turn followed by the target of the hostilities,” ibid. But contemporary sources make clear that the phrase “bear arms” was often used to convey a military meaning without those additional words. See, e. g., To the Printer, Providence Gazette (May 27, 1775) (“By the common estimate of three millions of people in America, allowing one in five to bear arms, there will be found 600,000 fighting men”); Letter of Henry Laurens to the Mass. Council (Jan. 21, 1778), in Letters of Delegates to Congress 1774-1789, p. 622 (P. Smith ed. 1981) (“Congress were yesterday informed . . . that those Canadians who returned from Saratoga... had been compelled by Sir Guy Carleton to bear Arms”); Of the Manner of Making War Among the Indians of North-America, Connecticut Courant (May 23, 1785) (“The Indians begin to bear arms at the age of fifteen, and lay them aside when they arrive at the age of sixty. Some nations to the southward, I have been informed, do not continue their military exercises after they are fifty”); 28 Journals of the Continental Congress 1030 (G. Hunt ed. 1910) (“That hostages be mutually given as a security that the Convention troops and those received in exchange for them do not bear arms prior to the first day of May next”); H. R. J., 9th Cong., 1st Sess., 217 (Feb. 12, 1806) (“Whereas the commanders of British armed vessels have impressed many American seamen, and compelled them to bear arms on board said vessels, and assist in fighting their battles with nations in amity and peace with the United States”); H. R. J., 15th Cong., 2d Sess., 182-183 (Jan. 14,1819) (“[The petitioners] state that they were residing in the British province of Canada, at the commencement of the late war, and that owing to their attachment to the United States, they refused to bear arms, when called upon by the British authorities . .. ”).

Aymette v. State, 21 Tenn. 154, 156 (1840), a case we cited in Miller, further confirms this reading of the phrase. In Aymette, the Tennessee Supreme Court construed the guarantee in Tennessee’s 1834 Constitution that “ ‘the free white men of this State, have a right to keep and bear arms for their common defence.’” Explaining that the provision was adopted with the same goals as the Federal Constitution’s Second Amendment, the court wrote: “The words ‘bear arms’... have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment.” 21 Tenn., at 158. The court elaborated: “[W]e may remark, that the phrase, ‘bear arms' is used in the Kentucky Constitution as well as our own, and implies, as has already been suggested, their military use.... A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.” Id., at 161.

As lucidly explained in the context of a statute mandating a sentencing enhancement for any person who “uses” a firearm during a crime of violence or drug trafficking crime:

“To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, ‘Do you use a cane?,’ he is not inquiring whether you have your grandfather’s silver-handled walking stick on display in the hall; he wants to know whether you walk with a cane. Similarly, to speak of ‘using a firearm’ is to speak of using it for its distinctive purpose, i. e., as a weapon. To be sure, one can use a firearm in a number of ways, including as an article of exchange, just as one can ‘use’ a cane as a hall decoration — but that is not the ordinary meaning of ‘using’ the one or the other. The Court does not appear to grasp the distinction between how a word can be used and how it ordinarily is used.” Smith v. United States, 508 U. S. 223,242 (1993) (Scalia, J., dissenting) (some internal quotation marks, footnotes, and citations omitted).

See also Act for the regulating, training, and arraying of the Militia, ... of the State, 1781 N. J. Laws, ch. XIII, § 12, p. 43 (“And be it Enacted, That each Person enrolled as aforesaid, shall also keep at his Place of Abode one Pound of good merchantable Gunpowder and three Pounds of Ball sized to his Musket or Rifle” (emphasis added)); An Act for establishing a Militia, 1785 Del. Laws § 7, p. 59 (“And be it enacted, That every person between the ages of eighteen and fifty . . . shall at his own expence, provide himself . . . with a musket or firelock, with a bayonet, a cartouch box to contain twenty three cartridges, a priming wire, a brush and six flints, all in good order, on or before the first day of April next, under the penalty of forty shillings, and shall keep the same by him at all times, ready and fit for service, under the penalty of two shillings and six pence for each neglect or default thereof on every muster day” (second emphasis added)); 1782 Conn. Acts p. 590 (“And it shall be the duty of the Regional Quarter-Master to provide and keep a sufficient quantity of Ammunition and warlike stores for the use of their respective Regiments, to be kept in such Place or Places as shall be ordered by the Field Officers” (emphasis added)).

The Court notes that the First Amendment protects two separate rights with the phrase “the ‘right [singular] of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ ” Ante, at 591. But this only proves the point: In contrast to the language quoted by the Court, the Second Amendment does not protect a “right to keep and to bear arms,” but rather a “right to keep and bear Arms.” The State Constitutions cited by the Court are distinguishable on the same ground.

The Court’s atomistic, word-by-word approach to construing the Amendment calls to mind the parable of the six blind men and the elephant, famously set in verse by John Godfrey Saxe. The Poems of John Godfrey Saxe 135-136 (1873). In the parable, each blind man approaches a single elephant; touching a different part of the elephant’s body in isolation, each concludes that he has learned its true nature. One touches the animal’s leg, and concludes that the elephant is like a tree; another touches the trunk and decides that the elephant is like a snake; and so on. Each of them, of course, has fundamentally failed to grasp the nature of the creature.

By “‘splitting] the atom of sovereignty,’” the Framers created ‘“two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’” Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999) (quoting U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring)).

Indeed, this was one of the grievances voiced by the colonists: Paragraph 13 of the Declaration of Independence charged of King George, “He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.”

George Washington, writing to Congress on September 24, 1776, warned that for Congress “[t]o place any dependance upon Militia, is, assuredly, resting upon a broken staff.” 6 Writings of George Washington 106, 110 (J. Fitzpatrick ed. 1932). Several years later he reiterated this view in another letter to Congress: “Regular Troops alone are equal to the exigencies of modern war, as well for defence as offence .... No Militia will ever acquire the habits necessary to resist a regular force.... The firmness requisite for the real business of fighting is only to be attained by a constant course of discipline and service.” 20 id,., at 49,49-50 (Sept. 15, 1780). And Alexander Hamilton argued this view in many debates. In 1787, he wrote:

“Here I expect we shall be told that the militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence. . . . War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.” The Federalist No. 25, p. 166 (C. Rossiter ed. 1961).

“[B]ut no Appropriation of Money to that Use [raising and supporting Armies] shall be for a longer Term than two Years.” U. S. Const., Art. I, § 8, cl. 12.

This “calling forth” power was only permitted in order for the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Art. I, § 8, cl. 15.

The Court assumes — incorrectly, in my view — that even when a state militia was not called into service, Congress would have had the power to exclude individuals from enlistment in that state militia. See ante, at 600. That assumption is not supported by the text of the Militia Clauses of the original Constitution, which confer upon Congress the power to “organiz[e], ar[m], and discipline], the Militia,” Art. I, § 8, cl. 16, but not the power to say who will be members of a state militia. It is also flatly inconsistent with the Second Amendment. The States’ power to create their own militias provides an easy answer to the Court’s complaint that the right as I have described it is empty because it merely guarantees “citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them.” Ante, at 600.

In addition to the cautionary references to standing armies and to the importance of civil authority over the military, each of the proposals contained a guarantee that closely resembled the language of what later became the Third Amendment. The 18th proposal from Virginia and North Carolina read: “That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the law directs.” 3 Elliot 659. And New York’s language read: “That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.” 2 Schwartz 912.

“Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses with out the consent of the Owners.” Id., at 761.

Madison explained in a letter to Richard Peters, Aug. 19, 1789, the paramount importance of preparing a list of amendments to placate those States that had ratified the Constitution in reliance on a commitment that amendments would follow: “In many States the [Constitution] was adopted under a tacit compact in [favor] of some subsequent provisions on this head. In [Virginia], It would have been certainly rejected, had no assurances been given by its advocates that such provisions would be pursued. As an honest man I feel my self bound by this consideration.” Creating the Bill of Rights 281, 282 (H. Veit, K. Bowling, & C. Bickford eds. 1991) (hereinafter Veit).

The adopted language, Virginia Declaration of Rights ¶ 13 (1776), read as follows: “That a well-regulated Militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that Standing Armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.” 1 Schwartz 235.

Veit 182. This was the objection voiced by Elbridge Gerry, who went on to remark, in the next breath: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. . . . Whenever government mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” Ibid.

The failed Maryland proposals contained similar language. See supra, at 656.

The Court suggests that this historical analysis casts the Second Amendment as an “odd outlier,” ante, at 603; if by “outlier,” the Court means that the Second Amendment was enacted in a unique and novel context, and responded to the particular challenges presented by the Framers’ federalism experiment, I have no quarrel with the Court’s eharacterizati on.

The Court’s fixation on the last two types of sources is particularly puzzling, since both have the same characteristics as postenactment legislative history, which is generally viewed as the least reliable source of authority for ascertaining the intent of any provision’s drafters. As has been explained:

“The legislative history of a statute is the history of its consideration and enactment. ‘Subsequent legislative history’ — which presumably means the post-enactment history of a statute’s consideration and enactment — is a contradiction in terms. The phrase is used to smuggle into judicial consideration legislators’ expression not of what a bill currently under consideration means (which, the theory goes, reflects what their colleagues understood they were voting for), but of what a law previously enacted means. ... In my opinion, the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed.” Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part).

The Court stretches to derive additional support from scattered state-court cases primarily concerned with state constitutional provisions. See ante, at 611-614. To the extent that those state courts assumed that the Second Amendment was coterminous with their differently worded state constitutional arms provisions, their discussions were of course dicta. Moreover, the cases on which the Court relies were decided between 30 and 60 years after the ratification of the Second Amendment, and there is no indication that any of them engaged in a careful textual or historical analysis of the federal constitutional provision. Finally, the interpretation of the Second Amendment advanced in those cases is not as clear as the Court apparently believes. In Aldridge v. Commonwealth, 2 Va. Cas. 447 (Gen. Ct. 1824), for example, a Virginia court pointed to the restriction on free blacks’ “right to bear arms” as evidence that the protections of the State and Federal Constitutions did not extend to free blacks. The Court asserts that “[t]he claim was obviously not that blacks were prevented from carrying guns in the militia. ” Ante, at 611. But it is not obvious at all. For in many States, including Virginia, free blacks during the colonial period were prohibited from carrying guns in the militia, instead being required to “mustefr] without arms”; they were later barred from serving in the militia altogether. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws: An Originalist Inquiry, 92 Nw. U. L. Rev. 477, 497-498, and n. 120 (1998). But my point is not that the Aldridge court endorsed my view of the Amendment — plainly it did not, as the premise of the relevant passage was that the Second Amendment applied to the States. Rather, my point is simply that the court could have understood the Second Amendment to protect a militia-focused right, and thus that its passing mention of the right to bear arms provides scant support for the Court’s position.

The Government argued in its brief:

“[I]t would seem that the early English law did not guarantee an unrestricted right to bear arms. Such recognition as existed of a right in the people to keep and bear arms appears to have resulted from oppression by rulers who disarmed their political opponents and who organized large standing armies which were obnoxious and burdensome to the people. This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense.” Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp. 11-12 (citations omitted). The Government then cited at length the Tennessee Supreme Court’s opinion in Aymette, 21 Term. 154, which further situated the English Bill of Rights in its historical context. See n. 10, supra.

Moreover, it was the Crown, not Parliament, that was bound by the English provision; indeed, according to some prominent historians, Article VII is best understood not as announcing any individual right to unregulated firearm ownership (after all, such a reading would fly in the face of the text), but as an assertion of the concept of parliamentary supremacy. See Brief for Jack N. Rakove et al. as Amici Curiae 6-9.

For example, St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was designed to protect the “Blaekstonian” self-defense right, ante, at 606. In a series of unpublished lectures, Tucker suggested that the Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments:

“If a State chooses to incur the expense of putting arms into the Hands of its own Citizens for their defense, it would require no small ingenuity to prove that they have no right to do it, or that it could by any means contravene the Authority of the federal Govt. It may be alleged indeed that this might be done for the purpose of resisting the laws of the federal Government, or of shaking off the Union: to which the plainest answer seems to be, that whenever the States think proper to adopt either of these measures, they will not be with-held by the fear of infringing any of the powers of the federal Government. But to contend that such a power would be dangerous for the reasons above-mentioned, would be subversive of every principle of Freedom in our Government; of which the first Congress appears to have been sensible by proposing an Amendment to the Constitution, which has since been ratified and has become part of it, viz., ‘That a well regulated militia being necessary to the Security of a free State, the right of the people to keep & bear arms shall not be infringed.’ To this we may add that this power of arming the militia, is not one of those prohibited to the States by the Constitution, and, consequently, is reserved to them under the twelfth Article of the ratified aments.” 4 S. Tucker, Ten Notebooks of Law Lectures, 1790s, pp. 127-128, in Tucker-Coleman Papers (College of William and Mary).

See also Cornell, St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123 (2006).

The Court does acknowledge that at least one early commentator described the Second Amendment as creating a right conditioned upon service in a state militia. See ante, at 610 (citing B. Oliver, The Rights of an American Citizen (1832)). Apart from the fact that Oliver is the only commentator in the Court’s exhaustive survey who appears to have inquired into the intent of the drafters of the Amendment, what is striking about the Court’s discussion is its failure to refute Oliver’s description of the meaning of the Amendment or the intent of its drafters; rather, the Court adverts to simple nose counting to dismiss his view.

Miller, 307 U. S., at 182, n. 3.

The additional specified weaponry included: “a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle and a quarter of a pound of powder.” 1 Stat. 271.

In another case the Court endorsed, albeit indirectly, the reading of Miller that has been well settled until today. In Burton v. Sills, 394 U. S. 812 (1969) (per curiam), the Court dismissed for want of a substantial federal question an appeal from a decision of the New Jersey Supreme Court upholding, against a Second Amendment challenge, New Jersey’s gun-control law. Although much of the analysis in the New Jersey court’s opinion turned on the inapplicability of the Second Amendment as a constraint on the States, the court also quite correctly read Miller to hold that “Congress, though admittedly governed by the second amendment, may regulate interstate firearms so long as the regulation does not impair the maintenance of the active, organized militia of the states.” Burton v. Sills, 53 N. J. 86, 99, 248 A. 2d 521, 527 (1968).

The 1927 Act was enacted with no mention of the Second Amendment as a potential obstacle, although an earlier version of the bill had generated some limited objections on Second Amendment grounds, see 66 Cong. Rec. 725-735 (1924). And the 1934 Act featured just one colloquy, during the course of lengthy Committee debates, on whether the Second Amendment constrained Congress’ ability to legislate in this sphere, see Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 19 (1934).

The majority appears to suggest that even if the meaning of the Second Amendment has been considered settled by courts and legislatures for over two centuries, that settled meaning is overcome by the “reliance of millions of Americans” “upon the true meaning of the right to keep and bear arms.” Ante, at 624, n. 24. Presumably by this the Court means that many Americans own guns for self-defense, recreation, and other lawful purposes, and object to government interference with their gun ownership. I do not dispute the correctness of this observation. But it is hard to see how Americans have “relied,” in the usual sense of the word, on the existence of a constitutional right that, until 2001, had been rejected by every federal court to take up the question. Rather, gun owners have “relied” on the laws passed by democratically elected legislatures, which have generally adopted only limited gun-control measures.

Indeed, reliance interests surely cut the other way: Even apart from the reliance of judges and legislators who properly believed, until today, that the Second Amendment did not reach possession of firearms for purely private activities, “millions of Americans” have relied on the power of government to protect their safety and well-being, and that of their families. With respect to the case before us, the legislature of the District of Columbia has relied on its ability to act to “reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia,” Firearms Control Regulations Act of 1975 (Council Act No. 1-142), Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94-24, p. 25 (1976); see post, at 693-696 (Breyer, J., dissenting); so, too, have the residents of the District.

It was just a few years after the decision in Miller that Justice Frankfurter (by any measure a true judicial conservative) warned of the perils that would attend this Court’s entry into the ‘‘political thicket” of legislative districting. Colegrove v. Green, 328 U. S. 549, 556 (1946) (plurality opinion). The equally controversial political thicket that the Court has decided to enter today is qualitatively different from the one that concerned Justice Frankfurter: While our entry into that thicket was justified because the political process was manifestly unable to solve the problem of unequal districts, no one has suggested that the political process is not working exactly as it should in mediating the debate between the advocates and opponents of gun control. What impact the Court’s unjustified entry into this thicket will have on that ongoing debate — or indeed on the Court itself — is a matter that future historians will no doubt discuss at length. It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today.

Justice Breyer, with whom Justice Stevens, Justice

Souter, and Justice Ginsburg

join, dissenting.

We must decide whether a District of Columbia law that prohibits the possession of handguns in the home violates the Second Amendment. The Court, relying upon its view that the Second Amendment seeks to protect a right of personal self-defense, holds that this law violates that Amendment. In my view, it does not.

The majority’s conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens — namely, that the Second Amendment protects militia-related, not self-defense-related, interests. These two interests are sometimes intertwined. To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern.

The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are — whether they do or do not include an independent interest in self-defense— the majority’s view cannot be correct unless it can show that the District’s regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do.

In respect to the first independent reason, I agree with Justice Stevens, and I join his opinion. In this opinion I shall focus upon the second reason. I shall show that the District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.

Thus I here assume that one objective (but, as the majority concedes, ante, at 599, not the primary objective) of those who wrote the Second Amendment was to help assure citizens that they would have arms available for purposes of self-defense. Even so, a legislature could reasonably conclude that the law will advance goals of great public importance, namely, saving lives, preventing injury, and reducing crime. The law is tailored to the urban crime problem in that it is local in scope and thus affects only a geographic area both limited in size and entirely urban; the law concerns handguns, which are specially linked to urban gun deaths and injuries, and which are the overwhelmingly favorite weapon of armed criminals; and at the same time, the law imposes a burden upon gun owners that seems proportionately no greater than restrictions in existence at the time the Second Amendment was adopted. In these circumstances, the District’s law falls within the zone that the Second Amendment leaves open to regulation by legislatures.

The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In interpreting and applying this Amendment, I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right — i. e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e. g., ante, at 595 (opinion of the Court); ante, at 636 (Stevens, J., dissenting).

(2) As evidenced by its preamble, the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces.” United States v. Miller, 307 U. S. 174, 178 (1939); see ante, at 599 (opinion of the Court); ante, at 637 (Stevens, J., dissenting).

(3) The Amendment “must be interpreted and applied with that end in view.” Miller, supra, at 178.

(4) The right protected by the Second Amendment is not absolute, but instead is subject to government regulation. See Robertson v. Baldwin, 165 U. S. 275, 281-282 (1897); ante, at 595, 626-627 (opinion of the Court).

My approach to this case, while involving the first three points, primarily concerns the fourth. I shall, as I said, assume with the majority that the Amendment, in addition to furthering a militia-related purpose, also furthers an interest in possessing guns for purposes of self-defense, at least to some degree. And I shall then ask whether the Amendment nevertheless permits the District handgun restriction at issue here.

Although I adopt for present purposes the majority’s position that the Second Amendment embodies a general concern about self-defense, I shall not assume that the Amendment contains a specific untouchable right to keep guns in the house to shoot burglars. The majority, which presents evidence in favor of the former proposition, does not, because it cannot, convincingly show that the Second Amendment seeks to maintain the latter in pristine, unregulated form.

To the contrary, colonial history itself offers important examples of the kinds of gun regulation that citizens would then have thought compatible with the “right to keep and bear arms,” whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.

Boston, Philadelphia, and New York City, the three largest cities in America during that period, all restricted the firing of guns within city limits to at least some degree. See Churchill, Gun Regulation, the Police Power, and the Right To Keep Arms in Early America, 25 Law & Hist. Rev. 139, 162 (2007); Dept, of Commerce, Bureau of Census, C. Gibson, Population of the 100 Largest Cities and Other Urban Places in the United States: 1790 to 1990 (1998) (Table 2), online at http://www.census.gov/population/www/documentation/ twps0027/tab02.txt (all Internet materials as visited June 19, 2008, and available in Clerk of Court’s case file). Boston in 1746 had a law prohibiting the “discharge” of “any Gun or Pistol charged with Shot or Ball in the Town” on penalty of 40 shillings, a law that was later revived in 1778. See Act of May 28, 1746, ch. X, Acts and Laws of Mass. Bay, p. 208; An Act for Reviving and Continuing Sundry Laws that are Expired, and Near Expiring, 1778 Mass. Sess. Laws, ch. V, pp. 193, 194. Philadelphia prohibited, on penalty of five shillings (or two days in jail if the fine were not paid), firing a gun or setting off fireworks in Philadelphia without a “governor’s special license.” See Act of Aug. 26, 1721, § IV, in 3 Stat. at Large of Pa. 253-254 (J. Mitchell & H. Flanders comm’rs 1896). And New York City banned, on penalty of a 20-shilling fine, the firing of guns (even in houses) for the three days surrounding New Year’s Day. 5 Colonial Laws of New York, ch. 1501, pp. 244-246 (1894); see also An Act to Suppress the Disorderly Practice of Firing Guns, & e., on the Times Therein Mentioned (1774), in 8 Stat. at Large of Pa. 410-412 (1902) (similar law for all “inhabited parts” of Pennsylvania). See also An Act for preventing Mischief being done in the Town of Newport, or in any other Town in this Government, 1731 Rhode Island Session Laws pp. 240-241 (prohibiting, on penalty of five shillings for a first offense and more for subsequent offenses, the firing of “any Gun or Pistol... in the Streets of any of the Towns of this Government, or in any Tavern of the same, after dark, on any Night whatsoever”).

Furthermore, several towns and cities (including Philadelphia, New York, and Boston) regulated, for fire-safety reasons, the storage of gunpowder, a necessary component of an operational firearm. See Cornell & DeDino, A Well Regulated Right, 73 Ford. L. Rev. 487, 510-512 (2004). Boston’s law in particular impacted the use of firearms in the home very much as the District’s law does today. Boston’s gunpowder law imposed a £10 fine upon “any Person” who “shall take into any Dwelling-House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having GunPowder.” An Act in Addition to the several Acts already made for the prudent Storage of Gun-Powder within the Town of Boston, ch. XIII, 1783 Mass. Acts pp. 218-219; see also 1 S. Johnson, A Dictionary of the English Language 751 (4th ed. 1773) (defining “firearms” as “[a]rms which owe their efficacy to fire; guns”). Even assuming, as the majority does, see ante, at 631-632, that this law included an implicit self-defense exception, it would nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would have taken a fair amount of time to perform. See Hicks, United States Military Shoulder Arms, 1795-1935, 1 Journal of Am. Military Hist. Foundation 23, 30 (1937) (experienced soldier could, with specially prepared cartridges as opposed to plain gunpowder and ball, load and fire musket 3-to-4 times per minute); id., at 26-30 (describing the loading process); see also Grancsay, The Craft of the Early American Gunsmith, 6 Metropolitan Museum of Art Bulletin 54, 60 (1947) (noting that rifles were slower to load and fire than muskets).

Moreover, the law would, as a practical matter, have prohibited the carrying of loaded firearms anywhere in the city, unless the carrier had no plans to enter any building or was willing to unload or discard his weapons before going inside. And Massachusetts residents must have believed this kind of law compatible with the provision in the Massachusetts Constitution that granted “[t]he people ... a right to keep and to bear arms for the common defence”—a provision that the majority says was interpreted as “securing] an individual right to bear arms for defensive purposes.” Art. XVII (1780), in 3 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1888, 1892 (F. Thorpe ed. 1909) (hereinafter Thorpe); ante, at 602 (opinion of the Court).

The New York City law, which required that gunpowder in the home be stored in certain sorts of containers, and laws in certain Pennsylvania towns, which required that gunpowder be stored on the highest story of the home, could well have presented similar obstacles to in-home use of firearms. See Act of Apr. 13, 1784, ch. 28, 1784 N. Y. Laws p. 627; An Act for Erecting the Town of Carlisle, in the County of Cumberland, into a Borough, ch. XIV, § XLII, 1782 Pa. Laws p. 49; An Act for Erecting the Town of Reading, in the County of Berks, into a Borough, ch. LXXVI, § XLII, 1783 Pa. Laws p. 211. Although it is unclear whether these laws, like the Boston law, would have prohibited the storage of gunpowder inside a firearm, they would at the very least have made it difficult to reload the gun to fire a second shot unless the homeowner happened to be in the portion of the house where the extra gunpowder was required to be kept. See 7 United States Encyclopedia of History 1297 (P. Oehser ed. 1967) (“Until 1835 all small arms [were] single-shot weapons, requiring reloading by hand after every shot”). And Pennsylvania, like Massachusetts, had at the time one of the self-defense-guaranteeing state constitutional provisions on which the majority relies. See ante, at 601 (citing Pa. Declaration of Rights, § XIII (1776), in 5 Thorpe 3083).

The majority criticizes my citation of these colonial laws. See ante, at 631-634. But, as much as it tries, it cannot ignore their existence. I suppose it is possible that, as the majority suggests, see ante, at 631-633, they all in practice contained self-defense exceptions. But none of them expressly provided one, and the majority’s assumption that such exceptions existed relies largely on the preambles to these acts— an interpretive methodology that it elsewhere roundly derides. Compare ante, at 631-632 (interpreting 18th-century statutes in light of their preambles), with ante, at 578, and n. 3 (contending that the operative language of an 18th-century enactment may extend beyond its preamble). And in any event, as I have shown, the gunpowder-storage laws would have burdened armed self-defense, even if they did not completely prohibit it.

This historical evidence demonstrates that a self-defense assumption is the beginning, rather than the end, of any constitutional inquiry. That the District law impacts self-defense merely raises questions about the law’s constitutionality. But to answer the questions that are raised (that is, to see whether the statute is unconstitutional) requires us to focus on practicalities, the statute’s rationale, the problems that called it into being, its relation to those objectives — in a word, the details. There are no purely logical or conceptual answers to such questions. All of which to say that to raise a self-defense question is not to answer it.

Ill

I therefore begin by asking a process-based question: How is a court to determine whether a particular firearm regulation (here, the District’s restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?

The question matters. The majority is wrong when it says that the District’s law is unconstitutional “[ujnder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Ante, at 628. How could that be? It certainly would not be unconstitutional under, for example, a “rational-basis” standard, which requires a court to uphold regulation so long as it bears a “rational relationship” to a “legitimate governmental purpose.” Heller v. Doe, 509 U. S. 312, 320 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclusion that the present District law must fall. See Andrews v. State, 50 Tenn. 165, 177, 186-187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State, 1 Ga. 243, 246, 250-251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid, 1 Ala. 612, 614-615,622 (1840) (upholding a concealed-weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored than the one before us; and state cases in any event are not determinative of federal constitutional questions, see, e. g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 549 (1985) (citing Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816)).

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U. S. 74, 82 (1997); see Brief for Respondent 54-62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales— whose constitutionality under a strict-scrutiny standard would be far from clear. See ante, at 626-627.

Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government — a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U. S. 739, 755 (1987). The Court has deemed that interest, as well as “the Government’s general interest in preventing crime,” to be “compelling,” see id., at 750, 754, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see, e. g., Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam) (First Amendment free speech rights); Sherbert v. Verner, 374 U. S. 398, 403 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U. S. 398, 403-404 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U. S. 649, 655 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U. S. 436 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (Breyer, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 634, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U. S., at 403 (citing examples where the Court has taken such an approach); see also, e. g., Thompson v. Western States Medical Center, 535 U. S. 357, 388 (2002) (Breyer, J., dissenting) (commercial speech); Burdick v. Takushi, 504 U. S. 428, 433 (1992) (election regulation); Mathews v. Eldridge, 424 U. S. 319, 339-349 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dish 205, Will Cty., 391 U. S. 563, 568 (1968) (government employee speech).

In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195-196 (1997); see also Nixon, supra, at 403 (Breyer, J., concurring). Nonetheless, a court, not a legislature, must make the ultimate constitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell, 548 U. S. 230, 249 (2006) (opinion of Breyer, J.) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 499 (1984)).

The above-described approach seems preferable to a more rigid approach here for a further reason. Experience as much as logic has led the Court to decide that in one area of constitutional law or another the interests are likely to prove stronger on one side of a typical constitutional case than on the other. See, e. g., United States v. Virginia, 518 U. S. 515, 531-534 (1996) (applying heightened scrutiny to gender-based classifications, based upon experience with prior cases); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (applying rational-basis scrutiny to economic legislation, based upon experience with prior cases). Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 687, 716-718 (2007) (describing hundreds of gun-law decisions issued in the last half century by Supreme Courts in 42 States, which courts with “surprisingly little variation” have adopted a standard more deferential than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e. g., Bartkus v. Illinois, 359 U. S. 121, 134 (1959) (looking to the “experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest.

The present suit involves challenges to three separate District firearm restrictions. The first requires a license from the District’s chief of police in order to carry a “pistol,” i. e., a handgun, anywhere in the District. See D. C. Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506. Because the District assures us that respondent could obtain such a license so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante, at 630-631.

The second District restriction requires that the lawful owner of a firearm keep his weapon “unloaded and disassembled or bound by a trigger lock or similar device" unless it is kept at his place of business or being used for lawful recreational purposes. See § 7-2507.02. The only dispute regarding this provision appears to be whether the Constitution requires an exception that would allow someone to render a firearm operational when necessary for self-defense (i. e., that the firearm may be operated under circumstances where the common law would normally permit a self-defense justification in defense against a criminal charge). See Parker v. District of Columbia, 478 F. 3d 370, 401 (2007) (case below); ante, at 630 (opinion of the Court); Brief for Respondent 52-54. The District concedes that such an exception exists. See Brief for Petitioners 56-57. This Court has final authority (albeit not often used) to definitively interpret District law, which is, after all, simply a species of federal law. See, e. g., Whalen v. United States, 445 U. S. 684, 687-688 (1980); see also Griffin v. United States, 336 U. S. 704, 716-718 (1949). And because I see nothing in the District law that would preclude the existence of a background common-law self-defense exception, I would avoid the constitutional question by interpreting the statute to include it. See Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring).

I am puzzled by the majority’s unwillingness to adopt a similar approach. It readily reads unspoken self-defense exceptions into every colonial law, but it refuses to accept the District’s concession that this law has one. Compare ante, at 631-633, with ante, at 630. The one District case it cites to support that refusal, McIntosh v. Washington, 395 A. 2d 744, 755-756 (1978), merely concludes that the District Legislature had a rational basis for applying the trigger-lock law in homes but not in places of business. Nowhere does that case say that the statute precludes a self-defense exception of the sort that I have just described. And even if it did, we are not bound by a lower court’s interpretation of federal law.

The third District restriction prohibits (in most cases) the registration of a handgun within the District. See § 7-2502.02(a)(4). Because registration is a prerequisite to firearm possession, see § 7-2502.01(a), the effect of this provision is generally to prevent people in the District from possessing handguns. In determining whether this regulation violates the Second Amendment, I shall ask how the statute seeks to further the governmental interests that it serves, how the statute burdens the interests that the Second Amendment seeks to protect, and whether there are practical less burdensome ways of furthering those interests. The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate. See Nixon, 528 U. S., at 402 (Breyer, J., concurring).

No one doubts the constitutional importance of the statute’s basic objective, saving lives. See, e. g., Salerno, 481 U. S., at 755. But there is considerable debate about whether the District’s statute helps to achieve that objective. I begin by reviewing the statute’s tendency to secure that objective from the perspective of (1) the legislature (namely, the Council of the District of Columbia (hereinafter Council)) that enacted the statute in 1976, and (2) a court that seeks to evaluate the Council’s decision today.

First, consider the facts as the legislature saw them when it adopted the District statute. As stated by the local council committee that recommended its adoption, the major substantive goal of the District’s handgun restriction is “to reduce the potentiality for gun-related crimes and gun-related deaths from occurring within the District of Columbia.” Firearms Control Regulations Act of 1975 (Council Act No. 1-142), Hearing and Disposition before the House Committee on the District of Columbia, 94th Cong., 2d Sess., on H. Con. Res. 694, Ser. No. 94-24, p. 25 (1976) (hereinafter DC Rep.) (reproducing, inter alia, the Council Committee Report). The Committee concluded, on the basis of “extensive public hearings” and “lengthy research,” that “[t]he easy availability of firearms in the United States has been a major factor contributing to the drastic increase in gun-related violence and crime over the past 40 years.” Id., at 24, 25. It reported to the Council “startling statistics,” id., at 26, regarding gun-related crime, accidents, and deaths, focusing particularly on the relation between handguns and crime and the proliferation of handguns within the District. See id., at 25-26.

The Committee informed the Council that guns were “responsible for 69 deaths in this country each day,” for a total of “[a]pproximately 25,000 gun-deaths . . . each year,” along with an additional 200,000 gun-related injuries. Id., at 25. Three thousand of these deaths, the report stated, were accidental. Ibid. A quarter of the victims in those accidental deaths were children under the age of 14. Ibid. And according to the Committee, “[f]or every intruder stopped by a homeowner with a firearm, there are 4 gun-related accidents within the home.” Ibid.

In respect to local crime, the Committee observed that there were 285 murders in the District during 1974 — a record number. Id., at 26. The Committee also stated that, “[c]ontrary to popular opinion on the subject, firearms are more frequently involved in deaths and violence among relatives and friends than in premeditated criminal activities.” Ibid. Citing an article from the American Journal of Psychiatry, the Committee reported that “[m]ost murders are committed by previously law-abiding citizens, in situations where spontaneous violence is generated by anger, passion or intoxication, and where the killer and victim are acquainted.” Ibid. “Twenty-five percent of these murders,” the Committee informed the Council, “occur within families.” Ibid.

The Committee Report furthermore presented statistics strongly correlating handguns with crime. Of the 285 murders in the District in 1974, 155 were committed with handguns. Ibid. This did not appear to be an aberration, as the report revealed that “handguns [had been] used in roughly 54% of all murders” (and 87% of murders of law enforcement officers) nationwide over the preceding several years. Ibid. Nor were handguns only linked to murders, as statistics showed that they were used in roughly 60% of robberies and 26% of assaults. Ibid. “A crime committed with a pistol,” the Committee reported, “is 7 times more likely to be lethal than a crime committed with any other weapon.” Id., at 25. The Committee furthermore presented statistics regarding the availability of handguns in the United States, ibid., and noted that they had “become easy for juveniles to obtain,” even despite then-current District laws prohibiting juveniles from possessing them, id., at 26.

In the Committee’s view, the current District firearms laws were unable “to reduce the potentiality for gun-related violence,” or to “cope with the problems of gun control in the District” more generally. Ibid. In the absence of adequate federal gun legislation, the Committee concluded, it “becomes necessary for local governments to act to protect their citizens, and certainly the District of Columbia as the only totally urban statelike jurisdiction should be strong in its approach.” Id., at 27. It recommended that the Council adopt a restriction on handgun registration to reflect “a legislative decision that, at this point in time and due to the gun-control tragedies and horrors enumerated previously” in the Committee Report, “pistols ... are no longer justified in this jurisdiction.” Id., at 81; see also ibid, (handgun restriction “denotes a policy decision that handguns . . . have no legitimate use in the purely urban environment of the District”).

The District’s special focus on handguns thus reflects the fact that the Committee Report found them to have a particularly strong link to undesirable activities in the District’s exclusively urban environment. See id., at 25-26. The District did not seek to prohibit possession of other sorts of weapons deemed more suitable for an “urban area.” See id., at 25. Indeed, an original draft of the bill, and the original Committee recommendations, had sought to prohibit registration of shotguns as well as handguns, but the Council as a whole decided to narrow the prohibition. Compare id., at 30 (describing early version of the bill), with D. C. Code § 7-2502.02).

Next, consider the facts as a court must consider them looking at the matter as of today. See, e. g., Turner, 520 U. S., at 195 (discussing role of court as factfinder in a constitutional case). Petitioners, and their amici, have presented us with more recent statistics that tell much the same story that the Committee Report told 30 years ago. At the least, they present nothing that would permit us to second-guess the Council in respect to the numbers of gun crimes, injuries, and deaths, or the role of handguns.

From 1993 to 1997, there were 180,533 firearm-related deaths in the United States, an average of over 36,000 per year. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz & K. Strom, Firearm Injury and Death From Crime, 1993-97, p. 2 (Oct. 2000), online at http://www.ojp.usdoj.gov/ bjs/pub/pdf/fidc9397.pdf (hereinafter Firearm Injury and Death From Crime). Fifty-one percent were suicides, 44% were homicides, 1% were legal interventions, 3% were unintentional accidents, and 1% were of undetermined causes. See ibid. Over that same period there were an additional 411,800 nonfatal firearm-related injuries treated in U. S. hospitals, an average of over 82,000 per year. Ibid. Of these, 62% resulted from assaults, 17% were unintentional, 6% were suicide attempts, 1% were legal interventions, and 13% were of unknown causes. Ibid.

The statistics are particularly striking in respect to children and adolescents. In over one in every eight firearm-related deaths in 1997, the victim was someone under the age of 20. American Academy of Pediatrics, Firearm-Related Injuries Affecting the Pediatric Population, 105 Pediatrics 888 (2000) (hereinafter Firearm-Related Injuries). Firearm-related deaths account for 22.5% of all injury deaths between the ages of 1 and 19. Ibid. More male teenagers die from firearms than from all natural causes combined. Dresang, Gun Deaths in Rural and Urban Settings, 14 J. Am. Bd. Family Practice 107 (2001). Persons under 25 accounted for 47% of hospital-treated firearm injuries between June 1, 1992, and May 31, 1993. Firearm-Related Injuries 891.

Handguns are involved in a majority of firearm deaths and injuries in the United States. Id., at 888. From 1993 to 1997, 81% of firearm-homicide victims were killed by handgun. Firearm Injury and Death From Crime 4; see also Dept, of Justice, Bureau of Justice Statistics, C. Perkins, Weapon Use and Violent Crime 8 (Sept. 2003) (Table 10), http://www.ojp.usdoj.gov/bjs/pub/pdf/wuvc01.pdf (hereinafter Weapon Use and Violent Crime) (statistics indicating roughly the same rate for 1993-2001). In the same period, for the 41% of firearm injuries for which the weapon type is known, 82% of them were from handguns. Firearm Injury and Death from Crime 4. And among children under the age of 20, handguns account for approximately 70% of all unintentional firearm-related injuries and deaths. Firearm-Related Injuries 890. In particular, 70% of all firearm-related teenage suicides in 1996 involved a handgun. Id., at 889; see also Zwerling, Lynch, Burmeister, & Goertz, The Choice of Weapons in Firearm Suicides in Iowa, 83 Am. J. Pub. Health 1630, 1631 (1993) (Table 1) (handguns used in 36.6% of all firearm suicides in Iowa from 1980-1984 and 43.8% from 1990-1991).

Handguns also appear to be a very popular weapon among criminals. In a 1997 survey of inmates who were armed during the crime for which they were incarcerated, 83.2% of state inmates and 86.7% of federal inmates said that they were armed with a handgun. See Dept. of Justice, Bureau of Justice Statistics, C. Harlow, Firearm Use by Offenders 3 (Nov. 2001), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/ fuo.pdf; see also Weapon Use and Violent Crime 2 (Table 2) (statistics indicating that handguns were used in over 84% of nonlethal violent crimes involving firearms from 1993 to 2001). And handguns are not only popular tools for crime, but popular objects of it as well: the Federal Bureau of Investigation received on average over 274,000 reports of stolen guns for each year between 1985 and 1994, and almost 60% of stolen guns are handguns. Dept. of Justice, Bureau of Justice Statistics, M. Zawitz, Guns Used in Crime 3 (July 1995), online at http://www.ojp.usdoj.gov/bjs/pub/pdf/guic. pdf. Department of Justice studies have concluded that stolen handguns in particular are an important source of weapons for both adult and juvenile offenders. Ibid.

Statistics further suggest that urban areas, such as the District, have different experiences with gun-related death, injury, and crime than do less densely populated rural areas. A disproportionate amount of violent and property crimes occur in urban areas, and urban criminals are more likely than other offenders to use a firearm during the commission of a violent crime. See Dept, of Justice, Bureau of Justice Statistics, D. Duhart, Urban, Suburban, and Rural Victimization, 1993-98, pp. 1, 9 (Oct. 2000), online at http://www.ojp. usdoj.gov/bjs/pub/pdf/usrv98.pdf. Homicide appears to be a much greater issue in urban areas; from 1985 to 1993, for example, “half of all homicides occurred in 63 cities with 16% of the nation’s population.” Wintemute, The Future of Firearm Violence Prevention, 282 JAMA 475 (1999). One study concluded that although the overall rate of gun death between 1989 and 1999 was roughly the same in urban and rural areas, the urban homicide rate was three times as high; even after adjusting for other variables, it was still twice as high. Branas, Nance, Elliott, Richmond, & Schwab, Urban-Rural Shifts in Intentional Firearm Death, 94 Am. J. Pub. Health 1750, 1752 (2004); see also ibid, (noting that rural areas appear to have a higher rate of firearm suicide). And a study of firearm injuries to children and adolescents in Pennsylvania between 1987 and 2000 showed an injury rate in urban counties 10 times higher than in nonurban counties. Nance et al., The Rural-Urban Continuum, 156 Archives of Pediatrics & Adolescent Medicine 781, 782 (2002).

Finally, the linkage of handguns to firearms deaths and injuries appears to be much stronger in urban than in rural areas. “[S]tudies to date generally support the hypothesis that the greater number of rural gun deaths are from rifles or shotguns, whereas the greater number of urban gun deaths are from handguns.” Dresang, supra, at 108. And the Pennsylvania study reached a similar conclusion with respect to firearm injuries — they are much more likely to be caused by handguns in urban areas than in rural areas. See Nance et al., supra, at 784.

Respondent and his many amici for the most part do not disagree about the figures set forth in the preceding subsection, but they do disagree strongly with the District’s predictive judgment that a ban on handguns will help solve the crime and accident problems that those figures disclose. In particular, they disagree with the District Council’s assessment that “freezing the pistol.. . population within the District,” DC Rep., at 26, will reduce crime, accidents, and deaths related to guns. And they provide facts and figures designed to show that it has not done so in the past, and hence will not do so in the future.

First, they point out that, since the ban took effect, violent crime in the District has increased, not decreased. See Brief for Criminologists et al. as Amici Curiae 4-8, 3a (hereinafter Criminologists’ Brief); Brief for Congress of Racial Equality as Amicus Curiae 35-36; Brief for National Rifle Association et al. as Amici Curiae 28-30 (hereinafter NRA Brief). Indeed, a comparison with 49 other major cities reveals that the District’s homicide rate is actually substantially higher relative to these other cities than it was before the handgun restriction went into effect. See Brief for Academics et al. as Amici Curiae 7-10 (hereinafter Academics’ Brief); see also Criminologists’ Brief 6-9, 3a-4a, 7a. Respondent’s amici report similar results in comparing the District’s homicide rates during that period to that of the neighboring States of Maryland and Virginia (neither of which restricts handguns to the same degree), and to the homicide rate of the Nation as a whole. See Academics’ Brief 11-17; Criminologists’ Brief 6a, 8a.

Second, respondent’s amici point to a statistical analysis that regresses murder rates against the presence or absence of strict gun laws in 20 European nations. See Criminologists’ Brief 23 (citing Kates & Mauser, Would Banning Firearms Reduce Murder and Suicide? 30 Harv. J. L. & Pub. Pol’y 649,651-694 (2007)). That analysis concludes that strict gun laws are correlated with more murders, not fewer. See Criminologists’ Brief 23; see also id., at 25-28. They also cite domestic studies, based on data from various cities, States, and the Nation as a whole, suggesting that a reduction in the number of guns does not lead to a reduction in the amount of violent crime. See id., at 17-20. They further argue that handgun bans do not reduce suicide rates, see id., at 28-31, 9a, or rates of accidents, even those involving children, see App. to Brief for International Law Enforcement Educators and Trainers Association et al. as Amici Curiae App. 7-15 (hereinafter ILEETA Brief).

Third, they point to evidence indicating that firearm ownership does have a beneficial self-defense effect. Based on a 1993 survey, the authors of one study estimated that there were 2.2-to-2.5 million defensive uses of guns (mostly brandishing, about a quarter involving the actual firing of a gun) annually. See Kleck & Gertz, Armed Resistance to Crime, 86 J. Crim. L. & C. 150, 164 (1995); see also ILEETA Brief App. 1-6 (summarizing studies regarding defensive uses of guns). Another study estimated that for a period of 12 months ending in 1994, there were 503,481 incidents in which a burglar found himself confronted by an armed homeowner, and that in 497,646 (98.8%) of them, the intruder was successfully scared away. See Ikeda, Dahlberg, Sacks, Mercy, & Powell, Estimating Intruder-Related Firearms Retrievals in U. S. Households, 12 Violence & Victims 363 (1997). A third study suggests that gun-armed victims are substantially less likely than non-gun-armed victims to be injured in resisting robbery or assault. Barnett & Kates, Under Fire, 45 Emory L. J. 1139,1243-1244, n. 478 (1996). And additional evidence suggests that criminals are likely to be deterred from burglary and other crimes if they know the victim is likely to have a gun. See Kleck, Crime Control Through the Private Use of Armed Force, 35 Social Problems 1,15 (1988) (reporting a substantial drop in the burglary rate in an Atlanta suburb that required heads of households to own guns); see also ILEETA Brief 17-18 (describing decrease in sexual assaults in Orlando when women were trained in the use of guns).

Fourth, respondent’s amici argue that laws criminalizing gun possession are self-defeating, as evidence suggests that they will have the effect only of restricting law-abiding citizens, but not criminals, from acquiring guns. See, e. g., Brief for President Pro Tempore of Senate of Pennsylvania as Amicus Curiae 35,36, and n. 15. That effect, they argue, will be especially pronounced in the District, whose proximity to Virginia and Maryland will provide criminals with a steady supply of guns. See Brief for Heartland Institute as Amicus Curiae 20.

In the view of respondent’s amici, this evidence shows that other remedies — such as less restriction on gun ownership, or liberal authorization of law-abiding citizens to carry concealed weapons — better fit the problem. See, e. g., Criminologists’ Brief 35-37 (advocating easily obtainable gun licenses); Brief for Southeastern Legal Foundation, Inc., et al. as Amici Curiae 15 (hereinafter SLF Brief) (advocating “widespread gun ownership” as a deterrent to crime); see also J. Lott, More Guns, Less Crime (2d ed. 2000). They further suggest that at a minimum the District fails to show that its remedy, the gun ban, bears a reasonable relation to the crime and accident problems that the District seeks to solve. See, e. g., Brief for Respondent 59-61.

These empirically based arguments may have proved strong enough to convince many legislatures, as a matter of legislative policy, not to adopt total handgun bans. But the question here is whether they are strong enough to destroy judicial confidence in the reasonableness of a legislature that rejects them. And that they are not. For one thing, they can lead us more deeply into the uncertainties that surround any effort to reduce crime, but they cannot prove either that handgun possession diminishes crime or that handgun bans are ineffective. The statistics do show a soaring District crime rate. And the District’s crime rate went up after the District adopted its handgun ban. But, as students of elementary logic know, after it does not mean because of it. What would the District’s crime rate have looked like without the ban? Higher? Lower? The same? Experts differ; and we, as judges, cannot say.

What about the fact that foreign nations with strict gun laws have higher crime rates? Which is the cause and which the effect? The proposition that strict gun laws cause crime is harder to accept than the proposition that strict gun laws in part grow out of the fact that a nation already has a higher crime rate. And we are then left with the same question as before: What would have happened to crime without the gun laws—a question that respondent and his amici do not convincingly answer.

Further, suppose that respondent’s amici are right when they say that householders’ possession of loaded handguns help to frighten away intruders. On that assumption, one must still ask whether that benefit is worth the potential death-related cost. And that is a question without a directly provable answer.

Finally, consider the claim of respondent’s amici that handgun bans cannot work; there are simply too many illegal guns already in existence for a ban on legal guns to make a difference. In a word, they claim that, given the urban sea of pre-existing legal guns, criminals can readily find arms regardless. Nonetheless, a legislature might respond, we want to make an effort to try to dry up that urban sea, drop by drop. And none of the studies can show that effort is not worthwhile.

In a word, the studies to which respondent’s amici point raise policy-related questions. They succeed in proving that the District’s predictive judgments are controversial. But they do not by themselves show that those judgments are incorrect; nor do they demonstrate a consensus, academic or otherwise, supporting that conclusion.

Thus, it is not surprising that the District and its amici support the District’s handgun restriction with studies of their own. One in particular suggests that, statistically speaking, the District’s law has indeed had positive lifesaving effects. See Loftin, McDowall, Wiersema, & Cottey, Effects of Restrictive Licensing of Handguns on Homicide and Suicide in the District of Columbia, 325 New England J. Med. 1615 (1991) (hereinafter Loftin study). Others suggest that firearm restrictions as a general matter reduce homicides, suicides, and accidents in the home. See, e. g., Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001); Kellermann, Somes, Rivara, Lee, & Banton, Injuries and Deaths Due to Firearms in the Home, 45 J. Trauma: Injury, Infection & Critical Care 263 (1998); Miller, Azrael, & Hemenway, Household Firearm Ownership and Suicide Rates in the United States, 13 Epidemiology 517 (2002). Still others suggest that the defensive uses of handguns are not as great in number as respondent’s amici claim. See, e. g., Brief for American Public Health Association et al. as Amici Curiae 17-19 (hereinafter APHA Brief) (citing studies).

Respondent and his amici reply to these responses; and in doing so, they seek to discredit as methodologically flawed the studies and evidence relied upon by the District. See, e. g., Criminologists’ Brief 9-17, 20-24; Brief for Association of American Physicians and Surgeons, Inc., as Amicus Curiae 12-18; SLF Brief 17-22; Britt, Kleck, & Bordua, A Reassessment of the D. C. Gun Law, 30 Law & Soc. Rev. 361 (1996) (criticizing the Loftin study). And, of course, the District’s amici produce counterrejoinders, referring to articles that defend their studies. See, e. g., APHA Brief 23, n. 5 (citing McDowall, Loftin, & Wiersema, Using Quasi-Experiments To Evaluate Firearm Laws, 30 Law & Soc. Rev. 381 (1996)).

The upshot is a set of studies and counterstudies that, at most, could leave a judge uncertain about the proper policy conclusion. But from respondent’s perspective any such uncertainty is not good enough. That is because legislators, not judges, have primary responsibility for drawing policy conclusions from empirical fact. And, given that constitutional allocation of decisionmaking responsibility, the empirical evidence presented here is sufficient to allow a judge to reach a firm legal conclusion.

In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District Legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (Breyer, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions. See Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 440 (2002) (plurality opinion) (“[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems”); cf. DC Rep., at 67 (statement of Rep. Gude) (describing District’s law as “a decision made on the local level after extensive debate and deliberations”). Different localities may seek to solve similar problems in different ways, and a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” Renton v. Playtime Theatres, Inc., 475 U. S. 41, 52 (1986) (internal quotation marks omitted). “The Framers recognized that the most effective democracy occurs at local levels of government, where people with firsthand knowledge of local problems have more ready access to public officials responsible for dealing with them.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 575, n. 18 (1985) (Powell, J., dissenting) (citing The Federalist No. 17, p. 107 (J. Cooke ed. 1961) (A. Hamilton)). We owe that democratic process some substantial weight in the constitutional calculus.

For these reasons, I conclude that the District’s statute properly seeks to further the sort of life-preserving and public-safety interests that the Court has called “compelling.” Salerno, 481 U. S., at 750, 754.

I next assess the extent to which the District’s law burdens the interests that the Second Amendment seeks to protect. Respondent and his amici, as well as the majority, suggest that those interests include: (1) the preservation of a “well regulated Militia”; (2) safeguarding the use of firearms for sporting purposes, e. g., hunting and marksmanship; and (3) assuring the use of firearms for self-defense. For argument’s sake, I shall consider all three of those interests here.

The District’s statute burdens the Amendment’s first and primary objective hardly at all. As previously noted, there is general agreement among the Members of the Court that the principal (if not the only) purpose of the Second Amendment is found in the Amendment’s text: the preservation of a “well regulated Militia.” See supra, at 682-683. What scant Court precedent there is on the Second Amendment teaches that the Amendment was adopted “[w]ith obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces” and “must be interpreted and applied with that end in view.” Miller, 307 U. S., at 178. Where that end is implicated only minimally (or not at all), there is substantially less reason for constitutional concern. Compare ibid. (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument”).

To begin with, the present case has nothing to do with actual military service. The question presented presumes that respondent is “not affiliated with any state-regulated militia.” 552 U. S. 1035 (2007) (emphasis added). I am aware of no indication that the District either now or in the recent past has called up its citizenry to serve in a militia, that it has any inkling of doing so anytime in the foreseeable future, or that this law must be construed to prevent the use of handguns during legitimate militia activities. Moreover, even if the District were to call up its militia, respondent would not be among the citizens whose service would be requested. The District does not consider him, at 66 years of age, to be a member of its militia. See D. C. Code § 49-401 (2001) (militia includes only male residents ages 18 to 45); App. to Pet. for Cert. 120a (indicating respondent’s date of birth).

Nonetheless, as some amici claim, the statute might interfere with training in the use of weapons, training useful for military purposes. The 19th-century constitutional scholar, Thomas Cooley, wrote that the Second Amendment protects “learning to handle and use [arms] in a way that makes those who keep them ready for their efficient use” during militia service. General Principles of Constitutional Law 271 (1880); ante, at 618 (opinion of the Court); see also ante, at 618-619 (citing other scholars agreeing with Cooley on that point). And former military officers tell us that “private ownership of firearms makes for a more effective fighting force” because “[m]ilitary recruits with previous firearms experience and training are generally better marksmen, and accordingly, better soldiers.” Brief for Retired Military Officers as Amici Curiae 1-2 (hereinafter Military Officers’ Brief). An amicus brief filed by retired Army generals adds that a “well-regulated militia — whether ad hoc or as part of our organized military — depends on recruits who have familiarity and training with firearms—rifles, pistols, and shotguns.” Brief for Major General John D. Altenburg, Jr., et al. as Amici Curiae 4 (hereinafter Generals’ Brief). Both briefs point out the importance of handgun training. Military Officers’ Brief 26-28; Generals’ Brief 4. Handguns are used in military service, see Military Officers’ Brief 26, and “civilians who are familiar with handgun marksmanship and safety are much more likely to be able to safely and accurately fire a rifle or other firearm with minimal training upon entering military service,” id., at 28.

Regardless, to consider the military-training objective a modern counterpart to a similar militia-related colonial objective and to treat that objective as falling within the Amendment’s primary purposes makes no difference here. That is because the District’s law does not seriously affect military-training interests. The law permits residents to engage in activities that will increase their familiarity with firearms. They may register (and thus possess in their homes) weapons other than handguns, such as rifles and shotguns. See D. C. Code §§ 7-2502.01, 7-2502.02(a) (only weapons that cannot be registered are sawed-off shotguns, machineguns, short-barreled rifles, and pistols not registered before 1976); compare Generals’ Brief 4 (listing “rifles, pistols, and shotguns” as useful military weapons (emphasis added)). And they may operate those weapons within the District “for lawful recreational purposes.” § 7-2507.02; see also § 7-2502.01(b)(3) (nonresidents “participating in any lawful recreational firearm-related activity in the District, or on his way to or from such activity in another jurisdiction,” may carry even weapons not registered in the District). These permissible recreations plainly include actually using and firing the weapons, as evidenced by a specific D. C. Code provision contemplating the existence of local firing ranges. See § 7-2507.03.

And while the District law prevents citizens from training with handguns within the District, the District consists of only 61.4 square miles of urban area. See Dept. of Commerce, Bureau of Census, United States: 2000 (pt. 1), p. 11 (2002) (Table 8). The adjacent States do permit the use of handguns for target practice, and those States are only a brief subway ride away. See Md. Crim. Law Code Ann. § 4-203(b)(4) (Lexis Supp. 2007) (general handgun restriction does not apply to “the wearing, carrying, or transporting by a person of a handgun used in connection with,” inter alia, “a target shoot, formal or informal target practice, sport shooting event, hunting, [or] a Department of Natural Resources-sponsored firearms and hunter safety class”); Va. Code Ann. § 18.2-287.4 (Lexis Supp. 2007) (general restriction on carrying certain loaded pistols in certain public areas does not apply “to any person actually engaged in lawful hunting or lawful recreational shooting activities at an established shooting range or shooting contest”); Washington Metropolitan Area Transit Authority, Metrorail System Map, online at http://www.wmata.com/metrorail/systemmap.cfm.

Of course, a subway rider must buy a ticket, and the ride takes time. It also costs money to store a pistol, say, at a target range, outside the District. But given the costs already associated with gun ownership and firearms training, I cannot say that a subway ticket and a short subway ride (and storage costs) create more than a minimal burden. Cf. Crawford v. Marion County Election Bd., 553 U. S. 181, 238-239 (2008) (Breyer, J., dissenting) (acknowledging travel burdens on indigent persons in the context of voting where public transportation options were limited). Indeed, respondent and two of his coplaintiffs below may well use handguns outside the District on a regular basis, as their declarations indicate that they keep such weapons stored there. See App. to Pet. for Cert. 77a (respondent); see also id., at 78a, 84a (coplaintiffs). I conclude that the District’s law burdens the Second Amendment’s primary objective little, or not at all.

The majority briefly suggests that the “right to keep and bear Arms” might encompass an interest in hunting. See, e. g., ante, at 599. But in enacting the present provisions, the District sought to “take nothing away from sportsmen.” DC Rep., at 33. And any inability of District residents to hunt near where they live has much to do with the jurisdiction’s exclusively urban character and little to do with the District’s firearm laws. For reasons similar to those I discussed in the preceding subsection — that the District’s law does not prohibit possession of rifles or shotguns, and the presence of opportunities for sporting activities in nearby States — I reach a similar conclusion, namely, that the District’s law burdens any sports-related or hunting-related objectives that the Amendment may protect little, or not at all.

The District’s law does prevent a resident from keeping a loaded handgun in his home. And it consequently makes it more difficult for the householder to use the handgun for self-defense in the home against intruders, such as burglars. As the Court of Appeals noted, statistics suggest that handguns are the most popular weapon for self-defense. See 478 F. 3d, at 400 (citing Kleck & Gertz, 86 J. Crim. L. & C., at 182-183). And there are some legitimate reasons why that would be the case: Amici suggest (with some empirical support) that handguns are easier to hold and control (particularly for persons with physical infirmities), easier to carry, easier to maneuver in enclosed spaces, and that a person using one will still have a hand free to dial 911. See ILEETA Brief 37-39;. NR A Brief 32-33; see also ante, at 629. But see Brief for Petitioners 54-55 (citing sources preferring shotguns and rifles to handguns for purposes of self-defense). To that extent the law burdens to some degree an interest in self-defense that for present purposes I have assumed the Amendment seeks to further.

In weighing needs and burdens, we must take account of the possibility that there are reasonable, but less restrictive, alternatives. Are there other potential measures that might similarly promote the same goals while imposing lesser restrictions? See Nixon, 528 U. S., at 402 (Breyer, J., concurring) (“existence of a clearly superior, less restrictive alternative” can be a factor in determining whether a law is constitutionally proportionate). Here I see none.

The reason there is no clearly superior, less restrictive alternative to the District’s handgun ban is that the ban’s very objective is to reduce significantly the number of handguns in the District, say, for example, by allowing a law enforcement officer immediately to assume that any handgun he sees is an illegal handgun. And there is no plausible way to achieve that objective other than to ban the guns.

It does not help respondent’s case to describe the District’s objective more generally as an “effort to diminish the dangers associated with guns.” That is because the very attributes that make handguns particularly useful for self-defense are also what make them particularly dangerous. That they are easy to hold and control means that they are easier for children to use. See Brief for American Academy of Pediatrics et al. as Amici Curiae 19 (“[C]hildren as young as three are able to pull the trigger of most handguns”). That they are maneuverable and permit a free hand likely contributes to the fact that they are by far the firearm of choice for crimes such as rape and robbery. See Weapon Use and Violent Crime 2 (Table 2). That they are small and light makes them easy to steal, see supra, at 698, and concealable, cf. ante, at 626 (opinion of the Court) (suggesting that concealed-weapon bans are constitutional).

This symmetry suggests that any measure less restrictive in respect to the use of handguns for self-defense will, to that same extent, prove less effective in preventing the use of handguns for illicit purposes. If a resident has a handgun in the home that he can use for self-defense, then he has a handgun in the home that he can use to commit suicide or engage in acts of domestic violence. See supra, at 697 (handguns prevalent in suicides); Brief for National Network to End Domestic Violence et al. as Amici Curiae 27 (handguns prevalent in domestic violence). If it is indeed the case, as the District believes, that the number of guns contributes to the number of gun-related crimes, accidents, and deaths, then, although there may be less restrictive, less effective substitutes for an outright ban, there is no less restrictive equivalent of an outright ban.

Licensing restrictions would not similarly reduce the handgun population, and the District may reasonably fear that even if guns are initially restricted to law-abiding citizens, they might be stolen and thereby placed in the hands of criminals. See supra, at 698. Permitting certain types of handguns, but not others, would affect the commercial market for handguns, but not their availability. And requiring safety devices such as trigger locks, or imposing safe-storage requirements would interfere with any self-defense interest while simultaneously leaving operable weapons in the hands of owners (or others capable of acquiring the weapon and disabling the safety device) who might use them for domestic violence or other crimes.

The absence of equally effective alternatives to a complete prohibition finds support in the empirical fact that other States and urban centers prohibit particular types of weapons. Chicago has a law very similar to the District’s, and many of its suburbs also ban handgun possession under most circumstances. See Chicago, Ill., Municipal Code §§ 8-20-030(k), 8-20-40, 8-20-50(c) (2008); Evanston, Ill., City Code § 9-8-2 (2007); Morton Grove, Ill, Village Code § 6-2-3(C) (2007); Oak Park, Ill, Village Code § 27-2-1 (2007); Winnetka, Ill., Village Ordinance § 9.12.020(B) (2008), online at http:// www.amlegal.com/library/il/winnetka.shtml; Wilmette, Ill., Ordinance § 12-24(b) (2008), online at http://www.amlegal. com/library/il/wilmette.shtml. Toledo bans certain types of handguns. Toledo, Ohio, Municipal Code § 549.25 (2008).

And San Francisco in 2005 enacted by popular referendum a ban on most handgun possession by city residents; it has been precluded from enforcing that prohibition, however, by state-court decisions deeming it pre-empted by state law. See Fiscal v. City and County of San Francisco, 158 Cal. App. 4th 895, 900-902, 70 Cal. Rptr. 3d 324, 326-328 (2008). (Indeed, the fact that as many as 41 States may pre-empt local gun regulation suggests that the absence of more regulation like the District’s may perhaps have more to do with state law than with a lack of locally perceived need for them. See Legal Community Against Violence, Regulating Guns in America 14 (2006), http://www.lcav.org/Library/reports_ analyses/N ational_Audit_Total_8.16.06.pdf.)

In addition, at least six States and Puerto Rico impose general bans on certain types of weapons, in particular assault weapons or semiautomatic weapons. See Cal. Penal Code Ann. § 12280(b) (West Supp. 2008); Conn. Gen. Stat. § 53-202c (2007); Haw. Rev. Stat. § 134-8 (1993); Md. Crim. Law Code Ann. § 4-303(a) (Lexis 2002); Mass. Gen. Laws, ch. 140, § 131M (West 2006); N. Y. Penal Law Ann. § 265.02(7) (West Supp. 2008); 25 Laws P. R. Ann. § 456m (Supp. 2006); see also 18 U. S. C. § 922(o) (federal machinegun ban). And at least 14 municipalities do the same. See Albany, N. Y, Municipal Code § 93-16(A) (2005); Aurora, Ill., Ordinance § 29-49(a) (2007); Buffalo, N. Y, City Code § 180-1(F) (2000); Chicago, Ill., Municipal Code §§ 8-24-025(a), 8-20-030(h); Cincinnati, Ohio, Municipal Code § 708-37(a) (Supp. 2008); Cleveland, Ohio, Ordinance § 628.03(a) (2007); Columbus, Ohio, City Code § 2323.31 (2008); Denver, Colo., Revised Municipal Code § 38-130(e) (2008); Morton Grove, Ill., Village Code § 6-2-3(B) (2007); N. Y. C. Admin. Code § 10-303.1 (1996 and Supp. 2007); Oak Park, Ill., Village Code § 27-2-1 (2007); Rochester, N. Y, Code § 47—5(f) (2008), online at http://www.ci.rochester.ny.us/index.cfm7id:: 112; South Bend, Ind., Ordinance §§ 13-97(b), 13-98 (2008), online at http:// library2.munieode.comm//default/DocView13974/1/2; Toledo, Ohio, Municipal Code § 549.23(a). These bans, too, suggest that there may be no substitute to an outright prohibition in cases where a governmental body has deemed a particular type of weapon especially dangerous.

The upshot is that the District’s objectives are compelling; its predictive judgments as to its law’s tendency to achieve those objectives are adequately supported; the law does impose a burden upon any self-defense interest that the Amendment seeks to secure; and there is no clear less restrictive alternative. I turn now to the final portion of the “permissible regulation” question: Does the District’s law disproportionately burden Amendment-protected interests? Several considerations, taken together, convince me that it does not.

First, the District law is tailored to the life-threatening problems it attempts to address. The law concerns one class of weapons, handguns, leaving residents free to possess shotguns and rifles, along with ammunition. The area that falls within its scope is totally urban. Cf. Lorillard Tobacco Co. v. Reilly, 533 U. S. 525, 563 (2001) (varied effect of statewide speech restriction in “rural, urban, or suburban” locales “demonstrates a lack of narrow tailoring”). That urban area suffers from a serious handgun-fatality problem. The District’s law directly aims at that compelling problem. And there is no less restrictive way to achieve the problem-related benefits that it seeks.

Second, the self-defense interest in maintaining loaded handguns in the home to shoot intruders is not the primary interest, but at most a subsidiary interest, that the Second Amendment seeks to serve. The Second Amendment’s language, while speaking of a “Militia,” says nothing of “self-defense.” As Justice Stevens points out, the Second Amendment’s drafting history shows that the language reflects the Framers’ primary, if not exclusive, objective. See ante, at 652-662 (dissenting opinion). And the majority itself says that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right... was codified in a written Constitution.” Ante, at 599 (emphasis added). The way in which the Amendment’s operative clause seeks to promote that interest — by protecting a right “to keep and bear Arms” — may in fact help further an interest in self-defense. But a factual connection falls far short of a primary objective. The Amendment itself tells us that militia preservation was first and foremost in the Framers’ minds. See Miller, 307 U. S., at 178 (“With obvious purpose to assure the continuation and render possible the effectiveness of [militia] forces the declaration and guarantee of the Second Amendment were made,” and the Amendment “must be interpreted and applied with that end in view”).

Further, any self-defense interest at the time of the framing could not have focused exclusively upon urban-crime-related dangers. Two hundred years ago, most Americans, many living on the frontier, would likely have thought of self-defense primarily in terms of outbreaks of fighting with Indian tribes, rebellions such as Shays’ Rebellion, marauders, and crime-related dangers to travelers on the roads, on footpaths, or along waterways. See Dept. of Commerce, Bureau of Census, Population: 1790 to 1990 (1998) (Table 4), online at http://www.census.gov/population/censusdata/table-4. pdf (of the 3,929,214 Americans in 1790, only 201,655—about 5% — lived in urban areas). Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not. See supra, at 683-686. They are unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the Amendment’s more basic protective ends. See, e. g., Sklansky, The Private Police, 46 UCLA L. Rev. 1165, 1206-1207 (1999) (professional urban police departments did not develop until roughly the mid-19th century).

Nor, for that matter, am I aware of any evidence that handguns in particular were central to the Framers’ conception of the Second Amendment. The lists of militia-related weapons in the late-18th-century state statutes appear primarily to refer to other sorts of weapons, muskets in particular. See Miller, supra, at 180-182 (reproducing colonial militia laws). Respondent points out in his brief that the Federal Government and two States at the time of the founding had enacted statutes that listed handguns as “acceptable” militia weapons. Brief for Respondent 47. But these statutes apparently found them “acceptable” only for certain special militiamen (generally, certain soldiers on horseback), while requiring muskets or rifles for the general infantry. See Act of May 8, 1792, ch. XXXIII, 1 Stat. 271; Laws of the State of North Carolina 592 (1791); First Laws of the State of Connecticut 150 (J. Cushing ed. 1982); see also 25 Journals of the Continental Congress 1774-1789, pp. 741-742 (G. Hunt ed. 1922).

Third, irrespective of what the Framers could have thought, we know what they did think. Samuel Adams, who lived in Boston, advocated a constitutional amendment that would have precluded the Constitution from ever being “ ‘construed’ ” to “ ‘prevent the people of the United States, who are peaceable citizens, from keeping their own arms.’” 6 Documentary History of the Ratification of the Constitution 1453 (J. Kaminski & G. Saladino eds. 2000). Samuel Adams doubtless knew that the Massachusetts Constitution contained somewhat similar protection. And he doubtless knew that Massachusetts law prohibited Bostonians from keeping loaded guns in the house. So how could Samuel Adams have advocated such protection unless he thought that the protection was consistent with local regulation that seriously impeded urban residents from using their arms against intruders? It seems unlikely that he meant to deprive the Federal Government of power (to enact Boston-type weapons regulation) that he knew Boston had and (as far as we know) he would have thought constitutional under the Massachusetts Constitution. Indeed, since the District of Columbia (the subject of the Seat of Government Clause, U. S. Const., Art. I, § 8, cl. 17) was the only urban area under direct federal control, it seems unlikely that the Framers thought about urban gun control at all. Cf. Palmore v. United States, 411 U. S. 389, 398 (1973) (Congress can “legislate for the District in a manner with respect to subjects that would exceed its powers, or at least would be very unusual, in the context of national legislation enacted under other powers delegated to it”).

Of course the District’s law and the colonial Boston law are not identical. But the Boston law disabled an even wider class of weapons (indeed, all firearms). And its existence shows at the least that local legislatures could impose (as here) serious restrictions on the right to use firearms. Moreover, as I have said, Boston’s law, though highly analogous to the District’s, was not the only colonial law that could have impeded a homeowner’s ability to shoot a burglar. Pennsylvania’s and New York’s laws could well have had a similar effect. See supra, at 686. And the Massachusetts and Pennsylvania laws were not only thought consistent with an unwritten common-law gun-possession right, but also consistent with written state constitutional provisions providing protections similar to those provided by the Federal Second Amendment. See supra, at 685-686. I cannot agree with the majority that these laws are largely uninformative because the penalty for violating them was civil, rather than criminal. Ante, at 633-634. The Court has long recognized that the exercise of a constitutional right can be burdened by penalties far short of jail time. See, e. g., Murdock v. Pennsylvania, 319 U. S. 105 (1943) (invalidating $7 per week solicitation fee as applied to religious group); see also Forsyth County v. Nationalist Movement, 505 U. S. 123, 136 (1992) (“A tax based on the content of speech does not become more constitutional because it is a small tax”).

Regardless, why would the majority require a precise colonial regulatory analogue in order to save a modern gun regulation from constitutional challenge? After all, insofar as we look to history to discover how we can constitutionally regulate a right to self-defense, we must look, not to what 18th-century legislatures actually did enact, but to what they would have thought they could enact. There are innumerable policy-related reasons why a legislature might not act on a particular matter, despite having the power to do so. This Court has “frequently cautioned that it is at best treacherous to find in congressional silence alone the adoption of a controlling rule of law.” United States v. Wells, 519 U. S. 482, 496 (1997) (internal quotation marks and brackets omitted). It is similarly “treacherous” to reason from the fact that colonial legislatures did not enact certain kinds of legislation to a conclusion that a modern legislature cannot do so. The question should not be whether a modern restriction on a right to self-defense duplicates a past one, but whether that restriction, when compared with restrictions originally thought possible, enjoys a similarly strong justification. At a minimum that similarly strong justification is what the District’s modern law, compared with Boston’s colonial law, reveals.

Fourth, a contrary view, as embodied in today’s decision, will have unfortunate consequences. The decision will encourage legal challenges to gun regulation throughout the Nation. Because it says little about the standards used to evaluate regulatory decisions, it will leave the Nation without clear standards for resolving those challenges. See ante, at 626-627, and n. 26. And litigation over the course of many years, or the mere specter of such litigation, threatens to leave cities without effective protection against gun violence and accidents during that time.

As important, the majority’s decision threatens severely to limit the ability of more knowledgeable, democratically elected officials to deal with gun-related problems. The majority says that it leaves the District “a variety of tools for combating” such problems. Ante, at 636. It fails to list even one seemingly adequate replacement for the law it strikes down. I can understand how reasonable individuals can disagree about the merits of strict gun control as a crime-control measure, even in a totally urbanized area. But I cannot understand how one can take from the elected branches of government the right to decide whether to insist upon a handgun-free urban populace in a city now facing a serious crime problem and which, in the future, could well face environmental or other emergencies that threaten the breakdown of law and order.

The majority derides my approach as “judge-empowering.” Ante, at 634. I take this criticism seriously, but I do not think it accurate. As I have previously explained, this is an approach that the Court has taken in other areas of constitutional law. See supra, at 690. Application of such an approach, of course, requires judgment, but the very nature of the approach — requiring careful identification of the relevant interests and evaluating the law’s effect upon them — limits the judge’s choices; and the method’s necessary transparency lays bare the judge’s reasoning for all to see and to criticize.

The majority’s methodology is, in my view, substantially less transparent than mine. At a minimum, I find it difficult to understand the reasoning that seems to underlie certain conclusions that it reaches.

The majority spends the first 54 pages of its opinion attempting to rebut Justice Stevens’ evidence that the Amendment was enacted with a purely militia-related purpose. In the majority’s view, the Amendment also protects an interest in armed personal self-defense, at least to some degree. But the majority does not tell us precisely what that interest is. “Putting all of [the Second Amendment’s] textual elements together,” the majority says, “we find that they guarantee the individual right to possess and carry weapons in case of confrontation.” Ante, at 592. Then, three pages later, it says that “we do not read the Second Amendment to permit citizens to carry arms for any sort of confrontation.” Ante, at 595. Yet, with one critical exception, it does not explain which confrontations count. It simply leaves that question unanswered.

The majority does, however, point to one type of confrontation that counts, for it describes the Amendment as “elevating] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 635. What is its basis for finding that to be the core of the Second Amendment right? The only historical sources identified by the majority that even appear to touch upon that specific matter consist of an 1866 newspaper editorial discussing the Freedmen’s Bureau Act, see ante, at 615, two quotations from that 1866 Act’s legislative history, see ante, at 615-616, and a 1980 state-court opinion saying that in colonial times the same were used to defend the home as to maintain the militia, see ante, at 624-625. How can citations such as these support the far-reaching proposition that the Second Amendment’s primary concern is not its stated concern about the militia, but rather a right to keep loaded weapons at one’s bedside to shoot intruders?

Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, at 625. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 629; see also ante, at 626-627. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”; (2) “prohibitions on the possession of firearms by felons”; (3) “prohibitions on the possession of firearms by ... the mentally ill”; (4) “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings”; and (5) government “conditions and qualifications” attached to “the commercial sale of arms.” Ibid. Why these? Is it that similar restrictions existed in the late-18th century? The majority fails to cite any colonial analogues. And even were it possible to find analogous colonial laws in respect to all these restrictions, why should these colonial laws count, while the Boston loaded-gun restriction (along with the other laws I have identified) apparently does not count? See supra, at 685, 717-718.

At the same time the majority ignores a more important question: Given the purposes for which the Framers enacted the Second Amendment, how should it be applied to modern-day circumstances that they could not have anticipated? Assume, for argument’s sake, that the Framers did intend the Amendment to offer a degree of self-defense protection. Does that mean that the Framers also intended to guarantee a right to possess a loaded gun near swimming pools, parks, and playgrounds? That they would not have cared about the children who might pick up a loaded gun on their parents’ bedside table? That they (who certainly showed concern for the risk of fire, see supra, at 684-686) would have lacked concern for the risk of accidental deaths or suicides that readily accessible loaded handguns in urban areas might bring? Unless we believe that they intended future generations to ignore such matters, answering questions such as the questions in this case requires judgment— judicial judgment exercised within a framework for constitutional analysis that guides that judgment and which makes its exercise transparent. One cannot answer those questions by combining inconclusive historical research with judicial ipse dixit.

The argument about method, however, is by far the less important argument surrounding today’s decision. Far more important are the unfortunate consequences that today’s decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no sound legal basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas.

For these reasons, I conclude that the District’s measure is a proportionate, not a disproportionate, response to the compelling concerns that led the District to adopt it. And, for these reasons as well as the independently sufficient reasons set forth by Justice Stevens, I would find the District’s measure consistent with the Second Amendment’s demands.

With respect, I dissent.

3.3.2 New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 3.3.2 New York State Rifle & Pistol Assn., Inc. v. Bruen (2022)

New York State Rifle & Pistol Association, Inc. v. Bruen

2022 WL 2251305 (S. Ct.)

Justice THOMAS delivered the opinion of the Court.

In District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. Chicago, 561 U.S. 742 (2010), we recognized that the Second and Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun in the home for self-defense. In this case, petitioners and respondents agree that ordinary, law-abiding citizens have a similar right to carry handguns publicly for their self-defense. * * * The parties nevertheless dispute whether New York’s licensing regime respects the constitutional right to carry handguns publicly for self-defense. * * * Because the State of New York issues public-carry licenses only when an applicant demonstrates a special need for self-defense, we conclude that the State’s licensing regime violates the Constitution.

* * * It is a crime in New York to possess “any firearm” without a license, whether inside or outside the home, punishable by up to four years in prison or a $5,000 fine for a felony offense, and one year in prison or a $1,000 fine for a misdemeanor. Meanwhile, possessing a loaded firearm outside one’s home or place of business without a license is a felony punishable by up to 15 years in prison.

A license applicant who wants to possess a firearm at home (or in his place of business) must convince a “licensing officer”—usually a judge or law enforcement officer—that, among other things, he is of good moral character, has no history of crime or mental illness, and that “no good cause exists for the denial of the license.” If he wants to carry a firearm outside his home or place of business for self-defense, the applicant must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” To secure that license, the applicant must prove that “proper cause exists” to issue it. Ibid. If an applicant cannot make that showing, he can receive only a “restricted” license for public carry, which allows him to carry a firearm for a limited purpose, such as hunting, target shooting, or employment.

No New York statute defines “proper cause.” But New York courts have held that an applicant shows proper cause only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.” E.g., In re Klenosky, 75 App. iv.2d 793 (1980). This special need” standard is demanding. For example, living or working in an area “ ‘noted for criminal activity’ ” does not suffice. Rather, New York courts generally require evidence “of particular threats, attacks or other extraordinary danger to personal safety.” In re Martinek, 294 App.Div.2d 221, 222 (2002).

New York is not alone in requiring a permit to carry a handgun in public. But the vast majority of States—43 by our count—are “shall issue” jurisdictions, where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements, without granting licensing officials discretion to deny licenses based on a perceived lack of need or suitability. Meanwhile, only six States and the District of Columbia have “may issue” licensing laws, under which authorities have discretion to deny concealed-carry licenses even when the applicant satisfies the statutory criteria, usually because the applicant has not demonstrated cause or suitability for the relevant license. Aside from New York, then, only California, the District of Columbia, Hawaii, Maryland, Massachusetts, and New Jersey have analogues to the “proper cause” standard. All of these “proper cause” analogues have been upheld by the Courts of Appeals, save for the District of Columbia’s, which has been permanently enjoined since 2017.

As set forth in the pleadings below, petitioners Brandon Koch and Robert Nash are law-abiding, adult citizens of Rensselaer County, New York. * * * Petitioner New York State Rifle & Pistol Association, Inc., is a public-interest group organized to defend the Second Amendment rights of New Yorkers. Both Koch and Nash are members.

[Nash and Koch applied for unrestricted licenses to carry a handgun in public. Because they did not claim any unique danger to their safety, the state denied them unrestricted licenses. They sued for declaratory and injunctive relief under 42 U.S.C. § 1983, alleging violation of their Second and Fourteenth Amendment rights.]

The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Court of Appeals’ prior decision in Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012), which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.” Id., at 96.

In Heller and McDonald, we held that the Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense. In doing so, we held unconstitutional two laws that prohibited the possession and use of handguns in the home.

In the years since, the Courts of Appeals have coalesced around a “two-step” framework for analyzing Second Amendment challenges that combines history with means-end scrutiny.

Today, we decline to adopt that two-part approach. In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961).

* * * [T]he two-step test that Courts of Appeals have developed to assess Second Amendment claims proceeds as follows. At the first step, the government may justify its regulation by “establish[ing] that the challenged law regulates activity falling outside the scope of the right as originally understood.” E.g., Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019) (internal quotation marks omitted). * * * If the government can prove that the regulated conduct falls beyond the Amendment’s original scope, “then the analysis can stop there; the regulated activity is categorically unprotected.” United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012) (internal quotation marks omitted). But if the historical evidence at this step is “inconclusive or suggests that the regulated activity is not categorically unprotected,” the courts generally proceed to step two. Kanter, 919 F.3d at 441 (internal quotation marks omitted).

At the second step, courts often analyze “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” Ibid. * * * If a “core” Second Amendment right is burdened, courts apply “strict scrutiny” and ask whether the Government can prove that the law is “narrowly tailored to achieve a compelling governmental interest.” Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (internal quotation marks omitted). Otherwise, they apply intermediate scrutiny and consider whether the Government can show that the regulation is “substantially related to the achievement of an important governmental interest.” Kachalsky, 701 F.3d at 96. Both respondents and the United States largely agree with this consensus, arguing that intermediate scrutiny is appropriate when text and history are unclear in attempting to delineate the scope of the right Despite the popularity of this two-step approach, it is one step too many. Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment’s text, as informed by history. But Heller and McDonald do not support applying means-end scrutiny in the Second Amendment context. Instead, the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.

[In Heller, we] assessed the lawfulness of [a] handgun ban by scrutinizing whether it comported with history and tradition. Although we noted that the ban “would fail constitutional muster” “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights,” we did not engage in means-end scrutiny when resolving the constitutional question. Instead, we focused on the historically unprecedented nature of the District’s ban, observing that “[f]ew laws in the history of our Nation have come close to [that] severe restriction.” Id., at 629. Likewise, when one of the dissents attempted to justify the District’s prohibition with “founding-era historical precedent,” including “various restrictive laws in the colonial period,” we addressed each purported analogue and concluded that they were either irrelevant or “d[id] not remotely burden the right of self-defense as much as an absolute ban on handguns.” Thus, our earlier historical analysis sufficed to show that the Second Amendment did not countenance a “complete prohibition” on the use of “the most popular weapon chosen by Americans for self-defense in the home.”

This Second Amendment standard accords with how we protect other constitutional rights. Take, for instance, the freedom of speech in the First Amendment, to which Heller repeatedly compared the right to keep and bear arms. 554 U.S. at 582, 595. In that context, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 816 (2000). In some cases, that burden includes showing whether the expressive conduct falls outside of the category of protected speech. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 620, n. 9 (2003). And to carry that burden, the government must generally point to historical evidence about the reach of the First Amendment’s protections. See, e.g., United States v. Stevens, 559 U.S. 460, 468–47 (placing the burden on the government to show that a type of speech belongs to a “historic and traditional categor[y]” of constitutionally unprotected speech “long familiar to the bar” (internal quotation marks omitted)).

To be sure, “[h]istorical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” McDonald, 561 U.S. at 803–804 (Scalia, J., concurring). But reliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field. Id., at 790–791 (plurality opinion).[1]

The test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding. In some cases, that inquiry will be fairly straightforward. For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.

Heller itself exemplifies this kind of straightforward historical inquiry. One of the District’s regulations challenged in Heller “totally ban[ned] handgun possession in the home.” Id., at 628. The District in Heller addressed a perceived societal problem—firearm violence in densely populated communities—and it employed a regulation—a flat ban on the possession of handguns in the home—that the Founders themselves could have adopted to confront that problem. Accordingly, after considering “founding-era historical precedent,” including “various restrictive laws in the colonial period,” and finding that none was analogous to the District’s ban, Heller concluded that the handgun ban was unconstitutional. Id., at 631.

New York’s proper-cause requirement concerns the same alleged societal problem addressed in Heller: “handgun violence,” primarily in “urban area[s].” Ibid. Following the course charted by Heller, we will consider whether “historical precedent” from before, during, and even after the founding evinces a comparable tradition of regulation. And, as we explain below, we find no such tradition in the historical materials that respondents and their amici have brought to bear on that question.

To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” Drummond v. Robinson, 9 F.4th 217, 226 (3d Cir. 2021). On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.

III

Having made the constitutional standard endorsed in Heller more explicit, we now apply that standard to New York’s proper-cause requirement.

It is undisputed that petitioners Koch and Nash—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U.S. at 580. Nor does any party dispute that handguns are weapons “in common use” today for self-defense. See id., at 627. We therefore turn to whether the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense We have little difficulty concluding that it does. Respondents do not dispute this. Nor could they. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. * * *

This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative protections.

Moreover, confining the right to “bear” arms to the home would make little sense given that self-defense is “the central component of the [Second Amendment] right itself.” Heller, 554 U.S. at 599. After all, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id. at 592, and confrontation can surely take place outside the home.

Conceding that the Second Amendment guarantees a general right to public carry, respondents instead claim that the Amendment “permits a State to condition handgun carrying in areas ‘frequented by the general public’ on a showing of a nonspeculative need for armed self-defense in those areas.” To support that claim, the burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Only if respondents carry that burden can they show that the pre-existing right codified in the Second Amendment, and made applicable to the States through the Fourteenth, does not protect petitioners’ proposed course of conduct.

Respondents appeal to a variety of historical sources from the late 1200s to the early 1900s. We categorize these periods as follows: (1) medieval to early modern England; (2) the American Colonies and the early Republic; (3) antebellum America; (4) Reconstruction; and (5) the late-19th and early-20th centuries.

We categorize these historical sources because, when it comes to interpreting the Constitution, not all history is created equal. “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.” Heller, 554 U.S. at 634–635 (emphasis added). The Second Amendment was adopted in 1791; the Fourteenth in 1868. Historical evidence that long predates either date may not illuminate the scope of the right if linguistic or legal conventions changed in the intervening years. * * *

* * * Strictly speaking, New York is bound to respect the right to keep and bear arms because of the Fourteenth Amendment, not the Second. See, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (Bill of Rights applies only to the Federal Government). Nonetheless, we have made clear that individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government. See, e.g., Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020). And we have generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791. See, e.g., Crawford v. Washington, 541 U.S. 36, 42–50 (2004) (Sixth Amendment); Virginia v. Moore, 553 U.S. 164, 168–169 (2008) (Fourth Amendment); Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 122–125 (2011) (First Amendment) We also acknowledge that there is an ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868 when defining its scope (as well as the scope of the right against the Federal Government). See, e.g., A. Amar, The Bill of Rights: Creation and Reconstruction xiv, 223, 243 (1998); K. Lash, Re-Speaking the Bill of Rights: A New Doctrine of Incorporation (Jan. 15, 2021) (“When the people adopted the Fourteenth Amendment into existence, they readopted the original Bill of Rights, and did so in a manner that invested those original 1791 texts with new 1868 meanings”). We need not address this issue today because, as we explain below, the public understanding of the right to keep and bear arms in both 1791 and 1868 was, for all relevant purposes, the same with respect to public carry.

With these principles in mind, we turn to respondents’ historical evidence. Throughout modern Anglo-American history, the right to keep and bear arms in public has traditionally been subject to well-defined restrictions governing the intent for which one could carry arms, the manner of carry, or the exceptional circumstances under which one could not carry arms. But apart from a handful of late-19th-century jurisdictions, the historical record compiled by respondents does not demonstrate a tradition of broadly prohibiting the public carry of commonly used firearms for self-defense. Nor is there any such historical tradition limiting public carry only to those law-abiding citizens who demonstrate a special need for self-defense. We conclude that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. Under Heller’s text-and-history standard, the proper-cause requirement is therefore unconstitutional.

We interpret the English history that respondents and the United States muster in light of these interpretive principles. We find that history ambiguous at best and see little reason to think that the Framers would have thought it applicable in the New World. It is not sufficiently probative to defend New York’s proper-cause requirement.

To begin, respondents and their amici point to several medieval English regulations from as early as 1285 that they say indicate a longstanding tradition of restricting the public carry of firearms. The most prominent is the 1328 Statute of Northampton. * * *

[The Statute of Northhampton] provided that, with some exceptions, Englishmen could not “come before the King’s Justices, or other of the King’s Ministers doing their office, with force and arms, nor bring no force in affray of the peace, nor to go nor ride armed by night nor by day, in Fairs, Markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere, upon pain to forfeit their Armour to the King, and their Bodies to Prison at the King’s pleasure.” 2 Edw. 3 c. 3 (1328).

Respondents argue that the prohibition on “rid[ing]” or “go[ing] ... armed” was a sweeping restriction on public carry of self-defense weapons that would ultimately be adopted in Colonial America and justify onerous public-carry regulations.

Notwithstanding the ink the parties spill over this provision, the Statute of Northampton—at least as it was understood during the Middle Ages—has little bearing on the Second Amendment adopted in 1791. The Statute of Northampton was enacted nearly 20 years before the Black Death, more than 200 years before the birth of Shakespeare, more than 350 years before the Salem Witch Trials, more than 450 years before the ratification of the Constitution, and nearly 550 years before the adoption of the Fourteenth Amendment.

The Statute’s prohibition on going or riding “armed” obviously did not contemplate handguns, given they did not appear in Europe until about the mid-1500s. See K. Chase, Firearms: A Global History to 1700, p. 61 (2003). Rather, it appears to have been centrally concerned with the wearing of armor. See, e.g., Calendar of the Close Rolls, Edward III, 1330–1333, p. 131 (Apr. 3, 1330) (H. Maxwell-Lyte ed. 1898); id., at 243 (May 28, 1331); id., Edward III, 1327–1330, at 314 (Aug. 29, 1328) (1896). If it did apply beyond armor, it applied to such weapons as the “launcegay,” a 10- to 12-foot-long lightweight lance. See 7 Rich. 2 c. 13 (1383); 20 Rich. 2 c. 1 (1396).

The Statute’s apparent focus on armor and, perhaps, weapons like launcegays makes sense given that armor and lances were generally worn or carried only when one intended to engage in lawful combat or—as most early violations of the Statute show—to breach the peace. See, e.g., Calendar of the Close Rolls, Edward III, 1327–1330, at 402 (July 7, 1328); id., Edward III, 1333–1337, at 695 (Aug. 18, 1336) (1898). Contrast these arms with daggers. In the medieval period, “[a]lmost everyone carried a knife or a dagger in his belt.” H. Peterson, Daggers and Fighting Knives of the Western World 12 (2001). While these knives were used by knights in warfare, “[c]ivilians wore them for self-protection,” among other things. Ibid.

Respondents point to no evidence suggesting the Statute applied to the smaller medieval weapons that strike us as most analogous to modern handguns.

In one notable example, the government charged Sir John Knight, a prominent detractor of James II, with violating the Statute of Northampton because he allegedly “did walk about the streets armed with guns, and that he went into the church of St. Michael, in Bristol, in the time of divine service, with a gun, to terrify the King’s subjects.” Sir John Knight’s Case, 3 Mod. 117, 87 Eng. Rep. 75, 76 (K. B. 1686). Chief Justice Holt explained that the Statute of Northampton had “almost gone in desuetudinem,” Rex v. Sir John Knight, 1 Comb. 38, 38–39, 90 Eng. Rep. 330 (K. B. 1686), meaning that the Statute had largely become obsolete through disuse. And the Chief Justice further explained that the act of “go[ing] armed to terrify the King’s subjects” was “a great offence at the common law” and that the Statute of Northampton “is but an affirmance of that law.” 3 Mod., at 118, 87 Eng. Rep., at 76 (first emphasis added). Thus, one’s conduct “will come within the Act,”—i.e., would terrify the King’s subjects—only “where the crime shall appear to be malo animo,” 1 Comb., at 39, 90 Eng. Rep., at 330, with evil intent or malice. Knight was ultimately acquitted by the jury.

[The Court’s additional discussion of English regulation is omitted]

In the colonial era, respondents point to only three restrictions on public carry. For starters, we doubt that three colonial regulations could suffice to show a tradition of public[1]carry regulation. In any event, even looking at these laws on their own terms, we are not convinced that they regulated public carry akin to the New York law before us.

Two of the statutes were substantively identical. Colonial Massachusetts and New Hampshire both authorized justices of the peace to arrest “all Affrayers, Rioters, Disturbers, or Breakers of the Peace, and such as shall ride or go armed Offensively ... by Night or by Day, in Fear or Affray of Their Majesties Liege People.” 1692 Mass. Acts and Laws no. 6, pp. 11–12; see 1699 N. H. Acts and Laws ch. 1. Respondents and their amici contend that being “armed offensively” meant bearing any offensive weapons, including firearms. * * *

Respondents, their amici, and the dissent all misunderstand these statutes. Far from banning the carrying of any class of firearms, they merely codified the existing common[1]law offense of bearing arms to terrorize the people * * *, as had the Statute of Northampton itself. For instance, the Massachusetts statute proscribed “go[ing] armed Offensively ... in Fear or Affray” of the people, indicating that these laws were modeled after the Statute of Northampton to the extent that the statute would have been understood to limit public carry in the late 1600s. Moreover, it makes very little sense to read these statutes as banning the public carry of all firearms just a few years after Chief Justice Holt in Sir John Knight’s Case indicated that the English common law did not do so.

Regardless, even if respondents’ reading of these colonial statutes were correct, it would still do little to support restrictions on the public carry of handguns today. At most, respondents can show that colonial legislatures sometimes prohibited the carrying of “dangerous and unusual weapons”—a fact we already acknowledged in Heller. See 554 U.S. at 627. Drawing from this historical tradition, we explained there that the Second Amendment protects only the carrying of weapons that are those “in common use at the time,” as opposed to those that “are highly unusual in society at large.” Ibid. (internal quotation marks omitted). Whatever the likelihood that handguns were considered “dangerous and unusual” during the colonial period, they are indisputably in “common use” for self-defense today. They are, in fact, “the quintessential self-defense weapon.” Id., at 629. Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

The third statute invoked by respondents was enacted in East New Jersey in 1686. It prohibited the concealed carry of “pocket pistol[s]” or other “unusual or unlawful weapons,” and it further prohibited “planter[s]” from carrying all pistols unless in military service or, if “strangers,” when traveling through the Province. An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions). These restrictions do not meaningfully support respondents. The law restricted only concealed carry, not all public carry, and its restrictions applied only to certain “unusual or unlawful weapons,” including “pocket pistol[s].” Ibid. * * *

A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the pre-existing right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.

Only after the ratification of the Second Amendment in 1791 did public-carry restrictions proliferate. Respondents rely heavily on these restrictions, which generally fell into three categories: common-law offenses, statutory prohibitions, and “surety” statutes. None of these restrictions imposed a substantial burden on public carry analogous to the burden created by New York’s restrictive licensing regime.

Common-Law Offenses. As during the colonial and founding periods, the common-law offenses of “affray” or going armed “to the terror of the people” continued to impose some limits on firearm carry in the antebellum period. But as with the earlier periods, there is no evidence indicating that these common-law limitations impaired the right of the general population to peaceable public carry.

[The Court’s additional discussion is omitted.]

Statutory Prohibitions. In the early to mid-19th century, some States began enacting laws that proscribed the concealed carry of pistols and other small weapons. As we recognized in Heller, “the majority of the 19th-century courts to consider the question held that [these] prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U.S. at 626. Respondents unsurprisingly cite these statutes—and decisions upholding them—as evidence that States were historically free to ban public carry.

In fact, however, the history reveals a consensus that States could not ban public carry altogether. Respondents’ cited opinions agreed that concealed-carry prohibitions were constitutional only if they did not similarly prohibit open carry. That was true in Alabama. See State v. Reid, 1 Ala. 612, 616, 619–621 (1840). It was also true in Louisiana. See State v. Chandler, 5 La. 489, 490 (1850). Kentucky, meanwhile, went one step further—the State Supreme Court invalidated a concealed-carry prohibition. See Bliss v. Commonwealth, 12 Ky. 90 (1822).

[The Court’s additional discussion is omitted.]

Surety Statutes. In the mid-19th century, many jurisdictions began adopting surety statutes that required certain individuals to post bond before carrying weapons in public. Although respondents seize on these laws to justify the proper-cause restriction, their reliance on them is misplaced. These laws were not bans on public carry, and they typically targeted only those threatening to do harm.

[The Court’s additional discussion is omitted.]

To summarize: The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation. Under the common law, individuals could not carry deadly weapons in a manner likely to terrorize others.

Similarly, although surety statutes did not directly restrict public carry, they did provide financial incentives for responsible arms carrying. Finally, States could lawfully eliminate one kind of public carry—concealed carry—so long as they left open the option to carry openly.

None of these historical limitations on the right to bear arms approach New York’s proper-cause requirement because none operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.

Evidence from around the adoption of the Fourteenth Amendment also fails to support respondents’ position. For the most part, respondents and the United States ignore the “outpouring of discussion of the [right to keep and bear arms] in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves” after the Civil War. Heller, 554 U.S. at 614. Of course, we are not obliged to sift the historical materials for evidence to sustain New York’s statute. That is respondents’ burden.

Nevertheless, we think a short review of the public discourse surrounding Reconstruction is useful in demonstrating how public carry for self-defense remained a central component of the protection that the Fourteenth Amendment secured for all citizens.

[The Court’s discussion of examples is omitted.]

In the end, while we recognize the support that postbellum Texas provides for respondents’ view, we will not give disproportionate weight to a single state statute and a pair of state-court decisions. As in Heller, we will not “stake our interpretation of the Second Amendment upon a single law, in effect in a single [State], that contradicts the overwhelming weight of other evidence regarding the right to keep and bear arms for defense” in public. 554 U.S. at 632.

Finally, respondents point to the slight uptick in gun regulation during the late-19th century—principally in the Western Territories. As we suggested in Heller, however, late[1]19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence. Here, moreover, respondents’ reliance on late-19th-century laws has several serious flaws even beyond their temporal distance from the founding.

The vast majority of the statutes that respondents invoke come from the Western Territories. Two Territories prohibited the carry of pistols in towns, cities, and villages, but seemingly permitted the carry of rifles and other long guns everywhere. See 1889 Ariz. Terr. Sess. Laws no. 13, § 1, p. 16; 1869 N. M. Laws ch. 32, §§ 1–2, p. 72. Two others prohibited the carry of all firearms in towns, cities, and villages, including long guns. See 1875 Wyo. Terr. Sess. Laws ch. 52, § 1; 1889 Idaho Terr. Gen. Laws § 1, p. 23. And one Territory completely prohibited public carry of pistols everywhere, but allowed the carry of “shot-guns or rifles” for certain purposes. See 1890 Okla. Terr. Stats., Art. 47, §§ 1–2, 5, p. 495.

These territorial restrictions fail to justify New York’s proper-cause requirement for several reasons. First, the bare existence of these localized restrictions cannot overcome the overwhelming evidence of an otherwise enduring American tradition permitting public carry. For starters, “[t]he very transitional and temporary character of the American [territorial] system” often “permitted legislative improvisations which might not have been tolerated in a permanent setup.” E. Pomeroy, The Territories and the United States 1861–1890, p. 4 (1947). These territorial “legislative improvisations,” which conflict with the Nation’s earlier approach to firearm regulation, are most unlikely to reflect “the origins and continuing significance of the Second Amendment” and we do not consider them “instructive.” Heller, 554 U.S. at 614.

The exceptional nature of these western restrictions is all the more apparent when one considers the miniscule territorial populations who would have lived under them. * * *

Second, because these territorial laws were rarely subject to judicial scrutiny, we do not know the basis of their perceived legality. When States generally prohibited both open and concealed carry of handguns in the late-19th century, state courts usually upheld the restrictions when they exempted army revolvers, or read the laws to exempt at least that category of weapons. See, e.g., Haile v. State, 38 Ark. 564, 567 (1882); Wilson v. State, 33 Ark. 557, 560 (1878); Fife v. State, 31 Ark. 455, 461 (1876); State v. Wilburn, 66 Tenn. 57, 60 (1872); Andrews, 50 Tenn. at 187. Those state courts that upheld broader prohibitions without qualification generally operated under a fundamental misunderstanding of the right to bear arms, as expressed in Heller. For example, the Kansas Supreme Court upheld a complete ban on public carry enacted by the city of Salina in 1901 based on the rationale that the Second Amendment protects only “the right to bear arms as a member of the state militia, or some other military organization provided for by law.” Salina v. Blaksley, 72 Kan. 230, 232, 83 P. 619, 620 (1905). That was clearly erroneous. See Heller, 554 U.S. at 592.

Finally, these territorial restrictions deserve little weight because they were—consistent with the transitory nature of territorial government—short lived. Some were held unconstitutional shortly after passage. See In re Brickey, 8 Idaho 597, 70 P. 609 (1902). Others did not survive a Territory’s admission to the Union as a State. See Wyo. Rev. Stat., ch. 3, § 5051 (1899) (1890 law enacted upon statehood prohibiting public carry only when combined with “intent, or avowed purpose, of injuring [one’s] fellow-man”). Thus, they appear more as passing regulatory efforts by not-yet-mature jurisdictions on the way to statehood, rather than part of an enduring American tradition of state regulation.

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Heller, 554 U.S. at 581. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public. Klenosky, 75 App.Div., at 793.

The constitutional right to bear arms in public for self-defense is not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” McDonald, 561 U.S. at 780 (plurality opinion). We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.

New York’s proper-cause requirement violates the Fourteenth Amendment in that it prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

Justice ALITO, concurring.

I join the opinion of the Court in full but add the following comments in response to the dissent.

In light of what we have actually held, it is hard to see what legitimate purpose can possibly be served by most of the dissent’s lengthy introductory section.

Like that dissent in Heller, the real thrust of today’s dissent is that guns are bad and that States and local jurisdictions should be free to restrict them essentially as they see fit. That argument was rejected in Heller, and while the dissent protests that it is not rearguing Heller, it proceeds to do just that.

Heller correctly recognized that the Second Amendment codifies the right of ordinary law-abiding Americans to protect themselves from lethal violence by possessing and, if necessary, using a gun. In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own. It is hard to imagine the furor that would have erupted if the Federal Government and the States had tried to take away the guns that these people needed for protection.

Today, unfortunately, many Americans have good reason to fear that they will be victimized if they are unable to protect themselves. And today, no less than in 1791, the Second Amendment guarantees their right to do so.

Justice KAVANAUGH, with whom THE CHIEF JUSTICE joins, concurring.

I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.

First, the Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as “shall-issue” regimes—that are employed in 43 States.

The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York. As the Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense. Those features of New York’s regime—the unchanneled discretion for licensing officials and the special-need requirement—in effect deny the right to carry handguns for self-defense to many “ordinary, law-abiding citizens.” The Court has held that “individual self-defense is ‘the central component’ of the Second Amendment right.” McDonald, 561 U.S. at 767, (quoting Heller, 554 U.S. at 599). New York’s law is inconsistent with the Second Amendment right to possess and carry handguns for self-defense.

Second, as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.”

Properly interpreted, the Second Amendment allows a “variety” of gun regulations. Heller, 554 U.S. at 636. As Justice Scalia wrote in his opinion for the Court in Heller, and Justice ALITO reiterated in relevant part in the principal opinion in McDonald:

“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

“We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Heller, 554 U.S. at 626−627, and n. 26.

Justice BARRETT, concurring.

I join the Court’s opinion in full. I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. Scholars have proposed competing and potentially conflicting frameworks for this analysis, including liquidation, tradition, and precedent. See, e.g., Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003); McConnell, Time, Institutions, and Interpretation, 95 B. U. L. Rev. 1745 (2015). The limits on the permissible use of history may vary between these frameworks (and between different articulations of each one). * * *

Second and relatedly, the Court avoids another “ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868” or when the Bill of Rights was ratified in 1791. Here, the lack of support for New York’s law in either period makes it unnecessary to choose between them. * * *

Justice BREYER, with whom Justice SOTOMAYOR and Justice KAGAN join, dissenting.

In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022). Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolencearchive.org . Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick).

Many States have tried to address some of the dangers of gun violence just described by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes.

First, the Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice. Second, the Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and neither do our precedents. Third, the Court itself demonstrates the practical problems with its history-only approach. In applying that approach to New York’s law, the Court fails to correctly identify and analyze the relevant historical facts. Only by ignoring an abundance of historical evidence supporting regulations restricting the public carriage of firearms can the Court conclude that New York’s law is not “consistent with the Nation’s historical tradition of firearm regulation.”

In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. The Second Circuit has done so and has held that New York’s law does not violate the Second Amendment. See Kachalsky v. County of Westchester, 701 F.3d 81, 97–99, 101 (2012). I would affirm that holding. At a minimum, I would not strike down the law * * *without considering the State’s compelling interest in preventing gun violence. I respectfully dissent.

The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.

[Justice Breyer’s reference to statistics about gun violence is omitted]

Justice ALITO asks why I have begun my opinion by reviewing some of the dangers and challenges posed by gun violence and what relevance that has to today’s case. All of the above considerations illustrate that the question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts. What kinds of firearm regulations should a State adopt? Different States might choose to answer that question differently. They may face different challenges because of their different geographic and demographic compositions. A State like New York, which must account for the roughly 8.5 million people living in the 303 square miles of New York City, might choose to adopt different (and stricter) firearms regulations than States like Montana or Wyoming, which do not contain any city remotely comparable in terms of population or density. For a variety of reasons, States may also be willing to tolerate different degrees of risk and therefore choose to balance the competing benefits and dangers of firearms differently.

The question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes. The primary difference between the Court’s view and mine is that I believe the Amendment allows States to take account of the serious problems posed by gun violence * * *. I fear that the Court’s interpretation ignores these significant dangers and leaves States without the ability to address them.

How does the Court justify striking down New York’s law without first considering how it actually works on the ground and what purposes it serves? The Court does so by purporting to rely nearly exclusively on history. It requires “the government [to] affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of ‘the right to keep and bear arms.’ ” Beyond this historical inquiry, the Court refuses to employ what it calls “means-end scrutiny.” Ibid. That is, it refuses to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest.

Although I agree that history can often be a useful tool in determining the meaning and scope of constitutional provisions, I believe the Court’s near-exclusive reliance on that single tool today goes much too far.

The Court today replaces the Courts of Appeals’ consensus framework with its own history-only approach. * * * In doing so, the Court implies that all 11 Courts of Appeals that have considered this question misread Heller.

To the contrary, it is this Court that misreads Heller. The opinion in Heller did focus primarily on “constitutional text and history,” but it did not “rejec[t] ... means-end scrutiny,” as the Court claims. Consider what the Heller Court actually said. True, the Court spent many pages in Heller discussing the text and historical context of the Second

Amendment. 554 U.S. at 579–619. But that is not surprising because the Heller Court was asked to answer the preliminary question whether the Second Amendment right to “bear Arms” encompasses an individual right to possess a firearm in the home for self-defense.

The Heller Court concluded that the Second Amendment’s text and history were sufficiently clear to resolve that question: The Second Amendment, it said, does include such an individual right. There was thus no need for the Court to go further—to look beyond text and history, or to suggest what analysis would be appropriate in other cases where the text and history are not clear.

But the Heller Court did not end its opinion with that preliminary question. After concluding that the Second Amendment protects an individual right to possess a firearm for self-defense, the Heller Court added that that right is “not unlimited.” Id., at 626. It thus had to determine whether the District of Columbia’s law, which banned handgun possession in the home, was a permissible regulation of the right. Id., at 628–630. In answering that second question, it said: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home ‘the most preferred firearm in the nation to “keep” and use for protection of one’s home and family’ would fail constitutional muster.” Id., at 628–629 (emphasis added). That language makes clear that the Heller Court understood some form of means-end scrutiny to apply. It did not need to specify whether that scrutiny should be intermediate or strict because, in its view, the District’s handgun ban was so “severe” that it would have failed either level of scrutiny. Id. at 628–629.

The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. Judges understand well how to weigh a law’s objectives (its “ends”) against the methods used to achieve those objectives (its “means”). Judges are far less accustomed to resolving difficult historical questions. Courts are, after all, staffed by lawyers, not historians. Legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.

Indeed, the Court’s application of its history-only test in this case demonstrates the very pitfalls described above. The historical evidence reveals a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular. The Court spends more than half of its opinion trying to discredit this tradition. But, in my view, the robust evidence of such a tradition cannot be so easily explained away. Laws regulating the public carriage of weapons existed in England as early as the 13th century and on this Continent since before the founding.

Similar laws remained on the books through the ratifications of the Second and Fourteenth Amendments through to the present day. Many of those historical regulations imposed significantly stricter restrictions on public carriage than New York’s licensing requirements do today. Thus, even applying the Court’s history-only analysis, New York’s law must be upheld because “historical precedent from before, during, and ... after the founding evinces a comparable tradition of regulation.”

[Justice Breyer’s historical review is omitted.]

The historical examples of regulations similar to New York’s licensing regime are legion. Closely analogous English laws were enacted beginning in the 13th century, and similar American regulations were passed during the colonial period, the founding era, the 19th century, and the 20th century. Not all of these laws were identical to New York’s, but that is inevitable in an analysis that demands examination of seven centuries of history. At a minimum, the laws I have recounted resembled New York’s law, similarly restricting the right to publicly carry weapons and serving roughly similar purposes. That is all that the Court’s test, which allows and even encourages “analogical reasoning,” purports to require.

In each instance, the Court finds a reason to discount the historical evidence’s persuasive force. Some of the laws New York has identified are too old. But others are too recent. Still others did not last long enough. Some applied to too few people. Some were enacted for the wrong reasons. Some may have been based on a constitutional rationale that is now impossible to identify. Some arose in historically unique circumstances. And some are not sufficiently analogous to the licensing regime at issue here. But if the examples discussed above, taken together, do not show a tradition and history of regulation that supports the validity of New York’s law, what could? Sadly, I do not know the answer to that question. What is worse, the Court appears to have no answer either.

We are bound by Heller insofar as Heller interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. But Heller recognized that that right was not without limits and could appropriately be subject to government regulation. 554 U.S. at 626–627. Heller therefore does not require holding that New York’s law violates the Second Amendment. In so holding, the Court goes beyond Heller. * * * I respectfully dissent.

[1] [⁶] The dissent claims that Heller’s text-and-history test will prove unworkable compared to means-end scrutiny in part because judges are relatively ill equipped to “resolv[e] difficult historical questions” or engage in “searching historical surveys.” We are unpersuaded. The job of judges is not to resolve historical questions in the abstract; it is to resolve legal questions presented in particular cases or controversies. That “legal inquiry is a refined subset” of a broader “historical inquiry,” and it relies on “various evidentiary principles and default rules” to resolve uncertainties. W. Baude & S. Sachs, Originalism and the Law of the Past, 37 L. & Hist. Rev. 809, 810–811 (2019). For example, “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020). Courts are thus entitled to decide a case based on the historical record compiled by the parties

3.3.3. Current Issues in Constitutional Interpretation – Consider Dobbs and Bruen

https://www.cambridgeblog.org/2022/07/the-practice-of-american-constitutional-law/

Current Issues in Constitutional Interpretation – Consider Dobbs and Bruen

3.3.4 Modes of Constitutional Interpretation 3.3.4 Modes of Constitutional Interpretation

CRS Report

https://crsreports.congress.gov/product/pdf/R/R45129

3.4 Congressional Limits on Judicial Review 3.4 Congressional Limits on Judicial Review

3.4.1 The Exceptions and Regulations Clause 3.4.1 The Exceptions and Regulations Clause

3.4.1.1 Ex parte McCardle 3.4.1.1 Ex parte McCardle

Supreme Court of the United States

7 Wall. 506, 74 U.S. 506, 19 L. Ed. 264, SCDB 1868-072, 1868 U.S. LEXIS 1028

1868-12

Ex parte McCardle.

1. The appellate jurisdiction of this court is conferred by the Constitution, and not derived from acts of Congress; but is conferred “ with such exceptions, and under such regulations, as Congress may make;” and, therefore, acts of Congress affirming such jurisdiction, have always been construed as ‘excepting from it all cases not expressly described and provided for.

2. When, therefore, Congress enacts that this court shall have appellate jurisdiction over final decisions of the Circuit Courts, in certain cases, the act operates as a negation or exception of such jurisdiction in other cases; and the repeal of the act necessarily negatives jurisdiction under it of theso cases also.

3. The repeal of such an act, pending- an appeal provided for by it, is not an exercise of judiciabpower by-the legislature, no matter whether the repeal takes effect before or after argument of the appeal.

4. The act of 27th of March, 1868, repealing that provision of the act of 5th of February, 1867, to-amend the Judicial Act of 1789, which authorized appeals to this count from the decisions of the Circuit Courts, in.cases of habeas corpus', does not except from the appellate jurisdiction of this *507court any cases but appeals under the act of 1867. It does not affect the appellate •jurisdiction which was previously exercised in cases of habeas corpus.

Appeal from the Circuit Court for the Southern District of Mississippi.

The case was this:

The Constitution of the United States ordaifis as follows:

“ § 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

“§ 2. The judicial power shall extend to all cases in law or equity arising under this Constitution, the laws of the United States,” &c.

And in these last cases the Constitution ordains that,

“The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.”

With these constitutional provisions in existence, Congress, on the 5th February, 1867, by “An act to amend an act to establish the judicial courts of the United States, approved September 24, T78Ó,” provided that the several courts of the United States, and the several justices and judges of such courts, within their respective jui’isdiction, in addition to the authority already conferred by law, should have power to'grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, of of any treaty or law of the United States. And that, from the final decision of any judge, justice,-or court inferior to the Circuit Court, appeal might be taken to the Circuit Court of the United States .for the district in which the cause was heard, and from the judgment of the said Circuit Court to the Supreme Court of the United States.

This statute being in force, one McCardle, alleging unlawful resti aint by military force, preferred a petition in the court below, for the writ of habeas corpus.

*508The writ was issued, and a return was made by the military commander, admitting the restraint, but denying that it was unlawful.

It appeared that the petitioner was not iri the military service of the United States, but was held in custody by military authority for trial before a military commission, upon charges founded upon the publication of articles alleged to be incendiary and libellous, in a newspaper of which he was editor. The custody was alleged to be under the authority of certain acts of Congress.

Upon the hearing, the petitioner was remanded to the military custody; but, upon his prayer, an appeal was allowed him to this court, and upon filing the usual appeal-bond, for costs, he was admitted to bail upon recognizance, with sureties, conditioned for his future appearance in the Circuit Court, to abide by and perform the final judgment of this court. The appeal was taken under the above-mentioned act of February 5, 1867.

A motion to dismiss this'appeal was made at the last term, and, after argument, was denied.*

Subsequently, on the 2d, 3d, 4th, and 9th March, the case was argued very thoroughly and .ably upon the merits, and was taken under advisement. While it was thus held, and before conference in regard to the decision proper to. be made,-an act was passed by Congress,† returned with objections by the President, and, on the,27th March, repassed by the constitutional majority, tlié second section of which was as follows: •

“And- be it further enacted, That so much of the act approved February 5, 1867, entitled ‘An act to amend an act to establish the judicial courts of the.United States, approved September 24, ,1789/ as authorized an appeal from the judgment of the Circuit Court to the SupremeUourt of the United States, or the exer.cise of any euoh jurisdiction by said Supreme Court, on appeals which have been,'or may'lhereafter be taken, be, and the samo .is"hereby repealed.” ■

*509. The attention of the court was directed to this statute at the last term., nut counsel having expressed a desire to be heard in argument upon its effect, and the Chief Justice being detained from his place here; by his duties in the Court of Impeachment, the cause was continued under advisement. Argument was now heard upon the effect of the repealing act.

Mr. Sharkey, for the appellant:

The prisoner alleged an illegal imprisonment. The imprisonment was justified under certain acts of Congress. The question then presents a case arising under “the laws of the United States;” and by the very words of the Constitution the judicial power of the United States extends to it. By words of the Constitution, equally plain, that judicial power is vested in one Supreme Court. This court,, then, has its jurisdiction directly from the Constitution, not from Congress. The jurisdiction being vested by the Constitution alone, Congress chnnot abridge or take it away. The argument which would look to Congressional legislation as a necessity to enable this court- to exercise “the judicial power” (any and every judicial power) “of the United States,” renders a power, expressly given by the Constitution, liable to be made of no effect by the inaction of Congress.' Suppose that Congress never made any exceptions or any regulations in the jnatter. What, under a supposition that Congress must define when, and where, and how, the Supreme Court shall exercise it, becomes of this “judicial power of the United States,” so expressly, by the Constitution, given to this court? It would cease to exist. But this court is coexistent and co-ordinate with Congress, and must be able to exercise the whole judicial power of the United States, though Congress passed no act on the subject. The Judiciary Act of 1789 has been frequently changed. Suppose it were repealed. Would the court lose, wholly or at all, the power to pass on every case to which the judicial power of the United 'States extended? This act of March 27th, 1868, does, take away the whole appellate power of *510this court iu cases of habeas corpus. Can such, results be produced? We submit that they cannot, and this court, then, we further submit, may still go on and pronounce judgment on the merits, as it would have done, had not the act of 27th March been passed.

But however these general positions may be, the case may be rested on more special grounds. This case "had been 'argued in this court, fully. Passing then from the domain of the bar, it was delivered into the sacred hands of the judges; and was in the custody of the court. For aught that was known by Congress, it was passed upon and decided by them. Then comes, on the 27th .of March, this act of Congress. Its language is general, but, as was universally known, its purpose was specific. If Congress had specifically-enacted ‘that the Supreme Court of the United States shall never publicly give- judgment in the case of McCardle, already argued, and on which we anticipate that it will soon deliver .judgment, contrary to the views of the majority in Congress, of what it ought to decide,’ its purpose to interfere specifically with and prevent the judgment in this very case would not have been more real or, as a fact, more universally known.

Now, can Congress thus interfere with cases on which \th|s high tribunal has passed, or i&passing, judgment ? Is not legislation like this an exercise by the Congress of judicial power ? Lanier v. Gallatas* is much in point. There a motion was made to dismiss an appeal, because by law the return-day was the 4th Monday in February, while in the case before the court the transcript had-been filed before that.time. On the 15th of March, and while the case ivas under advisement, the legislature passed an act making the 20th of March a return day for the case; and a motion was now made to reinstate the case and hear it. The court say:

“ The case had been submitted to us before the passage of that act, and was beyond the legislative control. Oui; respect for the *511General Assembly and Executive forbids the inference that they intended to instruct this court what to do or not to do whilst passing on the legal rights of parties in a special case already under advisement. The utmost that’we can suppose is,” &e.

In De Chastellux v. Fairchild,* the legislature of Pennsylvania directed that a new trial should be granted in a case already decided. Gibson, C. J., in behalf of the court, resented the interference strongly. He said:

“ It has become the duty of the court to temporize no longer. The power to order new trials is judicial. But the power of the legislature is not judicial.”

In The State v. Fleming,† where the legislature of Tennessee directed two persons under indictment to be discharged,- the Supreme Court of the State, declaring that “the legislature has no power to interfere with the administration of justice in the courts,” treated the direction as void. In Lewis v. Webb,‡ the Supreme Court of Maine declare that the legislature cannot dispense with any general law in favor of a particular case.

Messrs. L. Trumbull and M. H. Carpenter, contra:

1. The Constitution gives to this court appellate jurisdiction'in any case like the present One was, only with such exceptions and under such regulations as Congress makes.

2. It is clear, then, that this court had no jurisdiction of '.this proceeding — an appeal from the Circuit Court — except under the act of February 5th, 1867; and so this court held on the motion to dismiss made by us at tire last term.§

8. The act conferring the jurisdiction having been repealed, the jurisdiction ceased; and the court had thereafter no authority to pronounce any opinion or render any judgment in this cause. No court can do any act in any case, without jurisdiction of the subject-matter. It can make no difference at what point, in the progress of a cause, the’ *512jurisdiction ceases. After it has ceased, no judicial act can be.performed. In Insurance Company v. Ritchie, * the Chief Justice,'delivering the opinion of the court, says:'

“It is' clear, that when the jurisdiction of a cause depends upon the statute, the repeal of the statute takes awhy the jurisdiction.”

And in that case the repealing statute, which was passed during the pendency of the cause, was held to deprive the court of all further jurisdiction. The causes which were pending in this court against States, were all dismissed by • the amendment of the Constitution denying the jurisdiction; and no further proceedings were had in those causes.† In Norris v. Crocker,‡ this- court affirmed and acted upon the same principle; and the exhaustive argument of the present Chief Justice, then at the bar, reported in that case, and the numerous authorities there cited, render any further argument or citation of cases unnecessary.§

4. The assumption that the act of March, 3868, was aimed specially at this case, is gratuitous and unwarrantable. Certainly the language of the act embraces all eases in all time; and its effect is just as broad as its language.

The question of .merits cannot now, therefore, be passed upon. The case must fall.

The CHIEF JUSTICE

delivered the Opinion of the court.

The first question necessarily is that of jurisdiction; for, if the act of March, 1868, takes away the jurisdiction defined by the act of February, 1867, it is useless, if not improper, to enter into any discussion of other questions.

It is quite true, as was argued by the counsel for the petitioner, that the appellate jurisdiction of this court is not derived from acts of Congress. It is, strictly speaking, con*513ferred .by the Constitution. But it is conferred “ with such exceptions and under such regulations as Congress shall make.”

It is unnecessary to consider whether, if Congress had made no exceptions and no regulations, this court might not have exercised general appellaté jurisdiction under rules prescribed by itself. For among the earliest acts of the first Congress, at its first session, was the act of September 2ith, 1789, to establish the judicial courts of the United States. That act provided for the organization of this court, aud prescribed regulations for the exercise of its jurisdiction.

The source of that jurisdiction, and the limitations of it by the 'Constitution and by statute, have been on several occasions subjects of, consideration here. In the ease of Durousseau v. The United States,* particularly,.the whole matter was- carefully examined, and the court held, that while “the appellate, power's of this court are n'ot given by the, judicial act, but are given by the Constitution,” they are,' nevertheless, “limited and regulated by that act, and by such other acts as have been passed on the subject.” ,The court said, further, that- the judicial act was an exercise of the power given by the Constitution to Congress “of making exceptions to the appellate jurisdiction of the Supreme Court.” “ They have described affirmatively,” said the court, “its jurisdiction, and'this affirmative description has been understood to imply a negation of the exercise of such appellate power as is not comprehended within it.”

The principle that the affirmation of appellate jurisdiction implies the negation of all such jurisdiction not affirmed having been thus established!, it was an.almost necessary consequence that acts of Congress, providing, for'the exercise of jurisdiction, should come to be • spoken• of as acts granting jurisdiction, aud not as acts making'exceptions to the constitutional grant of it.'

The exception to appellate jurisdiction in the ease’before us, however, is not an inference from the affirmation of other *514appellate jurisdiction. It is made in terms. The provision of the act of 1867,'affirming the appellate jurisdiction of this court in cases of habeas Corpus is expressly-repealed. It is hardly possible to imagine, a plainer instance of positive exception.

■We are not at liberty to inquire into the motives of the legislature.. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction-of this court is given by express words.

’ What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without' jurisdiction the court cannot-proceed ;at all in any .cause. Jurisdiction is power to declai’e the law, and when it ceases to. exist, the only function remaining to the court is that of announcing the fact and dismissing the cause, lAnd this is not less clear upon authority, than upon principle.

Several cases were cited by the counsel for the petitioner in support of the position that jurisdiction of this cáse is not affected by the repealing act. But none of them, in our judgment, afford any support to it. They are all-eases of the exercise of judicial power by'the legislature, or of legislative interference with courts in the exercising of continuing jurisdiction.*

On the other hand, the general rule, supported by the best' elementary writers,† is, that “ when an act of the legislature is repealed, it must be considered, except as to transactions .past and closed, as if it never existed.” And the effeet.of repealing acts upon suits under acts repealed, has been • determined by the adjudications of this court.' The subject was fully considered in Norris v. Crocker,‡ and more recently in Insurance Company v. Ritchie.§ In both of these cases, it was held that no judgment could be rendered in a suit after the repeal,of the act under which it was brought ami prosecuted.

*515It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this casé, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungraded jurisdiction than in exercising firmly that which the Constitution and the laws confer.

Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus, is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867. It does not affect' the jurisdiction which was previously exercised.*

■ The appeal of the petitioner in this case must be

Dismissed for want-of jurisdiction.

3.4.2 Separation of Powers as a Limit on Congress’s Authority 3.4.2 Separation of Powers as a Limit on Congress’s Authority

3.4.2.1 Note on United States v. Klein, 80 U.S. 128 (1871); Robertson v. Seattle Audubon Soc’y, , 503 U.S. 429 (1992); and Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016) 3.4.2.1 Note on United States v. Klein, 80 U.S. 128 (1871); Robertson v. Seattle Audubon Soc’y, , 503 U.S. 429 (1992); and Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016)

Note on United States v. Klein, 80 U.S. 128 (1871); Robertson v. Seattle Audubon Soc’y, , 503 U.S. 429 (1992); and Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016)

United States v. Klein is the primary Supreme Court decision finding a federal law unconstitutional because it violates separation of powers. Consider the limits Klein imposes on Congress’s ability to control or restrict Supreme Court jurisdiction.

There have been many instances in which Congress has responded to a Supreme Court decision interpreting a statute by adopting a law effectively overruling the Court’s ruling. In essence, Congress is directing the results in future cases. The key question is whether this is distinguishable from Klein. The Supreme Court distinguished Klein in the following more recent cases.

* * * *

Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992): The Department of Interior and Related Agencies Appropriations Act of 1990 required the Bureau of Land Management to offer specified land for sale and also imposed restrictions on harvesting from other land. Additionally, the act expressly noted two pending cases and said that “Congress hereby determines and directs that management of areas according to subsections (b)(3) an (b)(5) of this section on [the specified lands] is adequate consideration for the purpose of meeting the statutory requirements that are the basis for [the two lawsuits].”

The Supreme Court rejected the argument that Congress was directing the outcome of the pending litigation. The Supreme Court held that Congress had changed the law itself and did not direct findings or results under the old law. The Court said that Klein applies in a situation where Congress directs the judiciary as to decision making under an existing law and does not apply when Congress adopts a new law. The Court found that as a new law the statute was constitutional.

Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016): American nationals may seek money damages from state sponsors of terrorism in the courts of the United States. Prevailing plaintiffs, however, often face practical and legal difficulties enforcing their judgments. To place beyond dispute the availability of certain assets for satisfaction of judgments rendered in terrorism cases against Iran, Congress enacted the Iran Threat Reduction and Syria Human Rights Act of 2012. The Act makes a designated set of assets available to satisfy the judgments in a specific case, designated by docket number.

Plaintiffs – more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members – brought suit against Iran. They obtained default judgments and moved for the turnover of about $1.75 billion in bond assets held in a New York bank account – assets that they alleged were owned by Bank Markazi, the Central Bank of Iran. The Bank argued that the federal statute violated separation of powers because it usurped the judicial role by directing a particular result in the pending enforcement proceeding.

Justice Ginsburg, writing for the Court in a 6-2 decision, held that the statute does not violate separation of powers. The Court explained that Article III bars Congress from telling a court how to apply preexisting law to particular circumstances. But Congress may amend a law and make the amended prescription retroactively applicable in pending cases. The statute does just that: it requires a court to apply a new legal standard in a pending post judgment enforcement proceeding. It does not matter that it meant that the result in the case was a “foregone conclusion.” A statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. Nor is the statute invalid because it prescribes a rule for a single, pending case identified by caption and docket number (actually it was 16 cases).

Chief Justice Roberts, joined by Justice Sotomayor, dissented. They said that the law violates the separation of powers. “No less than if it had passes a law saying ‘respondents win,’ Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties’ specific legal disputes to guarantee respondents victory.”

* * * *

The cases in this section establish no clear principles as to what the phrase “exceptions and regulations” means or when separation of powers prevents Congress from changing the law in response to a Supreme Court decision interpreting a statute. Ultimately, the arguments about Congress’s ability to check the federal judiciary, like so many areas of constitutional law, turn o disputes about the meaning of the Constitution’s language, the intent of its framers, and the competing structural and policy considerations.

3.4.2.2 United States v. Klein [excerpt] 80 U.S. 128 (1871) 3.4.2.2 United States v. Klein [excerpt] 80 U.S. 128 (1871)

United States v. Klein [excerpt]

80 U.S. 128 (1871)

[At the end of the Civil War, Congress passed a law that allowed individuals to bring claims against the government to recover seized property or to receive compensation if they could prove that they did not offer aid or comfort to the enemy during the war. Respondent Klien sued in the Court of Claims and won based on Supreme Court precedent that a presidential pardon was conclusive proof that the individual had not provided such aid or comfort. President Andrew Johnson, who ascended to the presidency after Lincoln’s assassination, was very liberal with the pardoning power and this, combined with the Supreme Court’s decision that such pardons were conclusive proof, motivated Congress to pass a new law while Klien’s case was on appeal. The new law provided that such pardons were not admissible as evidence that the claimant had not aided the enemy, that any pardon that did not disclaim guilt was actually proof that the claimant did aid the enemy, and that proof of presidential pardon in such cases terminated the jurisdiction of the federal courts in the matter.]

The CHIEF JUSTICE delivered the opinion of the court.

The substance of this enactment is that an acceptance of a pardon, without disclaimer, shall be conclusive evidence of the acts pardoned, but shall be null and void as evidence of the rights conferred by it, both in the Court of Claims and in this court on appeal.

It was urged in argument that the right to sue the government in the Court of Claims is a matter of favor; but this seems not entirely accurate. It is as much the duty of the government as of individuals to fulfil its obligations. Before the establishment of the Court of Claims claimants could only be heard by Congress. That court was established in 1855 for the triple purpose of relieving Congress, and of protecting the government by regular investigation, and of benefiting the claimants by affording them a certain mode of examining and adjudicating upon their claims. It was required to hear and determine upon claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.

Undoubtedly the legislature has complete control over the organization and existence of that court and may confer or withhold the right of appeal from its decisions. And if this act did nothing more, it would be our duty to give it effect. If it simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make “such exceptions from the appellate jurisdiction” as should seem to it expedient.

But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have. The proviso declares that pardons shall not be considered by this court on appeal. We had already decided that it was our duty to consider them and give them effect, in cases like the present, as equivalent to proof of loyalty. It provides that whenever it shall appear that any judgment of the Court of Claims shall have been founded on such pardons, without other proof of loyalty, the Supreme Court shall have no further jurisdiction of the case and shall dismiss the same for want of jurisdiction. The proviso further declares that every pardon granted to any suitor in the Court of Claims and reciting that the person pardoned has been guilty of any act of rebellion or disloyalty, shall, if accepted in writing without disclaimer of the fact recited, be taken as conclusive evidence in that court and on appeal, of the act recited; and on proof of pardon or acceptance, summarily made on motion or otherwise, the jurisdiction of the court shall cease and the suit shall be forthwith dismissed.

It is evident from this statement that the denial of jurisdiction to this court, as well as to the Court of Claims, is founded solely on the application of a rule of decision, in causes pending, prescribed by Congress. The court has jurisdiction of the cause to a given point; but when it ascertains that a certain state of things exists, its jurisdiction is to cease and it is required to dismiss the cause for want of jurisdiction.

It seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.

The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? In the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it?

We think not. . . In the case before us no new circumstances have been created by legislation. But the court is forbidden to give the effect to evidence which, in its own judgment, such evidence should have, and is directed to give it an effect precisely contrary.

We must think that Congress has inadvertently passed the limit which separates the legislative from the judicial power.

It is of vital importance that these powers be kept distinct. The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress shall from time to time ordain and establish. The same instrument, in the last clause of the same article, provides that in all cases other than those of original jurisdiction, “the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make.”

Congress has already provided that the Supreme Court shall have jurisdiction of the judgments of the Court of Claims on appeal. Can it prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself.

The rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive.

It is the intention of the Constitution that each of the great co-ordinate departments of the government — the Legislative, the Executive, and the Judicial — shall be, in its sphere, independent of the others. To the executive alone is intrusted the power of pardon; and it is granted without limit. Pardon includes amnesty. It blots out the offence pardoned and removes all its penal consequences. It may be granted on conditions. In these particular pardons, that no doubt might exist as to their character, restoration of property was expressly pledged, and the pardon was granted on condition that the person who availed himself of it should take and keep a prescribed oath.

Now it is clear that the legislature cannot change the effect of such a pardon any more than the executive can change a law. Yet this is attempted by the provision under consideration. The court is required to receive special pardons as evidence of guilt and to treat them as null and void. It is required to disregard pardons granted by proclamation on condition, though the condition has been fulfilled, and to deny them their legal effect. This certainly impairs the executive authority and directs the court to be instrumental to that end.

We think it unnecessary to enlarge. The simplest statement is the best.

We repeat that it is impossible to believe that this provision was not inserted in the appropriation bill through inadvertence; and that we shall not best fulfill the deliberate will of the legislature by DENYING the motion to dismiss and AFFIRMING the judgment of the Court of Claims; which is

ACCORDINGLY DONE

3.4.2.3 Robertson v. Seattle Audubon Society 3.4.2.3 Robertson v. Seattle Audubon Society

Supreme Court of the United States

503 U.S. 429, 118 L. Ed. 2d 73, 112 S. Ct. 1407, SCDB 1991-055, 1992 U.S. LEXIS 1951

No. 90-1596

1992-03-25

ROBERTSON, CHIEF, UNITED STATES FOREST SERVICE, et al. v. SEATTLE AUDUBON SOCIETY et al.

No. 90-1596.

Argued December 2, 1991

Decided March 25, 1992

*430Thomas, J., delivered the opinion for a unanimous Court.

*431 Solicitor General Starr argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Clifford M. Sloan, Peter R. Steenland, Jr., Martin W. Matzen, and Anne S. Almy.

Todd T True argued the cause for respondents. With him on the brief for respondents Seattle Audubon Society et al. were John Bonine, Michael Axline, and Victor M. Sher. Phillip D. Chadsey filed a brief for respondents Association of 0 & C Counties et al. Mark C. Rutzick filed briefs for respondents Northwest Forest Resource Council et al.*

Justice Thomas

delivered the opinion of the Court.

In this case we must determine the operation of §318 of the Department of the Interior and Related Agencies Appropriations Act, 1990.

This case arises out of two challenges to the Federal Government’s continuing efforts to allow the harvesting and sale of timber from old-growth forests in the Pacific Northwest. These forests are home to the northern spotted owl, a bird listed as threatened under the Endangered Species Act of 1973, 16 U. S. C. § 1531 et seq. (1988 ed. and Supp. II), since June 1990. See 55 Fed. Reg. 26114. Harvesting the forests, say environmentalists, would kill the owls. Restrictions on harvesting, respond local timber industries, would devastate the region’s economy.

*432Petitioner Robertson is Chief of the United States Forest Service, which manages 13 national forests in Oregon and Washington known to contain the northern spotted owl. In 1988, the Service amended its regional guide to prohibit timber harvesting on certain designated areas within those forests. Respondent Seattle Audubon Society (joined by various other environmental groups) and the Washington Contract Loggers Association (joined by various other industry groups) filed separate lawsuits in the District Court for the Western District of Washington, complaining respectively that the amendment afforded the owl either too little protection, or too much. Seattle Audubon alleged violations of three federal statutes: the Migratory Bird Treaty Act (MBTA), 40 Stat. 755, ch. 128, as amended, 16 U. S. C. §703 et seq. (1988 ed. and Supp. II); the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, as amended, 42 U. S. C. §4321 et seq.; and the National Forest Management Act of 1976 (NFMA), 90 Stat. 2949, as amended, 16 U. S. C. §1600 et seq. The District Court consolidated the actions and preliminarily enjoined 163 proposed timber sales. Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Mar. 24, 1989).

Petitioner Lujan is Secretary of the Department of the Interior. The Bureau of Land Management (BLM), an agency within the Department, manages several old-growth forests in western Oregon. Between 1979 and 1983, the BLM developed timber management plans that permitted harvesting on some areas within these forests and prohibited it on others. In 1987, the BLM and the Oregon Department of Fish and Wildlife executed an agreement that expanded the areas on which harvesting was prohibited. Also in 1987, respondent Portland Audubon Society (among others) filed suit in the District Court for the District of Oregon, challenging certain proposed harvesting under- four federal statutes: MBTA; NEPA; the Federal Land Policy and Management Act of 1976 (FLPMA), 90 Stat. 2744, as amended, 43 *433 U. S. C. § 1701 et seq.; and the Oregon-California Railroad Land Grant Act (OCLA), 50 Stat. 874, 43 U.S.C. § 1181a. Twice, the District Court dismissed the action. Twice before reversing (on grounds not relevant here), the Court of Appeals for the Ninth Circuit enjoined some of the challenged harvesting pending appeal. See Portland Audubon Soc. v. Lujan, 884 F. 2d 1233, 1234 (1989), cert. denied, 494 U. S. 1026 (1990); Portland Audubon Soc. v. Hodel, 866 F. 2d 302, 304, cert. denied sub nom. Northwest Forest Resource Council v. Portland Audubon Soc., 492 U. S. 911 (1989).

In response to this ongoing litigation, Congress enacted § 318 of the Department of the Interior and Related Agencies Appropriations Act, 1990, 103 Stat. 745, popularly known as the Northwest Timber Compromise. The Compromise established a comprehensive set of rules to govern harvesting within a geographically and temporally limited domain. By its terms, it applied only to “the thirteen national forests in Oregon and Washington and [BLM] districts in western Oregon known to contain northern spotted owls.” §318(i). It expired automatically on September 30, 1990, the last day of fiscal year 1990, except that timber sales offered under § 318 were to remain subject to its terms for the duration of the applicable sales contracts. § 318(k).

The Compromise both required harvesting and expanded harvesting restrictions. Subsections (a)(1) and (a)(2) required the Forest Service and the BLM respectively to offer for sale specified quantities of timber from the affected lands before the end of fiscal year 1990. On the other hand, subsections (b)(3) and (b)(5) prohibited harvesting altogether from various designated areas within those lands, expanding the applicable administrative prohibitions and then codifying them for the remainder of the fiscal year.1 In addition, sub*434sections (b)(1), (b)(2), and (b)(4) specified general environmental criteria to govern the selection of harvesting sites by the Forest Service. Subsection (g)(1) provided for limited, expedited judicial review of individual timber sales offered under § 318.

This controversy centers around the first sentence of subsection (b)(6)(A), which stated in part:

“[T]he Congress hereby determines and directs that management of areas according to subsections (b)(3) and *435(b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR.”

Subsection (b)(6)(A) also declined to pass upon “the legal and factual adequacy” of the administrative documents produced by the 1988 Forest Service amendment and the 1987 BLM agreement.2

After §318 was enacted, both the Seattle Audubon and Portland Audubon defendants sought dismissal, arguing that the provision had temporarily superseded all statutes on which the plaintiffs’ challenges had been based. The *436plaintiffs resisted on the ground that the first sentence of subsection (b)(6)(A), because it purported to direct the results in two pending cases, violated Article III of the Constitution. In Seattle Audubon, the District Court held that subsection (b)(6)(A) “can and must be read as a temporary modification of the environmental laws.” Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Nov. 14, 1989). Under that construction, the court upheld the provision as constitutional and therefore vacated its preliminary injunction. Nonetheless, the court retained jurisdiction to determine whether the challenged harvesting would violate § 318 (if done in fiscal year 1990) or other provisions (if done later). In Portland Audubon, the District Court likewise upheld subsection (b)(6)(A), but dismissed the action entirely (without prejudice to future challenges arising after fiscal year 1990). Portland Audubon Soc. v. Lujan, No. 87-1160 (Ore., Dec. 21, 1989).

The Ninth Circuit consolidated the ensuing appeals and reversed. 914 F. 2d 1311 (1990). The court held that the first sentence of § 318(b)(6)(A) “does not, by its plain language, repeal or amend the environmental laws underlying this litigation,” but rather “directs the court to reach a specific result and make certain factual findings under existing law in connection with two [pending] cases.” Id., at 1316. Given that interpretation, the court held the provision unconstitutional under United States v. Klein, 13 Wall. 128 (1872), which it construed as prohibiting Congress from “directing] ... a particular decision in a case, without repealing or amending the law underlying the litigation.” 914 F. 2d, at 1315. The Ninth Circuit distinguished this Court’s decision in Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856), which it construed as permitting Congress to “amend or repeal any law, even for the purpose of ending pending litigation.” 914 F. 2d, at 1315 (emphasis in original).

*437On remand, the plaintiffs renewed their original claims. In Seattle Audubon, the District Court enjoined under NFMA 16 timber sales offered by the Forest Service during fiscal year 1990 in order to meet its harvesting quota under § 318(a)(1). See Seattle Audubon Soc. v. Robertson, No. 89-160 (WD Wash., Dec. 18,1990, and May 24,1991). While the District Court proceedings were ongoing, the agencies jointly sought review of the Ninth Circuit’s judgment that the first sentence of subsection (b)(6)(A) was unconstitutional. We granted certiorari, 501 U. S. 1249 (1991), and now reverse.3

The first sentence of subsection (b)(6)(A) provided that “management of areas according to subsections (b)(3) and (b)(5)... is adequate consideration for the purpose of meeting the statutory requirements that are the basis for [Seattle Audubon] and [Portland Audubon].” The Ninth Circuit held that this language did not “amend” any previously existing “laws,” but rather “directed]” certain “factual findings” and “specific result[s]” under those laws. 914 F. 2d, at 1316. Petitioners interpret the provision differently. They argue that subsection (b)(6)(A) replaced the legal standards underlying the two original challenges with those set forth in subsections (b)(3) and (b)(5), without directing particular applications under either the old or the new standards. We agree.

We describe the operation of subsection (b)(6)(A) by example. The plaintiffs in both cases alleged violations of MBTA § 2, 16 U. S. C. § 703, which makes it unlawful to “kill” or “take” any “migratory bird.” ■ Before the Compromise was *438enacted, the courts adjudicating these MBTA claims were obliged to determine whether the challenged harvesting would “kill” or “take” any northern spotted owl, within the meaning of §2.4 Subsection (b)(6)(A), however, raised the question whether the harvesting would violate different prohibitions — those described in subsections (b)(3) and (b)(5). If not, then the harvesting would constitute “management . . . according to” subsections (b)(3) and (b)(5), and would therefore be deemed to “mee[t]” MBTA §2 regardless of whether or not it would cause an otherwise prohibited killing or taking. Thus under subsection (b)(6)(A), the agencies could satisfy their MBTA obligations in either of two ways: by managing their lands so as neither to “kill” nor “take” any northern spotted owl within the meaning of §2, or by managing their lands so as not to violate the prohibitions of subsections (b)(3) and (b)(5). Subsection (b)(6)(A) operated identically as well upon all provisions of NEPA, NFMA, FLPMA, and OCLA that formed “the basis for” the original lawsuits.

We conclude that subsection (b)(6)(A) compelled changes in law, not findings or results under old law. Before subsection (b)(6)(A) was enacted, the original claims would fail only if the challenged harvesting violated none of five old provisions. Under subsection (b)(6)(A), by contrast, those same claims would fail if the harvesting violated neither of two new provisions. Its operation, we think, modified the old provisions. Moreover, we find nothing in subsection (b)(6)(A) that purported to direct any particular findings of fact or applications of law, old or new, to fact. For challenges to sales offered before or after fiscal year 1990, subsection (b)(6)(A) expressly reserved judgment upon “the legal and factual adequacy” of the administrative documents authorizing the sales. For challenges to sales offered during fiscal year 1990, subsection (g)(1) expressly provided *439for judicial determination of the lawfulness of those sales. Section 318 did not instruct the courts whether any particular timber sales would violate subsections (b)(3) and (b)(5), just as the MBTA, for example, does not instruct the courts whether particular sales would “kill” or “take” any northern spotted owl. Indeed, § 318 could not instruct that any particular BLM timber sales were lawful under the new standards, because subsection (b)(5) incorporated by reference the harvesting prohibitions imposed by a BLM agreement not yet in existence when the Compromise was enacted. See n. 1, supra.

Respondents cite three textual features of subsection (b)(6)(A) in support of their conclusion that the provision failed to supply new law, but directed results under old law. First, they emphasize the imperative tone of the provision, by which Congress “determine^] and directed]” that compliance with two new provisions would constitute compliance with five old ones. Respondents argue that “Congress was directing the subsection [only] at the courts.” Brief for Respondents Seattle Audubon Society et al. 34. Petitioners, for their part, construe the subsection as “a directive [only] to the Forest Service and BLM.” Brief for Petitioners 30. We think that neither characterization is entirely correct. A statutory directive binds both the executive officials who administer the statute and the judges who apply it in particular cases — even if (as is usually the case) Congress fails to preface its directive with an empty phrase like “Congress . . . directs that.” Here, we fail to see how inclusion of the “Congress . . . directs that” preface undermines our conclusion that what Congress directed — to agencies and courts alike — was a change in law, not specific results under old law.

Second, respondents argue that subsection (b)(6)(A) did not modify old requirements because it deemed compliance with new requirements to “mee[t]” the old requirements. We fail to appreciate the significance of this observation. Congress might have modified MBTA directly, for example, *440in order to impose a new obligation of complying either with the current §2 or with subsections (b)(3) and (b)(5). Instead, Congress enacted an entirely separate statute deeming compliance with subsections (b)(3) and (b)(5) to constitute compliance with § 2 — a “modification” of the MBTA, we conclude, through operation of the canon that specific provisions qualify general ones, see, e. g., Simpson v. United States, 435 U. S. 6, 15 (1978). As explained above, each formulation would have produced an identical task for a court adjudicating the MBTA claims — determining either that the challenged harvesting did not violate § 2 as currently written or that it did not violate subsections (b)(3) and (b)(5).

Finally, respondents emphasize that subsection (b)(6)(A) explicitly made reference to pending cases identified by name and caption number. The reference to Seattle Audubon and Portland Audubon, however, served only to identify the five “statutory requirements that are the basis for” those cases— namely, pertinent provisions of MBTA, NEPA, NFMA, FLPMA, and OCLA. Subsection (b)(6)(A) named two pending cases in order to identify five statutory provisions. To the extent that subsection (b)(6)(A) affected the adjudication of the cases, it did so by effectively modifiying the provisions at issue in those cases.

In the alternative, the Ninth Circuit held that subsection (b)(6)(A) “could not” effect an implied modification of substantive law because it was embedded in an appropriations measure. See 914 F. 2d, at 1317. This reasoning contains several errors. First, although repeals by implication are especially disfavored in the appropriations context, see, e. g., TVA v. Hill, 437 U. S. 153, 190 (1978), Congress nonetheless may amend substantive law in an appropriations statute, as long as it does so clearly. See, e. g., United States v. Will, 449 U. S. 200, 222 (1980). Second, because subsection (b)(6)(A) provided by its terms that compliance with certain new law constituted compliance with certain old law, the intent to modify was not only clear, but express. Third, *441having determined that subsection (b)(6)(A) would be unconstitutional unless it modified previously existing law, the court then became obliged to impose that “saving interpretation,” 914 F. 2d, at 1317, as long as it was a “possible” one. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 30 (1937) (“[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act”).

We have no occasion to address any broad question of Article III jurisprudence. The Court of Appeals held that subsection (b)(6)(A) was unconstitutional under Klein because it directed decisions in pending cases without amending any law. Because we conclude that subsection (b)(6)(A) did amend applicable law, we need not consider whether this reading of Klein is correct. The Court of Appeals stated additionally that a statute would be constitutional under Wheeling Bridge if it did amend law. Respondents’ amicus Public Citizen challenges this proposition. It contends that even a change in law, prospectively applied, would be unconstitutional if the change swept no more broadly, or little more broadly, than the range of applications at issue in the pending cases. This alternative theory was neither raised below nor squarely considered by the Court of Appeals; nor was it advanced by respondents in this Court. Accordingly, we decline to address it here. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Subsection (b)(3) provided:

“No timber sales offered pursuant to this section from the thirteen national forests in Oregon and Washington known to contain northern spotted owls may occur within [spotted owl habitat areas (SOHA’s)'] identified *434pursuant to the Final Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide — Spotted Owl and the accompanying Record of Decision issued by the Forest Service on December 8,1988 as adjusted by this subsection:

“(A) For the Olympic Peninsula Province, which includes the Olympic National Forest, SOHA size is to be 3,200 acres;

“(B) For the Washington Cascades Province, which includes the Mt. Baker-Snoqualmie, Okanogan, Wenatchee, and Gifford-Pinchot National Forests, SOHA size is to be 2,600 acres;

“(C) For the Oregon Cascades Province, which includes the Mt. Hood, Willamette, Rogue River, Deschutes, Winema, and Umpqua National Forests, SOHA size is to be 1,875 acres;

“(D) For the Oregon Coast Range Province, which includes the Siuslaw National Forest, SOHA size is to be 2,500 acres; and

“(E) For the Klamath Mountain Province, which includes the Siskiyou National Forest, SOHA size is to be 1,250 acres.

“(F) All other standards and guidelines contained in the Chief’s Record of Decision are adopted.”

Subsection (b)(5) provided:

“No timber sales offered pursuant to this section on Bureau of Land Mangagement lands in western Oregon known to contain northern spotted owls shall occur within the 110 areas identified in the December 22, 1987 agreement, except sales identified in said agreement, between the Bureau of Land Management and the Oregon Department of Fish and Wildlife. Not later than thirty days after enactment of this Act, the Bureau of Land Management, after consulting with the Oregon Department of Fish and Wildlife and the United States Fish and Wildlife Service to identify high priority spotted owl area sites, shall select an additional twelve spotted owl habitat areas. No timber sales may be offered in the areas identified pursuant to this subsection during fiscal year 1990.”

In its entirety, subsection (b)(6)(A) provided:

“Without passing on the legal and factual adequacy of the Pinal Supplement to the Environmental Impact Statement for an Amendment to the Pacific Northwest Regional Guide — Spotted Owl Guidelines and the accompanying Record of Decision issued by the Forest Service on December 8,1988 or the December 22,1987 agreement between the Bureau of Land Management and the Oregon Department of Fish and Wildlife for management of the Spotted Owl, the Congress hereby determines and directs that management of areas according to subsections (b)(3) and (b)(5) of this section on the thirteen national forests in Oregon and Washington and Bureau of Land Management lands in western Oregon known to contain northern spotted owls is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the consolidated cases captioned Seattle Audubon Society et al., v. F. Dale Robertson, Civil No. 89-160 and Washington Contract Loggers Assoc. et al., v. F. Dale Robertson, Civil No. 89-99 (order granting preliminary injunction) and the case Portland Audubon Society et al., v. Manuel Lujan, Jr., Civil No. 87-1160-FR. The guidelines adopted by subsections (b)(3) and (b)(5) of this section shall not be subject to judicial review by any court of the United States.”

3.4.2.4 Bank Markazi v. Peterson 3.4.2.4 Bank Markazi v. Peterson

Supreme Court of the United States

136 S. Ct. 1310, 194 L. Ed. 2d 463

No. 14–770.

2016-04-20

BANK MARKAZI, aka Central Bank of Iran, Petitioner
v.
Deborah PETERSON, et al.

No. 14-770.

Supreme Court of the United States

Argued Jan. 13, 2016.
Decided April 20, 2016.

David M. Lindsey, Andreas A. Frischknecht, Chaffetz Lindsey LLP, New York, NY, Jeffrey A. Lamken, Robert K. Kry, Lauren M. Weinstein, Sarah J. Newman, MoloLamken LLP, Washington, DC, for Petitioner.

Liviu Vogel, Salon Marrow Dyckman, Newman & Broudy LLP, New York, NY, James P. Bonner, Patrick L. Rocco, Patrick L. Rocco, Susan M. Davies, Stone Bonner & Rocco LLP, New York, NY, Theodore B. Olson, Matthew D. McGill, Jonathan C. Bond, Lochlan F. Shelfer, Gibson, Dunn & Crutcher LLP, Washington, DC, Ashley E. Johnson, Gibson, Dunn & Crutcher LLP, Dallas, TX, Shale D. Stiller, Richard M. Kremen, Dale K. Cathell, DLA Piper US LLP (US), Baltimore, MD, Keith Martin Fleischman, Fleischman Law Firm, New York, NY, Douglass A. Mitchell, Boies, Schiller & Flexner LLP, Las Vegas, NV, Noel J. Nudelman, Heideman Nudelman & Kalik, P.C., Washington, DC, Steven R. Perles, Perles Law Firm, P.C., Washington, DC, Thomas Fortune Fay, Fay Kaplan Law, P.A., Washington, DC, Suzelle M. Smith, Dan Howarth, Howarth & Smith (LA), Los Angeles, CA, Curtis C. Mechling, James L. Bernard, Stroock & Stroock & Lavan LLP, New York, NY, for Respondents.

Justice GINSBURG delivered the opinion of the Court.*

A provision of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772, makes available for postjudgment execution a set of assets held at a New York bank for Bank Markazi, the Central Bank of Iran. The assets would partially satisfy judgments gained in separate actions by over 1,000 victims of terrorist acts sponsored by Iran. The judgments *1317remain unpaid. Section 8772 is an unusual statute: It designates a particular set of assets and renders them available to satisfy the liability and damages judgments underlying a consolidated enforcement proceeding that the statute identifies by the District Court's docket number. The question raised by petitioner Bank Markazi: Does § 8772 violate the separation of powers by purporting to change the law for, and directing a particular result in, a single pending case?

Section 8772, we hold, does not transgress constraints placed on Congress and the President by the Constitution. The statute, we point out, is not fairly portrayed as a "one-case-only regime." Brief for Petitioner 27. Rather, it covers a category of postjudgment execution claims filed by numerous plaintiffs who, in multiple civil actions, obtained evidence-based judgments against Iran together amounting to billions of dollars. Section 8772 subjects the designated assets to execution "to satisfy any judgment" against Iran for damages caused by specified acts of terrorism. § 8772(a)(1) (emphasis added). Congress, our decisions make clear, may amend the law and make the change applicable to pending cases, even when the amendment is outcome determinative.

Adding weight to our decision, Congress passed, and the President signed, § 8772 in furtherance of their stance on a matter of foreign policy. Action in that realm warrants respectful review by courts. The Executive has historically made case-specific sovereign-immunity determinations to which courts have deferred. And exercise by Congress and the President of control over claims against foreign governments, as well as foreign-government-owned property in the United States, is hardly a novelty. In accord with the courts below, we perceive in § 8772 no violation of separation-of-powers principles, and no threat to the independence of the Judiciary.

We set out here statutory provisions relevant to this case. American nationals may file suit against state sponsors of terrorism in the courts of the United States. See 28 U.S.C. § 1605A. Specifically, they may seek "money damages ... against a foreign state for personal injury or death that was caused by" acts of terrorism, including "torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support" to terrorist activities. § 1605A(a)(1). This authorization-known as the "terrorism exception"-is among enumerated exceptions prescribed in the Foreign Sovereign Immunities Act of 1976 (FSIA) to the general rule of sovereign immunity.1

Victims of state-sponsored terrorism, like others proceeding under an FSIA exception, may obtain a judgment against a foreign state on "establish[ing] [their] claim[s] ... by evidence satisfactory to the court." § 1608(e). After gaining a judgment, however, plaintiffs proceeding under the terrorism exception "have often faced practical and legal difficulties" at the *1318enforcement stage. Brief for United States as Amicus Curiae 2. Subject to stated exceptions, the FSIA shields foreign-state property from execution. § 1609. When the terrorism exception was adopted, only foreign-state property located in the United States and "used for a commercial activity" was available for the satisfaction of judgments. § 1610(a)(7), (b)(3). Further limiting judgment-enforcement prospects, the FSIA shields from execution property "of a foreign central bank or monetary authority held for its own account." § 1611(b)(1).

To lessen these enforcement difficulties, Congress enacted the Terrorism Risk Insurance Act of 2002 (TRIA), which authorizes execution of judgments obtained under the FSIA's terrorism exception against "the blocked assets of [a] terrorist party (including the blocked assets of any agency or instrumentality of that terrorist party)." § 201(a), 116 Stat. 2337, note following 28 U.S.C. § 1610. A "blocked asset" is any asset seized by the Executive Branch pursuant to either the Trading with the Enemy Act (TWEA), 40 Stat. 411, 50 U.S.C.App. 1 et seq., or the International Emergency Economic Powers Act (IEEPA), 91 Stat. 1625, 50 U.S.C. § 1570 et seq. See TRIA § 201(d)(2). Both measures, TWEA and IEEPA, authorize the President to freeze the assets of "foreign enemy state[s]" and their agencies and instrumentalities. Brief for United States as Amicus Curiae 25. These blocking regimes "put control of foreign assets in the hands of the President so that he may dispose of them in the manner that best furthers the United States' foreign-relations and national-security interests." Ibid. (internal quotation marks omitted).2

Invoking his authority under the IEEPA, the President, in February 2012, issued an Executive Order blocking "[a]ll property and interests in property of any Iranian financial institution, including the Central Bank of Iran, that are in the United States." Exec. Order No. 13599, 3 CFR 215 (2012 Comp.). The availability of these assets for execution, however, was contested.3

To place beyond dispute the availability of some of the Executive Order No. 13599 -blocked assets for satisfaction of judgments rendered in terrorism cases, Congress passed the statute at issue here: § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 126 Stat. 1258, 22 U.S.C. § 8772. Enacted as a freestanding measure, not as an amendment to the FSIA or the TRIA,4 § 8772 provides that, if a court makes specified findings, "a financial asset ... shall be subject to execution ... in order to satisfy *1319any judgment to the extent of any compensatory damages awarded against Iran for damages for personal injury or death caused by" the acts of terrorism enumerated in the FSIA's terrorism exception. § 8772(a)(1). Section 8772(b) defines as available for execution by holders of terrorism judgments against Iran "the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518(BSJ)(GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings."

Before allowing execution against an asset described in § 8772(b), a court must determine that the asset is:

"(A) held in the United States for a foreign securities intermediary doing business in the United States;

"(B) a blocked asset (whether or not subsequently unblocked) ...; and

"(C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran...." § 8772(a)(1).

In addition, the court in which execution is sought must determine "whether Iran holds equitable title to, or the beneficial interest in, the assets ... and that no other person possesses a constitutionally protected interest in the assets ... under the Fifth Amendment to the Constitution of the United States." § 8772(a)(2).

Respondents are victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members. See App. to Pet. for Cert. 52a-53a; Brief for Respondents 6. Numbering more than 1,000, respondents rank within 16 discrete groups, each of which brought a lawsuit against Iran pursuant to the FSIA's terrorism exception. App. to Brief for Respondents 1a-2a. All of the suits were filed in United States District Court for the District of Columbia.5 Upon finding a clear evidentiary basis for Iran's liability to each suitor, the court entered judgments by default. See, e.g., Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46, 49 (2003). The majority of respondents sought redress for injuries suffered in connection with the 1983 bombing of the U.S. Marine barracks in Beirut, Lebanon.

*1320App. to Pet. for Cert. 21a.6 "Together, [respondents] have obtained billions of dollars in judgments against Iran, the vast majority of which remain unpaid." Id., at 53a.7 The validity of those judgments is not in dispute. Id., at 55a.

To enforce their judgments, the 16 groups of respondents first registered them in the United States District Court for the Southern District of New York. See 28 U.S.C. § 1963 ("A judgment ... may be registered ... in any other district.... A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner."). They then moved under Federal Rule of Civil Procedure 69 for turnover of about $1.75 billion in bond assets held in a New York bank account-assets that, respondents alleged, were owned by Bank Markazi. See App. to Pet. for Cert. 52a-54a, 60a, and n. 1; Second Amended Complaint in No. 10-CIV-4518 (SDNY), p. 6.8 This turnover proceeding began in 2008 when the terrorism judgment holders in Peterson, 264 F.Supp.2d 46, filed writs of execution and the District Court restrained the bonds. App. to Pet. for Cert. 14a-15a, 62a. Other groups of terrorism judgment holders-some of which had filed their own writs of execution against the bonds-were joined in No. 10-CIV-4518, the Peterson enforcement proceeding, through a variety of procedural mechanisms.9 It is this consolidated judgment-enforcement proceeding and assets restrained in that proceeding that § 8772 addresses.

Although the enforcement proceeding was initiated prior to the issuance of Executive Order No. 13599 and the enactment of § 8772, the judgment holders updated their motions in 2012 to include execution claims under § 8772. Plaintiffs' Supplemental Memorandum of Law in Support of Their Motion for Partial Summary Judgment in No. 10-CIV-4518 (SDNY).10

*1321Making the findings necessary under § 8772, the District Court ordered the requested turnover. App. to Pet. for Cert. 109a.11

In reaching its decision, the court reviewed the financial history of the assets and other record evidence showing that Bank Markazi owned the assets. See id., at 111a-113a, and n. 17. Since at least early 2008, the court recounted, the bond assets have been held in a New York account at Citibank directly controlled by Clearstream Banking, S.A. (Clearstream), a Luxembourg-based company that serves "as an intermediary between financial institutions worldwide." Id., at 56a-57a (internal quotation makes omitted). Initially, Clearstream held the assets for Bank Markazi and deposited interest earned on the bonds into Bank Markazi's Clearstream account. At some point in 2008, Bank Markazi instructed Clearstream to position another intermediary-Banca UBAE, S.p.A., an Italian bank-between the bonds and Bank Markazi. Id., at 58a-59a. Thereafter, Clearstream deposited interest payments in UBAE's account, which UBAE then remitted to Bank Markazi. Id., at 60a-61a.12

Resisting turnover of the bond assets, Bank Markazi and Clearstream, as the District Court observed, "filled the proverbial kitchen sink with arguments." Id., at 111a. They argued, inter alia, the absence of subject-matter and personal jurisdiction, id., at 73a-104a, asserting that the blocked assets were not assets "of" the Bank, see supra, at 1318, n. 3, and that the assets in question were located in Luxembourg, not New York, App. to Pet. for Cert. 100a. Several of their objections to execution became irrelevant following enactment of § 8772, which, the District Court noted, "sweeps away ... any ... federal or state law impediments that might otherwise exist, so long as the appropriate judicial determination is made." Id., at 73a; § 8772(a)(1) (Act applies "notwithstanding any other provision of law"). After § 8772's passage, Bank Markazi changed its defense. It conceded that Iran held the requisite "equitable title to, or beneficial interest in, the assets," § 8772(a)(2)(A), but maintained that § 8772 could not withstand inspection under the separation-of-powers doctrine. See Defendant Bank Markazi's Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment in No. 10-CIV-4518 (SDNY), pp. 1-3, 10-16.13

*1322"[I]n passing § 8772," Bank Markazi argued, "Congress effectively dictated specific factual findings in connection with a specific litigation-invading the province of the courts." App. to Pet. for Cert. 114a. The District Court disagreed. The ownership determinations § 8772 required, see supra, at 1320 - 1321, the court said, "[were] not mere fig leaves," for "it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha[d] some form of beneficial or equitable interest." App. to Pet. for Cert. 115a. Observing from the voluminous filings that "[t]here [was] ... plenty ... to [litigate]," the court described § 8772 as a measure that "merely chang[es] the law applicable to pending cases; it does not usurp the adjudicative function assigned to federal courts." Ibid. (internal quotation marks omitted). Further, the court reminded, "Iran's liability and its required payment of damages was ... established years prior to the [enactment of § 8772 ]"; "[a]t issue [here] is merely execution [of judgments] on assets present in this district." Id., at 116a.14

The Court of Appeals for the Second Circuit unanimously affirmed. Peterson v. Islamic Republic of Iran, 758 F.3d 185 (2014).15 On appeal, Bank Markazi again argued that § 8772 violates the separation of powers "by compelling the courts to reach a predetermined result in this case." Id., at 191. In accord with the District Court, the Second Circuit responded that "§ 8772 does not compel judicial findings [or results] under old law"; "rather, it retroactively changes the law applicable in this case, a permissible exercise of legislative authority." Ibid. Congress may so prescribe, the appeals court noted, "even when the result under the revised law is clear." Ibid.

To consider the separation-of-powers question Bank Markazi presents, we granted certiorari, 576 U.S. ----, 136 S.Ct. 26, 192 L.Ed.2d 997 (2015), and now affirm.16

Article III of the Constitution establishes an independent Judiciary, a Third Branch of Government with the "province and duty ... to say what the law is" in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). Necessarily, that endowment of authority blocks Congress from "requir[ing] federal courts to exercise the *1323judicial power in a manner that Article III forbids." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). Congress, no doubt, "may not usurp a court's power to interpret and apply the law to the [circumstances] before it," Brief for Former Senior Officials of the Office of Legal Counsel as Amici Curiae 3, 6, for "[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret that rule," Marbury, 1 Cranch, at 177.17 And our decisions place off limits to Congress "vest[ing] review of the decisions of Article III courts in officials of the Executive Branch." Plaut, 514 U.S., at 218, 115 S.Ct. 1447 (citing Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792), and, e.g., Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 114, 68 S.Ct. 431, 92 L.Ed. 568 (1948) ). Congress, we have also held, may not "retroactively comman[d] the federal courts to reopen final judgments." Plaut, 514 U.S., at 219, 115 S.Ct. 1447.

Citing United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872), Bank Markazi urges a further limitation. Congress treads impermissibly on judicial turf, the Bank maintains, when it "prescribe[s] rules of decision to the Judicial Department ... in [pending] cases." Id., at 146. According to the Bank, § 8772 fits that description. Brief for Petitioner 19, 43. Klein has been called "a deeply puzzling decision," Meltzer, Congress, Courts, and Constitutional Remedies, 86 Geo. L.J. 2537, 2538 (1998).18 More recent decisions, however, have made it clear that Klein does not inhibit Congress from "amend[ing] applicable law." Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) ; see id., at 437-438, 112 S.Ct. 1407 ; Plaut, 514 U.S., at 218, 115 S.Ct. 1447 (Klein 's "prohibition does not take hold when Congress 'amend[s] applicable law.' " (quoting Robertson, 503 U.S., at 441, 112 S.Ct. 1407 )). Section 8772, we hold, did just that.

Klein involved Civil War legislation providing that persons whose property had been seized and sold in wartime could recover the proceeds of the sale in the Court of Claims upon proof that they had "never given any aid or comfort to the present rebellion." Ch. 120, § 3, 12 Stat. 820; see Klein, 13 Wall., at 139. In 1863, President Lincoln pardoned "persons who ... participated in the ... rebellion" if they swore an oath of loyalty to the United States. Presidential Proclamation No. 11, 13 Stat. 737. One of the persons so pardoned was a southerner named Wilson, whose cotton had been seized and sold by Government agents. Klein was the administrator of Wilson's estate. 13 Wall., at 132. In *1324United States v. Padelford, 9 Wall. 531, 543, 19 L.Ed. 788 (1870), this Court held that the recipient of a Presidential pardon must be treated as loyal, i.e., the pardon operated as "a complete substitute for proof that [the recipient] gave no aid or comfort to the rebellion." Thereafter, Klein prevailed in an action in the Court of Claims, yielding an award of $125,300 for Wilson's cotton. 13 Wall., at 132.

During the pendency of an appeal to this Court from the Court of Claims judgment in Klein, Congress enacted a statute providing that no pardon should be admissible as proof of loyalty. Moreover, acceptance of a pardon without disclaiming participation in the rebellion would serve as conclusive evidence of disloyalty. The statute directed the Court of Claims and the Supreme Court to dismiss for want of jurisdiction any claim based on a pardon. 16 Stat. 235; R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 323, n. 29 (7th ed. 2015) (Hart and Wechsler). Affirming the judgment of the Court of Claims, this Court held that Congress had no authority to "impai[r] the effect of a pardon," for the Constitution entrusted the pardon power "[t]o the executive alone." Klein, 13 Wall., at 147. The Legislature, the Court stated, "cannot change the effect of ... a pardon any more than the executive can change a law." Id., at 148. Lacking authority to impair the pardon power of the Executive, Congress could not "direc[t] [a] court to be instrumental to that end." Ibid. In other words, the statute in Klein infringed the judicial power, not because it left too little for courts to do, but because it attempted to direct the result without altering the legal standards governing the effect of a pardon-standards Congress was powerless to prescribe. See id., at 146-147 ; Robertson, 503 U.S., at 438, 112 S.Ct. 1407 (Congress may not "compe [l] ... findings or results under old law").19

Bank Markazi, as earlier observed, supra, at 1323, argues that § 8772 conflicts with Klein . The Bank points to a statement in the Klein opinion questioning whether "the legislature may prescribe rules of decision to the Judicial Department ... in cases pending before it." 13 Wall., at 146. One cannot take this language from Klein "at face value," however, "for congressional power to make valid statutes retroactively applicable to pending cases has often been recognized." Hart and Wechsler 324. See, e.g., United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801). As we explained in Landgraf v. USI Film Products, 511 U.S. 244, 267, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the restrictions that the Constitution places on retroactive legislation "are of limited scope":

"The Ex Post Facto Clause flatly prohibits retroactive application of penal legislation. Article I, § 10, cl. 1, prohibits States from passing ... 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 *1325'Bills of Attainder' in Art. I, §§ 9-10, prohibit legislatures from singling out disfavored persons and meting out summary punishment for past conduct. 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." Id., at 266-267, 114 S.Ct. 1483 (citation and footnote omitted).

"Absent a violation of one of those specific provisions," when a new law makes clear that it is retroactive, the arguable "unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give [that law] its intended scope." Id., at 267-268, 114 S.Ct. 1483. So yes, we have affirmed, Congress may indeed direct courts to apply newly enacted, outcome-altering legislation in pending civil cases. See Plaut, 514 U.S., at 226, 115 S.Ct. 1447. Any lingering doubts on that score have been dispelled by Robertson, 503 U.S., at 441, 112 S.Ct. 1407 and Plaut, 514 U.S., at 218, 115 S.Ct. 1447.

Bank Markazi argues most strenuously that § 8772 did not simply amend pre-existing law. Because the judicial findings contemplated by § 8772 were "foregone conclusions," the Bank urges, the statute "effectively" directed certain factfindings and specified the outcome under the amended law. See Brief for Petitioner 42, 47. See also supra , at 1322 - 1323. Recall that the District Court, closely monitoring the case, disagreed. Supra, at 1321 - 1322; App. to Pet. for Cert. 115a ("[The] determinations [required by § 8772 ] [were] not mere fig leaves," for "it [was] quite possible that the [c]ourt could have found that defendants raised a triable issue as to whether the [b]locked [a]ssets were owned by Iran, or that Clearstream and/or UBAE ha [d] some form of beneficial or equitable interest.").20

In any event, a statute does not impinge on judicial power when it directs courts to apply a new legal standard to undisputed facts. "When a plaintiff brings suit to enforce a legal obligation it is not any less a case or controversy upon which a court possessing the federal judicial power may rightly give judgment, because the plaintiff's claim is uncontested or incontestable." Pope v. United States, 323 U.S. 1, 11, 65 S.Ct. 16, 89 L.Ed. 3 (1944). In Schooner Peggy, 1 Cranch, at 109-110, *1326for example, this Court applied a newly ratified treaty that, by requiring the return of captured property, effectively permitted only one possible outcome. And in Robertson, 503 U.S., at 434-435, 438-439, 112 S.Ct. 1407 a statute replaced governing environmental-law restraints on timber harvesting with new legislation that permitted harvesting in all but certain designated areas. Without inquiring whether the new statute's application in pending cases was a "foregone conclusio[n]," Brief for Petitioner 47, we upheld the legislation because it left for judicial determination whether any particular actions violated the new prescription. In short, § 8772 changed the law by establishing new substantive standards, entrusting to the District Court application of those standards to the facts (contested or uncontested) found by the court.

Resisting this conclusion, THE CHIEF JUSTICE compares § 8772 to a hypothetical "law directing judgment for Smith if the court finds that Jones was duly served with notice of the proceedings." Post, at 1335 - 1336.21 Of course, the hypothesized law would be invalid-as would a law directing judgment for Smith, for instance, if the court finds that the sun rises in the east. For one thing, a law so cast may well be irrational and, therefore, unconstitutional for reasons distinct from the separation-of-powers issues considered here. See, e.g., infra, at 1327, n. 27. For another, the law imagined by the dissent does what Robertson says Congress cannot do: Like a statute that directs, in "Smith v. Jones," "Smith wins," supra, at 1323, n. 17, it "compel[s] ... findings or results under old law," for it fails to supply any new legal standard effectuating the lawmakers' reasonable policy judgment, 503 U.S., at 438, 112 S.Ct. 1407.22 By contrast, § 8772 provides a new standard clarifying that, if Iran owns certain assets, the victims of Iran-sponsored terrorist attacks will be permitted to execute against those assets. Applying laws implementing Congress' policy judgments, with fidelity to those judgments, is commonplace for the Judiciary.

Section 8772 remains "unprecedented," Bank Markazi charges, because it "prescribes a rule for a single pending case-identified by caption and docket number." Brief for Petitioner 17.23 The amended law in Robertson, however, also applied to cases identified by caption and docket number, 503 U.S., at 440, 112 S.Ct. 1407 and was nonetheless upheld. Moreover, § 8772, as already described, see supra, at 1319 - 1321, facilitates execution of judgments in 16 suits, together encompassing more than 1,000 victims of Iran-sponsored *1327terrorist attacks.24 Although consolidated for administrative purposes at the execution stage,25 the judgment-execution claims brought pursuant to Federal Rule of Civil Procedure 69 were not independent of the original actions for damages and each claim retained its separate character. See Mackey v. Lanier Collection Agency & Service, Inc., 486 U.S. 825, 834-835, n. 10, 108 S.Ct. 2182, 100 L.Ed.2d 836 (1988) (postjudgment garnishment action brought under Rule 69 is part of the "process to enforce a judgment," not a new suit (alteration omitted and emphasis deleted)); 10 Cyclopedia of Federal Procedure § 36:8, p. 385 (3 ed. 2010) ("Proceedings in execution are proceedings in the action itself...."); 9A C. Wright & A. Miller, Federal Practice and Procedure § 2382, p. 10 (3d ed. 2008) ("[A]ctions do not lose their separate identity because of consolidation.").26

The Bank's argument is further flawed, for it rests on the assumption that legislation must be generally applicable, that "there is something wrong with particularized legislative action." Plaut, 514 U.S., at 239, n. 9, 115 S.Ct. 1447. We have found that assumption suspect:

"While legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action. Private bills in Congress are still common, and were even more so in the days before establishment of the Claims Court. Even laws that impose a duty or liability upon a single individual or firm are not on that account invalid-or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that [the Clause] requires not merely 'singling out' but also punishment, see, e.g., United States v. Lovett, 328 U.S. 303, 315-318 [66 S.Ct. 1073, 90 L.Ed. 1252] (1946), [or] a case [holding] that Congress may legislate 'a legitimate class of one,' Nixon v. Administrator of General Services, 433 U.S. 425, 472 [97 S.Ct. 2777, 53 L.Ed.2d 867] (1977)." Ibid .27

*1328This Court and lower courts have upheld as a valid exercise of Congress' legislative power diverse laws that governed one or a very small number of specific subjects. E.g., Regional Rail Reorganization Act Cases, 419 U.S. 102, 158-161, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974) (upholding Act that applied to specific railroads in a single region); Pope, 323 U.S., at 9-14, 65 S.Ct. 16 (upholding special Act giving a contractor the right to recover additional compensation from the Government); The Clinton Bridge, 10 Wall. 454, 462-463, 19 L.Ed. 969 (1870) (upholding Act governing a single bridge); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 430-432, 15 L.Ed. 435 (1856) (similar); Biodiversity Assoc. v. Cables, 357 F.3d 1152, 1156, 1164-1171 (C.A.10 2004) (upholding law that abrogated specific settlement agreement between U.S. Forest Service and environmental groups); SeaRiver Maritime Financial Holdings, Inc. v. Mineta, 309 F.3d 662, 667, 674-675 (C.A.9 2002) (upholding law that effectively applied to a single oil tanker); National Coalition To Save Our Mall v. Norton, 269 F.3d 1092, 1097 (C.A.D.C.2001) (upholding law that applied to a single memorial).

We stress, finally, that § 8772 is an exercise of congressional authority regarding foreign affairs, a domain in which the controlling role of the political branches is both necessary and proper. See, e.g., Zivotofsky v. Kerry, 576 U.S. ----, ----, 135 S.Ct. 2076, 2090-2091, 192 L.Ed.2d 83 (2015). In furtherance of their authority over the Nation's foreign relations, Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States. See Dames & Moore v. Regan, 453 U.S. 654, 673-674, 679-681, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (describing this history). In pursuit of foreign policy objectives, the political branches have regulated specific foreign-state assets by, inter alia, blocking them or governing their availability for attachment. See supra, at 1317 - 1318 (describing the TWEA and the IEEPA); e.g., Dames & Moore, 453 U.S., at 669-674, 101 S.Ct. 2972. Such measures have never been rejected as invasions upon the Article III judicial power. Cf. id., at 674, 101 S.Ct. 2972 (Court resists the notion "that the Federal Government as a whole lacked the power" to "if[y] ... attachments and orde[r] the transfer of [foreign-state] assets.").28

Particularly pertinent, the Executive, prior to the enactment of the FSIA, regularly made case-specific determinations whether sovereign immunity should be recognized, and courts accepted those determinations as binding. See Republic of Austria v. Altmann, 541 U.S. 677, 689-691, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004) ; Ex parte Peru, 318 U.S. 578, 588-590, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). As this Court explained in Republic of Mexico v. Hoffman, 324 U.S. 30, 35, 65 S.Ct. 530, 89 L.Ed. 729 (1945), it is "not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize."

*1329This practice, too, was never perceived as an encroachment on the federal courts' jurisdiction. See Dames & Moore, 453 U.S., at 684-685, 101 S.Ct. 2972 ("[P]rior to the enactment of the FSIA [courts would not have] reject[ed] as an encroachment on their jurisdiction the President's determination of a foreign state's sovereign immunity.").

Enacting the FSIA in 1976, Congress transferred from the Executive to the courts the principal responsibility for determining a foreign state's amenability to suit. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-489, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). But it remains Congress' prerogative to alter a foreign state's immunity and to render the alteration dispositive of judicial proceedings in progress. See Republic of Iraq v. Beaty, 556 U.S. 848, 856-857, 865, 129 S.Ct. 2183, 173 L.Ed.2d 1193 (2009). By altering the law governing the attachment of particular property belonging to Iran, Congress acted comfortably within the political branches' authority over foreign sovereign immunity and foreign-state assets.

* * *

For the reasons stated, we are satisfied that § 8772 -a statute designed to aid in the enforcement of federal-court judgments-does not offend "separation of powers principles ... protecting the role of the independent Judiciary within the constitutional design." Miller v. French, 530 U.S. 327, 350, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000). The judgment of the Court of Appeals for the Second Circuit is therefore

Affirmed.

Chief Justice ROBERTS, with whom Justice SOTOMAYOR joins, dissenting.

Imagine your neighbor sues you, claiming that your fence is on his property. His evidence is a letter from the previous owner of your home, accepting your neighbor's version of the facts. Your defense is an official county map, which under state law establishes the boundaries of your land. The map shows the fence on your side of the property line. You also argue that your neighbor's claim is six months outside the statute of limitations.

Now imagine that while the lawsuit is pending, your neighbor persuades the legislature to enact a new statute. The new statute provides that for your case, and your case alone, a letter from one neighbor to another is conclusive of property boundaries, and the statute of limitations is one year longer. Your neighbor wins. Who would you say decided your case: the legislature, which targeted your specific case and eliminated your specific defenses so as to ensure your neighbor's victory, or the court, which presided over the fait accompli ?

That question lies at the root of the case the Court confronts today. Article III of the Constitution commits the power to decide cases to the Judiciary alone. See Stern v. Marshall, 564 U.S. 462, 484, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011). Yet, in this case, Congress arrogated that power to itself. Since 2008, respondents have sought $1.75 billion in assets owned by Bank Markazi, Iran's central bank, in order to satisfy judgments against Iran for acts of terrorism. The Bank has vigorously opposed those efforts, asserting numerous legal defenses. So, in 2012, four years into the litigation, respondents persuaded Congress to enact a statute, 22 U.S.C. § 8772, that for this case alone eliminates each of the defenses standing in respondents' way. Then, having gotten Congress to resolve all outstanding issues in their favor, respondents returned to court ... and won.

*1330Contrary to the majority, I would hold that § 8772 violates the separation of powers. No less than if it had passed a law saying "respondents win," Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties' specific legal disputes to guarantee respondents victory.

Article III, § 1 of the Constitution vests the "judicial Power of the United States" in the Federal Judiciary. That provision, this Court has observed, "safeguards the role of the Judicial Branch in our tripartite system." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 850, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). It establishes the Judiciary's independence by giving the Judiciary distinct and inviolable authority. "Under the basic concept of separation of powers," the judicial power "can no more be shared with another branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto." Stern, 564 U.S., at 483, 131 S.Ct. 2594 (internal quotation marks omitted). The separation of powers, in turn, safeguards individual freedom. See Bond v. United States, 564 U.S. 211, 223, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011). As Hamilton wrote, quoting Montesquieu, " 'there is no liberty if the power of judging be not separated from the legislative and executive powers.' " The Federalist No. 78, p. 466 (C. Rossiter ed. 1961); see Montesquieu, The Spirit of the Laws 157 (A. Cohler, B. Miller, & H. Stone eds. 1989) (Montesquieu).

The question we confront today is whether § 8772 violates Article III by invading the judicial power.

"The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers." Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). We surveyed those ruins in Plaut to determine the scope of the judicial power under Article III, and we ought to return to them today for that same purpose.

Throughout the 17th and 18th centuries, colonial legislatures performed what are now recognized as core judicial roles. They "functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments." Ibid. They "constantly heard private petitions, which often were only the complaints of one individual or group against another, and made final judgments on these complaints." G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). And they routinely intervened in cases still pending before courts, granting continuances, stays of judgments, "new trials, and other kinds of relief in an effort to do what 'is agreeable to Right and Justice.' " Id., at 155; see Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, 216-218 (1902) (collecting examples of such laws).

The judicial power exercised by colonial legislatures was often expressly vested in them by the colonial charter or statute. In the Colonies of Massachusetts, Connecticut, and Rhode Island, for example, the assemblies officially served as the highest court of appeals. See 1 The Public Records of the Colony of Connecticut 25 (Trumbull ed. 1850); M. Clarke, Parliamentary Privilege in the American Colonies 31-33 (1943). Likewise, for more than a half century, the colonial assembly *1331of Virginia could review and set aside court judgments. Id., at 37-38. And in New Hampshire, where British authorities directed judicial appeals to the governor and his council, those officials often referred such matters to the assembly for decision. Id., at 33. Colonial assemblies thus sat atop the judicial pyramid, with the final word over when and how private disputes would be resolved.

Legislative involvement in judicial matters intensified during the American Revolution, fueled by the "vigorous, indeed often radical, populism of the revolutionary legislatures and assemblies." Plaut, 514 U.S., at 219, 115 S.Ct. 1447 ; see Wood, supra, at 155-156. The Pennsylvania Constitution of 1776 epitomized the ethos of legislative supremacy. It established a unicameral assembly unconstrained by judicial review and vested with authority to " 'redress grievances.' " Report of the Committee of the Pennsylvania Council of Censors 42 (F. Bailey ed. 1784) (Council Report); see Williams, The State Constitutions of the Founding Decade: Pennsylvania's Radical 1776 Constitution and Its Influences on American Constitutionalism, 62 Temp. L. Rev. 541, 547-548, 556 (1989). The assembly, in turn, invoked that authority to depart from legal rules in resolving private disputes in order to ease the "hardships which will always arise from the operation of general laws." Council Report 42-43.

The Revolution-era "crescendo of legislative interference with private judgments of the courts," however, soon prompted a "sense of a sharp necessity to separate the legislative from the judicial power." Plaut, 514 U.S., at 221, 115 S.Ct. 1447. In 1778, an influential critique of a proposed (and ultimately rejected) Massachusetts constitution warned that "[i]f the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge." The Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, p. 337 (O. Handlin & M. Handlin eds. 1966). In Virginia, Thomas Jefferson complained that the assembly had, "in many instances, decided rights which should have been left to judiciary controversy." Jefferson, Notes on the State of Virginia 120 (Peden ed. 1982). And in Pennsylvania, the Council of Censors-a body appointed to assess compliance with the state constitution-decried the state assembly's practice of "extending their deliberations to the cases of individuals" instead of deferring to "the usual process of law," citing instances when the assembly overturned fines, settled estates, and suspended prosecutions. Council Report 38, 42. "[T]here is reason to think," the Censors observed, "that favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief." Id., at 38.

Vermont's Council of Censors sounded similar warnings. Its 1786 report denounced the legislature's "assumption of the judicial power," which the legislature had exercised by staying and vacating judgments, suspending lawsuits, resolving property disputes, and "legislating for individuals, and for particular cases." Vermont State Papers 1779-1786, pp. 537-542 (W. Slade ed. 1823). The Censors concluded that "[t]he legislative body is, in truth, by no means competent to the determination of causes between party and party," having exercised judicial power "without being shackled with rules," guided only by "crude notions of equity." Id., at 537, 540.

The States' experiences ultimately shaped the Federal Constitution, figuring prominently in the Framers' decision to *1332devise a system for securing liberty through the division of power:

"Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them." Plaut, 514 U.S., at 221, 115 S.Ct. 1447.

As Professor Manning has concluded, "Article III, in large measure, reflects a reaction against the practice" of legislative interference with state courts. Manning, Response, Deriving Rules of Statutory Interpretation from the Constitution, 101 Colum. L. Rev. 1648, 1663 (2001).

Experience had confirmed Montesquieu's theory. The Framers saw that if the "power of judging ... were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary." Montesquieu 157. They accordingly resolved to take the unprecedented step of establishing a "truly distinct" judiciary. The Federalist No. 78, at 466 (A. Hamilton). To help ensure the "complete independence of the courts of justice," ibid., they provided life tenure for judges and protection against diminution of their compensation. But such safeguards against indirect interference would have been meaningless if Congress could simply exercise the judicial power directly. The central pillar of judicial independence was Article III itself, which vested "[t]he judicial Power of the United States" in "one supreme Court" and such "inferior Courts" as might be established. The judicial power was to be the Judiciary's alone.

Mindful of this history, our decisions have recognized three kinds of "unconstitutional restriction[s] upon the exercise of judicial power." Plaut, 514 U.S., at 218, 115 S.Ct. 1447. Two concern the effect of judgments once they have been rendered: "Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch," ibid., for to do so would make a court's judgment merely "an advisory opinion in its most obnoxious form," Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948). And Congress cannot "retroactively command[ ] the federal courts to reopen final judgments," because Article III "gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy." Plaut, 514 U.S., at 218-219, 115 S.Ct. 1447. Neither of these rules is directly implicated here.

This case is about the third type of unconstitutional interference with the judicial function, whereby Congress assumes the role of judge and decides a particular pending case in the first instance. Section 8772 does precisely that, changing the law-for these proceedings alone-simply to guarantee that respondents win. The law serves no other purpose-a point, indeed, that is hardly in dispute. As the majority acknowledges, the statute " 'sweeps away ... any ... federal or state law impediments that might otherwise exist' " to bar respondents from obtaining Bank Markazi's assets. Ante, at 1321 (quoting App. to Pet. for Cert. 73a). In the District Court, Bank Markazi had invoked sovereign immunity under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1611(b)(1). Brief for Petitioner 28. Section 8772(a)(1) eliminates that immunity. Bank Markazi had argued that its status as a separate juridical entity under federal common law and international *1333law freed it from liability for Iran's debts. See First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 624-627, 103 S.Ct. 2591, 77 L.Ed.2d 46 (1983) ; Brief for Petitioner 27-28. Section 8772(d)(3) ensures that the Bank is liable. Bank Markazi had argued that New York law did not allow respondents to execute their judgments against the Bank's assets. See N.Y.U.C.C. Law Ann. § 8-112(c) (West 2002); see also App. to Pet. for Cert. 126a (agreeing with this argument). Section 8772(a)(1) makes those assets subject to execution. See id., at 97a.

Section 8772 authorized attachment, moreover, only for the

"financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518(BSJ)(GWG), that were restrained by restraining notices and levies secured by the plaintiffs in those proceedings...." § 8772(b).

And lest there be any doubt that Congress's sole concern was deciding this particular case, rather than establishing any generally applicable rules, § 8772 provided that nothing in the statute "shall be construed ... to affect the availability, or lack thereof, of a right to satisfy a judgment in any other action against a terrorist party in any proceedings other than" these. § 8772(c).1

There has never been anything like § 8772 before. Neither the majority nor respondents have identified another statute that changed the law for a pending case in an outcome-determinative way and explicitly limited its effect to particular judicial proceedings. That fact alone is "[p]erhaps the most telling indication of the severe constitutional problem" with the law. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 505, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (internal quotation marks omitted). Congress's "prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed." Plaut, 514 U.S., at 230, 115 S.Ct. 1447.

Section 8772 violates the bedrock rule of Article III that the judicial power is vested in the Judicial Branch alone. We first enforced that rule against an Act of Congress during the Reconstruction era in United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1872). Klein arose from congressional opposition to conciliation with the South, and in particular to the pardons Presidents Lincoln and Johnson had offered to former Confederate rebels. See id., at 140-141 ; see, e.g., Presidential *1334Proclamation No. 11, 13 Stat. 737. Although this Court had held that a pardon was proof of loyalty and entitled its holder to compensation in the Court of Claims for property seized by Union forces during the war, see United States v. Padelford, 9 Wall. 531, 543, 19 L.Ed. 788 (1870), the Radical Republican Congress wished to prevent pardoned rebels from obtaining such compensation. It therefore enacted a law prohibiting claimants from using a pardon as evidence of loyalty, instead requiring the Court of Claims and Supreme Court to dismiss for want of jurisdiction any suit based on a pardon. See Act of July 12, 1870, ch. 251, 16 Stat. 235; see also United States v. Sioux Nation, 448 U.S. 371, 403, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980).

Klein's suit was among those Congress wished to block. Klein represented the estate of one V.F. Wilson, a Confederate supporter whom Lincoln had pardoned. On behalf of the estate, Klein had obtained a sizable judgment in the Court of Claims for property seized by the Union. Klein, 13 Wall., at 132-134. The Government's appeal from that judgment was pending in the Supreme Court when the law targeting such suits took effect. The Government accordingly moved to dismiss the entire proceeding.

This Court, however, denied that motion and instead declared the law unconstitutional. It held that the law "passed the limit which separates the legislative from the judicial power." Id., at 147. The Court acknowledged that Congress may "make exceptions and prescribe regulations to the appellate power," but it refused to sustain the law as an exercise of that authority. Id., at 146. Instead, the Court held that the law violated the separation of powers by attempting to "decide" the case by "prescrib[ing] rules of decision to the Judicial Department of the government in cases pending before it." Id., at 145-146. "It is of vital importance," the Court stressed, that the legislative and judicial powers "be kept distinct." Id., at 147.

The majority characterizes Klein as a delphic, puzzling decision whose central holding-that Congress may not prescribe the result in pending cases-cannot be taken at face value.2 It is true that Klein can be read too broadly, in a way that would swallow the rule that courts generally must apply a retroactively applicable statute to pending cases. See United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801). But Schooner Peggy can be read too broadly, too. Applying a retroactive law that says "Smith wins" to the pending case of Smith v.

*1335Jones implicates profound issues of separation of powers, issues not adequately answered by a citation to Schooner Peggy . And just because Klein did not set forth clear rules defining the limits on Congress's authority to legislate with respect to a pending case does not mean-as the majority seems to think-that Article III itself imposes no such limits.

The same "record of history" that drove the Framers to adopt Article III to implement the separation of powers ought to compel us to give meaning to their design. Plaut, 514 U.S., at 218, 115 S.Ct. 1447. The nearly two centuries of experience with legislative assumption of judicial power meant that "[t]he Framers were well acquainted with the danger of subjecting the determination of the rights of one person to the tyranny of shifting majorities." INS v. Chadha, 462 U.S. 919, 961, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (Powell, J., concurring in judgment) (internal quotation marks omitted). Article III vested the judicial power in the Judiciary alone to protect against that threat to liberty. It defined not only what the Judiciary can do, but also what Congress cannot.

The Court says it would reject a law that says "Smith wins" because such a statute "would create no new substantive law." Ante, at 1323, n. 17. Of course it would: Prior to the passage of the hypothetical statute, the law did not provide that Smith wins. After the passage of the law, it does. Changing the law is simply how Congress acts. The question is whether its action constitutes an exercise of judicial power. Saying Congress "creates new law" in one case but not another simply expresses a conclusion on that issue; it does not supply a reason.

"Smith wins" is a new law, tailored to one case in the same way as § 8772 and having the same effect. All that both statutes "effectuat[e]," in substance, is lawmakers' "policy judgment" that one side in one case ought to prevail. Ante, at 1326. The cause for concern is that though the statutes are indistinguishable, it is plain that the majority recognizes no limit under the separation of powers beyond the prohibition on statutes as brazen as "Smith wins." Hamilton warned that the Judiciary must take "all possible care ... to defend itself against [the] attacks" of the other branches. The Federalist No. 78, at 466. In the Court's view, however, Article III is but a constitutional Maginot Line, easily circumvented by the simplest maneuver of taking away every defense against Smith's victory, without saying "Smith wins."

Take the majority's acceptance of the District Court's conclusion that § 8772 left "plenty" of factual determinations for the court "to adjudicate." Ante, at 1324 - 1325, and n. 20 (internal quotation marks omitted). All § 8772 actually required of the court was two factual determinations-that Bank Markazi has an equitable or beneficial interest in the assets, and that no other party does, § 8772(a)(2) -both of which were well established by the time Congress enacted § 8772. Not only had the assets at issue been frozen pursuant to an Executive Order blocking "property of the Government of Iran," Exec. Order No. 13599, 77 Fed. Reg. 6659 (2012), but the Bank had "repeatedly insisted that it is the sole beneficial owner of the Blocked Assets," App. to Pet. for Cert. 113a. By that measure of "plenty," the majority would have to uphold a law directing judgment for Smith if the court finds that Jones was duly served with notice of the proceedings, and that Smith's claim was within the statute of limitations. In reality, the Court's "plenty" is plenty of nothing, and, apparently, nothing is plenty for the Court. See D. Heyward & I. Gershwin, Porgy and Bess: Libretto 28 (1958).

*1336It is true that some of the precedents cited by the majority, ante, at 1325 - 1327, have allowed Congress to approach the boundary between legislative and judicial power. None, however, involved statutes comparable to § 8772. In Robertson v. Seattle Audubon Soc., 503 U.S. 429, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992), for example, the statute at issue referenced particular cases only as a shorthand for describing certain environmental law requirements, id., at 433-435, 112 S.Ct. 1407 not to limit the statute's effect to those cases alone. And in Plaut, the Court explicitly distinguished the statute before it-which directed courts to reopen final judgments in an entire class of cases-from one that " 'single[s] out' any defendant for adverse treatment (or any plaintiff for favorable treatment)." 514 U.S., at 238, 115 S.Ct. 1447. Plaut, in any event, held the statute before it invalid, concluding that it violated Article III based on the same historical understanding of the judicial power outlined above. Id., at 219-225, 240, 115 S.Ct. 1447.3

I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power. That should come as no surprise; Chief Justice Marshall's admonition "that 'it is a constitution we are expounding' is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution-that of separation of powers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596-597, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring) (quoting McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819) ). But however difficult it may be to discern the line between the Legislative and Judicial Branches, the entire constitutional enterprise depends on there being such a line. The Court's failure to enforce that boundary in a case as clear as this reduces Article III to a mere "parchment barrier [ ] against the encroaching spirit" of legislative power. The Federalist No. 48, at 308 (J. Madison).

Finally, the majority suggests that § 8772 is analogous to the Executive's historical power to recognize foreign state sovereign immunity on a case-by-case basis. As discussed above, however, § 8772 does considerably more than withdraw the Bank's sovereign immunity. Supra, at 1319 - 1321. It strips the Bank of any protection that federal common law, international law, or New York State law might have offered against respondents' claims. That is without analogue or precedent. In any event, the practice of applying case-specific Executive submissions on sovereign immunity was not judicial acquiescence in an intrusion on the Judiciary's role. It was instead the result of substantive sovereign immunity law, developed and applied by the courts, which treated such a submission as a dispositive fact. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-487, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) ; Ex parte Peru, 318 U.S. 578, 587-588, 63 S.Ct. 793, 87 L.Ed. 1014 (1943).

The majority also compares § 8772 to the political branches' authority to "exercise[ ] control over claims against foreign states and the disposition of foreign-state property in the United States."

*1337Ante, at 1327 (citing Dames & Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) ). In Dames & Moore, we considered whether the President had authority to suspend claims against Iran, and to ify existing court orders attaching Iran's property, in order to fulfill U.S. obligations under a claims settlement agreement with that country. Id., at 664-667, 101 S.Ct. 2972. We held that the President had that power, based on a combination of statutory authorization, congressional acquiescence, and inherent Executive power. See id., at 674-675, 686, 101 S.Ct. 2972.

The majority suggests that Dames & Moore supports the validity of § 8772. But Dames & Moore was self-consciously "a restricted railroad ticket, good for this day and train only." Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (Roberts, J., dissenting). The Court stressed in Dames & Moore that it "attempt[ed] to lay down no general 'guidelines' covering other situations not involved here, and attempt[ed] to confine the opinion only to the very questions necessary to [the] decision of the case." 453 U.S., at 661, 101 S.Ct. 2972 ; see also American Ins. Assn. v. Garamendi, 539 U.S. 396, 438, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (GINSBURG, J., dissenting) ("Notably, the Court in Dames & Moore was emphatic about the 'narrowness' of its decision.").

There are, moreover, several important differences between Dames & Moore and this case. For starters, the executive action Dames & Moore upheld did not dictate how particular claims were to be resolved, but simply required such claims to be submitted to a different tribunal. 453 U.S., at 660, 101 S.Ct. 2972. Furthermore, Dames & Moore sanctioned that action based on the political branches' "longstanding" practice of "settl[ing] the claims of [U.S.] nationals against foreign countries" by treaty or executive agreement. Id., at 679, 101 S.Ct. 2972. The Court emphasized that throughout our history, the political branches have at times "disposed of the claims of [U.S.] citizens without their consent, or even without consultation with them," by renouncing claims, settling them, or establishing arbitration proceedings. Id., at 679-681, 101 S.Ct. 2972 (internal quotation marks omitted). Those dispositions, crucially, were not exercises of judicial power, as is evident from the fact that the Judiciary lacks authority to order settlement or establish new tribunals. That is why Klein was not at issue in Dames & Moore . By contrast, no comparable history sustains Congress's action here, which seeks to provide relief to respondents not by transferring their claims in a manner only the political branches could do, but by commandeering the courts to make a political judgment look like a judicial one. See Medellín v. Texas, 552 U.S. 491, 531, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (refusing to extend the President's claims-settlement authority beyond the "narrow set of circumstances" defined by the " 'systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned' " (quoting Dames & Moore, 453 U.S., at 686, 101 S.Ct. 2972 )).

If anything, what Dames & Moore reveals is that the political branches have extensive powers of their own in this area and could have chosen to exercise them to give relief to the claimants in this case. Cf. 50 U.S.C. § 1702(a)(1)(C) (authorizing the President, in certain emergency circumstances, to confiscate and dispose of foreign sovereign property). The authority of the political branches is sufficient; they have no need to seize ours.

* * *

*1338At issue here is a basic principle, not a technical rule. Section 8772 decides this case no less certainly than if Congress had directed entry of judgment for respondents. As a result, the potential of the decision today "to effect important change in the equilibrium of power" is "immediately evident." Morrison v. Olson, 487 U.S. 654, 699, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting). Hereafter, with this Court's seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases. Today's decision will indeed become a "blueprint for extensive expansion of the legislative power" at the Judiciary's expense, Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991), feeding Congress's tendency to "extend[ ] the sphere of its activity and draw[ ] all power into its impetuous vortex," The Federalist No. 48, at 309 (J. Madison).

I respectfully dissent.

The 16 judgments include: Wultz v. Islamic Republic of Iran, 864 F.Supp.2d 24 (DC 2012) ; Murphy v. Islamic Republic of Iran, 740 F.Supp.2d 51 (DC 2010) ; Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52 (DC 2010) (granting judgment in consolidation of four actions at issue here: Valore, No. 1:03-cv-01959; Bonk v. Islamic Republic of Iran, No. 1:08-cv-01273; Spencer v. Islamic Republic of Iran, No. 1:06-cv-00750; and Arnold v. Islamic Republic of Iran, No. 1:06-cv-00516); Estate of Brown v. Islamic Republic of Iran, No. 1:08-cv-00531 (DDC, Feb. 1, 2010); Acosta v. Islamic Republic of Iran, 574 F.Supp.2d 15 (DC 2008) ; Beer v. Islamic Republic of Iran, 574 F.Supp.2d 1 (DC 2008) ; Kirschenbaum v. Islamic Republic of Iran, 572 F.Supp.2d 200 (DC 2008) ; Levin v. Islamic Republic of Iran, 529 F.Supp.2d 1 (DC 2007) ; Estate of Heiser v. Islamic Republic of Iran, 466 F.Supp.2d 229 (DC 2006) ; Estate of Bland v. Islamic Republic of Iran, No. 1:05-cv-02124 (DDC, Dec. 6, 2006); Greenbaum v. Islamic Republic of Iran, 451 F.Supp.2d 90 (DC 2006) ; Campuzano v. Islamic Republic of Iran, 281 F.Supp.2d 258 (DC 2003) (awarding judgment in both the Rubin action, Rubin v. Islamic Republic of Iran, No. 1:01-cv-01655, the plaintiffs of which are respondents here, and the Campuzano action, the plaintiffs of which are not); Peterson v. Islamic Republic of Iran, 264 F.Supp.2d 46 (DC 2003). Three additional groups of plaintiffs with claims against Iran were voluntarily dismissed from the instant litigation after "informing the [District Court] that none of the plaintiffs in those actions ha[d] obtained judgments for damages against Iran." App. to Pet. for Cert. 19a.

In addition, Bank Markazi advanced one argument not foreclosed by § 8772's text, and another that, at least in Bank Markazi's estimation, had not been rendered irrelevant by § 8772. First, Bank Markazi argued that the availability of the assets for execution was a nonjusticiable political question because execution threatened to interfere with European blocking regulations. App. to Pet. for Cert. 92a-94a. Second, the Bank urged that execution would violate U.S. treaty obligations to Iran. See Defendant Bank Markazi's Supplemental Memorandum of Law in Opposition to Plaintiffs' Motion for Partial Summary Judgment in No. 10-CIV-4518 (SDNY), pp. 2-3, 21-25. The District Court found these arguments unavailing. The matter was justiciable, the court concluded, because § 8772's enactment demonstrated that the political branches were not troubled about interference with European blocking regulations. App. to Pet. for Cert. 94a-96a. And treaty provisions interposed no bar to enforcement of § 8772 because, the court reiterated, § 8772 displaces "any" inconsistent provision of law, treaty obligations included. Id., at 101a-102a.

Consistent with this limitation, respondents rightly acknowledged at oral argument that Congress could not enact a statute directing that, in "Smith v. Jones," "Smith wins." Tr. of Oral Arg. 40. Such a statute would create no new substantive law; it would instead direct the court how pre-existing law applies to particular circumstances. See infra this page and 1323 - 1327. THE CHIEF JUSTICE challenges this distinction, post, at 1322 - 1323, but it is solidly grounded in our precedent. See Robertson v. Seattle Audubon Soc., 503 U.S. 429, 439, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992) (A statute is invalid if it "fail[s] to supply new law, but direct[s] results under old law."), discussed in R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 324 (7th ed. 2015).

The District Court understandably concluded that § 8772 left it "plenty ... to adjudicate." App. to Pet. for Cert. 115a. For one, the statute did not define its key terms, "beneficial interest" and "equitable title." To arrive at fitting definitions, the District Court consulted legal dictionaries and precedent. See id., at 111a-112a; Zivotofsky v. Clinton, 566 U.S. ----, ----, 132 S.Ct. 1421, 1427, 182 L.Ed.2d 423 (2012) (Interpretation of statutes "is a familiar judicial exercise."). Further, § 8772 required the District Court to determine whether the Bank owned the assets in question. § 8772(a)(2)(A). Clearstream contended that there were triable issues as to whether Bank Markazi was the owner of the blocked assets. App. to Pet. for Cert. 37a-39a, 111a. The court rejected that contention, finding that Clearstream and UBAE were merely account holders, maintaining the assets "on behalf of" the Bank. Id., at 112a-113a; see id., at 38a-39a. Next, § 8772 required the court to determine whether any party, other than the Bank, possessed a "constitutionally protected interest" in the assets. § 8772(a)(2)(B). Clearstream argued that it had such an interest, but the court disagreed. App. to Pet. for Cert. 117a-118a (determining that Clearstream had no constitutionally protected "investment-backed expectatio[n]" in the assets). Finally, prior to the statute's enactment, Bank Markazi and Clearstream had argued that the assets in question were located in Luxembourg, not New York. Supra, at 1321. Leaving the issue for court resolution, Congress, in § 8772(a)(1), required the District Court to determine whether the assets were "held in the United States."

The majority quarrels with the description of § 8772 as being directed to a single case, noting that the claimants had sought attachment of the assets in various prior proceedings. Ante, at 1326. Those proceedings, however, were not simply consolidated below, but rather were joined in the single interpleader action that was referenced by docket number in § 8772. See § 8772(b). See generally 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1702 (3d ed. 2001) (explaining that interpleader is a "joinder device" that brings together multiple claimants to a piece of property in a "single" action to "protect [ ] the stakeholder from the vexation of multiple suits"). That is presumably why respondents did not dispute Bank Markazi's characterization of the proceedings as "a single pending case" when they opposed certiorari, Pet. for Cert. i, and why the majority offers no citation to refute Wright & Miller's characterization of an interpleader action as a "single proceeding," 7 Federal Practice and Procedure § 1704. In any event, nothing in the majority's opinion suggests that the result would be different under its analysis even if it concluded that only a single case were involved.

The majority instead seeks to recast Klein as being primarily about congressional impairment of the President's pardon power, ante, at 1323 - 1324, despite Klein 's unmistakable indication that the impairment of the pardon power was an alternative ground for its holding, secondary to its Article III concerns. 13 Wall., at 147 ("The rule prescribed is also liable to just exception as impairing the effect of a pardon, and thus infringing the constitutional power of the Executive." (emphasis added)). The majority then suggests that Klein stands simply for the proposition that Congress may not require courts to act unconstitutionally. Ante, at 1323, and n. 19. That is without doubt a good rule, recognized by this Court since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803). But it is hard to reconstruct Klein along these lines, given its focus on the threat to the separation of powers from allowing Congress to manipulate jurisdictional rules to dictate judicial results. See Hart, The Power of Congress To Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1373 (1953) ("[I]f Congress directs an Article III court to decide a case, I can easily read into Article III a limitation on the power of Congress to tell the court how to decide it ... as the Court itself made clear long ago in United States v. Klein .").

3.5 Justiciability Limits on Access to Judicial Review - Introduction 3.5 Justiciability Limits on Access to Judicial Review - Introduction

3.5.1 Article III Case or Controversy Requirement and the Prohibition on Advisory Opinions - Introduction 3.5.1 Article III Case or Controversy Requirement and the Prohibition on Advisory Opinions - Introduction

3.5.1.1 Muskrat v. United States 3.5.1.1 Muskrat v. United States

Supreme Court of the United States

219 U.S. 346, 55 L. Ed. 246, 31 S. Ct. 250, 1911 U.S. LEXIS 1641, SCDB 1910-071

Nos. 330, 331

1911-01-23

MUSKRAT v. UNITED STATES. BROWN AND GRITTS v. UNITED STATES.

APPEALS EROM TOT COURT OP CLAIMS.

Nos. 330, 331.

Argued November 30 and December 1, 2, 1910.

Decided January 23, 1911.

The rule laid down in Heyburn’s Case, 2 Dall. 409, that‘ neither the legislative nor the executive branch of the Government of the United States can assign to the judicial branch any duties other than those that are properly judicial; to be performed ir. a judicial manner, applied; and held, that it is beyond the power of Congress to provide for a suit of this nature to be brought in the Court of *347Claims with an appeal to this court to test the constitutionality of prior' acts of Congress, such a suit not being a case or controversy within the meaning of the Constitution.

From its earliest history this court has consistently declined to exercise any powers other than those which are strictly judicial.in their nature.

Under the Constitution of the United States the exercise of judicial power is limited to cases and controversies. case or controversy, in order that the judicial power of the United States may be exercised thereon, implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication. Chisholm v. Georgia, 2 Dall. 431.

This court has no veto power oh legislation enacted by Congress; and its. right to declare an act of Congress unconstitutional can only be . exercised when a proper case between opposing parties is submitted for determination. Marbury v. Madison, 1 Cranch, 137.

The determination by the Court of Claims, and on appeal by this court, of the constitutional validity of an act of Congress in a suit brought by authority of a subsequent act of Congress clothing such courts with jurisdiction for the avowed purpose of settling such question with provision for payment of expenses of the suit in certain contingencies out of funds in the Treasury of the United States, is not within the appellate jurisdiction conferred by the. Constitu- . tion upon this court; such a suit is not .a case or controversy to which the' judicial power extends, nor would such a judgment conclude private parties in actual litigation.

That part of the act Of March 1, 1907, c. 2285, 34 Stat. 1015, 1028, which requires of this court action in its nature not judicial within the meaning of the Constitution, exceeds the limitation of legislative authority and is unconstitutional, and the suits brought thereunder are dismissed for want of jurisdiction.

This court cannot be required to decide cases over which it has not jurisdiction because other cases are pending involving the same point of law; to do so would require it to give opinions in the nature of advice concerning legislative action.

An act of Congress, conferring jurisdiction on the Court of Claims and on this court on appeal, testing the constitutionality of prior acts ' of Congress will not be sustained as to the jurisdiction of the Court . of Claims alone if it cannot be also sustained as to this court.

44 Court of Claims, 137, reversed with directions to dismiss the suit.

The facts, which involve the constitutionality and conr *348struction of certain acts of Congress relating to the distribution and allotment of lands and funds of the Cherokee Indians, are stated in the opinion.

Mr. John J. Hemphill, Mr. William H. Robeson and Mr. Daniel B. Henderson, with whom Mr'. Frank J. Boudi- . not was on the brief, for appellants.

Mr. Wade H. Ellis, Special Assistant to the Attorney General, with whom Mr. Henry E. Colton, Special Assistant to the Attorney General, was on the brief, for the United States.

Mr. W. W. Hastings for the Cherokee Nation.

Mr. S. T. Bledsoe and Mr. Evans Browne submitted a brief, by leave of the court, as amici curiae, on behalf of , certain full blood Choctaw and Chickasaw allottees.

Mr. Justice Day

delivered the opinion of the court.

These cases arise under an act of Congress undertaking' to confer jurisdiction upon the Court of Claims, and upon this court on appeal, to determine the validity of certain acts of Congress hereinafter referred to.

Case No. 330 was brought by David Muskrat and J. Henry Dick in their own behalf and in behalf of others in a like situation to determine the constitutional validity of the act of Congress of April 26,.1906, c. 1876, 34 Stat. 137, as amended by the act of June 21, 1906, c. 3604, 34 Stat. 325 et seq., and to have the same declared invalid in so far as the same undertook to increase the number of persons entitled to share in the final distribution of lands and funds of the Cherokees beyond- those • enrolled on September 1, 1902, in accordance with the act of Congress passed July 1, 1902, c. 1375, 32 Stat. 716-720-721. The *349acts subsequent to that of July 1, 1902, have the effect to increase the number of persons entitled to participate in the division of the Cherokee lands and funds, by permitting the enrollment of children who were minors living on March 4,1906, whose parents had theretofore been enrolled as members of the Cherokee tribe or had applications pending for that purpose.

Case No. 331 was brought by Brown and Gritts on their own behalf and on behalf of other'Cherokee citizens having a like interest in the property allotted under the act of July 1, 1902, c. 1368, 32 Stat. 710. Under this act, Brown and Gritts received allotments. The subsequent act of March 11,1904, c. 505, 33 Stat. 65, empowered the Secretary of the Interior to grant rights of way for pipe lines over lands allotted to Indians under certain regulations. Another act, that of April 26, 1906, c. 1876, 34 Stat. 137, purported to extend to a period of twenty-five years the time within which full-blooded Indians of the Cherokee, Choctaw, Chickasaw, Creek and Seminole tribes were forbidden to alienate, sell, dispose of or encumber certain of their lands.

The object of the petition of Brown and Gritts was to have the subsequent legislation of 1904 and 1906 declared to be unconstitutional and void, and to have the lands allotted to them under the original act of July 1, 1902, adjudged to be theirs free from restraints upon the rights to sell and convey the same. From this statement it is apparent that the purpose of the proceedings instituted in the Court of Claims and now appealed to this court is to restrain the enforcement of such legislation subsequent to thé act of July 1, 1902, upon the ground that the same is unconstitutional and void. The Court of Claims sustained the validity of the acts and dismissed the petitions. 44 C. Cls. 137, 283.

These proceedings were begun under the supposed authority of an act of Congress passed March 1,1907 (a part *350of the Indian appropriation bill), c. 2285, 34 Stat. 1015, 1028. As that legislation is important in this connection so much of the act as authorized the beginning of these suits is here inserted in full:

“That William Brown and Levi B. Gritts, on their own behalf and on behalf of all other Cherokee citizens, having like interests in the property allotted under the act of July first, nineteen hundred and two, entitled ‘An act to provide for the allotment of lands of the Cherokee Nation, for the disposition of townsites therein, and for other purposes/ and David Muskrat and J. Henry Dick, on their own behalf, and on behalf of all Cherokee citizens enrolled as such for allotment as of September first, nineteen hundred and two, be, and they are hereby, authorized and empowered to institute their suits in.the Court of Claims to determine the validity of any acts of Congress passed since the said act of July first, nineteen hundred and two, in so far as said acts, or any of them, attempt to increase or extend the restrictions upon alienation, encumbrance, or the right to lease the allotments of lands of Cherokee citizens, or to increase, the number of persons entitled to share in the final distribution of lands and funds of the Cherokées beyond those enrolled for allotment as of September first, nineteen hundred, and two, and provided for in the said act of July first, nineteen hundred and two.

“And jurisdiction is hereby conferred upon the Court of Claims, with the right of appeal, by either party, to the Supreme Court of the United States, to hear, determine, and adjudicate each of. said suits.

“The suits brought hereunder shall be brought on or before September first, nineteen hundred and seven, against the United States as a party defendant, and, for the speedy disposition of the questions invólyed, preference shall be given to the same by said courts, and by the Attorney General, who is hereby charged with the defense of said suits.

*351“Upon the rendition of final judgment by the Court of. Claims or the Supreme Court of the United States denying the validity of any portion of the said acts authorized to be brought into question, in either or both of said cases, the Court of Claims shall determine the amount to be paid the attorneys employed by the above-named parties in the prosecution thereof for services and expenses, and shall render judgment therefor, which shall be paid out of the funds in the United.States Treasury belonging to the beneficiaries under the said act of July first, nineteen hundred and two.”

This act is the authority for the maintenance of these two suits.

.The first question in these cases, as in others, involves the jurisdiction of this court to entertain the proceeding, and that depends upon whether the jurisdiction conferred is within the power of Congress, having in view the limitations of the judicial power, as established by the Constitution of the United States.

Section 1 of Article III of the Constitution provides:

“The judicial power of the United States shall be vested in'one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.”

Section 2 of the same Article provides:

“The judicial power shall extend to all cases, in law and equity,' arising under this Constitution, the laws of the United States, arid treaties made, or which shall be made, under their authority; — to all cases affecting ambassadors, other public ministers, and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies to which the United States shall be a party; to controversies between two or more States; — between a State and citizens of another State; — between citizens of different States;— between citizens of che same State claiming lands under grants of different States, and between a State, or the •citizens thereof, and foreign states, citizens or subjects.”

*352It will serve to elucidate the nature and extent of the judicial power thus conferred by the Constitution to note certain instances in which this court has had occasion to examine and define the same. As early as 1792, an act of Congress, March 23,1792, c. 11, 1 Stat. 243, was brought to the attention of this court, which undertook to provide for the settlement of claims of widows and orphans barred by the limitations theretofore established regulating claims to invalid pensions. The act was not construed by this court,, but came under consideration.before the then Chief Justice and another Justice of this court and the District Judge, and their conclusions are given in the margin of the report of Hayburn’s Case, 2 Dall. 409. The act undertook to devolve upon the Circuit Court of the United States the duty of examining proofs, of determining what amount of the monthly pay would be equivalent to the disability ascertained, and to certify the same to the Secretary of War, who was to place the names of the applicants on the pension list of the United States in conformity thereto, unless he had cause to suspect imposition or mistake, in which event he might withhold the name of the applicant and report the same to Congress.

In the note to the report of the case in 2 Dali, it appeared that Chief Justice Jay, Mr. Justice Cushing and District Judge Duane unanimously agreed:

“That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.

“That neither the legislative nor the executive branches can constitutionally assign to the judicial any duties but such as are properly judicial, and to be performed in a judicial manner.

“That the duties assigned to the Circuit Courts, by this act, are not of that description, and that the act itself does not appear to contemplate them as such; inasmuch as *353it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary of War, and then to the revision of the legislature; whereas by the Constitution, neither the Secretary of War, nor any other executive officer, nor even thet legislature,, ale authorized to sit as a court of errors on the judicial acts or opinions of this court.”

A further history of the case — and of another brought under the same act but unreported — will be found in United States v. Ferreira, 13 How. 40, in which the opinion of the court was by the Chief Justice, and the note by him on page 52 was inserted by order of the court. Concluding that note it was said:

“In the early days of the' Government, the right of Congress to give original jurisdiction to the Supreme Court, in cases not enumerated in the Constitution, was maintained by many jurists, and seems to have been entertained by the learned judges who decided Todd’s case. But discussion and more mature examination has settled the question otherwise; and it has long been the established doctrine, and we believe now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the Constitution, and that Congress cannot enlarge it. In all other cases its power must be appellate.”

In the Ferreira case this court determined the effect of proceedings under an act of Congress, authorizing ^he District Judge of the United States for the Northern District of Florida to receive and adjudicate claims for losses for which this Government was responsible under the treaty of 1819 between the United States and Spain; decisions in favor of claimants, together with evidence given in connection therewith, to be reported to the Secretary of the Treasury, who, being satisfied that the same were just and equitable and within the treaty, was to pay the amount thereof. It was held that an award of the Dis*354trict Judge under that act was not the judgment of a court and did not afford a basis of appeal to this court.

In 1793, by direction of the President, Secretary of State Jefferson addressed to the Justices of the Supreme .Court $, communication soliciting their views upon the question whether their advice to the executive would be available in the solution of important questions of the construction of treaties, laws of nations and laws of the land, which the Secretary said were often presented under circumstances which “do not give a cognizance of them to the tribunals' of the country.” The answer to the question was postponed until the subsequent sitting of the Supreme Court, when Chief Justice Jay and his associates answered to President Washington that in consideration of the lines of separation drawn by the Constitution between the three departments of government, and being judges of a court of last resort, afforded strong arguments .against the propriety of extrajudicially deciding the questions alluded to, and expressing the view that the power given by the Constitution to the President of calling on heads of departments for opinions."seems to have been purposely, as well as expressly, united to the executive departments.” Correspondence & Public Papers of John Jay, vol. 3,.p. 486.

The subject underwent a complete examination in the case of Gordon v. United States, reported in an appendix to 117 U. S. 697, in which the opinion of Mr. Chief Justice Taney, prepared by him and placed in the hands of the clerk, is published in full. It is said to have been his last judicial utterance, and the whole subject of the nature and extent of the judicial power conferred by the Constitution is treated* with great learning and fullness. In that case an act of Congress was held invalid which undertook to confer jurisdiction upon the Court of Claims and thence by appeal to this court, the judgment, however, not to be paid until an appropriation had been estimated therefor *355by the Secretary of the Treasury; and, as was said by the Chief Justice, the result was that neither court could enforce its judgment by any process, and whether it was to be paid or not depended on the future action of the Secretary of the Treasury and of Congress. “The Supreme Court,” says the Chief Justice, “does not owe its existence or its powers to the legislative department of the government. It is created by the Constitution, and represents one of the three great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions. The power conferred on this court is exclusively judicial, and it cannot be required or author-, ized to exercise any other.”

Concluding his discussion of the subject, the Chief Justice said, after treating of the powers of the different branches of the Government, and laying emphasis upon the independence of the judicial power as established under our Constitution, p. 706: “These cardinal principles of free government had not only been long established in England, but also in the United States from the time of their earliest colonization, and guided the American people in framing and adopting the present Constitution. And it is the duty, of this court to maintain it unimpaired as far as it may have the power. And while it executes firmly all the judicial powers entrusted to it, the court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.”

At the last term of the court, in the case of Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 215 U. S. 216, this court declined to take jurisdiction of a case which undertook to extend its appellate power to the consideration of a case in which there was no judgment in the court below. In that case former cases were reviewed *356by Mr. Chief Justice Fuller, who spoke for the court, and the requirement that, this court adhere strictly to the jurisdiction, original and appellate, conferred upon it by the Constitution, was emphasized and enforced. It is therefore apparent that from its earliest history this court has consistently declined to exercise any powers other than those which are strictly judicial in their nature.

It therefore becomes necessary to inquire what is meant by the judicial power thus conferred by the Constitution upon this court, and with the aid of appropriate legislation upon the inferior courts of the United States. “Judicial-power,” says Mr. Justice Miller in his work on the Constitution, “is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” Miller on the Constitution, 314.'

As we have already, seen by the express terms of the Constitution, the exercise of the judicial power is limited to “cases” and “controversies.” Beyond this it does not extend, and unless it is asserted in a case or controversy within the meaning of the Constitution, the power to exercise it is nowhere conferred.

What, then, does the Constitution mean in conferring this judicial power with the'right to determine “cases” and “ controversies ” ? A “ case ” was defined by Mr. Chief Justice Marshall as early as the leading case of Marbury v. Madison, 1 Cranch, 137, to be a suit instituted according to the regular course of judicial procedure. And what more, if anything, is meant in the use of the term “controversy”? That question was dealt .with by Mr. Justice Field, at the circuit, in the case of In re Pacific Railway Commission, 32 Fed. Rep. 241, 255. Of these terms that learned Justice said:

“The judicial article of the Constitution mentions cases and controversies. The term ‘controversies,’ if distinguishable at all from ‘cases,’ is so in that it is less compre*357hensive than the latter, and includes only suits of a civil nature. Chisholm v. Georgia, 2 Dall. 431, 432; 1 Tuck. Bl. Comm. App. 420, 421. By cases and controversies are intended the claims of litigants brought before the courts. for determination by such, regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.”

. The power being thus limited to require an application of the judicial power to cases and controversies, is the act which undertook to authorize the present suits to determine the constitutional validity of certain legislation within the constitutional authority of the court? This inquiry in the case before us includes the broader question, When may this court, in the exercise of the judicial power, pass upon the constitutional validity of an act of Congress? That question has been settled from the early history of the court, the leading case on the subject being Marbury v. Madison, supra.

In that case Chief Justice Marshall, who spoke for the court, was careful to point out that the right to declare an act of Congress unconstitutional could only be exercised when a proper case between opposing parties was submitted for judicial determination; that there was no general veto power in the court upon the legislation of Congress; and that the authority to declare an act unconstitutional sprung from .the requirement that the court, in administering the law'and pronouncing judgment between the parties to a case, and choosing between the requirements of the fundamental law established by the people and embodied in the Constitution and an act of the agents *358of the people, acting under authority of the Constitution, should enforce, the Constitution as the supreme law of the land. The Chief Justice demonstrated, in a manner which has been regarded as settling the qúestion, that with the choice thus given between a constitutional requirement and a conflicting statutory enactment, the plain duty of the court was to follow and enforce the Constitution as the supreme law established by the people. And the court recognized, in Marbury v. Madison and subsequent cases, that the exercise of this great power could only be invoked in cases which came regularly before the courts for determination, for, said the Chief Justice, in Osborn v. Bank of United States, 9 Wheat. 819, speaking of the third Article of the Constitution conferring judicial power:

“This clause enables the judicial department to receive jurisdiction to the full extent of the Constitution, laws, and treaties of the United States, when any question respecting tEein shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases, arising under the Constitution, laws, and treaties of the United States.”

Again, in the case of Cohens v. Virginia, 6 Wheat. 264, Chief Justice Marshall, amplifying and reasserting the doctrine of Marbury v. Madison, recognized the limitations upon the right of this court to declare an act of Congress unconstitutional, and granting that there might be instances of its violation which could not be brought within the jurisdiction of the courts, and referring to a grant by a State of a patent of nobility as a case of that class, and conceding that the court would have no power to annul such a grant,'said, p. 405:

“This may be very true; but by no means justifies the inference drawn from it. The article does not extend the *359judicial power to every violation of the Constitution which may possibly take place, but to ‘a case in law or equity’ in which a right under such law is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the Constitution, to which the judicial power of the United States would extend. The same observation applies to the other instances with which the counsel who opened the cause has illustrated this argument. Although they show that there may be violations of the Constitution of which the courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import ought to be given to this article. They do not show that there can be' a case in law or equity’ arising under the Constitution, to which the judicial power does not extend.”

See also in this connection Chicago & Grand Trunk Railway Company v. Wellman, 143 U. S. 339. On page 345 of the opinion in that case the result of the previous decisions of this court was- summarized in these apposite words by Mr. Justice Brewer, who spoke for the court:

“Whenever, in pursuance of an honest and actual.antagonistic assertion of rights by one individual against another., there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a' *360party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”

Applying the principles thus long settled by the decisions of this court to the act of Congress undertaking to confer jurisdiction in this case, we find that William Brown and Levi B. Gritts, on their own behalf and on behalf of all other Cherokee, citizens having like interest in the property allotted -under the act of July 1, 1902, and David Muskrat and J. Henry Dick, for themselves and representatives of all Cherokee citizens enrolled as such for allotment as of September 1, 1902, are authorized and empowered to institute suits in the Court of Claims to determine the validity-of acts of Congress passed since the act of July 1, 1902, in so far as the same attempt to increase or extend the restrictions upon alienation, encumbrance, or the right to lease the allotments of lands of Cherokee citizens, or to increase the number of persons entitled to share in the final distribution of lands and funds of the Cherokees beyond those enrolled for allotment as of September 1, 1902, and provided for in the said act of July 1, 1902.

The jurisdiction was given for that purpose first to the Court of Claims and then upon appeal to this court. That is, the object and.purpose of the suit is wholly comprised in the determination of the constitutional validity of certain acts "of Congress;-.and furthermore, in the last paragraph of the section, should a judgment be rendered in the Court of Claims or this court, denying the constitutional validity of such acts, then the amount of - compensation to be paid to attorneys employed for the purpose of testing the constitutionality of the Jaw is to be 'paid out of funds in the Treasury of the United-States belonging to the' beneficiaries, the act having previously provided that the United States should be made a party and the Attorney General be charged with the defense of the suits.

*361It is therefore evident that there is neither more nor less in this procedure than an attempt to provide for a judicial determination, final in- this court, of the constitutional validity of an act of Congress. Is such a determination within the judicial power conferred by the Constitution, as the same has been interpreted and defined in the authoritative decisions to which we have referred? We think it is not. That judicial power, as we have seen, is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction. The right to declare a law unconstitutional arises because an act of Congress relied upon by one or the other of such parties in determining their rights is in con.flict with the fundamental law.. The exercise of this, the most important and delicate duty of this court, is not given ,to it as a body with revisory power over the action of Congress, but because the rights of the litigants in justiciable controversies require the court to choose between the fundamental law and a law purporting to' be enacted within constitutional authority, but in fact' beyond the power delegated to the legislative branch of the Government. . This attempt to obtain a judicial declaration of the validity of the act of Congress is not presented in a “case” or “controversy,” to which, under the- Constitution of the United States, the judicial power, alone extends. It is true the United States is made a defendant to this action, but it has no interest adverse to the claimants. The object is not to assert a property right as against the Government, or to demand compensation for alleged wrongs because of action upon its part. The whole purpose of the law is. to determine the constitutional validity of this class of legislation, in a, suit not arising'.'between parties concerning .a propérty right necessarily' involved in the decision in question, but in a proceeding against'the Government in its sovereign capacity, and concerning which the only judgment required is to settle the doubtful char*362acter of the legislation in question. Such-judgment will not conclude private parties, when actual litigation brings to' the court the question of the constitutionality of such legislation. I-n a legal sense the judgment could not be executed, and amounts in fact to no more than an expression of opinion upon the validity of the acts in. question. Confining the jurisdiction of this court within the limitations conferred by the Constitution, which the court has hitherto been caréful to observe, and whose boundaries it has refused to transcend, we think the Congress, in the act of March 1, 1907, exceeded the limitations of legislative authority, so far as it required of this court action not judicial in its nature Vithin the meaning of the Constitution.

Nor can it make any difference that the petitioners had brought suits in the Supreme Court of the District of Columbia to enjoin the Secretary of the . Interior from carrying into effect the legislation subsequent to the act of July 1, 1902, which suits were pending when the. jurisdictional act here involved was passed. The latter act must depend upon its' own terms and be judged by the authority which it undertakes to confer. If such actions as are here attempted, to determine the validity of legislation, are sustained, the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended. it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it-by the Constitution, and against the exercise of which this court has steadily set its face from the beginning.

The questions involved- in this proceeding as to the validity of the legislation may arise in. suits.between individuals; and when they do. and are properly brought before this court for consideration they, of -course, must be. determined in the exercise of its judicial functions. For *363the reasons we have stated, we are constrained to hold that these actions present no justiciable controversy within the authority of the court, acting within the limitations of the Constitution under which it was created. As Congress, in passing this act as a part of the plan involved, evidently intended to provide a review of the judgment of the Court of Claims in this court, as the constitutionality of important legislation is concerned, we think the act cannot be held to intend to confer jurisdiction on that court separately considered. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 565; Employers’ Liability Cases, 207 U. S. 463.

The judgments will be reversed and the cases remanded to the Court of Claims, with directions to dismiss the petitions for want of jurisdiction.

3.5.1.2 Plaut v. Spendthrift Farm, Inc. 3.5.1.2 Plaut v. Spendthrift Farm, Inc.

Supreme Court of the United States

514 U.S. 211, 131 L. Ed. 2d 328, 115 S. Ct. 1447, 1995 U.S. LEXIS 2843, SCDB 1994-040

No. 93-1121

1995-04-18

PLAUT et al. v. SPENDTHRIFT FARM, INC., et al.

No. 93-1121.

Argued November 30, 1994

Decided April 18, 1995

*212Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in the judgment, post, p. 240. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 246.

William W. Allen argued the cause for petitioners. With him on the briefs was J. Montjoy Trimble.

Michael R. Dreeben argued the cause for the United States urging reversal. With him on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Barbara C. Biddle, Simon M. Lome, Paul Gonson, and Jacob H. Stillman.

*213 Theodore B. Olson argued the cause for respondents. With him on the briefs were Larry L. Simms, Theodore J. Boutrous, Jr., John K. Bush, D. Jarrett Arp, Barbara B. Edelman, Barry Friedman, James E. Burns, Jr., Kevin Muck, William E. Johnson, Robert M. Watt III, Robert S. Miller, and L. Clifford Craig. *

Justice Scalia

delivered the opinion of the Court.

The question presented in this case is whether § 27A(b) of the Securities Exchange Act of 1934, to the extent that it requires federal courts to reopen final judgments in private civil actions under § 10(b) of the Act, contravenes the Constitution’s separation of powers or the Due Process Clause of the Fifth Amendment.

In 1987, petitioners brought a civil action against respondents in the United States District Court for the Eastern District of Kentucky. The complaint alleged that in 1983 and 1984 respondents had committed fraud and deceit in the sale of stock in violation of § 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 of the Securities and Exchange Commission. The case was mired in pretrial proceedings in the District Court until June 20, 1991, when we decided Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350. Lampf held that “[litigation instituted pursuant to § 10(b) and Rule 10b-5 . . . must be commenced within one year after the discovery of the facts constituting the violation and within three years after such violation.” Id., at *214 364. We applied that holding to the plaintiff-respondents in Lampf itself, found their suit untimely, and reinstated a summary judgment previously entered in favor of the defendant-petitioners. Ibid. On the same day we decided James B. Beam Distilling Co. v. Georgia, 501 U. S. 529 (1991), in which a majority of the Court held, albeit in different opinions, that a new rule of federal law that is applied to the parties in the case announcing the rule must be applied as well to all cases pending on direct review. See Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 92 (1993). The joint effect of Lampf and Beam was to mandate application of the l-year/3-year limitations period to petitioners’ suit. The District Court, finding that petitioners’ claims were untimely under the Lampf rule, dismissed their action with prejudice on August 13, 1991. Petitioners filed no appeal; the judgment accordingly became final 30 days later. See 28 U. S. C. § 2107(a) (1988 ed., Supp. V); Griffith v. Kentucky, 479 U. S. 314, 321, n. 6 (1987).

On December 19, 1991, the President signed the Federal Deposit Insurance Corporation Improvement Act of 1991, 105 Stat. 2236. Section 476 of the Act — a section that had nothing to do with FDIC improvements — became §27A of the Securities Exchange Act of 1934, and was later codified as 15 U. S. C. § 78aa-1 (1988 ed., Supp. V). It provides:

“(a) Effect on pending causes of action

“The limitation period for any private civil action implied under section 78j(b) of this title [§ 10(b) of the Securities Exchange Act of 1934] that was commenced on or before June 19, 1991, shall be the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19,1991.

“(b) Effect on dismissed causes of action

“Any private civil action implied under section 78j(b) of this title that was commenced on or before June 19, 1991—

*215“(1) which was dismissed as time barred subsequent to June 19,1991, and

“(2) which would have been timely filed under the limitation period provided by the laws applicable in the jurisdiction, including principles of retroactivity, as such laws existed on June 19,1991,

“shall be reinstated on motion by the plaintiff not later than 60 days after December 19, 1991.”

On February 11, 1992, petitioners returned to the District Court and filed a motion to reinstate the action previously dismissed with prejudice. The District Court found that the conditions set out in §§27A(b)(l) and (2) were met, so that petitioners’ motion was required to be granted by the terms of the statute. It nonetheless denied the motion, agreeing with respondents that §27A(b) is unconstitutional. Memorandum Opinion and Order, Civ. Action No. 87-438 (ED Ky., Apr. 13, 1992). The United States Court of Appeals for the Sixth Circuit affirmed. 1 F. 3d 1487 (1993). We granted certiorari. 511 U. S. 1141 (1994).1

Respondents bravely contend that §27A(b) does not require federal courts to reopen final judgments, arguing first that the reference to “the laws applicable in the jurisdiction . . . as such laws existed on June 19, 1991” (the day before Lamp† was decided) may reasonably be construed to refer precisely to the limitations period provided in Lampf itself, in which case petitioners’ action was time barred even under *216§ 27A.2 It is true that “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312-313 (1994); see also id., at 313, n. 12. But respondents’ argument confuses the question of what the law in fact was on June 19, 1991, with the distinct question of what § 27A means by its reference to what the law was. We think it entirely clear that it does not mean the law enunciated in Lampf, for two independent reasons. First, Lampf provides a uniform, national statute of limitations (instead of using the applicable state limitations period, as lower federal courts had previously done. See Lampf, 501 U. S., at 354, and n. 1). If the statute referred to that law, its reference to the “laws applicable in the jurisdiction” (emphasis added) would be quite inexplicable. Second, if the statute refers to the law enunciated in Lampf, it is utterly without effect, a result to be , avoided if possible. American Nat. Red Cross v. S. G., 505 U. S. 247, 263-264 (1992); see 2A N. Singer, Sutherland on Statutory Construction § 46.06 (Sands rev. 4th ed. 1984). It would say, in subsection (a), that the limitations period is what the Supreme Court has held to be the limitations period; and in subsection (b), that suits dismissed as untimely under Lampf which were timely under Lampf (a null set) shall be reinstated. To avoid a constitutional question by holding that Congress enacted, and the President approved, a blank sheet of paper would indeed constitute “disingenuous evasion.” George Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933).

*217As an alternative reason why § 27A(b) does not require the reopening of final judgments, respondents suggest that the subsection applies only to cases still pending in the federal courts when §27A was enacted. This has only half the defect of the first argument, for it makes only half of §27A purposeless — §27A(b). There is no need to “reinstate” actions that are still pending; § 27A(a) (the new statute of limitations) could and would be applied by the courts of appeals. On respondents’ reading, the only consequence of §27A(b) would be the negligible one of permitting the plaintiff in the pending appeal from a statute-of-limitations dismissal to return immediately to the district court, instead of waiting for the court of appeals’ reversal. To enable § 27A(b) to achieve such an insignificant consequence, one must disregard the language of the provision, which refers generally to suits “dismissed as time barred.” It is perhaps arguable that this does not include suits that are not yet finally dismissed, i. e., suits still pending on appeal; but there is no basis for the contention that it includes only those. In short, there is no reasonable construction on which §27A(b) does not require federal courts to reopen final judgments in suits dismissed with prejudice by virtue of Lampf.

Ill

Respondents submit that § 27A(b) violates both the separation of powers and the Due Process Clause of the Fifth Amendment.3 Because the latter submission, if correct, might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment, the former is the narrower ground for adjudication of the constitutional questions in the case, and we therefore consider it first. Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandéis, J., concurring). We conclude that in § 27A(b) Congress has exceeded its authority by requiring the federal courts to exercise. *218“[t]he judicial Power of the United States,” U. S. Const., Art. III, §1, in a manner repugnant to the text, structure, and traditions of Article III.

Our decisions to date have identified two types of legislation that require federal courts to exercise the judicial power in a manner that Article III forbids. The first appears in United States v. Klein, 13 Wall. 128 (1872), where we refused to give effect to a statute that was said “[to] prescribe rules of decision to the Judicial Department of the government in cases pending before it.” Id., at 146. Whatever the precise scope of Klein, however, later decisions have made clear that its prohibition does not take hold when Congress “amend[s] applicable law.” Robertson v. Seattle Audubon Soc., 503 U. S. 429, 441 (1992). Section 27A(b) indisputably does set out substantive legal standards for the Judiciary to apply, and in that sense changes the law (even if solely retroactively). The second type of unconstitutional restriction upon the exercise of judicial power identified by past cases is exemplified by Hayburn’s Case, 2 Dall. 409 (1792), which stands for the principle that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103 (1948). Yet under any application of §27A(b) only courts are involved; no officials of other departments sit in direct review of their decisions. Section 27A(b) therefore offends neither of these previously established prohibitions.

We think, however, that § 27A(b) offends a postulate of Article III just as deeply rooted in our law as those we have mentioned. Article III establishes a “judicial department” with the “province and duty ... to say what the law is” in particular cases and controversies. Marbury v. Madison, 1 Cranch 137, 177 (1803). The record of history shows that the Framers crafted this charter of the judicial department with an expressed understanding that it gives the Federal Judiciary the power, not merely to rule on cases, but to de *219 tide them, subject to review only by superior courts in the Article III hierarchy — with an understanding, in short, that “a judgment conclusively resolves the case” because “a ‘judicial Power’ is one to render dispositive judgments.” Easter-brook, Presidential Review, 40 Case W. Res. L. Rev. 905, 926 (1990). By retroactively commanding the federal courts to reopen final judgments, Congress has violated this fundamental principle.

The Framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers, which had been prevalent in the colonies long before the Revolution, and which after the Revolution had produced factional strife and partisan oppression. In the 17th and 18th centuries colonial assemblies and legislatures functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments. G. Wood, The Creation of the American Republic 1776-1787, pp. 154-155 (1969). Often, however, they chose to correct the judicial process through special bills or other enacted legislation. It was common for such legislation not to prescribe a resolution of the dispute, but rather simply to set aside the judgment and order a new trial or appeal. M. Clarke, Parliamentary Privilege in the American Colonies 49-51 (1943). See, e.g., Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208 (1902) (collecting documents from 1708-1709); 5 Laws of New Hampshire, Including Public and Private Acts, Resolves, Votes, Etc., 1784-1792 (Metcalf ed. 1916). Thus, as described in our discussion of Hayburn’s Case, supra, at 218, such legislation bears not on the problem of interbranch review but on the problem of finality of judicial judgments.

The vigorous, indeed often radical, populism of the revolutionary legislatures and assemblies increased the frequency of legislative correction of judgments. Wood, supra, at 155-156, 407-408. See also INS v. Chadha, 462 U. S. 919, 961 *220(1983) (Powell, J., concurring). “The period 1780-1787 . . . was a period of ‘constitutional reaction’ ” to these developments, “which ... leaped suddenly to its climax in the Philadelphia Convention.” E. Corwin, The Doctrine of Judicial Review 37 (1914). Voices from many quarters, official as well as private, decried the increasing legislative interference with the private-law judgments of the courts. In 1786, the Vermont Council of Censors issued an “Address of the Council of Censors to the Freemen of the State of Vermont” to fulfill the council’s duty, under the State Constitution of 1784, to report to the people “ ‘whether the legislative and executive branches of government have assumed to themselves, or exercised, other or greater powers than they are entitled to by the Constitution.’” Vermont State Papers 1779-1786, pp. 531, 533 (Slade ed. 1823). A principal method of usurpation identified by the censors was “[t]he instances ... of judgments being vacated by legislative acts.” Id., at 540. The council delivered an opinion

“that the General Assembly, in all the instances where they have vacated judgments, recovered in due course of law, (except where the particular circumstances of the case evidently made it necessary to grant a new trial) have exercised a power not delegated, or intended to be delegated, to them, by the Constitution. ... It super-cedes the necessity of any other law than the pleasure of the Assembly, and of any other court than themselves: for it is an imposition on the suitor, to give him the trouble of obtaining, after several expensive trials, a final judgment agreeably to the known established laws of the land; if the Legislature, by a sovereign act, can interfere, reverse the judgment, and decree in such manner, as they, unfettered by rules, shall think proper.” Ibid.

So too, the famous report of the Pennsylvania Council of Censors in 1784 detailed the abuses of legislative interference with the courts at the behest of private interests and *221factions. As the General Assembly had (they wrote) made a custom of “extending their deliberations to the cases of individuals,” the people had “been taught to consider an application to the legislature, as a shorter and more certain mode of obtaining relief from hardships and losses, than the usual process of law.” The censors noted that because “favour and partiality have, from the nature of public bodies of men, predominated in the distribution of this relief... [t]hese dangerous procedures have been too often recurred to, since the revolution.” Report of the Committee of the Council of Censors 6 (Bailey ed. 1784).

This sense of a sharp necessity to separate the legislative from the judicial power, prompted by the crescendo of legislative interference with private judgments of the courts, triumphed among the Framers of the new Federal Constitution. See Corwin, The Progress of Constitutional Theory Between the Declaration of Independence and the Meeting of the Philadelphia Convention, 30 Am. Hist. Rev. 511, 514-517 (1925). The Convention made the critical decision to establish a judicial department independent of the Legislative Branch by providing that “the judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Before and during the debates on ratification, Madison, Jefferson, and Hamilton each wrote of the factional disorders and disarray that the system of legislative equity had produced in the years before the framing; and each thought that the separation of the legislative from the judicial power in the new Constitution would cure them. Madison’s Federalist No. 48, the famous description of the process by which “[tjhe legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex,” referred to the report of the Pennsylvania Council of Censors to show that in that State “cases belonging to the judiciary department [had been] frequently drawn within legislative cognizance and determination.” The Fed*222eralist No. 48, pp. 333, 337 (J. Cooke ed. 1961). Madison relied as well on Jefferson’s Notes on the State of Virginia, which mentioned, as one example of the dangerous concentration of governmental powers into the hands of the legislature, that “the Legislature ... in many instances decided rights which should have been left to judiciary controversy.” Id., at 336 (emphasis deleted).4

If the need for separation of legislative from judicial power was plain, the principal effect to be accomplished by that separation was even plainer. As Hamilton wrote in his exegesis of Article III, § 1, in The Federalist No. 81:

“It is not true . .. that the parliament of Great Britain, or the legislatures of the particular states, can rectify the exceptionable decisions of their respective courts, in any other sense than might be done by a future legislature of the United States. The theory neither of the British, nor the state constitutions, authorises the revisal of a judicial sentence, by a legislative act. ... A legislature without exceeding its province cannot reverse a determination once made, in a particular case; though it may prescribe a new rule for future cases.” The Federalist No. 81, p. 545 (J. Cooke ed. 1961).

The essential balance created by this allocation of authority was a simple one. The Legislature would be possessed of power to “prescribe] the rules by which the duties and rights of every citizen are to be regulated,” but the power of “[t]he interpretation of the laws” would be “the proper and peculiar province of the courts.” Id., No. 78, at 523, 525. *223See also Corwin, The Doctrine of Judicial Review, at 42. The Judiciary would be, “from the nature of its functions,... the [department] least dangerous to the political rights of the constitution,” not because its acts were subject to legislative correction, but because the binding effect of its acts was limited to particular cases and controversies. Thus, “though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter:... so long as the judiciary remains truly distinct from both the legislative and executive.” The Federalist No. 78, at 522, 523.

Judicial decisions in the period immediately after ratification of the Constitution confirm the understanding that it forbade interference with the final judgments of courts. In Calder v. Bull, 3 Dall. 386 (1798), the Legislature of Connecticut had enacted a statute that set aside the final judgment of a state court in a civil case. Although the issue before this Court was the construction of the Ex Post Facto Clause, Art. I, §10, Justice Iredell (a leading Federalist who had guided the Constitution to ratification in North Carolina) noted that

“the Legislature of [Connecticut] has been in the uniform, uninterrupted, habit of exercising a general superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to some of us, that in any form, there should exist a power to grant, with respect to suits depending or adjudged, new rights of trial, new privileges of proceeding, not previously recognized and regulated by positive institutions____ The power ... is judicial in its nature; and whenever it is exercised, as in the present instance, it is an exercise of judicial, not of legislative, authority.” Id., at 398.

The state courts of the era showed a similar understanding of the separation of powers, in decisions that drew little distinction between the federal and state constitutions. To *224choose one representative example from a multitude: In Bates v. Kimball, 2 Chipman 77 (Vt. 1824), a special Act of the Vermont Legislature authorized a party to appeal from the judgment of a court even though, under the general law, the time for appeal had expired. The court, noting that the unappealed judgment had become final, set itself the question “Have the Legislature power to vacate or annul an existing judgment between party and party?” Id., at 83. The answer was emphatic: “The necessity of a distinct and separate existence of the three great departments of government . . . had been proclaimed and enforced by . . . Blackstone, Jefferson and Madison,” and had been “sanctioned by the people of the United States, by being adopted in terms more or less explicit, into all their written constitutions.” Id., at 84. The power to annul a final judgment, the court held (citing Hayburn’s Case, 2 Dall., at 410), was “an assumption of Judicial power,” and therefore forbidden. Bates v. Kimball, supra, at 90. For other examples, see Merrill v. Sherburne, 1 N. H. 199 (1818) (legislature may not vacate a final judgment and grant a new trial); Lewis v. Webb, 3 Greenleaf 299 (Me. 1825) (same); T. Cooley, Constitutional Limitations 95-96 (1868) (collecting cases); J. Sutherland, Statutory Construction 18-19 (J. Lewis ed. 1904) (same).

By the middle of the 19th century, the constitutional equilibrium created by the separation of the legislative power to make general law from the judicial power to apply that law in particular cases was so well understood and accepted that it could survive even Dred Scott v. Sandford, 19 How. 393 (1857). In his First Inaugural Address, President Lincoln explained why the political branches could not, and need not, interfere with even that infamous judgment:

“I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit, as to the object of that suit.... And while it is obviously possible that *225such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice.” 4 R. Basler, The Collected Works of Abraham Lincoln 268 (1953) (First Inaugural Address 1861).

And the great constitutional scholar Thomas Cooley addressed precisely the question before us in his 1868 treatise:

“If the legislature cannot thus indirectly control the action of the courts, by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry.” Cooley, supra, at 94-95.

Section 27A(b) effects a clear violation of the separation-of-powers principle we have just discussed. It is, of course, retroactive legislation, that is, legislation that prescribes what the law was at an earlier time, when the act whose effect is controlled by the legislation occurred — in this case, the filing of the initial Rule 10b-5 action in the District Court. When retroactive legislation requires its own application in a case already finally adjudicated, it does no more and no less than “reverse a determination once made, in a particular case.” The Federalist No. 81, at 545. Our decisions stemming from Hayburn’s Case — although their precise holdings are not strictly applicable here, see supra, at 218 — have uniformly provided fair warning that such an act exceeds the powers of Congress. See, e.g., Chicago & Southern Air Lines, Inc., 333 U. S., at 113 (“Judgments within the powers vested in courts by the Judiciary Article *226of the Constitution may not lawfully be revised, overturned or refused faith and credit by another Department of Government”); United States v. O’Grady, 22 Wall. 641, 647-648 (1875) (“Judicial jurisdiction implies the power to hear and determine a cause, and ... Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal”); Gordon v. United States, 117 U. S. Appx. 697, 700-704 (1864) (opinion of Taney, C. J.), (judgments of Article III courts are “final and conclusive1 upon the rights of the parties”); Hayburn’s Case, 2 Dall., at 411 (opinion of Wilson and Blair, JJ., and Peters, D. J.) (“[RJevision and control” of Article III judgments is “radically inconsistent with the independence of that judicial power which is vested in the courts”); id., at 413 (opinion of Iredell, J., and Sitgreaves, D. J.) (“[N]o decision of any court of the United States can, under any circumstances, ... be liable to a revision, or even suspension, by the [legislature itself, in whom no judicial power of any kind appears to be vested”). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431 (1856) (“[I]t is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby .... This, as a general proposition, is certainly not to be denied, especially as it respects adjudication upon the private rights of parties. When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it”). Today those clear statements must either be honored, or else proved false.

It is true, as petitioners contend, that Congress can always revise the judgments of Article III courts in one sense: When a new law makes clear that it is retroactive, an appellate court must apply that law in reviewing judgments still on appeal that were rendered before the law was enacted, and must alter the outcome accordingly. See United States v. Schooner Peggy, 1 Cranch 103 (1801); Landgraf v. US I Film Products, 511 U. S. 244, 273-280 (1994). Since that is *227so, petitioners argue, federal courts must apply the “new” law created by §27A(b) in finally adjudicated cases as well; for the line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute, see, e. g., 28 U. S. C. § 2107(a) (30-day time limit for appeal to federal court of appeals), and so cannot possibly be a constitutional line. But a distinction between judgments from which all appeals have been forgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a batch of unconnected courts, but a judicial department composed of “inferior Courts” and “one supreme Court.” Within that hierarchy, the decision of an inferior court is not (unless the time for appeal has expired) the final word of the department as a whole. It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress’s latest enactment, even when that has the effect of overturning the judgment of an inferior court, since each court, at every level, must “decide according to existing laws.” Schooner Peggy, supra, at 109. Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was. Finality of a legal judgment is determined by statute, just as entitlement to a government benefit is a statutory creation; but that no more deprives the former of its constitutional significance for separation-of-powers analysis than it deprives the latter of its significance for due process purposes. See, e. g., Cleveland Bd. of Ed. v. Loudermill, 470 U. S. 532 (1985); Meachum v. Fano, 427 U. S. 215 (1976).

To be sure, § 27A(b) reopens (or directs the reopening of) final judgments in a whole class of cases rather than in a particular suit. We do not see how that makes any differ*228ence. The separation-of-powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced, not of acting in a manner — viz., with particular rather than general effect — that is unusual (though, we must note, not impossible) for a legislature. To be sure, a general statute such as this one may reduce the perception that legislative interference with judicial judgments was prompted by individual favoritism; but it is legislative interference with judicial judgments nonetheless. Not favoritism, nor even corruption, but power is the object of the separation-of-powers prohibition. The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons, such as the legislature’s genuine conviction (supported by all the law professors in the land) that the judgment was wrong; and it is violated 40 times over when 40 final judgments are legislatively dissolved.

It is irrelevant as well that the final judgments reopened by § 27A(b) rested on the bar of a statute of limitations. The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits. See, e.g., Fed. Rule Civ. Proc. 41(b); United States v. Oppenheimer, 242 U. S. 85, 87-88 (1916). Petitioners suggest, directly or by implication, two reasons why a merits judgment based on this particular ground may be uniquely subject to congressional nullification. First, there is the fact that the length and indeed even the very existence of a statute of limitations upon a federal cause of action is entirely subject to congressional control. But virtually all of the reasons why a final judgment on the merits is rendered on a federal claim are subject to congressional control. Congress can eliminate, for example, a particular element of a cause of action that plaintiffs have found it difficult to establish; or an evidentiary rule that has often *229excluded essential testimony; or a rule of offsetting wrong (such as contributory negligence) that has often prevented recovery. To distinguish statutes of limitations on the ground that they are mere creatures of Congress is to distinguish them not at all. The second supposedly distinguishing characteristic of a statute of limitations is that it can be extended, without violating the Due Process Clause, after the cause of the action arose and even after the statute itself has expired. See, e. g., Chase Securities Corp. v. Donaldson, 325 U. S. 304 (1945). But that also does not set statutes of limitations apart. To mention only one other broad category of judgment-producing legal rule: Rules of pleading and proof can similarly be altered after the cause of action arises, Landgraf v. USI Film Products, supra, at 275, and n. 29, and even, if the statute clearly so requires, after they have been applied in a case but before final judgment has been entered. Petitioners’ principle would therefore lead to the conclusion that final judgments rendered on the basis of a stringent (or, alternatively, liberal) rule of pleading or proof may be set aside for retrial under a new liberal (or, alternatively, stringent) rule of pleading or proof. This alone provides massive scope for undoing final judgments and would substantially subvert the doctrine of separation of powers.

The central theme of the dissent is a variant on these arguments. The dissent maintains that Lampf “announced” a new statute of limitations, post, at 246, in an act of “judicial ... lawmaking,” post, at 247, that “changed the law,” post, at 250. That statement, even if relevant, would be wrong. The point decided in Lampf had never before been addressed by this Court, and was therefore an open question, no matter what the lower courts had held at the time. But the more important point is that Lampf as such is irrelevant to this case. The dissent itself perceives that “[w]e would have the same issue to decide had Congress enacted the Lampf rule,” and that the Lampf rule’s genesis. in judicial lawmaking rather than, shall we say, legislative lawmaking, “should not *230affect the separation-of-powers analysis.” Post, at 247. Just so. The issue here is not the validity or even the source of the legal rule that produced the Article III judgments, but rather the immunity from legislative abrogation of those judgments themselves. The separation-of-powers question before us has nothing to do with Lanvpf, and the dissent’s attack on Lampf has nothing to do with the question before us.

Apart from the statute we review today, we know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation. That prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed. The closest analogue that the Government has been able to put forward is the statute at issue in United States v. Sioux Nation, 448 U. S. 371 (1980). That law required the Court of Claims, “ ‘[notwithstanding any other provision of law . . . [to] review on the merits, without regard to the defense of res judicata or collateral estoppel,’ ” a Sioux claim for just compensation from the United States— even though the Court of Claims had previously heard and rejected that very claim. We considered and rejected separation-of-powers objections to the statute based upon Hayburn’s Case and United States v. Klein. See 448 U. S., at 391-392. The basis for our rejection was a line of precedent (starting with Cherokee Nation v. United States, 270 U. S. 476 (1926)) that stood, we said, for the proposition that “Congress has the power to waive the res judicata effect of a prior judgment entered in the Government’s favor on a claim against the United States.” Sioux Nation, 448 U. S., at 397. And our holding was as narrow as the precedent on which we had relied: “In sum,. . . Congress’ mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does *231not violate the doctrine of separation of powers.” Id., at 407.5

The Solicitor General suggests that even if Sioux Nation is read in accord with its holding, it nonetheless establishes that Congress may require Article III courts to reopen their final judgments, since “if res judicata were compelled by Article III to safeguard the structural independence of the courts, the doctrine would not be subject to waiver by any party litigant.” Brief for United States 27 (citing Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833,850-851 (1986)). But the proposition that legal defenses based upon doctrines central to the courts’ structural independence can never be waived simply does not accord with our cases. Certainly one such doctrine consists of the “judicial Power” to disregard an unconstitutional statute, see Marbury, 1 Cranch, at 177; yet none would suggest that a litigant may never waive the defense that a statute is unconstitutional. See, e. g., G. D. Searle & Co. v. Cohn, 455 U. S. 404, 414 (1982). What may follow from our holding that the judicial power unalterably includes the power to render final judgments is not that waivers of res judicata are always impermissible, but rather that, as many Federal Courts of Appeals have held, waivers of res judicata need not always be accepted— that trial courts may in appropriate cases raise the res judicata bar on their own motion. See, e. g., Coleman v. Ramada Hotel Operating Co., 933 F. 2d 470, 475 (CA7 1991); In re Medomak Canning, 922 F. 2d 895, 904 (CA1 1990); Holloway Constr. Co. v. United States Dept. of Labor, 891 F. 2d 1211, 1212 (CA6 1989). Waiver subject to the control of the *232courts themselves would obviously raise no issue of separation of powers, and would be precisely in accord with the language of the decision that the Solicitor General relies upon. We held in Schor that, although a litigant had consented to bring a state-law counterclaim before an Article I tribunal, 478 U. S., at 849, we would nonetheless choose to consider his Article III challenge, because “when these Article III limitations are at issue, notions of consent and waiver cannot be dispositive,” id., at 851 (emphasis added). See also Freytag v. Commissioner, 501 U. S. 868, 878-879 (1991) (finding a “rare cas[e] in which we should exercise our discretion” to hear a waived claim based on the Appointments Clause, Art. II, §2, cl. 2).6

Petitioners also rely on a miscellany of decisions upholding legislation that altered rights fixed by the final judgments of non-Article III courts, see, e. g., Sampeyreac v. United States, 7 Pet. 222, 288 (1833); Freeborn v. Smith, 2 Wall. 160 (1865), or administrative agencies, Paramino Lumber Co. v. Marshall, 309 U. S. 370 (1940), or that altered the prospective effect of injunctions entered by Article III courts, Wheeling & Belmont Bridge Co., 18 How., at 421. These cases distinguish themselves; nothing in our holding today calls them into question. Petitioners rely on general statements from some of these cases that legislative annulment of final judgments is not an exercise of judicial power. But even if it were our practice to decide cases by weight of prior dicta, we would find the many dicta that reject congressional *233power to revise the judgments of Article III courts to be the more instructive authority. See supra, at 225-226.7

Finally, petitioners liken § 27A(b) to Federal Rule of Civil Procedure 60(b), which authorizes courts to relieve parties from a final judgment for grounds such as excusable neglect, newly discovered evidence, fraud, or “any other reason justifying relief . . . .” We see little resemblance. Rule 60(b), which authorizes discretionary judicial revision of judgments in the listed situations and in other “ ‘extraordinary circumstances,’” Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 864 (1988), does not impose any legislative mandate to reopen upon the courts, but merely reflects and *234confirms the courts’ own inherent and discretionary power, “firmly established in English practice long before the foundation of our Republic,” to set aside a judgment whose enforcement would work inequity. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 244 (1944). Thus, Rule 60(b), and the tradition that it embodies, would be relevant refutation of a claim that reopening a final judgment is always a denial of property without due process; but they are irrelevant to the claim that legislative instruction to reopen impinges upon the independent constitutional authority of the courts.

The dissent promises to provide “[a] few contemporary examples” of statutes retroactively requiring final judgments to be reopened, “to demonstrate that [such statutes] are ordinary products of the exercise of legislative power.” Post, at 256. That promise is not kept. The relevant retroactivity, of course, consists not of the requirement that there be set aside a judgment that has been rendered prior to its being setting aside — for example, a statute passed today which says that all default judgments rendered in the future may be reopened within 90 days after their entry. In that sense, all requirements to reopen are “retroactive,” and the designation is superfluous. Nothing we say today precludes a law such as that. The finality that a court can pronounce is no more than what the law in existence at the time of judgment will permit it to pronounce. If the law then applicable says that the judgment may be reopened for certain reasons, that limitation is built into the judgment itself, and its finality is so conditioned. The present case, however, involves a judgment that Congress subjected to a reopening requirement which did not exist when the judgment was pronounced. The dissent provides not a single clear prior instance of such congressional áction.

The dissent cites, first, Rule 60(b), which it describes as a “familiar remedial measure.” Ibid. As we have just discussed, Rule 60(b) does not provide a new remedy at all, but *235is simply the recitation of pre-existing judicial power. The same is true of another of the dissent’s examples, 28 U. S. C. § 2255, which provides federal prisoners a statutory motion to vacate a federal sentence. This procedure “‘restates, clarifies and simplifies the procedure in the nature of the ancient writ of error coram nobis.’” United States v. Hayman, 342 U. S. 205, 218 (1952) (quoting the 1948 Reviser’s Note to § 2255). It is meaningless to speak of these statutes as applying “retroactively,” since they simply codified judicial practice that pre-existed. Next, the dissent cites the provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 54 Stat. 1178, 50 U. S. C. App. §520(4), which authorizes courts, upon application, to reopen judgments against members of the Armed Forces entered while they were on active duty. It could not be clearer, however, that this provision was not retroactive. It says: “If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service . . . such judgment may ... be opened . . . .” (Emphasis added.)

The dissent also cites, post, at 258, a provision of the Handicapped Children’s Protection Act of 1986, 82 Stat. 901, 20 U. S. C. § 1415(e)(4)(B) (1988 ed. and Supp. V), which provided for the award of attorney’s fees under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U. S. C. § 1411 et seq. (1988 ed. and Supp. V). This changed the law regarding attorney’s fees under the Education for All Handicapped Children Act, after our decision in Smith v. Robinson, 468 U. S. 992 (1984), found such fees to be unavailable. The provision of the Statutes at Large adopting this amendment to the United States Code specified, in effect, that it would apply not only to proceedings brought after its enactment, but also to proceedings pending at the time of, or brought after, the decision in Smith. See 100 Stat. 798. The amendment says nothing about reopening final judgments, and the retroactivity provision may well mean noth*236ing more than that it applies not merely to new suits commenced after the date of its enactment, but also to previously filed (but not yet terminated) suits of the specified sort. This interpretation would be consistent with the only case the dissent cites, which involved a court-entered consent decree not yet fully executed. Counsel v. Dow, 849 P. 2d 731, 734, 738-739 (CA2 1988). Alternatively, the statute can perhaps be understood to create a new cause of action for attorney’s fees attributable to already concluded litigation. That would create no separation-of-powers problem, and would be consistent with this Court’s view that “[attorney's fee determinations ... are ‘collateral to the main cause of action’ and ‘uniquely separable from the cause of action to be proved at trial.’ ” Landgraf v. USI Film Products, 511 U. S., at 277 (quoting White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 451-452 (1982)).8

The dissent’s perception that retroactive reopening provisions are to be found all about us is perhaps attributable to its inversion of the statutory presumption regarding retroactivity. Thus, it asserts that Rule 60(b) must be retroactive, since “[n]ot a single word in its text suggests that it does not apply to judgments entered prior to its effective date.” *237 Post, at 256-257. This reverses the traditional rule, confirmed only last Term, that statutes do not apply retroactively unless Congress expressly states that they do. See Landgraf, supra, at 277-280. The dissent adds that “the traditional construction of remedial measures . . . supports] construing [Rule 60(b)] to apply to past as well as future judgments.” Post, at 257. But reliance on the vaguely remedial purpose of a statute to defeat the presumption against retroactivity was rejected in the companion cases of Landgraf, see 511 U. S., at 284-286, and n. 37, and Rivers v. Roadway Express, 511 U. S., at 309-313. Cf. Landgraf, supra, at 297 (Blackmun, J., dissenting) (“This presumption [against retroactive legislation] need not be applied to remedial legislation ...”) (citing Sampeyreac, 7 Pet., at 238).

The dissent sets forth a number of hypothetical horribles flowing from our assertedly “rigid holding” — for example, the inability to set aside a civil judgment that has become final during a period when a natural disaster prevented the timely filing of a certiorari petition. Post, at 262. That is horrible not because of our holding, but because the underlying statute itself enacts a “rigid” jurisdictional bar to entertaining untimely civil petitions. Congress could undoubtedly enact prospective legislation permitting, or indeed requiring, this Court to make equitable exceptions to an otherwise applicable rule of finality, just as district courts do pursuant to Rule 60(b). It is no indication whatever of the invalidity of the constitutional rule which we announce, that it produces unhappy consequences when a legislature lacks foresight, and acts belatedly to remedy a deficiency in the law. That is a routine result of constitutional rules. See, e. g., Collins v. Youngblood, 497 U. S. 37 (1990) (Ex Post Facto Clause precludes postoffense statutory extension of a criminal sentence); United States Trust Co. of N. Y. v. New Jersey, 431 U. S. 1 (1977) (Contract Clause prevents retroactive alteration of contract with state bondholders); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 589-*238590, 601-602 (1935) (Takings Clause invalidates a bankruptcy law that abrogates a vested property interest). See also United States v. Security Industrial Bank, 459 U. S. 70, 78 (1982).

Finally, we may respond to the suggestion of the concurrence that this case should be decided more narrowly. The concurrence is willing to acknowledge only that “sometimes Congress lacks the power under Article I to reopen an otherwise closed court judgment,” post, at 240-241. In the present context, what it considers critical is that §27A(b) is “exclusively retroactive” and “appli[es] to a limited number of individuals.” Post, at 241. If Congress had only “provided] some of the assurances against ‘singling out’ that ordinary legislative activity normally provides — say, prospectivity and general applicability — we might have a different case.” Post, at 243.

This seems to us wrong in both fact and law. In point of fact, § 27A(b) does not “single out” any defendant for adverse treatment (or any plaintiff for favorable treatment). Rather, it identifies a class of actions (those filed pr e-Lampf, timely under applicable state law, but dismissed as time barred post-Lampf) which embraces many plaintiffs and defendants, the precise number and identities of whom we even now do not know. The concurrence’s contention that the number of covered defendants “is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case,” post, at 244 (emphasis added), renders the concept of “singling out” meaningless.

More importantly, however, the concurrence’s point seems to us wrong in law. To be sure, the class of actions identified by § 27A(b) could have been more expansive (e. g., all actions that were or could have been filed pr e-Lampf) and the provision could have been written to have prospective as well as retroactive effect (e. g., “all post-Lampf dismissed actions, plus all future actions under Rule 10b-5, shall be timely if brought within 30 years of the injury”). But it escapes us *239how this could in any way cause the statute to be any less an infringement upon the judicial power. The nub of that infringement consists not of the Legislature’s acting in a particularized and hence (according to the concurrence) nonlegislative fashion;9 but rather of the Legislature’s nullifying prior, authoritative judicial action. It makes no difference whatever to that separation-of-powers violation that it is in gross rather than particularized (e. g., “we hereby set aside all hitherto entered judicial orders”), or that it is not accompanied by an “almost” violation of the Bill of Attainder Clause, or an “almost” violation of any other constitutional provision.

Ultimately, the concurrence agrees with our judgment only “[bjecause the law before us embodies risks of the very sort that our Constitution’s ‘separation of powers’ prohibition seeks to avoid.” Post, at 246. But the doctrine of separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm, can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict. It is interesting that the concurrence quotes twice, and cites without quotation a third time, the opinion of Justice Powell in *240 INS v. Chadha, 462 U. S., at 959. But Justice Powell wrote only for himself in that case. He alone expressed dismay that “[t]he Court’s decision . . . apparently will invalidate every use of the legislative veto,” and opined that “[t]he breadth of this holding gives one pause.” Ibid. It did not give pause to the six-Justice majority, which put an end to the long-simmering interbranch dispute that would otherwise have been indefinitely prolonged. We think legislated invalidation of judicial judgments deserves the same categorical treatment accorded by Chadha to congressional invalidation of executive action. The delphic alternative suggested by the concurrence (the setting aside of judgments is all right so long as Congress does not “impermissibly tr[y] to apply, as well as make, the law,” post, at 241) simply prolongs doubt and multiplies confrontation. Separation of powers, a distinctively American political doctrine, profits from the advice authored by a distinctively American poet: Good fences make good neighbors.

* * *

We know of no previous instance in which Congress has enacted retroactive legislation requiring an Article III court to set aside a final judgment, and for good reason. The Constitution’s separation of legislative and judicial powers denies it the authority to do so. Section 27A(b) is unconstitutional to the extent that it requires federal courts to reopen final judgments entered before its enactment. The judgment of the Court of Appeals is affirmed.

It is so ordered.

The dissent tries to turn the dicta of the territorial-court cases, Sampeyreac and Freeborn, into holdings. It says of Sampeyreac that “the relevant judicial power that the [challenged] statute arguably supplanted was this Court’s Article III appellate jurisdiction.” Post, at 253. Even if it were true that the judicial power under discussion was that of this Court (which is doubtful), the point could still not possibly constitute a holding, since there was no “supplanted power” at issue in the case. One of the principal grounds of decision was that the finality of the territorial court’s decree had not been retroactively abrogated. The decree had been entered under a previous statute which provided that a decree “shall be final and conclusive between the parties.” Sampeyreac v. United States, 7 Pet., at 239 (emphasis in original). The asserted basis for reopening was fraud, in that Sampeyreac did not actually exist. We reasoned that “as Sampeyreac was a fictitious person, he was no party to the decree, and the act [under which the decree had allegedly become final] in strictness does not apply to the case.” Ibid.

The dissent likewise says of Freeborn that “the ‘judicial power’ to which the opinion referred was this Court’s Article III appellate jurisdiction.” Post, at 255. Once again, even if it was, the point remains dictum. No final judgment was at issue in Freeborn. The challenged statute reached only “‘cases of appeal or writ of error heretofore prosecuted and now pending in the supreme court of the United States,’ ” see post, at 254, n. 7 (quoting 13 Stat. 441) (emphasis added). As we have explained, see supra, at 226, Congress may require (insofar as separation-of-powers limitations are concerned) that new statutes be applied in cases not yet final but still pending on appeal.

Even the dissent’s scouring the 50 States for support has proved unproductive. It cites statutes from five States, post, at 258-259, nn. 12-13. Four of those statutes involve a virtually identical provision, which permits the state-chartered entity that takes over an insolvent insurance company to apply to have any of the insurer’s default judgments set aside. See Del. Code Ann., Tit. 18, § 4418 (1989); Fla. Stat. § 631.734 (1984); N. Y. Ins. Law § 7717 (McKinney Supp. 1995); 40 Pa. Cons. Stat. § 991.1716 (Supp. 1994). It is not at all clear, indeed it seems to us unlikely, that these statutes applied retroactively, to judgments that were final before enactment of the scheme that created the state-chartered entity. The last statute involves a discretionary procedure for allowing appeal by pro se litigants, Va. Code Ann. § 8.01-428(C) (Supp. 1994). It is obvious that the provision did not apply retroactively, to judgments rendered before the procedures were established.

The premise that there is something wrong with particularized legislative action is of course questionable. While legislatures usually act through laws of general applicability, that is by no means their only legitimate mode of action. Private bills in Congress are still common, and were even more so in the days before establishment of the Claims Court. Even laws that impose a duty or liability upon a single individual or firm are not on that account invalid — or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that it requires not merely “singling out” but also punishment, see, e. g., United States v. Lovett, 328 U. S. 303, 315-318 (1946), and a case which says that Congress may legislate “a legitimate class of one,” Nixon v. Administrator of General Services, 433 U. S. 425, 472 (1977).

Justice Breyer,

concurring in the judgment.

I agree with the majority that § 27A(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78aa-1 (1988 ed., Supp. V) (hereinafter §27A(b)) is unconstitutional. In my view, the separation of powers inherent in our Constitution means that at least sometimes Congress lacks the power under Ar-*241tide I to reopen an otherwise dosed court judgment. And the statutory provision here at issue, §27A(b), violates a basic “separation-of-powers” principle — one intended to protect individual liberty. Three features of this law — its exclusively retroactive effect, its application to a limited number of individuals, and its reopening of closed judgments— taken together, show that Congress here impermissibly tried to apply, as well as make, the law. Hence, §27A(b) falls outside the scope of Article I. But, it is far less clear, and unnecessary for the purposes of this case to decide, that separation of powers “is violated” whenever an “individual final judgment is legislatively rescinded” or that it is “violated 40 times over when 40 final judgments are legislatively dissolved.” See ante, at 228. I therefore write separately.

The majority provides strong historical evidence that Congress lacks the power simply to reopen, and to revise, final judgments in individual cases. See ante, at 219-222. The Framers would have hesitated to lodge in the Legislature both that kind of power and the power to enact general laws, as part of their effort to avoid the “despotic government” that accompanies the “accumulation of all powers, legislative, executive, and judiciary, in the same hands.” The Federalist No. 47, p. 241 (J. Gideon ed. 1831) (J. Madison); id., No. 48, at 249 (quoting T. Jefferson, Notes on the State of Virginia). For one thing, the authoritative application of a general law to a particular case by an independent judge, rather than by the legislature itself, provides an assurance that even an unfair law at least will be applied evenhandedly according to its terms. See, e. g., 1 Montesquieu, The Spirit of Laws 174 (T. Nugent transí. 1886) (describing one objective of the “separation of powers” as preventing “the same monarch or senate,” having “enactfed] tyrannical laws” from “executing] them in a tyrannical manner”); W. Gwyn, The Meaning of the Separation of Powers 42-43, 104-106 (1965) (discussing historically relevant sources that explain one purpose of separation of powers as helping to assure an “impartial rule of *242law”). For another thing, as Justice Powell has pointed out, the Constitution’s “separation-of-powers” principles reflect, in part, the Framers’ “concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person.” INS v. Chadha, 462 U. S. 919, 962 (1983) (opinion concurring in judgment). The Framers “expressed” this principle, both in “specific provisions, such as the Bill of Attainder Clause,” and in the Constitution’s “general allocation of power.” Ibid.; see United States v. Brown, 381 U. S. 437, 442 (1965) (Bill of Attainder Clause intended to implement the separation of powers, acting as “a general safeguard against legislative exercise of the judicial function”); Fletcher v. Peck, 6 Cranch 87, 136 (1810) (Marshall, C. J.) (“It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments”); cf. Hurtado v. California, 110 U. S. 516, 535-536 (1884).

Despite these two important “separation-of-powers” concerns, sometimes Congress can enact legislation that focuses upon a small group, or even a single individual. See, e. g., Nixon v. Administrator of General Services, 433 U. S. 425, 468-484 (1977); Selective Service System v. Minnesota Public Interest Research Group, 468 U. S. 841, 846-856 (1984); Brown, supra, at 453-456. Congress also sometimes passes private legislation. See Chadha, supra, at 966, n. 9 (Powell, J., concurring in judgment) (“When Congress grants particular individuals relief or benefits under its spending power, the danger of oppressive action that the separation of powers was designed to avoid is not implicated”). And, sometimes Congress can enact legislation that, as a practical matter, radically changes the effect of an individual, previously entered court decree. See Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421 (1856). Statutes that apply prospectively and (in part because of that prospectivity) to an open-ended class of persons, however, are more than sim*243ply an effort to apply, person by person, a previously enacted law, or to single out for oppressive treatment one, or a handful, of particular individuals. Thus, it seems to me, if Congress enacted legislation that reopened an otherwise closed judgment but in a way that mitigated some of the here relevant “separation-of-powers” concerns, by also providing some of the assurances against “singling out” that ordinary legislative activity normally provides — say, prospectivity and general applicability — we might have a different case. Cf. Brown, supra, at 461 (“Congress must accomplish [its desired] results by rules of general applicability. It cannot specify the people upon whom the sanction it prescribes is to be levied”). Because such legislation, in light of those mitigating circumstances, might well present a different constitutional question, I do not subscribe to the Court’s more absolute statement.

The statute before us, however, has no jueh mitigating features. It reopens previously closed judgments. It is entirely retroactive, applying only to those Rule 10b-5 actions actually filed, on or before (but on which final judgments were entered after) June 19, 1991. See 15 U. S. C. § 78j(b) and 17 CFR 240.10b-5 (1994). It lacks generality, for it applies only to a few individual instances. See Hearings on H. R. 3185 before the Subcommittee on Telecommunications and Finance of the House of Representatives Committee on Energy and Commerce, 102d Cong., 1st Sess., 3-4 (1991) (listing, by case name, only 15 cases that had been dismissed on the basis of Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991)). And, it is underinclusive, for it excludes from its coverage others who, relying upon pre-Lampf limitations law, may have failed to bring timely securities fraud actions against any other of the Nation’s hundreds of thousands of businesses. I concede that its coverage extends beyond a single individual to many potential plaintiffs in these class actions. But because the legislation disfavors not plaintiffs but defendants, I should think *244that the latter number is the more relevant. And, that number is too small (compared with the number of similar, uncovered firms) to distinguish meaningfully the law before us from a similar law aimed at a single closed case. Nor does the existence of §27A(a), which applies to Rule 10b-5 actions pending at the time of the legislation, change this conclusion. That provision seems aimed at too few additional individuals to mitigate the low level of generality of §27A(b). See Hearings on H. R. 3185, supra, at 5-6 (listing 17 cases in which dismissal motions based on Lamp/ were pending).

The upshot is that, viewed in light of .the relevant, liberty-protecting objectives of the “separation of powers,” this case falls directly within the scope of language in this Court’s cases suggesting a restriction on Congress’ power to reopen closed court judgments. See, e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, 113 (1948) (“Judgments within the powers vested in courts by the Judiciary Article of the Constitution may not lawfully be revised [or] overturned ... by another Department of Government”); Wheeling & Belmont Bridge Co., supra, at 431 (“[I]f the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress”); Rayburn's Case, 2 Dall. 409, 413 (1792) (letter from Justice Iredell and District Judge Sitgreaves to President Washington) (“[N]o decision of any court of the United States can, under any circumstances, in our opinion, agreeable to the Constitution, be liable to a revision, or even suspension, by the Legislature itself”).

At the same time, because the law before us both reopens final judgments and lacks the liberty-protecting assurances that prospectivity and greater generality would have provided, we need not, and we should not, go further — to make of the reopening itself, an absolute, always determinative distinction, a “prophylactic device,” or a foundation for the building of a new “high wal[l]” between the branches. *245 Ante, at 239. Indeed, the unnecessary building of such walls is, in itself, dangerous, because the Constitution blends, as well as separates, powers in its effort to create a government that will work for, as well as protect the liberties of, its citizens. See The Federalist No. 48 (J. Madison). That doctrine does not “divide the branches into watertight compartments,” nor “establish and divide fields of black and white.” Springer v. Philippine Islands, 277 U. S. 189, 209, 211 (1928) (Holmes, J., dissenting); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (referring to the need for “workable government”); id., at 596-597 (Frankfurter, J., concurring); Mistretta v. United States, 488 U. S. 361, 381 (1989) (the doctrine does not create a “hermetic division among the Branches” but “a carefully crafted system of checked and balanced power within each Branch”). And, important separation-of-powers decisions of this Court have sometimes turned, not upon absolute distinctions, but upon degree. See, e. g., Crowell v. Benson, 285 U. S. 22, 48-54 (1932); A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 551-555 (1935) (Cardozo, J., concurring). As the majority invokes the advice of an American poet, one might consider as well that poet’s caution, for he not only notes that “Something there is that doesn’t love a wall,” but also writes, “Before I built a wall I’d ask to know/ What I was walling in or walling out.” R. Frost, Mending Wall, The New Oxford Book of American Verse 395-396 (R. Ellmann ed. 1976).

Finally, I note that the cases the dissent cites are distinguishable from the one before us. Sampeyreac v. United States, 7 Pet. 222 (1833), considered a law similar to § 27A(b) (it reopened a set of closed judgments in fraud cases), but the Court did not reach the here relevant issue. Rather, the Court rested its conclusion upon the fact that Sampeyreac was not “a real person,” while conceding that, were he real, the case “might present a different question.” Id., at 238-239. Freeborn v. Smith, 2 Wall. 160 (1865), which involved *246an Article I court, upheld a law that applied to all cases pending on appeal (in the Supreme Court) from the territory of Nevada, irrespective of the causes of action at issue or which party was seeking review. See id., at 162. That law had generality, a characteristic that helps to avoid the problem of legislatively singling out a few individuals for adverse treatment. See Chadha, 462 U. S., at 966 (Powell, J., concurring in judgment). Neither did United States v. Sioux Nation, 448 U. S. 371 (1980), involve legislation that adversely treated a few individuals. Rather, it permitted the reopening of a case against the United States. See id., at 391.

Because the law before us embodies risks of the very sort that our Constitution’s “separation-of-powers” prohibition seeks to avoid, and because I can find no offsetting legislative safeguards that normally offer assurances that minimize those risks, I agree with the Court’s conclusion and I join its judgment.

Justice Stevens,

with whom Justice Ginsburg joins,

dissenting.

On December 19, 1991, Congress enacted § 27A of the Securities Exchange Act of 1934, 15 U. S. C. § 78aa-1 (1988 ed., Supp. V) (hereinafter 1991 amendment), to remedy a flaw in the limitations rule this Court announced on June 20, 1991, in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991). In Lampf the Court replaced the array of state statutes of limitations that had governed shareholder actions under the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5, 17 CFR 240.10b-5 (1994) (hereinafter 10b-5 actions), with a uniform federal limitations rule. Congress found only one flaw in the Court’s new rule: its failure to exempt pending cases from its operation. Accordingly, without altering the prospective effect of the Lampf rule, the 1991 amendment remedied its flaw by providing that pre-Lampf law should determine the limitations period applicable to all cases that had *247been pending on June 20, 1991 — both those that remained pending on December 19,1991, when § 27A was enacted, and those that courts dismissed between June 20 and December 19, 1991. Today the Court holds that the 1991 amendment violates the Constitution’s separation of powers because, by encompassing the dismissed claims, it requires courts to reopen final judgments in private civil actions.

Section 27A is a statutory amendment to a rule of law announced by this Court. The fact that the new rule announced in Lampf was a product of judicial, rather than congressional, lawmaking should not affect the separation-of-powers analysis. We would have the same issue to decide had Congress enacted the Lampf rule but, as a result of inadvertence or perhaps a scrivener’s error, failed to exempt pending cases, as is customary when limitations periods are shortened.1 In my opinion, if Congress had retroactively restored rights its own legislation had inadvertently or unfairly impaired, the remedial amendment’s failure to exclude dismissed cases from the benefited class would not make it invalid. The Court today faces a materially identical situation and, in my view, reaches the wrong result.

Throughout our history, Congress has passed laws that allow courts to reopen final judgments. Such laws characteristically apply to judgments entered before as well as after their enactment. When they apply retroactively, they may raise serious due process questions,2 but the Court *248has never invalidated such a law on separation-of-powers grounds until today. Indeed, only last Term we recognized Congress’ ample power to enact a law that “in effect ‘restored’ rights that [a party] reasonably and in good faith thought he possessed before the surprising announcement” of a Supreme Court decision. Rivers v. Roadway Express, Inc., 511 U. S. 298, 310 (1994) (discussing Frisbie v. Whitney, 9 Wall. 187 (1870)). We conditioned our unambiguous restatement of the proposition that “Congress had the power to enact legislation that had the practical effect of restoring the status quo retroactively,” 511 U. S., at 310, only on Congress’ clear expression of its intent to do so.

A large class of investors reasonably and in good faith thought they possessed rights of action before the surprising announcement of the Lampf rule on June 20,1991. When it enacted the 1991 amendment, Congress clearly expressed its intent to restore the rights Lampf had denied the aggrieved class. Section 27A comported fully with Rivers and with other precedents in which we consistently have recognized Congress’ power to enact remedial statutes that set aside classes of final judgments. The only remarkable feature of *249this enactment is the fact that it remedied a defect in a new judge-made rule rather than in a statute.

The familiar history the Court invokes, involving colonial legislatures’ ad hoc decisions of individual cases, “ ‘unfettered by rules,’ ” ante, at 220 (quoting Vermont State Papers 1779-1786, p. 540 (Slade ed. 1823)), provides no support for its holding. On the contrary, history and precedent demonstrate that Congress may enact laws that establish both substantive rules and procedures for reopening final judgments. When it enacted the 1991 amendment to the Lampf rule, Congress did not encroach on the judicial power. It decided neither the merits of any 10b-5 claim nor even whether any such claim should proceed to decision on the merits. It did provide that the rule governing the timeliness of 10b-5 actions pending on June 19, 1991, should be the pre-Lampf statute of limitations, and it also established a procedure for Article III courts to apply in determining whether any dismissed case should be reinstated. Congress’ decision to extend that rule and procedure to 10b-5 actions dismissed during the brief period between this Court’s law-changing decision in Lampf and Congress’ remedial action is not a sufficient reason to hold the statute unconstitutional.

Respondents conducted a public offering of common stock in 1983. Petitioners, suing on behalf of themselves and other purchasers of the stock, filed a 10b-5 action in 1987 in the United States District Court for the Eastern District of Kentucky, alleging violations of substantive federal rules that had been in place since 1934. Respondents moved to dismiss the complaint as untimely because petitioners had filed it more than three years after the events in dispute. At that time, settled law in Kentucky and elsewhere in the United States directed federal courts to determine statutes of limitations applicable to 10b-5 actions by reference to *250state law.3 The relevant Kentucky statute provided a 3-year limitations period,4 which petitioners contended ran from the time the alleged fraud was or should have been discovered. A Magistrate agreed with petitioners and recommended denial of respondents’ motion to dismiss, but by 1991 the District Court had not yet ruled on that issue. The factual question whether petitioners should have discovered respondents’ alleged 10b-5 violations more than three years before they filed suit remained open for decision by an Article III judge on June 20, 1991.

On that day, this Court’s decision in Lampf changed the law. The Court concluded that every 10b-5 action is time barred unless brought within three years of the alleged violation and one year of its discovery. Moreover, it applied that novel rule to pending cases. As Justice O’Connor pointed out in her dissent, the Court held the plaintiffs’ suit “time barred under a limitations period that did not exist before,” a holding that “departed] drastically from our established practice and inflict[ed] an injustice on the [plaintiffs].” Lampf, 501 U. S., at 369.5 The inequitable consequences of Lampf reached beyond the parties to that case, *251injuring a large class of litigants that includes petitioners. Without resolving the factual issue that would have determined the timeliness of petitioners’ complaint before Lampf the District Court dismissed the instant action as untimely under the new limitations period dictated by this Court. Because Lampf had deprived them of any nonfrivolous basis for an appeal, petitioners acquiesced in the dismissal, which therefore became final on September 12,1991.

Congress responded to Lampf by passing §27A, which became effective on December 19, 1991. The statute changed the substantive limitations law, restoring the pre-Lamp/limitations rule for two categories of 10b-5 actions that had been pending on June 19, 1991. Subsection (a) of § 27A applies to cases that were still pending on December 19, 1991. The Courts of Appeals have uniformly upheld the constitutionality of that subsection,6 and its validity is not challenged in this case. Subsection (b) applies to actions, like the instant case, that (1) were dismissed after June 19, 1991, and (2) would have been timely under the pr e-Lampf regime. This subsection authorized the district courts to reinstate dismissed cases if the plaintiff so moved within 60 days after the effective date of §27A. The amendment was not self-executing: Unless the plaintiff both filed a timely motion for reinstatement and then satisfied the court that the complaint had been timely filed under applicable pr e-Lampf law, the dismissal would remain in effect.

In this case petitioners made the required showing, but the District Court refused to reinstate their case. Instead, *252it held § 27A(b) unconstitutional. 789 F. Supp. 231 (ED Ky. 1992). The Court of Appeals for the Sixth Circuit, contrary to an earlier decision of the Fifth Circuit, affirmed. 1 F. 3d 1487 (1993).

Aside from §27A(b), the Court claims to “know of no instance in which Congress has attempted to set aside the final judgment of an Article III court by retroactive legislation.” Ante, at 230. In fact, Congress has done so on several occasions. Section 27A(b) is part of a remedial statute. As early as 1833, we recognized that a remedial statute authorizing the reopening of a final judgment after the time for appeal has expired is “entirely unexceptionable” even though it operates retroactively. “It has been repeatedly decided in this court, that the retrospective operation of such a law forms no objection to it. Almost every law, providing a new remedy, affects and operates upon causes of action existing at the time the law is passed.” Sampeyreac v. United States, 7 Pet. 222, 239 (1833). We have upheld remedial statutes that carried no greater cause for separation-of-powers concerns than does §27A(b); others have provoked no challenges. In contrast, the colonial directives on which the majority relies were nothing like remedial statutes.

The remedial 1830 law we construed in Sampeyreac strongly resembled § 27A(b): It authorized a class of litigants to reopen claims, brought under an 1824 statute, that courts had already finally adjudicated. The 1824 statute authorized proceedings to establish title to certain lands in the State of Missouri and the territory of Arkansas. It provided for an appeal to this Court within one year after the entry of the judgment or decree, “and should no appeal be taken, the judgment or decree of the district court shall in like manner be final and conclusive.” 7 Pet., at 238. In 1827 the Arkansas Territorial Court entered a decree in favor of one Sampeyreac, over the objection of the United States that the nominal plaintiff was a fictitious person. Because no appeal *253was taken from that decree, it became final in 1828. In 1830 Congress passed a special statute authorizing the Arkansas court to reopen any decree entered under the 1824 statute if, prior to July 1, 1831, the United States filed a bill of review alleging that the decree had been based on forged evidence of title. The United States filed such a bill and obtained a reversal of the 1827 decree from the Arkansas court.

The successors in interest of the fictitious Mr. Sampeyreae argued in this Court that the Arkansas court should not have entertained the Government’s bill of review because the 1830 statute “was the exercise of a judicial power, and it is no answer to this objection, that the execution of its provisions is given to a court. The legislature of the union cannot use such a power.” Id., at 229. We categorically rejected that argument: “The law of 1830 is in no respect the exercise of judicial powers.” Id., at 239. Of course, as the majority notes, ante, at 232-233, the particular decree at stake in Sampeyreae had issued not from an Article III court but from a territorial court. However, our opinion contains no suggestion that Congress’ power to authorize the reopening of judgments entered by the Arkansas court was any broader than its power to authorize the reopening of judgments entered under the same statute by the United States District Court in Missouri. Moreover, the relevant judicial power that the 1830 statute arguably supplanted was this Court’s Article III appellate jurisdiction — which, prior to the 1830 enactment, provided the only avenue for review of the trial courts’ judgments.

Similarly, in Freeborn v. Smith, 2 Wall. 160 (1865), the Court rejected a challenge to an Act of Congress that removed an accidental impediment to the exercise of our appellate jurisdiction. When Congress admitted Nevada into the Union as a State in March 1864, ch. 36, 13 Stat. 30, it neglected to provide for the disposition of pending appeals from final judgments previously entered by the Supreme Court of *254the Nevada Territory. Accordingly, the Freeborn defendants in error moved to dismiss a writ of error to the territorial court on the ground that we had no power to decide the case. At the suggestion of plaintiffs in error, the Court deferred ruling on the motion until after February 27, 1865, when Congress passed a special statute that authorized the Court to decide this and similar cases.7 Defendants in error renewed their motion, arguing that Congress could not reopen judgments that were already final and unreviewable because Congress was not competent to exercise judicial power.

Defendants in error argued that, “[i]f it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action.” 2 Wall., at 165. The Court, however, noted that the omission in the 1864 statute had left the case “in a very anomalous situation,” id., at 174, and that passage of the later statute “was absolutely necessary to remove an impediment in the way of any legal proceeding in the case.” Id., at 175. It concluded that such “acts are of a remedial character, and are peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power.” Ibid. As in Sampeyreac, although Freeborn in*255volved the review of a judgment entered by a territorial court, the “judicial power” to which the opinion referred was this Court’s Article III appellate jurisdiction. If Congress may enact a law authorizing this Court to reopen decisions that we previously lacked power to review, Congress must have the power to let district courts reopen their own judgments.

Also apposite is United States v. Sioux Nation, 448 U. S. 371 (1980), which involved the Sioux Nation’s longstanding claim that the Government had in 1877 improperly abrogated the treaty by which the Sioux had held title to the Black Hills. The Sioux first brought their claim under a special 1920 jurisdictional statute. The Court of Claims dismissed the suit in 1942, holding that the 1920 Act did not give the court jurisdiction to consider the adequacy of the compensation the Government had paid in 1877. Congress passed a new jurisdictional statute in 1946, and in 1950 the Sioux brought a new action. In 1975 the Court of Claims, although acknowledging the merit of the Sioux’s claim, held that the res judicata effect of the 1942 dismissal barred the suit. In response, Congress passed a statute in 1978 that authorized the Court of Claims to take new evidence and instructed it to consider the Sioux’s claims on the merits, disregarding res judicata. The Sioux finally prevailed. We held that the 1978 Act did not violate the separation of powers. 448 U. S., at 407.

The Court correctly notes, see ante, at 230-231, and n. 5, that our opinion in Sioux Nation prominently discussed precedents establishing Congress’ power to waive the res judicata effect of judgments against the United States. We never suggested, however, that those precedents sufficed to overcome the separation-of-powers objections raised against the 1978 Act. Instead, we made extensive comments about the propriety of Congress’ action that were as necessary to our holding then as they are salient to the Court’s analysis today. In passing the 1978 Act, we held, Congress

*256“only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims’ decisions, and did not interfere with the finality of its judgments.

“Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims’ new review of the merits.” 448 U. S., at 407.

Congress observed the same boundaries in enacting §27A(b).

Our opinions in Sampeyreac, Freeborn, and Sioux Nation correctly characterize statutes that specify new grounds for the reopening of final judgments as remedial. Moreover, these precedents correctly identify the unremarkable nature of the legislative power to enact remedial statutes. “[A]cts . . . of a remedial character . . . are the peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power.” Freeborn, 2 Wall., at 175. A few contemporary examples of such statutes will suffice to demonstrate that they are ordinary products of the exercise of legislative power.

The most familiar remedial measure that provides for reopening of final judgments is Rule 60(b) of the Federal Rules of Civil Procedure. That Rule both codified common-law grounds for relieving a party from a final judgment and added an encompassing reference to “any other reason justifying relief from the operation of the judgment.”8 Not a *257single word in its text suggests that it does not apply to judgments entered prior to its effective date. On the contrary, the purpose of the Rule, its plain language, and the traditional construction of remedial measures all support construing it to apply to past as well as future judgments. Indeed, because the Rule explicitly abolished the common-law writs it replaced, an unintended gap in the law would have resulted if it did not apply retroactively.9

*258Other examples of remedial statutes that resemble §27A include the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U. S. C. App. § 520(4), which authorizes members of the Armed Forces to reopen judgments entered while they were on active duty; the Handicapped Children’s Protection Act of 1986, 20 U. S. C. § 1415(e)(4)(B) (1988 ed. and Supp. V), which provided for recovery of attorney’s fees under the Education for All Handicapped Children Act of 1975, 20 U. S. C. § 1411 et seq. (1988 ed. and Supp. V);10 and the federal habeas corpus statute, 28 U. S. C. § 2255, which authorizes federal courts to reopen judgments of conviction. The habeas statute, similarly to Rule 60(b), replaced a common-law writ, see App. to H. R. Rep. No. 308, 80th Cong., 2d Sess., A180 (1947), and thus necessarily applied retroactively.11 State statutes that authorize the reopening of various types of default judgments 12 and judgments that became final before a party re*259ceived notice of their entry,13 as well as provisions for motions to reopen based on newly discovered evidence,14 further demonstrate the widespread acceptance of remedial statutes that allow courts to set aside final judgments. As in the case of Rule 60(b), logic dictates that these statutes be construed to apply retroactively to judgments that were final at the time of their enactments. All of these remedial statutes announced generally applicable rules of law as well as establishing procedures for reopening final judgments.15

In contrast, in the examples of colonial legislatures’ review of trial courts’ judgments on which today’s holding rests, the legislatures issued directives in individual cases without purporting either to set forth or to apply any legal standard. Cf. ante, at 219-225; see, e. g., INS v. Chadha, 462 U. S. 919, 961-962 (1983) (Powell, J., concurring in judgment). The principal compendium on which the Court relies, ante, at 219, accurately describes these legislative directives:

“In these records, which are of the first quarter of the 18th century, the provincial legislature will often be found acting in a judicial capacity, sometimes trying causes in equity, sometimes granting equity powers to some court of the common law for a particular temporary purpose, and constantly granting appeals, new trials, and other relief from judgments, on equitable *260grounds.” Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, n. 1 (1902).

The Framers’ disapproval of such a system of ad hoc legislative review of individual trial court judgments has no bearing on remedial measures such as Rule 60(b) or the 1991 amendment at issue today. The history on which the Court relies provides no support for its holding.

Ill

The lack of precedent for the Court’s holding is not, of course, a sufficient reason to reject it. Correct application of separation-of-powers principles, however, confirms that the Court has reached the wrong result. As our most recent major pronouncement on the separation of powers noted, “we have never held that the Constitution requires that the three branches of Government ‘operate with absolute independence.’” Morrison v. Olson, 487 U. S. 654, 693-694 (1988) (quoting United States v. Nixon, 418 U. S. 683, 707 (1974)). Rather, our jurisprudence reflects “Madison’s flexible approach to separation of powers.” Mistretta v. United States, 488 U. S. 361, 380 (1989). In accepting Madison’s conception rather than any “hermetic division among the Branches,” id., at 381, “we have upheld statutory provisions that to some degree commingle the functions of the Branches, but that pose no danger of either aggrandizement or encroachment,” id., at 382. Today’s holding does not comport with these ideals.

Section 27A shares several important characteristics with the remedial statutes discussed above. It does not decide the merits of any issue in any litigation but merely removes an impediment to judicial decision on the merits. The impediment it removes would have produced inequity because the statute’s beneficiaries did not cause the impediment. It requires a party invoking its benefits to file a motion within a specified time and to convince a court that the statute entitles the party to relief. Most important, §27A(b) specifies *261both a substantive rule to govern the reopening of a class of judgments — the pr e-Lampf limitations rule — and a procedure for the courts to apply in determining whether a particular motion to reopen should be granted. These characteristics are quintessentially legislative. They reflect Congress’ fealty to the separation of powers and its intention to avoid the sort of ad hoc excesses the Court rightly criticizes in colonial legislative practice. In my judgment, all of these elements distinguish §27A from “judicial” action and confirm its constitutionality. A sensible analysis would at least consider them in the balance.

Instead, the Court myopically disposes of § 27A(b) by holding that Congress has no power to “requir[e] an Article III court to set aside a final judgment.” Ante, at 240. That holding must mean one of two things. It could mean that Congress may not impose a mandatory duty on a court to set aside a judgment even if the court makes a particular finding, such as a finding of fraud or mistake, that Congress has not made. Such a rule, however, could not be correct. Although Rule 60(b), for example, merely authorizes federal courts to set aside judgments after making appropriate findings, Acts of Congress characteristically set standards that judges are obligated to enforce. Accordingly, Congress surely could add to Rule 60(b) certain instances in which courts must grant relief from final judgments if they make particular findings — for example, a finding that a member of the jury accepted a bribe from the prevailing party. The Court, therefore, must mean to hold that Congress may not unconditionally require an Article III court to set aside a final judgment. That rule is both unwise and beside the point of this case.

A simple hypothetical example will illustrate the practical failings of the Court’s new rule. Suppose Congress, instead of endorsing the new limitations rule fashioned by the Court in Lampf, had decided to return to the pre-Lampf regime (or perhaps to enact a longer uniform statute). Subsection *262(a) of § 27A would simply have provided that the law in effect prior to June 19, 1991, would govern the timeliness of all 10b-5 actions. In that event, subsection (b) would still have been necessary to remedy the injustice caused by this Court’s failure to exempt pending cases from its new rule. In my judgment, the statutory correction of the inequitable flaw in Lampf would be appropriate remedial legislation whether or not Congress had endorsed that decision’s substantive limitations rule. The Court, unfortunately, appears equally consistent: Even though the class of dismissed 10b-5 plaintiffs in my hypothetical would have been subject to the same substantive rule as all other 10b-5 plaintiffs, the Court’s reasoning would still reject subsection (b) as an impermissible exercise of “judicial” power.

The majority’s rigid holding unnecessarily hinders the Government from addressing difficult issues that inevitably arise in a complex society. This Court, for example, lacks power to enlarge the time for filing petitions for certiorari in a civil case after 90 days from the entry of final judgment, no matter how strong the equities. See 28 U. S. C. § 2101(c). If an Act of God, such as a flood or an earthquake, sufficiently disrupted communications in a particular area to preclude filing for several days, the majority’s reasoning would appear to bar Congress from addressing the resulting inequity. If Congress passed remedial legislation that retroactively granted movants from the disaster area extra time to file petitions or motions for extensions of time to file, today’s holding presumably would compel us to strike down the legislation as an attack on the finality of judgments. Such a ruling, like today’s holding, would gravely undermine federal courts’ traditional power “to set aside a judgment whose enforcement would work inequity.” Ante, at 234.16

*263Even if the rule the Court announces today were sound, it would not control the case before us. In order to obtain the benefit of §27A, petitioners had to file a timely motion and persuade the District Court they had timely filed their complaint under pr e-Lampf law. In the judgment of the District Court, petitioners satisfied those conditions. Congress reasonably could have assumed, indeed must have expected, that some movants under § 27A(b) would fail to do so. The presence of an important condition that the District Court must find a movant to have satisfied before it may reopen a judgment distinguishes §27A from the unconditional congressional directives the Court appears to forbid.

Moreover, unlike the colonial legislative commands on which the Court bases its holding, § 27A directed action not in “a civil case,” ante, at 223 (discussing Calder v. Bull, 3 Dall. 386 (1798)), but in a large category of civil cases.17 The Court declares that a legislative direction to reopen a class of 40 cases is 40 times as bad as a direction to reopen a single final judgment because “power is the object of the separation-of-powers prohibition.” See ante, at 228. This self-evident observation might be salient if § 27A(b) unconditionally commanded courts to reopen judgments even absent findings that the complaints were timely under pr e-Lampf law. But Congress did not decide — and could not know how any court would decide — the timeliness issue in any particu*264lar case in the affected category. Congress, therefore, had no way to identify which particular plaintiffs would benefit from § 27A. It merely enacted a law that applied a substantive rule to a class of litigants, specified a procedure for invoking the rule, and left particular outcomes to individualized judicial determinations — a classic exercise of legislative power.

“All we seek,” affirmed a sponsor of §27A, “is to give the victims [of securities fraud] a fair day in court.”18 A statute, such as § 27A, that removes an unanticipated and unjust impediment to adjudication of a large class of claims on their merits poses no danger of “aggrandizement or encroachment.” Mistretta, 488 U. S., at 382.19 This is particularly true for §27A in light of Congress’ historic primacy over statutes of limitations.20 The statute contains several checks against the danger of congressional overreaching. The Court in Lampf undertook a legislative function. Essentially, it supplied a statute of limitations for 10b-5 ac*265tions. The Court, however, failed to adopt the transition rules that ordinarily attend alterations shortening the time to sue. Congress, in §27A, has supplied those rules. The statute reflects the ability of two coequal branches to cooperate in providing for the impartial application of legal rules to particular disputes. The Court’s mistrust of such cooperation ill serves the separation of powers.21

The Court has drawn the wrong lesson from the Framers’ disapproval of colonial legislatures’ appellate review of judicial decisions. The Framers rejected that practice, not out of a mechanistic solicitude for “final judgments,” but because they believed the impartial application of rules of law, rather *266than the will of the majority, must govern the disposition of individual cases and controversies. Any legislative interference in the adjudication of the merits of a particular case carries the risk that political power will supplant evenhanded justice, whether the interference occurs before or after the entry of final judgment. Cf. United States v. Klein, 13 Wall. 128 (1872); Hayburn’s Case, 2 Dall. 409 (1792). Section 27A(b) neither commands the reinstatement of any particular case nor directs any result on the merits. Congress recently granted a special benefit to a single litigant in a pending civil rights case, but the Court saw no need even, to grant certiorari to review that disturbing legislative favor.22 In an ironic counterpoint, the CourLtodav places a higher priority on protecting the'Kepublic from the restoration to a large class of litigants of the opportunity to have Article III courts resolve the merits of their claims.

“We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Bain Peanut Co. of Tex. v. Pinson, 282 U. S. 499, 501 (1931) (Holmes, J.). The three branches must cooperate in order to govern. We should regard favorably, rather than with suspicious hostility, legislation that enables the judiciary to overcome impediments to the performance of its mission of administering justice impartially, even when, as here, this Court has created the impediment.23 Rigid rules often make good law, but judgments in areas such as the review of potential conflicts among the three coequal branches of the *267Federal Government partake of art as well as science. That is why we have so often reiterated the insight of Justice Jackson:

“The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (concurring opinion).

We have the authority to hold that Congress has usurped a judicial prerogative, but even if this case were doubtful I would heed Justice Iredell’s admonition in Calder v. Bull, 3 Dall., at 399, that “the Court will never resort to that authority, but in a clear and urgent case.” An appropriate regard for the interdependence of Congress and the judiciary amply supports the conclusion that §27A(b) reflects constructive legislative cooperation rather than a usurpation of judicial prerogatives.

Accordingly, I respectfully dissent.

Because the Court finds a separation-of-powers violation, it does not reach respondents’ alternative theory that §27A(b) denied them due process under the Fifth Amendment, a theory the Court of Appeals did not identify as an alternative ground for its holding. In my judgment, the statute easily survives a due process challenge. Section 27A(b) is ration*248ally related to a legitimate public purpose. Cf., e. g., Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 636-641 (1993). Given the existence of statutes and rules, such as Rule 60(b), that allow courts to reopen apparently “final” judgments in various circumstances, see infra, at 256-259, respondents cannot assert an inviolable “vested right” in the District Court’s postLampf dismissal of petitioners’ claims. In addition, § 27A(b) did not upset any “settled expectations" of respondents. Cf. Landgraf v. USI Film Products, 511 U. S. 244, 266 (1994). In Landgraf, we concluded that Congress did not intend § 102 of the Civil Rights Act of 1991, 42 U. S. C. § 1981a (1988 ed., Supp. V), to apply retroactively because retroactive application would have placed a new legal burden on past conduct. 511 U. S., at 280-286. Before 1991 no one could have relied either on the yet-to-be-announced rule in Lampf or on the Court’s unpredictable decision to apply that rule retroactively. All of the reliance interests that ordinarily support a presumption against retroactivity militate in favor of allowing retroactive application of § 27A.

The Act provided, in part:

“That all cases of appeal or writ of error heretofore prosecuted and now pending in the supreme court of the United States, upon any record from the supreme court of the Territory of Nevada, may be heard and determined by the supreme court of the United States, and the mandate of execution or of further proceedings shall be directed by the supreme court of the United States to the district court of the United States for the district of Nevada, or to the supreme court of the State of Nevada, as the nature of said appeal or writ of error may require, and each of these courts shall be the successor of the supreme court of Nevada Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon. . . . Provided, That said appeals shall be prosecuted and said writs of errors sued out at any time before the first day of July, eighteen hundred and sixty-six.” Ch. 64, § 8, 13 Stat. 441.

The full text of Rule 60(b) provides:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), *257misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not- actually personally notified as provided in Title 28, U. S. C. § 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.”

This Court adopted the Federal Rules of Civil Procedure and submitted them to Congress as the Rules Enabling Act required. They became effective after Congress adjourned without altering them. See generally 308 U. S. 647 (letter of transmittal to Congress, Jan. 3,1938).

In its criticism of this analysis of Rule 60(b), the majority overstates our holdings on retroactivity in Landgraf, 511 U. S., at 280, and Rivers v. Roadway Express, Inc., 511 U. S. 298 (1994). Our opinion in Landgraf nowhere says “that statutes do not apply retroactively unless Congress expressly states that they do.” Ante, at 237. To the contrary, it says that, “[w]hen ... the statute contains no such express command, the court must determine whether the new statute would have retroactive effect,” an inquiry that requires “clear congressional intent favoring such a result.” Landgraf, 511 U. S., at 280 (emphasis added); see also id., at 273-275; Rivers, 511 U. S., at 304-309. In the case of Rule 60(b), the factors I have identified, taken together, support a finding of clear congressional *258intent. Moreover, neither Landgraf nor Rivers “rejected” consideration of a statute’s remedial purpose in analyzing Congress’ intent to apply the statute retroactively. Compare ante, at 237, with Landgraf, 611 U. S., at 281-286, and n. 37, and Rivers, 511 U. S., at 304-311.

Although I agree with Justice Breyer’s general approach to the separation-of-powers issue, I believe he gives insufficient weight to two important features of § 27A. First, he fails to recognize that the statute restored a pre-existing rule of law in order to remedy the manifest injustice produced by the Court’s retroactive application of Lampf. The only ‘“substantial deprivation’” Congress imposed on defendants was that properly filed lawsuits proceed to decisions on the merits. Cf. ante, at 242 (Breyer, J., concurring in judgment) (quoting INS v. Chadha, 462 U. S. 919, 962 (1983) (Powell, J., concurring in judgment)). Second, he understates the class of defendants burdened by §27A: He finds the statute underinclusive because it provided no remedy for potential plaintiffs who may have failed to file timely actions in reliance on pr e-Lampf limitations law, but he denies the importance of §27A(a), which provided a remedy for plaintiffs who appealed dismissals after Lampf. See ante, at 243-244 (Breyer, J., concurring in judgment). The coverage of § 27A is coextensive with the retroactive application of the general rule announced in Lampf. If Congress had enacted a statute providing that the Lampf rule should apply to all cases filed after the statute’s effective date and that the pr e-Lampf rule should apply to all cases filed before that date, Justice Breyer could not reasonably condemn the statute as special legislation. The only difference between such a statute and §27A is that §27A covered all cases pending on the date of Lampf— June 20, 1991— rather than on the effective date of the statute — December 19, 1991. In my opinion, §27A has sufficient generality to avoid the characteristics of a bill of attainder.

3.5.2 Standing: Introduction to Standing - Constitutional Standing Requirements 3.5.2 Standing: Introduction to Standing - Constitutional Standing Requirements

3.5.2.1 Allen v. Wright, 468 U.S. 737 (1984) 3.5.2.1 Allen v. Wright, 468 U.S. 737 (1984)

Allen v. Wright, 468 U.S. 737 (1984)

[excerpt]

Natalie Gomez-Velez

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Allen v. Wright [excerpt]

468 U.S. 737 (1984)
Supreme Court of the United States

JUSTICE O’CONNOR delivered the opinion of the Court.

[1] Parents of black public school children allege in this nationwide class action that the Internal Revenue Service (IRS) has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. They assert that the IRS thereby harms them directly and interferes with the ability of their children to receive an education in desegregated public schools. The issue before us is whether plaintiffs have standing to bring this suit. We hold that they do not.

[2] The IRS denies tax-exempt status … — and hence eligibility to receive charitable contributions deductible from income taxes . . .— to racially discriminatory private schools. The IRS policy requires that a school applying for tax-exempt status show that it “admits the students of any race to all the rights, privileges, programs, and activities generally accorded or made available to students at that school and that the school does not discriminate on the basis of race in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs.” To carry out this policy, the IRS has established guidelines and procedures for determining whether a particular school is in fact racially nondiscriminatory.Failure to comply with the guidelines “will ordinarily result in the proposed revocation of” tax-exempt status.

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[3] In 1976 respondents challenged these guidelines and procedures in a suit filed in Federal District Court… The plaintiffs named in the complaint are parents of black children who, at the time the complaint was filed, were attending public schools in seven States in school districts undergoing desegregation.

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[4] Respondents allege in their complaint that many racially segregated private schools were created or expanded in their communities at the time the public schools were undergoing desegregation. According to the complaint, many such private schools, including 17 schools or school systems identified by name in the complaint (perhaps some 30 schools in all), receive tax exemptions either directly or through the tax-exempt status of “umbrella” organizations that operate or support the schools. Respondents allege that, despite the IRS policy of denying tax-exempt status to racially discriminatory private schools and despite the IRS guidelines and procedures for implementing that policy, some of the tax-exempt racially segregated private schools created or expanded in desegregating districts in fact have racially discriminatory policies. . . Respondents allege that the IRS grant of tax exemptions to such racially discriminatory schools is unlawful.

[5] Respondents allege that the challenged Government conduct harms them in two ways. The challenged conduct

[6] “(a) constitutes tangible federal financial aid and other support for racially segregated educational institutions, and

[7] “(b) fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance in desegregating public school districts and thereby interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems.”

[8] Thus, respondents do not allege that their children have been the victims of discriminatory exclusion from the schools whose tax exemptions they challenge as unlawful. Indeed, they have not alleged at any stage of this litigation that their children have ever applied or would ever apply to any private school. Rather, respondents claim a direct injury from the mere fact of the challenged Government conduct and, as indicated by the restriction of the plaintiff class to parents of children in desegregating school districts, injury to their children’s opportunity to receive a desegregated education. The latter injury is traceable to the IRS grant of tax exemptions to racially discriminatory schools, respondents allege, chiefly because contributions to such schools are deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Internal Revenue Code and the “deductions facilitate the raising of funds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts.”

[9] Respondents request only prospective relief. They ask for a declaratory judgment that the challenged IRS tax-exemption practices are unlawful. They also ask for an injunction requiring the IRS to deny tax exemptions to a considerably broader class of private schools than the class of racially discriminatory private schools.

* * *

[10] In May 1977 the District Court permitted intervention as a defendant by petitioner Allen, the head of one of the private school systems identified in the complaint.

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[11] Article III of the Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” As the Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-476 (1982), the “case or controversy” requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are “founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U. S. 490, 498 (1975).

* * *

[12] The Art. III doctrine that requires a litigant to have “standing” to invoke the power of a federal court is perhaps the most important of these doctrines. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, supra, at 498. Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked. SeeValley Forge, supra, at 474-475. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. 454 U. S., at 472.

[13] Like the prudential component, the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition. The injury alleged must be, for example, ” ` distinct and palpable,’ ” and not “abstract” or “conjectural” or “hypothetical,.” The injury must be “fairly” traceable to the challenged action, and relief from the injury must be “likely” to follow from a favorable decision. These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.

* * *

[14] Determining standing in a particular case may be facilitated by clarifying principles or even clear rules developed in prior cases. Typically, however, the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? These questions and any others relevant to the standing inquiry must be answered by reference to the Art. III notion that federal courts may exercise power only “in the last resort, and as a necessity,” and only when adjudication is “consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Flast v. Cohen, 392U. S. 83, 97 (1968).

[15] Respondents allege two injuries in their complaint to support their standing to bring this lawsuit. First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.

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[16] We conclude that neither suffices to support respondents’ standing. The first fails under clear precedents of this Court because it does not constitute judicially cognizable injury. The second fails because the alleged injury is not fairly traceable to the assertedly unlawful conduct of the IRS.

[17] Respondents’ first claim of injury can be interpreted in two ways. It might be a claim simply to have the Government avoid the violation of law alleged in respondents’ complaint. Alternatively, it might be a claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race. Under neither interpretation is this claim of injury judicially cognizable.

[18] This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.

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[19] Respondents here have no standing to complain simply that their Government is violating the law.

[20] Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination. There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. Our cases make clear, however, that such injury accords a basis for standing only to “those persons who are personally denied equal treatment” by the challenged discriminatory conduct.

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[21] The consequences of recognizing respondents’ standing on the basis of their first claim of injury illustrate why our cases plainly hold that such injury is not judicially cognizable. If the abstract stigmatic injury were cognizable, standing would extend nationwide to all members of the particular racial groups against which the Government was alleged to be discriminating by its grant of a tax exemption to a racially discriminatory school, regardless of the location of that school. All such persons could claim the same sort of abstract stigmatic injury respondents assert in their first claim of injury. A black person in Hawaii could challenge the grant of a tax exemption to a racially discriminatory school in Maine. Recognition of standing in such circumstances would transform the federal courts into “no more than a vehicle for the vindication of the value interests of concerned bystanders.” United States v. SCRAP, 412 U. S. 669, 687 (1973). Constitutional limits on the role of the federal courts preclude such a transformation.

[22] It is in their complaint’s second claim of injury that respondents allege harm to a concrete, personal interest that can support standing in some circumstances. The injury they identify — their children’s diminished ability to receive an education in a racially integrated school — is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U. S. 483 (1954), to Bob Jones University v. United States, 461 U. S. 574 (1983), one of the most serious injuries recognized in our legal system. Despite the constitutional importance of curing the injury alleged by respondents, however, the federal judiciary may not redress it unless standing requirements are met. In this case, respondents’ second claim of injury cannot support standing because the injury alleged is not fairly traceable to the Government conduct respondents challenge as unlawful.

[23] The illegal conduct challenged by respondents is the IRS’s grant of tax exemptions to some racially discriminatory schools. The line of causation between that conduct and desegregation of respondents’ schools is attenuated at best. From the perspective of the IRS, the injury to respondents is highly indirect and “results from the independent action of some third party not before the court.”

[24] The diminished ability of respondents’ children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration. Respondents have made no such allegation. It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions. Moreover, it is entirely speculative, as respondents themselves conceded in the Court of Appeals, whether withdrawal of a tax exemption from any particular school would lead the school to change its policies. It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.

[25] The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents’ standing.

* * *

[26] “Carried to its logical end, [respondents’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the `power of the purse’; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.” Laird v.Tatum, 408 U. S., at 15.

* * *

[27] When transported into the Art. III context, that principle, grounded as it is in the idea of separation of powers, counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executive Branch, and not to the Judicial Branch, the duty to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, § 3. We could not recognize respondents’ standing in this case without running afoul of that structural principle.

* * *

JUSTICE MARSHALL took no part in the decision of these cases.

JUSTICE BRENNAN, dissenting.

[1] Once again, the Court “uses `standing to slam the court-house door against plaintiffs who are entitled to full consideration of their claims on the merits.’” And once again, the Court does so by “wax[ing] eloquent” on considerations that provide little justification for the decision at hand. This time, however, the Court focuses on “the idea of separation of powers,” ante, at 750, 752, 759, 761, as if the mere incantation of that phrase provides an obvious solution to the difficult questions presented by these cases.

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[2] The Court’s attempt to obscure the standing question must be seen, therefore, as no more than a cover for its failure to recognize the nature of the specific claims raised by the respondents in these cases. By relying on generalities concerning our tripartite system of government, the Court is able to conclude that the respondents lack standing to maintain this action without acknowledging the precise nature of the injuries they have alleged. In so doing, the Court displays a startling insensitivity to the historical role played by the federal courts in eradicating race discrimination from our Nation’s schools — a role that has played a prominent part in this Court’s decisions from Brown v. Board of Education, 347 U. S. 483 (1954), through Bob Jones University v. United States, 461 U. S. 574 (1983). Because I cannot join in such misguided decisionmaking, I dissent.

* * *

[3] What is most disturbing about today’s decision . . . is not the standing analysis applied, but the indifference evidenced by the Court to the detrimental effects that racially segregated schools, supported by tax-exempt status from the Federal Government, have on the respondents’ attempt to obtain an education in a racially integrated school system. I cannot join such indifference, and would give the respondents a chance to prove their case on the merits.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

[1] Three propositions are clear to me: (1) respondents have adequately alleged “injury in fact”; (2) their injury is fairly traceable to the conduct that they claim to be unlawful; and (3) the “separation of powers” principle does not create a jurisdictional obstacle to the consideration of the merits of their claim.

[2] Respondents, the parents of black schoolchildren, have alleged that their children are unable to attend fully desegregated schools because large numbers of white children in the areas in which respondents reside attend private schools which do not admit minority children. The Court, JUSTICE BRENNAN, and I all agree that this is an adequate allegation of “injury in fact.”

* * *

[3] This kind of injury may be actionable whether it is caused by the exclusion of black children from public schools or by an official policy of encouraging white children to attend nonpublic schools. A subsidy for the withdrawal of a white child can have the same effect as a penalty for admitting a black child.

[4] In final analysis, the wrong respondents allege that the Government has committed is to subsidize the exodus of white children from schools that would otherwise be racially integrated. The critical question in these cases, therefore, is whether respondents have alleged that the Government has created that kind of subsidy.

[5] In answering that question, we must of course assume that respondents can prove what they have alleged. Furthermore, at this stage of the litigation we must put to one side all questions about the appropriateness of a nationwide class action. The controlling issue is whether the causal connection between the injury and the wrong has been adequately alleged.

* * *

[6] We have held that when a subsidy makes a given activity more or less expensive, injury can be fairly traced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity. Indeed, we have employed exactly this causation analysis in the same context at issue here — subsidies given private schools that practice racial discrimination. Thus, in Gilmore v. City of Montgomery, 417 U. S. 556 (1974), we easily recognized the causal connection between official policies that enhanced the attractiveness of segregated schools and the failure to bring about or maintain a desegregated public school system. Similarly, in Norwood v. Harrison, 413 U. S. 455 (1973), we concluded that the provision of textbooks to discriminatory private schools “has a significant tendency to facilitate, reinforce, and support private discrimination.” Id., at 466.

* * *

[7] This causation analysis is nothing more than a restatement of elementary economics: when something becomes more expensive, less of it will be purchased. Sections 170 and 501(c)(3) are premised on that recognition. If racially discriminatory private schools lose the “cash grants” that flow from the operation of the statutes, the education they provide will become more expensive and hence less of their services will be purchased. Conversely, maintenance of these tax benefits makes an education in segregated private schools relatively more attractive, by decreasing its cost. Accordingly, without tax-exempt status, private schools will either not be competitive in terms of cost, or have to change their admissions policies, hence reducing their competitiveness for parents seeking “a racially segregated alternative” to public schools, which is what respondents have alleged many white parents in desegregating school districts seek. In either event the process of desegregation will be advanced in the same way that it was advanced

* * *

[8] Thus, the laws of economics, not to mention the laws of Congress embodied in §§ 170 and 501(c)(3), compel the conclusion that the injury respondents have alleged — the increased segregation of their children’s schools because of the ready availability of private schools that admit whites only — will be redressed if these schools’ operations are inhibited through the denial of preferential tax treatment.

III

* * *

[9] The Court could mean one of three things by its invocation of the separation of powers. First, it could simply be expressing the idea that if the plaintiff lacks Art. III standing to bring a lawsuit, then there is no “case or controversy” within the meaning of Art. III and hence the matter is not within the area of responsibility assigned to the Judiciary by the Constitution. As we have written in the past, through the standing requirement “Art. III limit[s] the federal judicial power `to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.'” While there can be no quarrel with this proposition, in itself it provides no guidance for determining if the injury respondents have alleged is fairly traceable to the conduct they have challenged.

[10] Second, the Court could be saying that it will require a more direct causal connection when it is troubled by the separation of powers implications of the case before it. That approach confuses the standing doctrine with the justiciability of the issues that respondents seek to raise. The purpose of the standing inquiry is to measure the plaintiff’s stake in the outcome, not whether a court has the authority to provide it with the outcome it seeks:

* * *

[11] Third, the Court could be saying that it will not treat as legally cognizable injuries that stem from an administrative decision concerning how enforcement resources will be allocated. This surely is an important point. Respondents do seek to restructure the IRS’s mechanisms for enforcing the legal requirement that discriminatory institutions not receive tax-exempt status.

* * *

[12] However, as the Court also recognizes, this principle does not apply when suit is brought “to enforce specific legal obligations whose violation works a direct harm.”

* * *

[13] Here, respondents contend that the IRS is violating a specific constitutional limitation on its enforcement discretion.

* * *

[14] Deciding whether the Treasury has violated a specific legal limitation on its enforcement discretion does not intrude upon the prerogatives of the Executive, for in so deciding we are merely saying “what the law is.” Surely the question whether the Constitution or the Code limits enforcement discretion is one within the Judiciary’s competence.

* * *

[15] In short, I would deal with the question of the legal limitations on the IRS’s enforcement discretion on its merits, rather than by making the untenable assumption that the granting of preferential tax treatment to segregated schools does not make those schools more attractive to white students and hence does not inhibit the process of desegregation. I respectfully dissent.

3.5.2.2 Allen v. Wright, 468 U.S. 737 (1984) 3.5.2.2 Allen v. Wright, 468 U.S. 737 (1984)

[excerpt]

Allen v. Wright [excerpt]

468 U.S. 737 (1984)
Supreme Court of the United States

JUSTICE O’CONNOR delivered the opinion of the Court.

* * *

[5] Respondents allege that the challenged Government conduct harms them in two ways. The challenged conduct

[6] “(a) constitutes tangible federal financial aid and other support for racially segregated educational institutions, and

* * *

[10] In May 1977 the District Court permitted intervention as a defendant by petitioner Allen, the head of one of the private school systems identified in the complaint.

* * *

[18] This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.

* * *

[19] Respondents here have no standing to complain simply that their Government is violating the law.

* * *

[25] The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents’ standing.

* * *

JUSTICE MARSHALL took no part in the decision of these cases.

JUSTICE BRENNAN, dissenting.

* * *

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

* * *

III

* * *

[12] However, as the Court also recognizes, this principle does not apply when suit is brought “to enforce specific legal obligations whose violation works a direct harm.”

* * *

[13] Here, respondents contend that the IRS is violating a specific constitutional limitation on its enforcement discretion.

* * *

Supreme Court of the United States

468 U.S. 737, 82 L. Ed. 2d 556, 104 S. Ct. 3315, SCDB 1983-166, 1984 U.S. LEXIS 149

No. 81-757

1984-07-03

ALLEN v. WRIGHT et al.

No. 81-757.

Argued February 29, 1984

Decided July 3, 1984*

*739O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Brennan, J., filed a dissenting opinion, post, p. 766. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 783. Marshall, J., took no part in the decision of the cases.

Solicitor General Lee argued the cause for petitioners in No. 81-970. With him on the briefs were Assistant Attorney General Archer, Deputy Solicitor General Wallace, Ernest J. Brown, and Robert S. Pomerance. William J. Landers II argued the cause for petitioner in No. 81-757. With him on the brief was S. Shepherd Tate.

Robert H. Kapp argued the cause for respondents. With him on the brief were Joseph M. Hassett, David S. Tatel, William L. Robinson, Norman J. Chachkin, and Frank R. Parker. †

Justice O’Connor

delivered the opinion of the Court.

Parents of black public school children allege in this nationwide class action that the Internal Revenue Service (IRS) has not adopted sufficient standards and procedures to fulfill its obligation to deny tax-exempt status to racially discriminatory private schools. They assert that the IRS thereby harms them directly and interferes with the ability of their *740children to receive an education in desegregated public schools. The issue before us is whether plaintiffs have standing to bring this suit. We hold that they do not.

The IRS denies tax-exempt status under §§ 501(a) and (c)(3) of the Internal Revenue Code, 26 U. S. C. §§ 501(a) and (c)(3) — and hence eligibility to receive charitable contributions deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Code, 26 U. S. C. §§ 170(a)(1) and (c)(2) — to racially discriminatory private schools. Rev. Rui. 71-447, 1971-2 Cum. Bull. 230.1 The IRS policy requires that a school applying for tax-exempt status show that it “admits the students of any race to all the rights, privileges, programs, and activities generally accorded or made available to students at that school and that the school does not discriminate on the basis of race in administration of its educational policies, admissions policies, scholarship and loan programs, and athletic and other school-administered programs. ” Ibid. To carry out this policy, the IRS has established guidelines and procedures for determining whether a particular school is in fact racially nondiscriminatory. Rev. Proc. 75-50, 1975-2 Cum. Bull. 587.2 Failure to comply with the guidelines “will ordinarily result in the proposed revocation of” tax-exempt status. Id., §4.08, p. 589.

*741The guidelines provide that “[a] school must show affirmatively both that it has adopted a racially nondiscriminatory policy as to students that is made known to the general public and that since the adoption of that policy it has operated in a bona fide manner in accordance therewith.” Id., §2.02.3 The school must state its nondiscrimination policy in its organizational charter, id., §4.01, pp. 587-588, and in all of its brochures, catalogs, and other advertisements to prospective students, id., §4.02, p. 588. The school must make its nondiscrimination policy known to the entire community served by the school and must publicly disavow any contrary representations made on its behalf once it becomes aware of them. Id., §4.03.4 The school must have nondiscrimina*742tory policies concerning all programs and facilities, id., §4.04, p. 589, including scholarships and loans, id., §4.05,5 and the school must annually certify, under penalty of perjury, compliance with these requirements, id., §4.07.6

The IRS rules require a school applying for tax-exempt status to give a breakdown along racial lines of its student body and its faculty and administrative staff, id., §5.01-1, as well as of scholarships and loans awarded, id., §5.01-2. They also require the applicant school to state the year of its organization, id., §5.01-5, and to list “incorporators, founders, board members, and donors of land or buildings,” id., §5.01-3, and state whether any of the organizations among these have an objective of maintaining segregated public or private school education, id., §5.01-4. The rules further provide that, once given an exemption, a school must keep specified records to document the extent of compliance with the IRS guidelines. Id., §7, p. 590.7 Finally, the *743rules announce that any information concerning discrimination at a tax-exempt school is officially welcomed. Id., §6.8

In 1976 respondents challenged these guidelines and procedures in a suit filed in Federal District Court against the Secretary of the Treasury and the Commissioner of Internal Revenue.9 The plaintiffs named in the complaint are parents of black children who, at the time the complaint was filed, were attending public schools in seven States in school districts undergoing desegregation. They brought this nationwide class action “on behalf of themselves and their children, and ... on behalf of all other parents of black children attending public school systems undergoing, or which may in the future undergo, desegregation pursuant to court order [or] HEW regulations and guidelines, under state law, or voluntarily.” App. 22-23. They estimated that the class they seek to represent includes several million persons. Id., at 23.

Respondents allege in their complaint that many racially segregated private schools were created or expanded in their *744communities at the time the public schools were undergoing desegregation. Id., at 23-24. According to the complaint, many such private schools, including 17 schools or school systems identified by name in the complaint (perhaps some 30 schools in all), receive tax exemptions either directly or through the tax-exempt status of “umbrella” organizations that operate or support the schools. Id., at 23-38.10 Respondents allege that, despite the IRS policy of denying tax-exempt status to racially discriminatory private schools and despite the IRS guidelines and procedures for implementing that policy, some of the tax-exempt racially segregated private schools created or expanded in desegregating districts in fact have racially discriminatory policies. Id., at 17-18 (IRS permits “schools to receive tax exemptions merely on the basis of adopting and certifying — but not implementing — a policy of nondiscrimination”); id., at 25 (same).11 Respond*745ents allege that the IRS grant of tax exemptions to such racially discriminatory schools is unlawful.12

Respondents allege that the challenged Government conduct harms them in two ways. The challenged conduct

“(a) constitutes tangible federal financial aid and other support for racially segregated educational institutions, and

“(b) fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance in desegregating public school districts and thereby interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems.” Id., at 38-39.

*746Thus, respondents do not allege that their children have been the victims of discriminatory exclusion from the schools whose tax exemptions they challenge as unlawful. Indeed, they have not alleged at any stage of this litigation that their children have ever applied or would ever apply to any private school. See Wright v. Regan, 211 U. S. App. D. C. 281, 238, 656 F. 2d 820, 827 (1981) (“Plaintiffs . . . maintain they have no interest whatever in enrolling their children in a private school”). Rather, respondents claim a direct injury from the mere fact of the challenged Government conduct and, as indicated by the restriction of the plaintiff class to parents of children in desegregating school districts, injury to their children’s opportunity to receive a desegregated education.13 The latter injury is traceable to the IRS grant of tax exemptions to racially discriminatory schools, respondents allege, chiefly because contributions to such schools are deductible from income taxes under §§ 170(a)(1) and (c)(2) of the Internal Revenue Code and the “deductions facilitate the raising of funds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts.” App. 24. 14

Respondents request only prospective relief. Id., at 40-41. They ask for a declaratory judgment that the challenged IRS tax-exemption practices are unlawful. They also *747ask for an injunction requiring the IRS to deny tax exemptions to a considerably broader class of private schools than the class of racially discriminatory private schools. Under the requested injunction, the IRS would have to deny tax-exempt status to all private schools

“which have insubstantial or nonexistent minority enrollments, which are located in or serve desegregating public school districts, and which either—

“(1) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating;

“(2) have been determined in adversary judicial or administrative proceedings to be racially segregated; or

“(3) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems . . . Id., at 40.

Finally, respondents ask for an order directing the IRS to replace its 1975 guidelines with standards consistent with the requested injunction.

In May 1977 the District Court permitted intervention as a defendant by petitioner Allen, the head of one of the private school systems identified in the complaint. Id., at 54-55. Thereafter, progress in the lawsuit was stalled for several years. During this period, the IRS reviewed its challenged policies and proposed new Revenue Procedures to tighten requirements for eligibility for tax-exempt status for private schools. See 43 Fed. Reg. 37296 (1978); 44 Fed. Reg. 9451 (1979).15 In 1979, however, Congress blocked any strength*748ening of the IRS guidelines at least until October 1980.16 The District Court thereupon considered and granted the defendants’ motion to dismiss the complaint, concluding that respondents lack standing, that the judicial task proposed by respondents is inappropriately intrusive for a federal court, and that awarding the requested relief would be contrary to the will of Congress expressed in the 1979 ban on strengthening IRS guidelines. Wright v. Miller, 480 F. Supp. 790 (DC 1979).

The United States Court of Appeals for the District of Columbia Circuit reversed, concluding that respondents have standing to maintain this lawsuit. The court acknowledged that Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976), “suggests that litigation concerning tax liability is a matter between taxpayer and IRS, with the door *749barely ajar for third party challenges.” 211 U. S. App. D. C., at 239, 656 F. 2d, at 828. The court concluded, however, that the Simon case is inapposite because respondents claim no injury dependent on taxpayers’ actions: “[t]hey claim indifference as to the course private schools would take.” Id., at 240, 656 F. 2d, at 829.17 Instead, the court observed, “[t]he sole injury [respondents] claim is the denigration they suffer as black parents and schoolchildren when their government graces with tax-exempt status educational institutions in their communities that treat members of their race as persons of lesser worth.” Id., at 238, 656 F. 2d, at 827. The court held this denigration injury enough to give respondents standing since it was this injury which supported standing in Coit v. Green, 404 U. S. 997 (1971), summarily aff’g Green v. Connally, 330 F. Supp. 1150 (DC); Norwood v. Harrison, 413 U. S. 455 (1973); and Gilmore v. City of Montgomery, 417 U. S. 556 (1974). 211 U. S. App. D. C., at 239-243, 656 F. 2d, at 828-832. The Court of Appeals also held that the 1979 congressional actions were not intended to preclude judicial remedies and that the relief requested by respondents could be fashioned “without large scale judicial intervention in the administrative process,” id., at 248, 656 F. 2d, at 837.18 The court accordingly remanded the case to the District Court for further proceedings, enjoining the defendants meanwhile from granting tax-exempt status to any racially discriminatory school, App. 81-84.

*750The Government defendants and defendant-intervenor Allen filed separate petitions for a writ of certiorari in this Court. They both sought review of the Court of Appeals' holding that respondents have standing to bring this lawsuit. We granted certiorari, 462 U. S. 1130 (1983), and now reverse.

Article III of the Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” As the Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-476 (1982), the “case or controversy” requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to elaborate that requirement are “founded in concern about the proper — and properly limited — role of the courts in a democratic society.” Warth v. Seldin, 422 U. S. 490, 498 (1975).

“All of the doctrines that cluster about Article III — not only standing but mootness, ripeness, political question, and the like — relate in part, and in different though overlapping ways, to an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government.” Vander Jagt v. O’Neill, 226 U. S. App. D. C. 14, 26-27, 699 F. 2d 1166, 1178-1179 (1983) (Bork, J., concurring).

The case-or-controversy doctrines state fundamental limits on federal judicial power in our system of government.

The Art. Ill doctrine that requires a litigant to have “standing” to invoke the power of a federal court is perhaps the most important of these doctrines. “In essence the question of standing is whether the litigant is entitled to have the *751court decide the merits of the dispute or of particular issues.” Warth v. Seldin, supra, at 498. Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked. See Valley Forge, supra, at 474-475. The requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. 454 U. S., at 472.

Like the prudential component, the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition. The injury alleged must be, for example, “‘distinct and palpable,’” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 100 (1979) (quoting Warth v. Seldin, supra, at 501), and not “abstract” or “conjectural” or “hypothetical,” Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983); O’Shea v. Littleton, 414 U. S. 488, 494 (1974). The injury must be “fairly” traceable to the challenged action, and relief from the injury must be “likely” to follow from a favorable decision. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 38, 41. These terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.

The absence of precise definitions, however, as this Court’s extensive body of case law on standing illustrates, see generally Valley Forge, supra, at 471-476, hardly leaves courts at sea in applying the law of standing. Like most legal notions, the standing concepts have gained considerable definition from developing case law. In many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing *752cases. See, e. g., Los Angeles v. Lyons, supra, at 102-105. More important, the law of Art. Ill standing is built on a single basic idea — the idea of separation of powers. It is this fact which makes possible the gradual clarification of the law through judicial application. Of course, both federal and state courts have long experience in applying and elaborating in numerous contexts the pervasive and fundamental notion of separation of powers.

Determining standing in a particular case may be facilitated by clarifying principles or even clear rules developed in prior cases. Typically, however, the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? These questions and any others relevant to the standing inquiry must be answered by reference to the Art. Ill notion that federal courts may exercise power only “in the last resort, and as a necessity,” Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 (1892), and only when adjudication is “consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process,” Flast v. Cohen, 392 U. S. 83, 97 (1968). See Valley Forge, 454 U. S., at 472-473.

Respondents allege two injuries in their complaint to support their standing to bring this lawsuit. First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair *753their ability to have their public schools desegregated. See supra, at 745.

In the Court of Appeals, respondents apparently relied on the first injury. Thus, the court below asserted that “[t]he sole injury [respondents] claim is the denigration they suffer” as a result of the tax exemptions. 211 U. S. App. D. C., at 238, 656 F. 2d, at 827. In this Court, respondents have not focused on this claim of injury. Here they stress the effect of the tax exemptions on their “equal educational opportunities,” see, e. g., Brief for Respondents 12, 14, renewing reliance on the second injury described in their complaint.

Because respondents have not clearly disclaimed reliance on either of the injuries described in their complaint, we address both allegations of injury. We conclude that neither suffices to support respondents’ standing. The first fails under clear precedents of this Court because it does not constitute judicially cognizable injury. The second fails because the alleged injury is not fairly traceable to the assertedly unlawful conduct of the IRS.19

Respondents’ first claim of injury can be interpreted in two ways. It might be a claim simply to have the Government *754avoid the violation of law alleged in respondents’ complaint. Alternatively, it might be a claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race.20 Under neither interpretation is this claim of injury judicially cognizable.

This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court. In Schlesinger v. Reservists Committee to Stop the War, 418 U. S. 208 (1974), for example, the Court rejected a claim of citizen standing to challenge Armed Forces Reserve commissions held by Members of Congress as violating the Incompatibility Clause of Art. I, § 6, of the Constitution. As citizens, the Court held, plaintiffs alleged nothing but “the abstract injury in nonobservance of the Constitution . . . .” Id., at 223, n. 13. More recently, in Valley Forge, supra, we rejected a claim of standing to challenge a Government conveyance of property to a religious institution. Insofar as the plaintiffs relied simply on “‘their shared individuated right’” to a Government that made no law respecting an establishment of religion, id., at 482 (quoting Americans United v. U. S. Dept. of HEW, 619 F. 2d 252, 261 (CA3 1980)), we held that plaintiffs had not alleged a judicially cognizable injury. “[Assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. Ill without draining those requirements of meaning.” 454 U. S., at 483. See also United States v. Richardson, 418 U. S. 166 (1974); Laird v. Tatum, 408 U. S. 1 (1972); *755 Ex parte Lévitt, 302 U. S. 633 (1937). Respondents here have no standing to complain simply that their Government is violating the law.

Neither do they have standing to litigate their claims based on the stigmatizing injury often caused by racial discrimination. There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. See Heckler v. Mathews, 465 U. S. 728, 739-740 (1984). Our cases make clear, however, that such injury accords a basis for standing only to “those persons who are personally denied equal treatment” by the challenged discriminatory conduct, ibid.

In Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), the Court held that the plaintiff had no standing to challenge a club’s racially discriminatory membership policies because he had never applied for membership. Id., at 166-167. In O’Shea v. Littleton, 414 U. S. 488 (1974), the Court held that the plaintiffs had no standing to challenge racial discrimination in the administration of their city’s criminal justice system because they had not alleged that they had been or would likely be subject to the challenged practices. The Court denied standing on similar facts in Rizzo v. Goode, 423 U. S. 362 (1976). In each of those cases, the plaintiffs alleged official racial discrimination comparable to that alleged by respondents here. Yet standing was denied in each case because the plaintiffs were not personally subject to the challenged discrimination. Insofar as their first claim of injury is concerned, respondents are in exactly the same position: unlike the appellee in Heckler v. Mathews, supra, at 740-741, n. 9, they do not allege a stigmatie injury suffered as a direct result of having personally been denied equal treatment.

The consequences of recognizing respondents’ standing on the basis of their first claim of injury illustrate why our cases plainly hold that such injury is not judicially cognizable. If the abstract stigmatie injury were cognizable, standing *756would extend nationwide to all members of the particular racial groups against which the Government was alleged to be discriminating by its grant of a tax exemption to a racially discriminatory school, regardless of the location of that school. All such persons could claim the same sort of abstract stigmatic injury respondents assert in their first claim of injury. A black person in Hawaii could challenge the grant of a tax exemption to a racially discriminatory school in Maine. Recognition of standing in such circumstances would transform the federal courts into “no more than a vehicle for the vindication of the value interests of concerned bystanders.” United States v. SCRAP, 412 U. S. 669, 687 (1973). Constitutional limits on the role of the federal courts preclude such a transformation.21

It is in their complaint’s second claim of injury that respondents allege harm to a concrete, personal interest that can support standing in some circumstances. The injury they identify — their children’s diminished ability to receive an education in a racially integrated school — is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U. S. 483 (1954), to Bob Jones University v. United States, 461 U. S. 574 (1983), one of the most serious injuries recognized in our legal system. Despite the constitutional importance of curing the *757injury alleged by respondents, however, the federal judiciary may not redress it unless standing requirements are met. In this case, respondents’ second claim of injury cannot support standing because the injury alleged is not fairly traceable to the Government conduct respondents challenge as unlawful.22

The illegal conduct challenged by respondents is the IRS’s grant of tax exemptions to some racially discriminatory schools. The line of causation between that conduct and desegregation of respondents’ schools is attenuated at best. From the perspective of the IRS, the injury to respondents is highly indirect and “results from the independent action of some third party not before the court,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 42. As the Court pointed out in Warth v. Seldin, 422 U. S., at 505, “the *758indirectness of the injury . . . may make it substantially more difficult to meet the minimum requirement of Art. Ill...

The diminished ability of respondents’ children to receive a desegregated education would be fairly traceable to unlawful IRS grants of tax exemptions only if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration. Respondents have made no such allegation. It is, first, uncertain how many racially discriminatory private schools are in fact receiving tax exemptions.23 Moreover, it is entirely speculative, as respondents themselves conceded in the Court of Appeals, see n. 17, supra, whether withdrawal of a tax exemption from any particular school would lead the school to change its policies. See 480 F. Supp., at 796. It is just as speculative whether any given parent of a child attending such a private school would decide to transfer the child to public school as a result of any changes in educational or financial policy made by the private school once it was threatened with loss of tax-exempt status. It is also pure speculation whether, in a particular community, a large enough number of the numerous relevant school officials and parents would reach decisions that collectively would have a significant impact on the racial composition of the public schools.

*759The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents’ standing. In Simon v. Eastern Kentucky Welfare Rights Org., supra, the Court held that standing to challenge a Government grant of a tax exemption to hospitals could not be founded on the asserted connection between the grant of tax-exempt status and the hospitals’ policy concerning the provision of medical services to indigents.24 The causal connection depended on the decisions hospitals would make in response to withdrawal of tax-exempt status, and those decisions were sufficiently uncertain to break the chain of causation between the plaintiffs’ injury and the challenged Government action. Id., at 40-46. See also Warth v. Seldin, supra. The chain of causation is even weaker in this case. It involves numerous third parties (officials of racially discriminatory schools receiving tax exemptions and the parents of children attending such schools) who may not even exist in respondents’ communities and whose independent decisions may not collectively have a significant effect on the ability of public school students to receive a desegregated education.

The idea of separation of powers that underlies standing doctrine explains why our cases preclude the conclusion that respondents’ alleged injury “fairly can be traced to the challenged action” of the IRS. Simon v. Eastern Kentucky Welfare Rights Org., supra, at 41. That conclusion would pave the way generally for suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations. Such suits, even when premised on allegations of *760several instances of violations of law, are rarely if ever appropriate for federal-court adjudication.

“Carried to its logical end, [respondents’] approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the ‘power of the purse’; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.” Laird v. Tatum, 408 U. S., at 15.

See also Gilligan v. Morgan, 413 U. S. 1, 14 (1973) (Blackmun, J., concurring).

The same concern for the proper role of the federal courts is reflected in cases like O’Shea v. Littleton, 414 U. S. 488 (1974), Rizzo v. Goode, 423 U. S. 362 (1976), and Los Angeles v. Lyons, 461 U. S. 95 (1983). In all three cases plaintiffs sought injunctive relief directed at certain systemwide law enforcement practices.25 The Court held in each case that, absent an allegation of a specific threat of being subject to the challenged practices, plaintiffs had no standing to ask for an injunction. Animating this Court’s holdings was the principle that “[a] federal court ... is not the proper forum to .press” general complaints about the way in which government goes about its business. Id., at 112.

Case-or-controversy considerations, the Court observed in O’Shea v. Littleton, supra, at 499, “obviously shade into those determining whether the complaint states a sound basis for equitable relief.” The latter set of considerations should therefore inform our judgment about whether respondents *761have standing. Most relevant to this case is the principle articulated in Rizzo v. Goode, supra, at 378-379:

“When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with ‘the well-established rule that the Government has traditionally been granted the widest latitude in the “dispatch of its own internal affairs,” Cafeteria Workers v. McElroy, 367 U. S. 886, 896 (1961),’ quoted in Sampson v. Murray, 415 U. S. 61, 83 (1974).”

When transported into the Art. Ill context, that principle, grounded as it is in the idea of separation of powers, counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executive Branch, and not to the Judicial Branch, the duty to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3. We could not recognize respondents’ standing in this case without running afoul of that structural principle.26

The Court of Appeals relied for its contrary conclusion on Gilmore v. City of Montgomery, 417 U. S. 556 (1974), on Norwood v. Harrison, 413 U. S. 455 (1973), and on Coit v. Green, 404 U. S. 997 (1971), summarily aff’g Green v. Con- *762 nally, 330 F. Supp. 1150 (DC). Respondents in this Court, though stressing a different injury from the one emphasized by the Court of Appeals, see supra, at 752-753, place principal reliance on those cases as well. None of the cases, however, requires that we find standing in this lawsuit.

In Gilmore v. City of Montgomery, supra, the plaintiffs asserted a constitutional right, recognized in an outstanding injunction, to use the city’s public parks on a nondiscriminatory basis. They alleged that the city was violating that equal protection right by permitting racially discriminatory private schools and other groups to use the public parks. The Court recognized plaintiffs’ standing to challenge this city policy insofar as the policy permitted the exclusive use of the parks by racially discriminatory private schools: the plaintiffs had alleged direct cognizable injury to their right to nondiscriminatory access to the public parks. Id., at 570-571, n. 10.27

Standing in Gilmore thus rested on an allegation of direct deprivation of a right to equal use of the parks. Like the plaintiff in Heckler v. Mathews — indeed, like the plaintiffs having standing in virtually any equal protection case — the plaintiffs in Gilmore alleged that they were personally being denied equal treatment. 465 U. S., at 740-741, n. 9. The Gilmore Court did not rest its finding of standing on an abstract denigration injury, and no problem of attenuated causation attended the plaintiffs’ claim of injury.28

*763In Norwood v. Harrison, supra, parents of public school children in Tunica County, Miss., filed a statewide class action challenging the State’s provision of textbooks to students attending racially discriminatory private schools in the State. The Court held the State’s practice unconstitutional because it breached “the State’s acknowledged duty to establish a unitary school system,” id., at 460-461. See id., at 463-468. The Court did not expressly address the basis for the plaintiffs’ standing.

In Gilmore, however, the Court identified the basis for standing in Norwood: “The plaintiffs in Norwood were parties to a school desegregation order and the relief they sought was directly related to the concrete injury they suffered.” 417 U. S., at 571, n. 10. Through the school-desegregation decree, the plaintiffs had acquired a right to have the State “steer clear” of any perpetuation of the racially dual school system that it had once sponsored. 413 U. S., at 467. The interest acquired was judicially cognizable because it was a personal interest, created by law, in having the State refrain from taking specific actions. Cf. Warth v. Seldin, 422 U. S., at 500 (standing may exist by virtue of legal rights created by statute). The plaintiffs’ complaint alleged that the State directly injured that interest by aiding racially discriminatory private schools. Respondents in this lawsuit, of course, have no injunctive rights against the IRS that are allegedly being harmed by the challenged IRS action.

Unlike Gilmore and Norwood, Coit v. Green, supra, cannot easily be seen to have based standing on an injury different in kind from any asserted by respondents here. The plaintiffs *764in Coit, parents of black schoolchildren in Mississippi, sued to enjoin the IRS grant of tax exemptions to racially discriminatory private schools in the State. Nevertheless, Coit in no way mandates the conclusion that respondents have standing.

First, the decision has little weight as a precedent on the law of standing. This Court's decision in Coit was merely a summary affirmance; for that reason alone it could hardly establish principles contrary to those set out in opinions issued after full briefing and argument. See Fusari v. Steinberg, 419 U. S. 379, 392 (1975) (Burger, C. J., concurring); see also Tully v. Griffin, Inc., 429 U. S. 68, 74 (1976). Moreover, when the case reached this Court, the plaintiffs and the IRS were no longer adverse parties; and the ruling that was summarily affirmed, Green v. Connolly, 330 F. Supp. 1150 (DC 1971), did not include a ruling on the issue of standing, which had been briefly considered in a prior ruling of the District Court, Green v. Kennedy, 309 F. Supp. 1127, 1132 (DC), appeal dism’d sub nom. Cannon v. Green, 398 U. S. 956 (1970). Thus, “the Court’s affirmance in Green lacks the precedential weight of a case involving a truly adversary controversy.” Bob Jones University v. Simon, 416 U. S. 725, 740, n. 11 (1974).

In any event, the facts in the Coit case are sufficiently different from those presented in this lawsuit that the absence of standing here is unaffected by the possible propriety of standing there. In particular, the suit in Coit was limited to the public schools of one State. Moreover, the District Court found, based on extensive evidence before it as well as on the findings in Coffey v. State Educational Finance Comm’n, 296 F. Supp. 1389 (SD Miss.1969), that large numbers of segregated private schools had been established in the State for the purpose of avoiding a unitary public school system, 309 F. Supp., at 1133-1134; that the tax exemptions were critically important to the ability of such schools to succeed, id., at 1134-1136; and that the connection between *765the grant of tax exemptions to discriminatory schools and desegregation of the public schools in the particular State was close enough to warrant the conclusion that irreparable injury to the interest in desegregated education was threatened if the tax exemptions continued, id., at 1138-1139.29 What made possible those findings was the fact that, when the Mississippi plaintiffs filed their suit, the IRS had a policy of granting tax exemptions to racially discriminatory private schools; thus, the suit was initially brought, not simply to reform Executive Branch enforcement procedures, but to challenge a fundamental IRS policy decision, which affected numerous identifiable schools in the State of Mississippi. See id., at 1130.30

The limited setting, the history of school desegregation in Mississippi at the time of the Coit litigation, the nature of the IRS conduct challenged at the outset of the litigation, and the District Court’s particular findings, which were never challenged as clearly erroneous, see Motion to Dismiss or Affirm in Coit v. Green, O. T. 1971, No. 71-425, p. 13, amply distinguish the Coit case from respondents’ lawsuit. Thus, we *766need not consider whether standing was properly found to exist in Coit. Whatever the answer to that question, respondents’ complaint, which aims at nationwide relief and does not challenge particular identified unlawful IRS actions, alleges no connection between the asserted desegregation injury and the challenged IRS conduct direct enough to overcome the substantial separation of powers barriers to a suit seeking an injunction to reform administrative procedures.

I-H h-f h-i

“The necessity that the plaintiff who seeks to invoke judicial power stand to profit in some personal interest remains an Art. Ill requirement.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 39. Respondents have not met this fundamental requirement. The judgment of the Court of Appeals is accordingly reversed, and the injunction issued by that court is vacated.

It is so ordered.

Justice Marshall took no part in the decision of these cases.

As the Court explained last Term in Bob Jones University v. United States, 461 U. S. 574, 579 (1983), the IRS announced this policy in 1970 and formally adopted it in 1971. Rev. Rul. 71-447, 1971-2 Cum. Bull. 230. This change in prior policy was prompted by litigation over tax exemptions for racially discriminatory private schools in the State of Mississippi, litigation that resulted in the entry of an injunction against the IRS largely if not entirely coextensive with the position the IRS had voluntarily adopted. Green v. Kennedy, 309 F. Supp. 1127 (DC) (entering preliminary injunction), appeal dism’d sub nom. Cannon v. Green, 398 U. S. 956 (1970); Green v. Connally, 330 F. Supp. 1150 (DC) (entering permanent injunction), summarily aff’d sub nom. Coit v. Green, 404 U. S. 997 (1971).

One way a school can satisfy the publication requirement is to disseminate notice of the nondiscrimination policy through the print or broadcast media. Id., §4.03-1, p. 588. Detailed IRS rules govern what print and broadcast media may be selected as well as the content of the notice. Ibid. Although the IRS encourages all schools to follow that route, see id., § 4.03-2, p. 589, there are three alternative ways to satisfy the publication requirement.

First, a parochial or church-related school at least 75% of whose students in the preceding three years were members of the church satisfies the requirement if it gives notice of its nondiscrimination policy in church publications, unless it advertises in newspapers of general circulation. Id., §4.03-2(a), p. 588. Second, a school that draws its students from areas larger than the local community satisfies the requirement if it enrolls minority students in meaningful numbers or engages in promotional and recruitment activities reasonably designed to reach all racial segments of the areas from which students are drawn. Id., §4.03-2(b). Third, a school serving only a local community satisfies the publication requirement if it actually enrolls minority students in meaningful numbers. Id., §4.03-2(c), pp. 588-589. A school choosing any of these three options *742“must be prepared to demonstrate” on audit that this choice was justified. Id., §4.03-2, p. 589.

Records must be kept, and preserved for three years, concerning the racial composition of the student body, the faculty and administrative staff, and the group of students receiving financial assistance. Copies of brochures, catalogs, and advertising must also be kept. Id., § 7.01, p. 590. Although the method of figuring racial composition must be described in the records compiled by the school, the school need not require students, applicants, or staff to furnish information not otherwise required, and the school generally need not release personally identifiable records. Id., *743§ 7.02. Cf. id., § 5.02, pp. 589-590 (information furnished by applicant for tax-exempt status subject to similar qualifications). Reports containing the required information, if filed in accordance with law with a Government agency, may satisfy the recordkeeping requirement if the information is current and the school maintains copies of the reports. Id., § 7.03, p. 590. Failure to maintain the required records gives rise to a presumption of noncompliance with the guidelines. Id., § 7.04.

The complaint generally uses the phrase “racially segregated school” to mean simply that no or few minority students attend the school, irrespective of the school’s maintenance of racially discriminatory policies or practices. Although the complaint, on its face, alleges that granting tax-exempt status to any “racially segregated” school in a desegregating public school district is unlawful, App. 39, it is clear that respondents premise their allegation of illegality on discrimination, not on segregation alone.

The nub of respondents’ complaint is that current IRS guidelines and procedures are inadequate to detect false certifications of nondiscrimination policies. See Id., at 17-18, 25. This allegation would be superfluous if respondents were claiming that racial segregation even without racial discrimination made the grant of tax-exempt status unlawful. Moreover, respondents have noticeably refrained from asserting that the IRS violates the law when it grants a tax exemption to a nondiscriminatory private school that happens to have few minority students. Indeed, respondents’ brief in this Court makes a point of noting that their complaint alleges not only segregation but discrimination, see Brief for Respondents 10, n. 8, *745and it repeatedly states that the challenged Government conduct is the granting of tax exemptions to racially discriminatory private schools, see, e. g., id., at 9-10 (“Respondents alleged that the federal petitioners are continuing to grant tax-exempt status to racially discriminatory private schools . . .”); id., at 13-14.

Since respondents’ entire argument is built on the assertion that their rights are violated by IRS grants of tax-exempt status to some number of unidentified racially discriminatory private schools in desegregating districts, we resolve the ambiguity in respondents’ complaint by reading it as making that assertion.

Contrary to Justice Brennan’s statement, post, at 768, the complaint does not allege that each desegregating district in which they reside contains one or more racially discriminatory private schools unlawfully receiving a tax exemption.

The first proposal was made on August 22,1978. 43 Fed. Reg. 37296. It placed the burden of proving good faith operation on a nondiscriminatory basis, evaluated according to specified factors, on any private school that had an insignificant number of minority students and that had been formed or substantially expanded at a time the public schools in its community were undergoing desegregation. The second proposal was made *748on February 18, 1979, after public comment and hearings. 44 Fed. Reg. 9451. It afforded private schools “greater flexibility” in proving nondiscriminatory operation, permitting satisfaction of this proof requirement by a showing that the school has “undertaken actions or programs reasonably designed to attract minority students on a continuing basis.” Id., at 9452, 9454.

Treasury, Postal Service, and General Government Appropriations Act of 1980, §§ 103 and 615, 93 Stat. 562, 577. Section 615 of the Act, known as the Dornan Amendment, specifically forbade the use of funds to carry out the IRS’s proposed Revenue Procedures. Section 103 of the Act, known as the Ashbrook Amendment, more generally forbade the use of funds to make the requirements for tax-exempt status of private schools more stringent than those in effect prior to the IRS’s proposal of its new Revenue Procedures.

These provisions expired on October 1, 1980, but Congress maintained its interest in IRS policies regarding tax exemptions for racially discriminatory private schools. The Dornan and Ashbrook Amendments were reinstated for the period December 16,1980, through September 30,1981. H. J. Res. 644, Pub. L. 96-536, §§ 101(a)(1) and (4), 94 Stat. 3166, as amended by Supplemental Appropriations and Rescission Act of 1981, § 401, 95 Stat. 95. For fiscal year 1982, Congress specifically denied funding for carrying out not only administrative actions but also court orders entered after the date of the IRS’s proposal of its first revised Revenue Procedure. H. J. Res. 325, Pub. L. 97-51, § 101(a)(3), 95 Stat. 958. No such spending restrictions are currently in force.

The “fairly traceable” and “redressability” components of the constitutional standing inquiry were initially articulated by this Court as “two facets of a single causation requirement.” C. Wright, Law of Federal Courts § 13, p. 68, n. 43 (4th ed. 1983). To the extent there is a difference, it is that the former examines the causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Cases such as this, in which the relief requested goes well beyond the violation of law alleged, illustrate why it is important to keep the inquiries separate if the “redressability” component is to focus on the requested relief. Even if the relief respondents request might have a substantial effect on the desegregation of public schools, whatever deficiencies exist in the opportunities for desegregated education for respondents’ children might not be traceable to IRS violations of law — grants of tax exemptions to racially discriminatory schools in respondents’ communities.

Cf. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 489-490, n. 26 (1982) (citations omitted): “Were we to recognize standing premised on an ‘injury’ consisting solely of an alleged violation of a ‘ “personal constitutional right” to a government that does not establish religion,’ a principled consistency would dictate recognition of respondents’ standing to challenge execution of every capital sentence on the basis of a personal right to a government that does not impose cruel and unusual punishment, or standing to challenge every affirmative-action program on the basis of a personal right to a government that does not deny equal protection of the laws, to choose but two among as many possible examples as there are commands in the Constitution.”

Respondents’ stigmatic injury, though not sufficient for standing in the abstract form in which their complaint asserts it, is judicially cognizable to the extent that respondents are personally subject to discriminatory treatment. See Heckler v. Mathews, 465 U. S. 728, 739-740 (1984). The stigmatic injury thus requires identification of some concrete interest with respect to which respondents are personally subject to discriminatory treatment. That interest must independently satisfy the causation requirement of standing doctrine.

In Heckler v. Mathews, for example, the named plaintiff (appellee) was being denied monetary benefits allegedly on a discriminatory basis. We specifically pointed out that the causation component of standing doctrine was satisfied with respect to the claimed benefits. In distinguishing the case from Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976), we said: “there can be no doubt about the direct causal relationship between the Government’s alleged deprivation of appellee’s right to equal protection and the personal injury appellee has suffered — denial of Social Security benefits solely on the basis of his gender.” 465 U. S., at 741, n. 9.

In this litigation, respondents identify only one interest that they allege is being discriminatorily impaired — their interest in desegregated public school education. Respondents’ asserted stigmatic injury, therefore, is sufficient to support their standing in this litigation only if their school-desegregation injury independently meets the causation requirement of standing doctrine.

Indeed, contrary to the suggestion of Justice Brennan’s dissent, post, at 774-775, and n. 5, of the schools identified in respondents’ complaint, none of those alleged to be directly receiving a tax exemption is alleged to be racially discriminatory, and only four schools — Delta Christian Academy and Tallulah Academy in Madison Parish, La.; River Oaks School in Monroe, La.; and Bowman Academy in Orangeburg, S. C. — are alleged to have discriminatory policies that deprive them of direct tax exemptions yet operate under the umbrella of a tax-exempt organization. These allegations constitute an insufficient basis for the only claim made by respondents — a claim for a change in the IRS regulations and practices. Cf. Wright v. Miller, 480 F. Supp. 790, 796 (DC 1979) (“it is purely speculative whether, in the final analysis, any fewer schools would be granted tax exemptions under plaintiffs’ system than under the current IRS system”).

Indeed, the Court stressed the importance of a particularized factual record when it stated that it was “not prepared, at this juncture and on this record, to assume the standing of these plaintiffs to claim relief against certain nonexclusive uses by private school groups.” Id., at 570, n. 10. “Without a properly developed record,” said the Court, it was not clear *763that such nonexclusive use “would result in cognizable injury to these plaintiffs.” Id., at 571, n. 10.

The Court said nothing about the plaintiffs’ standing to challenge the use of the parks, exclusive or nonexclusive, by racially discriminatory groups other than schools. It was unnecessary to do so because the Court declined to consider the merits of that challenge on the record before it. Id., at 570-574.

Justice Brennan,

dissenting.

Once again, the Court “uses ‘standing to slam the courthouse door against plaintiffs who are entitled to full consideration of their claims on the merits. ’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 490 (1982) (Brennan, J., dissenting) (quoting Barlow v. Collins, 397 U. S. 159, 178 (1970) (Brennan, J., concurring in result and dissenting)). And once again, the Court does so by “wax[ing] eloquent” on considerations that provide little justification for the decision at hand. See 454 U. S., at 491. This time, however, the Court focuses on “the idea of separation of powers,” ante, at 750, 752, 759, 761, as if the mere incantation of that phrase provides an obvious solution to the difficult questions presented by these cases.

*767One could hardly dispute the proposition that Art. Ill of the Constitution, by limiting the judicial power to “Cases” or “Controversies,” embodies the notion that each branch of our National Government must confine its actions to those that are consistent with our scheme of separated powers. But simply stating that unremarkable truism provides little, if any, illumination of the standing inquiry that must be undertaken by a federal court faced with a particular action filed by particular plaintiffs. “The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government.” Flast v. Cohen, 392 U. S. 83, 100 (1968).

The Court’s attempt to obscure the standing question must be seen, therefore, as no more than a cover for its failure to recognize the nature of the specific claims raised by the respondents in these cases. By relying on generalities concerning our tripartite system of government, the Court is able to conclude that the respondents lack standing to maintain this action without acknowledging the precise nature of the injuries they have alleged. In so doing, the Court displays a startling insensitivity to the historical role played by the federal courts in eradicating race discrimination from our Nation’s schools — a role that has played a prominent part in this Court’s decisions from Brown v. Board of Education, 347 U. S. 483 (1954), through Bob Jones University v. United States, 461 U. S. 574 (1983). Because I cannot join in such misguided decisionmaking, I dissent.

The respondents, suing individually and on behalf of their minor children, are parents of black children attending public schools in various school districts across the Nation. Each of these school districts, the respondents allege,1 was once seg*768regated and is now in the process of desegregating pursuant to court order, federal regulations or guidelines, state law, or voluntary agreement. Moreover, each contains one or more private schools that discriminate against black schoolchildren and that operate with the assistance of tax exemptions unlawfully granted to them by the Internal Revenue Service (IRS). See Complaint ¶¶24-48, App. 26-38.

To eliminate this federal financial assistance for discriminating schools, the respondents seek a declaratory judgment that current IRS practices are inadequate both in identifying racially discriminatory schools and in denying requested tax exemptions or revoking existing exemptions for any schools so identified. In particular, they allege that existing IRS guidelines permit schools to receive tax exemptions simply by adopting and certifying — but not implementing — a policy of nondiscrimination. Pursuant to these ineffective guidelines,2 many private schools that discriminate on the basis of *769race continue to benefit illegally from their tax-exempt status and the resulting charitable deductions granted to taxpayers who contribute to such schools. The respondents therefore seek a permanent injunction requiring the IRS to deny tax exemptions to any private schools

“which have insubstantial or non-existent minority enrollments, which are located in or serve desegregating school districts, and which either—

“(a) were established or expanded at or about the time the public school districts in which they are located or which they serve were desegregating;

adversary judicial or administrative proceedings to be racially segregated; or

“(c) cannot demonstrate that they do not provide racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems.” Complaint ¶4, App. 19.

This requested relief is substantially similar to the enforcement guidelines promulgated by the IRS itself in 1978 and 1979, before congressional action temporarily stayed, and the agency withdrew, the amended procedures. See 44 Fed. Reg. 9451 (1979); 43 Fed. Reg. 37296 (1978). Cf. ante, at 747, and nn. 15-16.

*770HH 1 — 4

Persons seeking judicial relief from an Art. Ill court must have standing to maintain their cause of action. At a minimum, the standing requirement is not met unless the plaintiff has “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends . . . .” Baker v. Carr, 369 U. S. 186, 204 (1962). Under the Court’s cases, this “personal stake” requirement is satisfied if the person seeking redress has suffered, or is threatened with, some “distinct and palpable injury,” Warth v. Seldin, 422 U. S. 490, 501 (1975), and if there is some causal connection between the asserted injury and the conduct being challenged, Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 41 (1976). See Heckler v. Mathews, 465 U. S. 728, 738 (1984); Havens Realty Corp. v. Coleman, 455 U. S. 363, 376 (1982); Valley Forge, 454 U. S., at 472.

In these cases, the respondents have alleged at least one type of injury that satisfies the constitutional requirement of “distinct and palpable injury.”3 In particular, they claim *771that the IRS’s grant of tax-exempt status to racially discriminatory private schools directly injures their children’s opportunity and ability to receive a desegregated education. As the complaint specifically alleges, the IRS action being challenged

“fosters and encourages the organization, operation and expansion of institutions providing racially segregated educational opportunities for white children avoiding attendance in desegregating public school districts and thereby interferes with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have been operating racially dual school systems.” Complaint ¶50(b), App. 39.

The Court acknowledges that this alleged injury is sufficient to satisfy constitutional standards. See ante, at 756. It does so only grudgingly, however, without emphasizing the significance of the harm alleged. Nonetheless, we have consistently recognized throughout the last 30 years that the deprivation of a child’s right to receive an education in a desegregated school is a harm of special significance; surely, it satisfies any constitutional requirement of injury in fact. Just last Term in Bob Jones University v. United States, for example, we acknowledged that “[a]n unbroken line of cases following Brown v. Board of Education establishes beyond doubt this Court’s view that racial discrimination in education violates a most fundamental national public policy, as well as rights of individuals.” 461 U. S., at 593 (1983) (emphasis added). See Gilmore v. City of Montgomery, 417 U. S. 556, 568 (1974) (“[T]he constitutional rights of children not to be discriminated against. . . can neither be nullified openly and *772directly . . nor nullified indirectly . . . through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously’ ”) (quoting Cooper v. Aaron, 358 U. S. 1, 17 (1958)); Norwood v. Harrison, 413 U. S. 455, 468-469 (1973). “The right of a student not to be segregated on racial grounds in schools ... is indeed so fundamental and pervasive that it is embraced in the concept of due process of law.” Cooper v. Aaron, supra, at 19; Brown v. Board of Education, 347 U. S. 483 (1954).

In the analogous context of housing discrimination, the Court has similarly recognized that the denial of an opportunity to live in an integrated community is injury sufficient to satisfy the constitutional requirements of standing. In particular, we have recognized that injury is properly alleged when plaintiffs claim a deprivation “of the social and professional benefits of living in an integrated society.” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 111-112 (1979). See also Havens Realty Corp. v. Coleman, supra, at 376, and n. 17; Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972). Noting “the importance of the ‘benefits [obtained] from interracial associations,’” as well as the oft-stated principle “that noneconomic injuries may suffice to provide standing,” we have consistently concluded that such an injury is “sufficient to satisfy the constitutional standing requirement of actual or threatened harm.” Gladstone, Realtors, supra, at 112 (quoting Trafficante, supra, at 210, and citing Sierra Club v. Morton, 405 U. S. 727, 734-735 (1972)).

There is, of course, no rational basis on which to treat children who seek to be educated in desegregated school districts any differently for purposes of standing than residents who seek to live in integrated housing communities. Indeed, if anything, discriminatory practices by private schools, which “exer[t] a pervasive influence on the entire educational process,” Norwood, supra, at 469 (citing Brown v. Board of Education, supra, and quoted in Bob Jones University, supra, at *773595), have been more readily recognized to constitute injury redressable in the federal courts. It is therefore beyond peradventure that the denial of the benefits of an integrated education alleged by the respondents in these cases constitutes “distinct and palpable injury.”

Fully explicating the injury alleged helps to explain why it is fairly traceable to the governmental conduct challenged by the respondents. As the respondents specifically allege in their complaint:

“Defendants have fostered and encouraged the development, operation and expansion of many of these racially segregated private schools by recognizing them as ‘charitable’ organizations described in Section 501(c)(3) of the Internal Revenue Code, and exempt from federal income taxation under Section 501(a) of the Code. Once the schools are classified as tax-exempt . . ., contributions made to them are deductible from gross income on individual and corporate income tax returns. . . . Moreover, [the] organizations . . . are also exempt from federal social security taxes . . . and from federal unemployment taxes .... The resulting exemptions and deductions provide tangible financial aid and other benefits which support the operation of racially segregated private schools. In particular, the resulting deductions facilitate the raising of funds to organize new schools and expand existing schools in order to accommodate white students avoiding attendance in desegregating public school districts. Additionally, the existence of a federal tax exemption amounts to a federal stamp of approval which facilitates fund raising on behalf of racially segregated private schools. Finally, by supporting the development, operation and expansion of institutions providing racially segregated educational opportunites *774for white children avoiding attendance in desegregating public schools, defendants are thereby interfering with the efforts of courts, HEW and local school authorities • to desegregate public school districts which have been operating racially dual school systems. ” Complaint ¶ 21, App. 24.4

Viewed in light of the injuries they claim, the respondents have alleged a direct causal relationship between the Government action they challenge and the injury they suffer: their inability to receive an education in a racially integrated school is directly and adversely affected by the tax-exempt status granted by the IRS to racially discriminatory schools in their respective school districts. Common sense alone would recognize that the elimination of tax-exempt status for racially discriminatory private schools would serve to lessen the impact that those institutions have in defeating efforts to desegregate the public schools.

The Court admits that “[t]he diminished ability of respondents’ children to receive a desegregated education would be *775fairly traceable to unlawful IRS grants of tax exemptions . . . if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration,” but concludes that “[respondents have made no such allegation.” Ante, at 758. With all due respect, the Court has either misread the complaint or is improperly requiring the respondents to prove their case on the merits in order to defeat a motion to dismiss.5 For example, the respondents specifically refer by name to at least 32 private schools that discriminate on the basis of race and yet continue to benefit illegally from tax-exempt status. Eighteen of those schools — including at least 14 elementary schools, 2 junior high schools, and 1 high school — are located in the city of Memphis, Tenn., which has been the subject of several court orders to desegregate. See Complaint ¶¶ 24-27, 45, App. 26-27, 35-36. Similarly, the respondents cite two private schools in Orangeburg, S. C. that continue to benefit from federal tax exemptions even though they practice race discrimination in school districts that are desegregating pursuant to judicial and administrative orders. See Complaint ¶¶29, 46, App. 28, 36. At least with respect to these school districts, as well as the others specifically mentioned in the complaint, there can be little doubt that the respondents have identified communities containing “enough racially discriminatory private schools receiving tax exemptions ... to make an appreciable difference in public school integration,” ante, at 758.6

*776Moreover, the Court has previously recognized the existence, and constitutional significance, of such direct relationships between unlawfully segregated school districts and government support for racially discriminatory private schools in those districts. In Norwood v. Harrison, 413 U. S. 455 (1973), for example, we considered a Mississippi program that provided textbooks to students attending both public and private schools, without regard to whether any participating school had racially discriminatory policies. In declaring that program constitutionally invalid, we noted that “ ‘a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.’” Id., at 465. We then spoke directly to the causal relationship between the financial aid provided by the state textbook program and the constitutional rights asserted by the students and their parents:

“The District Court laid great stress on the absence of a showing by appellants that ‘any child enrolled in private school, if deprived of free textbooks, would withdraw from private school and subsequently enroll in the public schools.’ . . . We do not agree with the District Court in its analysis of the legal consequences of this uncertainty, for the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school. A State may not grant the type of tangible financial aid here involved if that aid has a significant tendency to facilitate, reinforce, and support private discrimination.” Id., at 465-466 (citations omitted) (emphasis added).

*777Thus, Norwood explicitly stands for the proposition that governmental aid to racially discriminatory schools is a direct impediment to school desegregation.

The Court purports to distinguish Norwood from the present litigation because ‘“[t]he plaintiffs in Norwood were parties to a school desegregation order’ ” and therefore “had acquired a right to have the State ‘steer clear’ of any perpetuation of the racially dual school system that it had once sponsored,” ante, at 763 (quoting Gilmore v. City of Montgomery, 417 U. S., at 571, n. 10, and Norwood, supra, at 467), whereas the “[Respondents in this lawsuit. . . have no injunctive rights against the IRS that are allegedly being harmed,” ante, at 763. There is nothing to suggest, however, that the relevant injunction in Norwood was anything more than an order to desegregate the schools in Tunica County, Miss.7 Given that many of the school districts identified in the respondents’ complaint have also been the subject of court-ordered integration, the standing inquiry in these cases should not differ. And, although the respondents do not specifically allege that they are named parties to *778any outstanding desegregation orders, that is undoubtedly due to the passage of time since the orders were issued, and not to any difference in the harm they suffer.

Even accepting the relevance of the Court’s distinction, moreover, that distinction goes to the injury suffered by the respective plaintiffs, and not to the causal connection between the harm alleged and the governmental action challenged. Cf. ante, at 756 (conceding that the respondents have alleged constitutionally sufficient harm in these cases). The causal relationship existing in Norwood between the alleged harm (i. e., interference with the plaintiffs’ injunctive rights to a desegregated school system) and the challenged governmental action (i. e., free textbooks provided to racially discriminatory schools) is indistinguishable from the causal relationship existing in the present cases, unless the Court intends to distinguish the lending of textbooks from the granting of tax-exempt status. The Court’s express statement on causation in Norwood therefore bears repeating: “the Constitution does not permit the State to aid discrimination even when there is no precise causal relationship between state financial aid to a private school and the continued well-being of that school.” 413 U. S., at 465-466. See Note, The Judicial Role in Attacking Racial Discrimination in Tax-Exempt Private Schools, 93 Harv. L. Rev. 378, 385-386 (1979).8

*779Similarly, although entitled to less weight than a decision after full briefing and oral argument on the merits, see Tully v. Griffin, Inc., 429 II. S. 68, 74 (1976), our summary affirmance in Coit v. Green, 404 U. S. 997 (1971), summarily aff’g Green v. Connally, 330 F. Supp. 1150 (DC), is directly relevant to the standing of the respondents in this litigation. The plaintiffs in Coit v. Green were black parents of minor children attending public schools in desegregating school districts. Like the respondents in these cases, the plaintiffs charged that the IRS had failed to confine tax-exempt status to private schools that were not racially discriminatory. And like the present respondents, they sought new IRS procedures as their exclusive remedy.

The three-judge District Court expressly concluded that the plaintiffs had standing to maintain their action:

“This case is properly maintained as a class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, by Negro school children in Mississippi and the parents of those children on behalf of themselves and all persons similarly situated. They have standing to attack the constitutionality of statutory provisions which they claim provid[e] an unconstitutional system of benefits and *780matching grants that fosters and supports a system of segregated private schools as an alternative available to white students seeking to avoid desegregated public schools. We follow the precedent on this point of the three-judge District Court for the Southern District of Mississippi in Coffey v. State Educational Finance Commission, 296 F. Supp. 1389 (1969).” Green v. Kennedy, 309 F. Supp. 1127, 1132 (DC), appeal dism’d sub nom. Cannon v. Green, 398 U. S. 956 (1970).

When the case was properly appealed to this Court, the standing issue was expressly raised in the jurisdictional statement filed by intervenor Coit, on behalf of a class of parents and children who supported or attended all-white private schools. Juris. Statement, O. T. 1971, No. 71-425, p. 11. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S., at 63, and n. 11 (Brennan, J., concurring in judgment). Nonetheless, the Court summarily affirmed, Coit v. Green, supra, thereby indicating our agreement with the District Court’s conclusion.9 See also Griffin v. County *781 School Board of Prince Edward County, 377 U. S. 218, 224 (1964).

Given these precedents, the Court is forced to place primary reliance on our decision in Simon v. Eastern Kentucky Welfare Rights Org., supra. In that case, the Court denied standing to plaintiffs who challenged an IRS Revenue Ruling that granted charitable status to hospitals even though they failed to operate to the extent of their financial ability when refusing medical services for indigent patients. The Court found that the injury alleged was not one “that fairly can be traced to the challenged action of the defendant.” Id., at 41. In particular, it was “purely speculative” whether the denial of access to hospital services alleged by the plaintiffs fairly could be traced to the Government’s grant of tax-exempt status to the relevant hospitals, primarily because the hospitals were likely making their service decisions without regard to the tax implications. Id., at 42-43.

Even accepting the correctness of the causation analysis included in that decision, however, it is plainly distinguishable from the cases at hand. The respondents in these cases do not challenge the denial of any service by a tax-exempt *782institution; admittedly, they do not seek access to racially discriminatory private schools. Rather, the injury they allege, and the injury that clearly satisfies constitutional requirements, is the deprivation of their children’s opportunity and ability to receive an education in a racially integrated school district. See supra, at 770-773. This injury, as the Court admits, ante, at 757-758, and as we have previously held in Norwood v. Harrison, 413 U. S., at 465-466, is of a kind that is directly traceable to the governmental action being challenged. The relationship between the harm alleged and the governmental action cannot simply be deemed “purely speculative,” as was the causal connection at issue in Simon v. Eastern Kentucky Welfare Rights Org., supra, at 42. Indeed, as I have previously explained, supra, at 773-778, the Court’s conclusion to the contrary is based on a unjustifiably narrow reading of the respondents’ complaint and an indefensibly limited interpretation of our holding in Norwood. By interposing its own version of pleading formalities between the respondents and the federal courts, the Court not only has denied access to litigants who properly seek vindication of their constitutional rights, but also has ignored the important historical role that the courts have played in the Nation’s efforts to eliminate racial discrimination from our schools.

Ill

More than one commentator has noted that the causation component of the Court’s standing inquiry is no more than a poor disguise for the Court’s view of the merits of the underlying claims.10 The Court today does nothing to avoid that criticism. What is most disturbing about today’s decision, therefore, is not the standing analysis applied, but the in*783difference evidenced by the Court to the detrimental effects that racially segregated schools, supported by tax-exempt status from the Federal Government, have on the respondents’ attempt to obtain an education in a racially integrated school system. I cannot join such indifference, and would give the respondents a chance to prove their case on the merits.

As I have recognized in n. 1, supra, we must accept as true the factual allegations made by the respondents. It nonetheless should be noted that significant evidence exists to support the respondents’ claim that the IRS guidelines are ineffective. Indeed, the Commissioner of Internal Revenue admitted as much in testimony before the Congress:

“This litigation prompted the Service once again to review its procedures in this area. It focused our attention on the adequacy of existing policies and procedures as we moved to formulate a litigation position. We concluded that the Service’s procedures were ineffective in identifying schools which in actual operation discriminate against minority students, even though the schools may profess an open enrollment policy and comply with the yearly publication requirements of Revenue Procedure 75-50.

“A clear indication that our rules require strengthening is the fact that a number of private schools continue to hold tax exemption even though they have been held by Federal courts to be racially discriminatory. This position is indefensible. Just last year the U. S. Commission on Civil Rights *769criticized the Service’s enforcement in this area as inadequate, emphasizing the continuing tax exemption of such adjudicated schools.” Tax-Exempt Status of Private Schools: Hearings before the Subcommittee on Oversight of the House Committee on Ways and Means, 96th Cong., 1st Sess., 5 (1979) (statement of Jerome Kurtz, Commissioner of Internal Revenue) (emphasis added).

See also id., at 236-261 (letter and memorandum from U. S. Commission on Civil Rights criticizing IRS enforcement policies); id., at 1181-1182, 1187-1191 (statement and letter from Civil Rights Division of the Department of Justice criticizing IRS guidelines).

Because I conclude that the second injury alleged by the respondents is sufficient to satisfy constitutional requirements, I do not need to reach what the Court labels the “stigmatic injury.” See ante, at 754-756, and n. 22. I note, however, that the Court has mischaracterized this claim of injury by misreading the complaint filed by the respondents. In particular, the respondents have not simply alleged that, as blacks, they have suffered the denigration injury “suffered by all members of a racial group when the Government discriminates on the basis of race.” Ante, at 754. Rather, the complaint, fairly read, limits the claim of stigmatic injury from illegal governmental action to black children attending public schools in districts that are currently desegregating yet contain discriminatory private schools benefiting from illegal tax exemptions. Cf. Havens Realty Corp. v. Coleman, 455 U. S., at 377 (injury from racial steering practices confined to “relatively compact neighborhood[s]”). Thus, the Court’s “parade of horribles” concerning black plaintiffs from Hawaii challenging tax *771exemptions granted to schools in Maine, see ante, at 756, is completely irrelevant for purposes of Art. Ill standing in this action. Indeed, even if relevant, that criticism would go to the scope of the class certified or the relief granted in the lawsuit, issues that were not reached by the District Court or the Court of Appeals and are not now before this Court.

The substance of these allegations is also summarized in ¶ 2 of the complaint:

“Contrary to law and their public responsibility, defendants have fostered and encouraged the development, operation and expansion of these racially segregated private schools by granting them, or the organizations that operate them, exemptions from federal income taxation .... Defendants have thereby ensured that these private schools will be exempt from federal income taxation, and that contributions to them will be deductible by corporate and individual donors for federal tax purposes. These federal tax benefits are important to the financial well-being of private segregated schools and significantly support their development, operation and expansion. Moreover, by facilitating the development, operation and expansion of racially segregated schools which provide alternative educational opportunities for white children avoiding attendance in desegregating public school systems, defendants are thereby interfering with the efforts of federal courts, HEW and local school authorities to desegregate public school districts which have operated racially dual school systems.” App. 17-18.

In particular, the plaintiffs in Norwood, suing on behalf of a statewide class of black students, characterized the basis for their standing as follows:

“The named plaintiffs. . . are black citizens of the United States residing in Tunica County, Mississippi. They are students in attendance at the public schools of the Tunica County School District. Their right to a racially integrated and otherwise nondiscriminatory public school system, vindicated by order of [the District Court] dated January 23, 1970 [United States and Driver v. Tunica County School District, Civil Action Nos. DC 6718 and 7013], and their right to the elimination of state support for racially segregated schools, has been frustrated and/or abridged by the creation of the racially segregated Tunica County Institute of Learning and the policies and practices of defendants as set forth below.” App. 20 and Brief for United States as Amicus Curiae in Norwood v. Harrison, O. T. 1972, No. 72-77, p. 5.

For the reasons explained in the text, I find these allegations legally indistinguishable from the allegations in the present litigation.

Our subsequent decision in Gilmore v. City of Montgomery, 417 U. S. 556 (1974), heavily relied on our decision in Norwood. In Gilmore, we considered a challenge to a city policy that permitted racially segregated schools and other segregated private groups and clubs to use city parks and recreational facilities. In affirming an injunction against exclusive access to such facilities, we noted:

“Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. ‘[T]he constitutional rights of children not to be discriminated against. . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” ’ This means that any tangible *779state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’ The constitutional obligation of the State ‘requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.’” 417 U. S., at 568-569 (citations omitted).

The Court notes that the case in Gilmore was remanded to the District Court for development of a more particularized record to ensure that the nonexclusive use of the city’s parks ‘“would result in cognizable injury to these plaintiffs.’” Ante, at 763, n. 28 (quoting Gilmore, supra, at 570-571, n. 10). At most, however, this simply suggests that a remand for more particularized pleadings is the proper disposition in the present litigation. Cf. n. 6, supra. The Court is therefore no more faithful to the procedures followed in Gilmore than it is to the substance of that decision.

The Court’s discussion of our summary affirmance in Coit v. Green simply stretches the imagination beyond its breaking point. The Court concludes that “[t]he limited setting, the history of school desegregation in Mississippi at the time of the Coit litigation, the nature of the IRS conduct challenged at the outset of the litigation, and the District Court’s particular findings . . . amply distinguish the Coit case from respondents’ lawsuit.” Ante, at 765. With all due respect, none of these criteria should be relevant to the determination of standing in these cases.

First, although the Coit litigation was limited to the State of Mississippi, that relates solely to the scope of a properly certified class, and not to the standing of class members to maintain their action. Cf. n. 3, supra. Second, although the District Court made extensive findings concerning the importance of tax exemptions to the discriminatory schools involved in the Coit litigation, that only helps to prove the truth of the allegations made by the respondents in these cases. It also demonstrates why the respondents should be given either an opportunity to prove their case on the merits or an opportunity to amend their pleadings with more particularized allegations. Cf. nn. 6, 8, supra. Because the respondents in this litigation have never had their day in court, the Court’s use of the specific findings *781made in the Coit litigation to deny the respondents standing in this litigation makes a mockery of the standing inquiry. Third, although it is correct that, before the Coit litigation, the IRS initially followed a policy of granting tax exemptions to racially discriminatory schools, that should have no bearing on the respondents’ standing in these cases; indeed, the respondents have alleged that the current IRS enforcement policy is so ineffective as to be the functional equivalent of the Government’s policy prior to the Coit litigation. See supra, at 768, and n. 2. Finally, if the “history of school desegregation in Mississippi at the time of the Coit litigation” is at all relevant to the standing inquiry, it weighs in favor of allowing the respondents to maintain their present lawsuit. From the perspective of black children attending desegregating public schools, and according to the allegations included in their complaint, current IRS policies toward racially discriminatory private schools represent a substantial continuation of the onerous history of school desegregation in the affected school districts. With all respect, therefore, the Court has simply failed to distinguish these cases from our summary affirmance in Coit v. Green.

Justice Stevens,

with whom Justice Blackmun joins, dissenting.

Three propositions are clear to me: (1) respondents have adequately alleged “injury in fact”; (2) their injury is fairly traceable to the conduct that they claim to be unlawful; and (3) the “separation of powers” principle does not create a jurisdictional obstacle to the consideration of the merits of their claim.

H-4

Respondents, the parents of black schoolchildren, have alleged that their children are unable to attend fully desegregated schools because large numbers of white children in the areas in which respondents reside attend private schools which do not admit minority children. The Court, Justice Brennan, and I all agree that this is an adequate allegation of “injury in fact. ” The Court is quite correct when it writes:

“The injury they identify — their children’s diminished ability to receive an education in a racially integrated school — is, beyond any doubt, not only judicially cognizable but, as shown by cases from Brown v. Board of Education, 347 U. S. 483 (1954), to Bob Jones University v. United States, 461 U. S. 574 (1983), one of the most serious injuries recognized in our legal system.” Ante, at 756.

This kind of injury may be actionable whether it is caused by the exclusion of black children from public schools or by an official policy of encouraging white children to attend nonpub-*784lie schools. A subsidy for the withdrawal of a white child can have the same effect as a penalty for admitting a black child.

In final analysis, the wrong respondents allege that the Government has committed is to subsidize the exodus of white children from schools that would otherwise be racially integrated. The critical question in these cases, therefore, is whether respondents have alleged that the Government has created that kind of subsidy.

In answering that question, we must of course assume that respondents can prove what they have alleged. Furthermore, at this stage of the litigation we must put to one side all questions about the appropriateness of a nationwide class action.1 The controlling issue is whether the causal connection between the injury and the wrong has been adequately alleged.

An organization that qualifies for preferential treatment under § 501(c)(3) of the Internal Revenue Code, because it is “operated exclusively for . . . charitable . . . purposes,” 26 *785 U. S. C. § 501(c)(3), is exempt from paying federal income taxes, and under § 170 of the Code, 26 U. S. C. § 170, persons who contribute to such organizations may deduct the amount of their contributions when calculating their taxable income. Only last Term we explained the effect of this preferential treatment:

“Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual’s contributions.” Regan v. Taxation With Representation of Washington, 461 U. S. 540, 544 (1983) (footnote omitted).

The purpose of this scheme, like the purpose of any subsidy, is to promote the activity subsidized; the statutes “seek to achieve the same basic goal of encouraging the development of certain organizations through the grant of tax benefits.” Bob Jones University v. United States, 461 U. S. 574, 587, n. 10 (1983). If the granting of preferential tax treatment would “encourage” private segregated schools to conduct their “charitable” activities, it must follow that the withdrawal of the treatment would “discourage” them, and hence promote the process of desegregation.2

*786We have held that when a subsidy makes a given activity more or less expensive, injury can be fairly traced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity.3 Indeed, we have employed exactly this causation analysis in the same context at issue here — subsidies given private schools that practice racial discrimination. Thus, in Gilmore v. City of Montgomery, 417 U. S. 556 (1974), we easily recognized the causal connection between official policies that enhanced the attractiveness of segregated schools and the failure to bring about or maintain a desegregated public school system.4 Similarly, in Norwood v. Harrison, *787 413 U. S. 455 (1973), we concluded that the provision of textbooks to discriminatory private schools “has a significant tendency to facilitate, reinforce, and support private discrimination.” Id., at 466.

The Court itself appears to embrace this reading of Gilmore and Norwood. It describes Gilmore as holding that a city’s policy of permitting segregated private schools to use public parks “would impede the integration of the public schools. Exclusive availability of the public parks ‘significantly enhanced the attractiveness of segregated private schools ... by enabling them to offer complete athletic programs.’” Ante, at 762, n. 27 (quoting 417 U. S., at 569). It characterizes Norwood as having concluded that the provision of textbooks to such schools would impede court-ordered desegregation. Ante, at 763. Although the form of the subsidy for segregated private schools involved in Gilmore and Norwood was different from the “cash grant” that flows from a tax exemption, the economic effect and causal connection between the subsidy and the impact on the complaining litigants was precisely the same in those cases as it is here.

*788This causation analysis is nothing more than a restatement of elementary economics: when something becomes more expensive, less of it will be purchased. Sections 170 and 501(c)(3) are premised on that recognition. If racially discriminatory private schools lose the “cash grants” that flow from the operation of the statutes, the education they provide will become more expensive and hence less of their services will be purchased. Conversely, maintenance of these tax benefits makes an education in segregated private schools relatively more attractive, by decreasing its cost. Accordingly, without tax-exempt status, private schools will either not be competitive in terms of cost, or have to change their admissions policies, hence reducing their competitiveness for parents seeking “a racially segregated alternative” to public schools, which is what respondents have alleged many white parents in desegregating school districts seek.5 In either event the process of desegregation will be advanced in the same way that it was advanced in Gilmore and Norwood— the withdrawal of the subsidy for segregated schools means the incentive structure facing white parents who seek such schools for their children will be altered. Thus, the laws of economics, not to mention the laws of Congress embodied in §§ 170 and 501(c)(3), compel the conclusion that the injury respondents have alleged — the increased segregation of their children’s schools because of the ready availability of private schools that admit whites only — will be redressed if these schools’ operations are inhibited through the denial of preferential tax treatment.6

*789J — < I — i HH

Considerations of tax policy, economics, and pure logic all confirm the conclusion that respondents’ injury in fact is fairly traceable to the Government’s allegedly wrongful conduct. The Court therefore is forced to introduce the concept of “separation of powers” into its analysis. The Court writes that the separation of powers “explains why our cases preclude the conclusion” that respondents’ injury is fairly traceable to the conduct they challenge. Ante, at 759.

The Court could mean one of three things by its invocation of the separation of powers. First, it could simply be expressing the idea that if the plaintiff lacks Art. Ill standing to bring a lawsuit, then there is no “case or controversy” *790within the meaning of Art. Ill and hence the matter is not within the area of responsibility assigned to the Judiciary by the Constitution. As we have written in the past, through the standing requirement “Art. Ill limit[s] the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) (quoting Flast v. Cohen, 392 U. S. 83, 97 (1968)).7 While there can be no quarrel with this proposition, in itself it provides no guidance for determining if the injury respondents have alleged is fairly traceable to the conduct they have challenged.

Second, the Court could be saying that it will require a more direct causal connection when it is troubled by the separation of powers implications of the case before it. That approach confuses the standing doctrine with the justiciability of the issues that respondents seek to raise. The purpose of the standing inquiry is to measure the plaintiff’s stake in the outcome, not whether a court has the authority to provide it with the outcome it seeks:

“[T]he standing question is whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify the exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U. S. 490, 498-499 (1975) (emphasis in original) (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)).8

*791Thus, the ‘“fundamental aspect of standing’ is that it focuses primarily on the party seeking to get his complaint before the federal court rather than ‘on the issues he wishes to have adjudicated,”’ United States v. Richardson, 418 U. S. 166, 174 (1974) (emphasis in original) (quoting Flast, 392 U. S., at 99). The strength of the plaintiff’s interest in the outcome has nothing to do with whether the relief it seeks would intrude upon the prerogatives of other branches of government; the possibility that the relief might be inappropriate does not lessen the plaintiff’s stake in obtaining that relief. If a plaintiff presents a nonjusticiable issue, or seeks relief that a court may not award, then its complaint should be dismissed for those reasons, and not because the plaintiff lacks a stake in obtaining that relief and hence has no standing.9 Imposing an undefined but clearly more rigorous standard for redressability for reasons unrelated to the causal nexus between the injury and the challenged conduct *792can only encourage undisciplined, ad hoc litigation, a result that would be avoided if the Court straightforwardly considered the justiciability of the issues respondents seek to raise, rather than using those issues to obfuscate standing analysis.10

Third, the Court could be saying that it will not treat as legally cognizable injuries that stem from an administrative decision concerning how enforcement resources will be allocated. This surely is an important point. Respondents do seek to restructure the IRS’s mechanisms for enforcing the legal requirement that discriminatory institutions not receive tax-exempt status. Such restructuring would dramatically *793affect the way in which the IRS exercises its prosecutorial discretion. The Executive requires latitude to decide how best to enforce the law, and in general the Court may well be correct that the exercise of that discretion, especially in the tax context, is unchallengeable.

However, as the Court also recognizes, this principle does not apply when suit is brought “to enforce specific legal obligations whose violation works a direct harm,” ante, at 761. For example, despite the fact that they were challenging the methods used by the Executive to enforce the law, citizens were accorded standing to challenge a pattern of police misconduct that violated the constitutional constraints on law enforcement activities in Allee v. Medrano, 416 U. S. 802 (1974).11 Here, respondents contend that the IRS is violating a specific constitutional limitation on its enforcement discretion. There is a solid basis for that contention. In Norwood, we wrote:

“A State’s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.” 413 U. S., at 467.

Gilmore echoed this theme:

“[A]ny tangible State assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’ Norwood v. Harrison, 413 U. S. 455, 466 (1973). The constitutional obligation of the State ‘requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial *794or other invidious discrimination.’ Id., at 467." U. S., at 568-569.

Respondents contend that these cases limit the enforcement discretion enjoyed by the IRS. They establish, respondents argue, that the IRS cannot provide “cash grants” to discriminatory schools through preferential tax treatment without running afoul of a constitutional duty to refrain from “giving significant aid” to these institutions. Similarly, respondents claim that the Internal Revenue Code itself, as construed in Bob Jones, constrains enforcement discretion.12 It has been clear since Marbury v. Madison, 1 Cranch 137 (1803), that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Id., at 177. Deciding whether the Treasury has violated a specific legal *795limitation on its enforcement discretion does not intrude upon the prerogatives of the Executive, for in so deciding we are merely saying “what the law is.” Surely the question whether the Constitution or the Code limits enforcement discretion is one within the Judiciary’s competence, and I do not believe that the question whether the law, as enunciated in Gilmore, Norwood, and Bob Jones, imposes such an obligation upon the IRS is so insubstantial that respondents’ attempt to raise it should be defeated for lack of subject-matter jurisdiction on the ground that it infringes the Executive’s prerogatives.13

In short, I would deal with the question of the legal limitations on the IRS’s enforcement discretion on its merits, rather than by making the untenable assumption that the granting of preferential tax treatment to segregated schools does not make those schools more attractive to white students and hence does not inhibit the process of desegregation. I respectfully dissent.

The question whether respondents have adequately alleged their standing must be separated from the question whether they can prove what has been alleged. It may be that questions concerning the racial policies of given schools, and the impact of their tax treatment on enrollment, vary widely from school to school, making inappropriate the nationwide class described in respondents’ complaint. A case in which it was proved that a segregated private school opened just as a nearby public school system began desegregating pursuant to court order, that the IRS knew the school did not admit blacks, and that the school prospered only as a result of favorable tax treatment, might be very different from one in which the plaintiff attempted to prove a nationwide policy and its effect. However, as Justice Brennan observes, ante, at 770-771, n. 3, 780-781, n. 9, that goes to whether respondents can prove the nationwide policy they have alleged, and whether the factual issues they raise are sufficiently national in scope to justify the certification of a nationwide class. I rather doubt that a nationwide class would be appropriate, but at this stage respondents’ allegations of injury must be taken as true, see Warth v. Seldin, 422 U. S. 490, 501 (1975), and hence we must assume that respondents can prove the existence of a nationwide policy and its alleged effects.

Respondents’ complaint is premised on precisely this theory. The complaint, in ¶¶ 39-48, describes a number of private schools which receive preferential tax treatment and which allegedly discriminate on the basis of race, providing white children with “a racially segregated alternative to attendance” in the public schools which respondents’ children attend. The complaint then states:

“There are thousands of other racially segregated private schools which operate or serve desegregating public school districts and which function under the umbrella of organizations which have received, applied for, or will apply for, federal tax exemptions. Moreover, many additional public school districts will in the future begin desegregating pursuant to court order or [government] regulations and guidelines, under state law or vol*786untarily. Additional racially segregated private schools may be organized or expanded, many of which will be operated by organizations which have received, applied for, or will apply for federal tax exemptions. As in the case of those representative organizations and private schools described in paragraphs 39-48, swpra, such organizations and schools provide, or will provide, white children with a racially segregated alternative to desegregating public schools. By recognizing these organizations as exempt from federal taxation, defendants facilitate their development, operation and expansion and the provision of racially segregated educational opportunities for white children avoiding attendance in desegregating public school systems. Defendants thereby also interfere with the efforts of federal courts, [the Federal Government] and local school authorities to eliminate racially dual school systems.” App. 38 (emphasis supplied).

Thus, like Justice Brennan, ante, at 774-775,1 do not understand why the Court states that the complaint contains no allegation that the tax benefits received by private segregated schools “make an appreciable difference in public school integration,” ante, at 758, unless the Court requires “intricacies of pleading that would have gladdened the heart of Baron Parke.” Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1305 (1976).

We agreed with the District Court’s following reasoning:

“Montgomery officials were under an affirmative duty to bring about and to maintain a desegregated public school system. Providing recreational facilities to defacto or de jure segregated private schools was inconsistent ■with that duty because such aid enhanced the attractiveness of those *787schools, generated capital savings that could be used to improve their private educational offerings, and provided means to raise other revenue to support the institutions, all to the detriment of establishing the constitutionally mandated unitary public school system.” 417 U. S., at 563.

We went on to write:

“Any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner, is constitutionally impermissible. ‘[T]he constitutional rights of children not to be discriminated against. . . can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” ’ This means that any tangible state assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has ‘a significant tendency to facilitate, reinforce, and support private discrimination.’” Id., at 568 (quoting Cooper v. Aaron, 358 U. S. 1, 17 (1958), and Norwood v. Harrison, 413 U. S. 455, 466 (1973)).

This causation analysis explains the holding in the ease on which the Court chiefly relies, Simon v. Eastern Kentucky Welfare Rights Organiza *789 tion, 426 U. S. 26 (1976). There, the plaintiffs — indigent persons in need of free medical care — alleged that they were harmed by the Secretary of the Treasury’s decision to permit hospitals to retain charitable status while offering a reduced level of free care. However, while here the source of the causal nexus is the price that white parents must pay to obtain a segregated education, which is inextricably intertwined with the school’s tax status, in Simon the plaintiffs were seeking free care, which hospitals could decide not to provide for any number of reasons unrelated to their tax status. See id., at 42-43, and n. 23. Moreover, in Simon, the hospitals had to spend money in order to obtain charitable status. Therefore, they had an economic incentive to forgo preferential treatment. As the Court observed:

“It is equally speculative whether the desired exercise of the Court’s remedial powers in this suit would result in the availability to respondents of such services. So far as the complaint sheds light, it is just as plausible that the hospitals to which respondents may apply for service would elect to forgo favorable tax treatment to avoid the undetermined financial drain of an increase in the level of uncompensated services. . . . [Cjonflicting evidence supports the commonsense proposition that the dependence upon special tax benefits may vary from hospital to hospital.” Id., at 43.

In contrast, the tax benefits private schools receive here involve no “financial drain” since the schools need not provide “uncompensated services” in order to obtain preferential tax treatment. Thus, the economic effect of the challenged tax treatment in these cases is not “speculative,” as the Court concluded it was in Simon. Here the financial incentives run in only one direction.

The Flast Court made precisely this point:

“When the emphasis in the standing problem is placed on whether the person invoking a federal court’s jurisdiction is a proper party to maintain the action, the weakness of the Government’s argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such problems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has ‘a personal stake in the outcome of the controversy,’ and whether the dispute touches upon ‘the legal relations of parties having adverse legal interests.’” Id., at 100-101 (emphasis supplied) (citations omitted) (quoting Baker v. Carr, 369 U. S. 186, 204 (1962), and Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 240-241 (1937)).

The danger of the Court’s approach is illustrated by its failure to provide any standards to guide courts in determining when it is appropriate to require a more rigorous redressability showing because of separation of powers concerns, or how redressability can be demonstrated in a case raising separation of power concerns. The only guidance the Court offers is that the separation of powers counsels against recognizing standing when the plaintiff “seek[s] a restructuring of the apparatus established by the Executive Branch to fulfill its legal duties.” Ante, at 761. That cannot be an appropriate test; the separation of powers tolerates quite a bit of “restructuring” in order to eliminate the effects of racial segregation. For example, in Bolling v. Sharpe, 347 U. S. 497 (1954), we held that the Fifth Amendment prohibits the Executive from maintaining a dual school system. We have subsequently made it clear that the courts have authority to restructure both school attendance patterns and curriculum when necessary to eliminate the effects of a dual school system. See, e. g., Columbus Board of Education v. Penick, 443 U. S. 449 (1979); Milliken v. Bradley, 433 U. S. 267 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1 (1971). At the same time, standing doctrine has never stood as a barrier to such “restructuring.” In the seminal case of Baker v. Carr, 369 U. S. 186 (1962), the Court accorded voters standing to challenge population variations between electoral districts despite the fact that the legislative reapportionment sought would and eventually did have dramatic “restructuring” effects. Only two Terms ago, in Watt v. Energy Action Educational Foundation, 454 U. S. 151, 160-162 (1981), the Court accorded California standing to challenge the Secretary of the Interior’s methods for accepting bids on oil and gas rights, despite the fact that this would affect the manner in which the Executive Branch discharged “[its] duty to ‘take Care that the Laws are faithfully executed,’” ante, at 761.

In Bob Jones we clearly indicated that the Internal Revenue Code not only permits but in fact requires the denial of tax-exempt status to racially discriminatory private schools:

“Few social or political issues in our history have been more vigorously debated and more extensively ventilated than the issue of racial discrimination, particularly in education. Given the stress and anguish of the history of efforts to escape from the shackles of the ‘separate but equal’ doctrine of Plessy v. Ferguson, 163 U. S. 537 (1896), it cannot be said that educational institutions that, for whatever reasons, practice racial discrimination, are institutions exercising ‘beneficial and stabilizing influences in community life,’ Walz v. Tax Comm’n, 397 U. S. 664, 673 (1970), or should be encouraged by having all taxpayers share in their support by way of special tax status.

“There can thus be no question that the interpretation of § 170 and § 501(c)(3) announced by the IRS in 1970 was correct. That it may be seen as belated does not undermine its soundness. It would be wholly incompatible with the concepts underlying tax exemption to grant the benefit of tax-exempt status to racially discriminatory educational entities, which ‘exer[t] a pervasive influence on the entire educational process.’ Norwood v. Harrison, [413 U. S.], at 469. Whatever may be the rationale for such private schools’ policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy. Racially discriminatory educational institutions cannot be viewed as conferring a public benefit within the ‘charitable’ concept discussed earlier, or within the congressional intent underlying § 170 and § 501(c)(3).” 461 U. S., at 595-596.

3.5.2.3 Massachusetts v. Environmental Protection Agency 3.5.2.3 Massachusetts v. Environmental Protection Agency

[excerpt]

549 U.S. 497
Supreme Court of the United States

Massachusetts v. EPAApril 2, 2007

[1] Justice STEVENS delivered the opinion of the Court.

[2] A well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species—the most important species—of a “greenhouse gas.”

[3] Calling global warming “the most pressing environmental challenge of our time,”a group of States, local governments, and private organizations, alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of § 202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.

[4] In response, EPA, supported by 10 intervening States and six trade associations, correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution.

[5] On October 20, 1999, a group of 19 private organizations filed a rulemaking petition asking EPA to regulate “greenhouse gas emissions from new motor vehicles under § 202 of the Clean Air Act.” App. 5. Petitioners maintained that 1998 was the “warmest year on record”; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate change; and that the IPCC’s 1995 report warned that “carbon dioxide remains the most important contributor to [man-made] forcing of climate change.” Id., at 13 (internal quotation marks omitted). The petition further alleged that climate change will have serious adverse effects on human health and the environment. Id., at 22-35. As to EPA’s statutory authority, the petition observed that the agency itself had already confirmed that it had the power to regulate carbon dioxide.

* * *

[6] Fifteen months after the petition’s submission, EPA requested public comment on “all the issues raised in [the] petition,” adding a “particular” request for comments on “any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA’s consideration of this petition.” EPA received more than 50,000 comments over the next five months.

[7] Before the close of the comment period, the White House sought “assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties” from the National Research Council, asking for a response “as soon as possible.” App. 213. The result was a 2001 report titled Climate Change: An Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC report, concluded that “[g]reenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising.” NRC Report 1.

[8] On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed.Reg. 52922. The agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925-52929; and (2) that even if the agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time,

* * *

[9] Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report’s statement that a causal link between the two “`cannot be unequivocally established.'” Ibid. (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed.Reg. 52930.

[10] The agency furthermore characterized any EPA regulation of motor-vehicle emissions as a “piecemeal approach” to climate change, id., at 52931, and stated that such regulation would conflict with the President’s “comprehensive approach” to the problem,

* * *

III

[11] Petitioners, now joined by intervenor States and local governments, sought review of EPA’s order in the United States Court of Appeals for the District of Columbia Circuit. Although each of the three judges on the panel wrote a separate opinion, two judges agreed “that the EPA Administrator properly exercised his discretion under § 202(a)(1) in denying the petition for rule making.” 415 F.3d 50, 58 (2005).

* * *

[12] Article III of the Constitution limits federal-court jurisdiction to “Cases” and “Controversies.” Those two words confine “the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.”

* * *

[13] EPA maintains that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. We do not agree. At bottom, “the gist of the question of standing” is whether petitioners have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

* * *

[14] To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.

* * *

[15] Only one of the petitioners needs to have standing to permit us to consider the petition for review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 52, n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.

[16] Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction.

* * *

[17] That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.

[18] When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

* * *

[19] These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. § 7607(b)(1). Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.

[20] With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” Lujan, 504 U.S., at 560, 112 S.Ct. 2130 (internal quotation marks omitted). There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk.

[21] The Injury

[22] The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself—which EPA regards as an “objective and independent assessment of the relevant science,” 68 Fed.Reg. 52930—identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years ….” NRC Report 16.

[23] Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCracken Decl. ¶ 15, Stdg. App. 207, “severe and irreversible changes to natural ecosystems,” id., ¶ 5(d), at 209, a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” ibid., and an increase in the spread of disease, id., ¶ 28, at 218-219. He also observes that rising ocean temperatures may contribute to the ferocity of hurricanes. Id., ¶¶ 23-25, at 216-217.

[24] That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation.

* * *

[25] The severity of that injury will only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Id., ¶ 6, at 172. Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., ¶ 7, at 172; see also Kirshen Decl. ¶ 12, at 198.

[26] Causation

[27] EPA does not dispute the existence of a causal connection between man-made greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries.

[28] EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.

[29] But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop.

* * *

[30] They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more-nuanced understanding of how best to proceed. … That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.

[31] And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere—according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. ¶ 30, Stdg.App. 219. That accounts for more than 6% of worldwide carbon dioxide emissions. Id., at 232 (Oppenheimer Decl. ¶ 3); see also MacCracken Decl. ¶ 31, at 220. To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country’s total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, outpaced only by the European Union and China. Judged by any standard, U.S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

[32] The Remedy

[33] While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See also Larson v. Valente, 456 U.S. 228, 244, n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982) (“[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury”). Because of the enormity of the potential consequences associated with man-made climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant. Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.

* * *

[34] VIII

[35] The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

[36] It is so ordered.

[1] Chief Justice ROBERTS, with whom Justice SCALIA, Justice THOMAS, and Justice ALITO join, dissenting.

[2] Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

[3] Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts.

* * *

[4] Our modern framework for addressing standing is familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Applying that standard here, petitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.

[5] Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given “Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.” Ante, at 1454, 1455 (emphasis added).

[6] Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such “special solicitude” is conspicuously absent from the Court’s opinion.

* * *

[7] It is not at all clear how the Court’s “special solicitude” for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as a State cannot compensate for petitioners’ failure to demonstrate injury in fact, causation, and redressability.

[8] When the Court actually applies the three-part test, it focuses, as did the dissent below, see 415 F.3d 50, 64 (C.A.D.C.2005) (opinion of Tatel, J.), on the State’s asserted loss of coastal land as the injury in fact. If petitioners rely on loss of land as the Article III injury, however, they must ground the rest of the standing analysis in that specific injury. That alleged injury must be “concrete and particularized,” and “distinct and palpable.” Central to this concept of “particularized” injury is the requirement that a plaintiff be affected in a “personal and individual way,” and seek relief that “directly and tangibly benefits him” in a manner distinct from its impact on “the public at large.”

* * *

[9] The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon “harmful to humanity at large,” and the redress petitioners seek is focused no more on them than on the public generally—it is literally to change the atmosphere around the world.

[10]If petitioners’ particularized injury is loss of coastal land, it is also that injury that must be “actual or imminent, not conjectural or hypothetical,” real and immediate, and “certainly impending.”

[11] As to “actual” injury, the Court observes that “global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming” and that “[t]hese rising seas have already begun to swallow Massachusetts’ coastal land.” Ante, at 1456. But none of petitioners’ declarations supports that connection.

* * *

[12] The Court’s attempts to identify “imminent” or “certainly impending” loss of Massachusetts coastal land fares no better. See ante, at 1456-1457. One of petitioners’ declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg.App. 216. …[A]ccepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2, 112 S.Ct. 2130 (while the concept of “`imminence'” in standing doctrine is “somewhat elastic,” it can be “stretched beyond the breaking point”). “Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.”

III

[13] Petitioners’ reliance on Massachusetts’s loss of coastal land as their injury in fact for standing purposes creates insurmountable problems for them with respect to causation and redressability. To establish standing, petitioners must show a causal connection between that specific injury and the lack of new motor vehicle greenhouse gas emission standards, and that the promulgation of such standards would likely redress that injury.

* * *

[14] Petitioners view the relationship between their injuries and EPA’s failure to promulgate new motor vehicle greenhouse gas emission standards as simple and direct: Domestic motor vehicles emit carbon dioxide and other greenhouse gases. Worldwide emissions of greenhouse gases contribute to global warming and therefore also to petitioners’ alleged injuries. Without the new vehicle standards, greenhouse gas emissions—and therefore global warming and its attendant harms—have been higher than they otherwise would have been; once EPA changes course, the trend will be reversed.

[15] The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. First, it is important to recognize the extent of the emissions at issue here. Because local greenhouse gas emissions disperse throughout the atmosphere and remain there for anywhere from 50 to 200 years, it is global emissions data that are relevant. See App. to Pet. for Cert. A-73. According to one of petitioners’ declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide emissions and 4 percent of global greenhouse gas emissions. Stdg.App. 232. The amount of global emissions at issue here is smaller still; § 202(a)(1) of the Clean Air Act covers only new motor vehicles and new motor vehicle engines, so petitioners’ desired emission standards might reduce only a fraction of 4 percent of global emissions.

[16] This gets us only to the relevant greenhouse gas emissions; linking them to global warming and ultimately to petitioners’ alleged injuries next requires consideration of further complexities.

* * *

[17] Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury—the loss of Massachusetts coastal land—the connection is far too speculative to establish causation.

[18] Redressability is even more problematic. To the tenuous link between petitioners’ alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, “developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century,” ante, at 1458, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners’ desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world.

* * *

[19] The Court previously has explained that when the existence of an element of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” a party must present facts supporting an assertion that the actor will proceed in such a manner. Defenders of Wildlife, 504 U.S., at 562, 112 S.Ct. 2130 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (opinion of KENNEDY, J.)

* * *

[20] The Court’s sleight-of-hand is in failing to link up the different elements of the three-part standing test. What must be likely to be redressed is the particular injury in fact. The injury the Court looks to is the asserted loss of land. The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts’s injury. But even if regulation does reduce emissions—to some indeterminate degree, given events elsewhere in the world—the Court never explains why that makes it likely that the injury in fact—the loss of land—will be redressed.

* * *

[21] The limitation of the judicial power to cases and controversies “is crucial in maintaining the tripartite allocation of power set forth in the Constitution.” In my view, the Court today—addressing Article III’s “core component of standing,”—fails to take this limitation seriously.

[22] I respectfully dissent.

Supreme Court of the United States

549 U.S. 497, 167 L. Ed. 2d 248, 127 S. Ct. 1438, SCDB 2006-026, 2007 U.S. LEXIS 3785

No. 05-1120

2007-04-02

MASSACHUSETTS et al. v. ENVIRONMENTAL PROTECTION AGENCY et al.

No. 05-1120.

Argued November 29, 2006

Decided April 2, 2007

*501Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined, post, p. 535. Scalia, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Alito, JJ., joined, post, p. 549.

*502James R. Milkey, Assistant Attorney General of Massachusetts, argued the cause for petitioners. With him on the briefs were Thomas F. Reilly, Attorney General, Lisa Heinzerling, Special Assistant Attorney General, and William L. Pardee and Carol Iancu, Assistant Attorneys General, Zulima V. Farber, Attorney General of New Jersey, Michael Cardozo, Corporation Counsel of the City of New York, and Scott Pasternack, Assistant Corporation Counsel, Ralph S. Tyler, City Solicitor of Baltimore, and William Phelan, Jr., Joseph Mendelson III, John M. Stanton, David Doniger, David Bookbinder, and Howard Fox, and by the Attorneys General and other officials for their respective jurisdictions as follows: Bill Lockyer, Attorney General of California, Marc N. Melnick and Nicholas Stern, Deputy Attorneys General, Richard Blumenthal, Attorney General of Connecticut, Kimberly Massicotte and Matthew Levin, Assistant Attorneys General, Robert J. Spagnoletti, Attorney General of the District of Columbia, Todd S. Kim, Solicitor General, Donna Murasky, Senior Assistant Attorney General, Lisa Madigan, Attorney General of Illinois, Matthew J. Dunn and Gerald T. Karr, Assistant Attorneys General, G. Steven Rowe, Attorney General of Maine, Gerald D. Reid, Assistant Attorney General, Stuart Rabner, Attorney General of New Jersey, Stefanie A. Brand, Kevin P. Auerbacher, and Lisa Morelli, Deputy Attorneys General, Patricia A. Madrid, Attorney General of New Mexico, Stuart M. Bluestone, Deputy Attorney General, Stephen R. Ferris and Judith Ann Moore, Assistant Attorneys General, Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Peter Lehner and J. Jared Snyder, Assistant Attorneys General, Hardy Myers, Attorney General of Oregon, Philip Schradle, Special Counsel to the Attorney General, Richard Whitman, Assistant Attorney General, Patrick C. Lynch, Attorney General of Rhode Island, Trida K. Jedele, Special Assistant Attorney General, William H. Sorrell, Attorney General of Vermont, Kevin O. Leske, As*503sistant Attorney General, Rob McKenna, Attorney General of Washington, Leslie R. Seffern, Assistant Attorney General, Jay D. Geek, Deputy Solicitor General, and Mala,etasi M. Togafau, Attorney General of American Samoa.

Deputy Solicitor General Garre argued the cause for respondents. With him on the brief for the federal respondent were Solicitor General Clement, Assistant Attorney General Wooldridge, Deputy Solicitor General Hungar, Malcolm L. Stewart, Jon M. Lipshultz, and Carol S. Holmes. Michael A. Cox, Attorney General of Michigan, filed a brief for respondent State of Michigan. With him on the brief were Thomas L. Casey, Solicitor General, Alan F. Hoffman and Neil D. Gordon, Assistant Attorneys General, and the Attorneys General and other officials for their respective States as follows: David W. Márquez, Attorney General of Alaska, Phil Kline, Attorney General of Kansas, David W. Davies, Deputy Attorney General, Jon C. Bruning, Attorney General of Nebraska, David D. Cookson, Special Counsel to the Attorney General, Natalee J. Hart, Assistant Attorney General, Wayne Stenehjem, Attorney General of North Dakota, Lyle Witham, Assistant Attorney General, Jim Petro, Attorney General of Ohio, Dale T. Vitale, Senior Deputy Attorney General, Lawrence E. Long, Attorney General of South Dakota, Greg Abbott, Attorney General of Texas, Karen W. Kornell and Jane Atwood, Assistant Attorneys General, and Mark L. Shurtleff, Attorney General of Utah, and Fred G. Nelson, Assistant Attorney General. Theodore B. Olson, Miguel A. Estrada, David Debold, Matthew D. McGill, Kenneth W. Starr, Stuart A. C. Drake, Andrew B. Clubok, and Ashley C. Parrish filed a brief for respondent Alliance of Automobile Manufacturers et al. Russell S. Frye, Leslie A. Hulse, Richard Wasserstrom, Harry M. Ng, Ralph J. Colleli, Jr., Nick Goldstein, Jan S. Amundson, Quentin Riegel, Robin S. Conrad, and John L. Wittenborn filed a brief for respondent C02 Litigation Group. Norman W *504Fichthorn and Allison D. Wood filed a brief for respondent Utility Air Regulatory Group.*

Briefs of amici curiae urging reversal were filed for the State of Arizona et al. by Terry Goddard, Attorney General of Arizona, Paula S. Bickett, Chief Counsel, Joseph P. Mikitish, Assistant Attorney General, and Amy J. Wildermuth, and by Thomas J. Miller, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Mike Hatch, Attorney General of Minnesota, and Peggy A Lautenschlager, Attorney General of Wisconsin, and Thomas J. Dawson, Assistant Attorney General; for the Alaska Inter-Tribal Council et al. by Frances M. Raskin; for Aspen Skiing Co. by Edward T, Ramey and Blain D. Myhre; for Calpine Corp. by Richard E. Ayres; for the National Council of the Churches of Christ in the U. S. A. et al. by Fran M. Layton; for Ocean and Coastal Conservation Interests by Patrick A Parenteau; for the U. S. Conference of Mayors et al. by Timothy J. Dowling; for Wildlife Conservation Interests by John F. Kostyack; for Madeleine K. Albright by Kathleen M. Sullivan; for Climate Scientist David Battisti et al. by Robert B. McKinstry, Jr., Stephanie Tai, and John C. Dernbach; and for Former EPA Administrator Carol M. Browner et al. by Deborah A Sivas, Michael C. Davis, and Barry S. Neuman.

Briefs of amici curiae urging affirmance were filed for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Peter S. Glaser; for Climatologist and Scientist Sallie Bahúnas et al. by Sam Kazman, Hans Bader, and Christopher C. Horner; for William J. Baumol et al. by Timothy S. Bishop, Russell R. Eggert, and Erika Z. Jones; for Ernest L. Daman et al. by Martin S. Kaufman; and for William H. Taft IV by Arnold W. Reitze, Jr.

Briefs of amici curiae were filed for the State of Delaware by Carl C. Danberg, Attorney General, Lawrence Lewis, State Solicitor, and Kevin Maloney, Robert Phillips, and Valerie Csizmadia, Deputy Attorneys General; for the Cato Institute et al. by Timothy Lynch; for Entergy Corp. by Elise N. Zoli, U. Gwyn Williams, Kevin P. Martin, and Chuck D. Barlow; for the North Coast Rivers Alliance et al. by Stephan C. Volker; for the Pacific Legal Foundation by M. Reed Hopper; for the Union for Jobs and the Environment by Scott H. Segal, Jason B. Hutt, and Shelby J. Kelley; for Robert H. Bork et al. by David B. Rivkin, Jr., Lee A Casey, and Darin R. Bartram; and for Jerome B. Carr by Albert Auburn.

Justice Stevens

delivered the opinion of the Court.

A well-documented rise in global temperatures has coincided with a significant increase in the concentration of car*505bon dioxide in the atmosphere. Respected scientists believe the two trends are related. For when carbon dioxide is released into the atmosphere, it acts like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat. It is therefore a species — the most important species — of a “greenhouse gas.”

Calling global warming “the most pressing environmental challenge of our time,”1 a group of States,2 local governments,3 and private organizations4 alleged in a petition for certiorari that the Environmental Protection Agency (EPA) has abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide. Specifically, petitioners asked us to answer two questions concerning the meaning of § 202(a)(1) of the Act: whether EPA has the statutory authority to regulate greenhouse gas emissions from new motor vehicles; and if so, whether its stated reasons for refusing to do so are consistent with the statute.

In response, EPA, supported by . 10 intervening States5 and six trade associations,6 correctly argued that we may not address those two questions unless at least one petitioner has standing to invoke our jurisdiction under Article III of the Constitution. Notwithstanding the serious character of *506that jurisdictional argument and the absence of any conflicting decisions construing § 202(a)(1), the unusual importance of the underlying issue persuaded us to grant the writ. 548 U. S. 903 (2006).

Section 202(a)(1) of the Clean Air Act, as added by Pub. L. 89-272, § 101(8), 79 Stat. 992, and as amended by, inter alia, 84 Stat. 1690 and 91 Stat. 791, 42 U.S.C. § 7521(a)(1), provides:

“The [EPA] Administrator shall by regulation prescribe (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare .. . .”7

The Act defines “air pollutant” to include “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” § 7602(g). “Welfare” is also defined broadly: among other things, it includes “effects on . . . weather . . . and climate.” § 7602(h).

*507When Congress enacted these provisions, the study of climate change was in its infancy.8 In 1959, shortly after the U. S. Weather Bureau began monitoring atmospheric carbon dioxide levels, an observatory in Mauna Loa, Hawaii, recorded a mean level of 316 parts per million. This was well above the highest carbon dioxide concentration — no more than 300 parts per million — revealed in the 420,000-year-old ice-core record.9 By the time Congress drafted § 202(a)(1) in 1970, carbon dioxide levels had reached 325 parts per million.10

In the late 1970’s, the Federal Government began devoting serious attention to the possibility that carbon dioxide emissions associated with human activity could provoke climate change. In 1978, Congress enacted the National Climate Program Act, 92 Stat. 601, which required the President to establish a program to “assist the Nation and the world to *508understand and respond to natural and man-induced climate processes and their implications,” id., § 3. . President Carter, in turn, asked the National Research Council, the working arm of the National Academy of Sciences, to investigate the subject. The Council’s response was unequivocal: “If carbon dioxide continues to increase, the study group finds no reason to doubt that climate changes will result and no reason to believe that these changes will be negligible. ... A wait- and-see policy may mean waiting until it is too late.”11

Congress next addressed the issue in 1987, when it enacted the Global Climate Protection Act, Title XI of Pub. L. 100-204, 101 Stat. 1407, note following 15 U. S. C. § 2901. Finding that “manmade pollution — the release of carbon dioxide, chlorofluoroearbons, methane, and other trace gases into the atmosphere — may be producing a long-term and substantial increase in the average temperature on Earth,” §1102(1), 101 Stat. 1408, Congress directed EPA to propose to Congress a “coordinated national policy on global climate change,” § 1103(b), and ordered the Secretary of State to work “through the channels of multilateral diplomacy” and coordinate diplomatic efforts to combat global warming, § 1103(c). Congress emphasized that “ongoing pollution and deforestation may be contributing now to an irreversible process” and that “[njecessary actions must be identified and implemented in time to protect the climate.” § 1102(4).

Meanwhile, the scientific understanding of climate change progressed. In 1990, the Intergovernmental Panel on Climate Change (IPCC), a multinational scientific body organized under the auspices of the United Nations, published its first comprehensive report on the topic. Drawing on expert opinions from across the globe, the IPCC concluded that “emissions resulting from human activities are substantially *509increasing the atmospheric concentrations of . . . greenhouse gases [which] will enhance the greenhouse effect, resulting on average in an additional warming of the Earth’s surface.”12

Responding to the IPCC report, the United Nations convened the “Earth Summit” in 1992 in Rio de Janeiro. The first President Bush attended and signed the United Nations Framework Convention on Climate Change (UNFCCC), a nonbinding agreement among 154 nations to reduce atmospheric concentrations of carbon dioxide and other greenhouse gases for the purpose of “preventing] dangerous anthropogenic [i. e., human-induced] interference with the [Earth’s] climate system.”13 S. Treaty Doc. No. 102-38, Art. 2, p. 5,1771 U. N. T. S. 107 (1992). The Senate unanimously ratified the treaty.

Some five years later — after the IPCC issued a second comprehensive report in 1995 concluding that “[t]he balance of evidence suggests there is a discernible human influence on global climate”14 — the UNFCCC signatories met in Kyoto, Japan, and adopted a protocol that assigned mandatory targets for industrialized nations to reduce greenhouse gas emissions. Because those targets did not apply to developing and heavily polluting nations such as China and India, the Senate unanimously passed a resolution expressing its sense that the United States should not enter into the Kyoto Protocol. See S. Res. 98, 105th Cong., 1st Sess. (July 25, 1997) (as passed). President Clinton did not submit the protocol to the Senate for ratification.

*510II

On October 20, 1999, a group of 19 private organizations15 filed a rulemaking petition asking EPA to regulate “greenhouse gas emissions from new motor vehicles under § 202 of the Clean Air Act.” App. 5. Petitioners maintained that 1998 was the “warmest year on record”; that carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are “heat trapping greenhouse gases”; that greenhouse gas emissions have significantly accelerated climate change; and that the IPCC’s 1995 report warned that “carbon dioxide remains the most important contributor to [manmade] forcing of climate change.” Id., at 13 (internal quotation marks omitted). The petition further alleged that climate change will have serious adverse effects on human health and the environment. Id., at 22-35. As to EPA’s statutory authority, the petition observed that the Agency itself had already confirmed that it had the power to regulate carbon dioxide. See id., at 18, n. 21. In 1998, Jonathan Z. Cannon, then EPA’s general counsel, prepared a legal opinion concluding that “C02 emissions are within the scope of EPA’s authority to regulate,” even as he recognized that EPA had so far declined to exercise that authority. Id., at 54 (memorandum to Carol M. Browner, Administrator (Apr. 10,1998) (hereinafter Cannon memorandum)). Cannon’s successor, Gary S. Guzy, reiterated that opinion before a congressional committee just *511two weeks before the rulemaking petition was filed. See id., at 61.

Fifteen months after the petition's submission, EPA requested public comment on “all the issues raised in [the] petition,” adding a “particular” request for comments on “any scientific, technical, legal, economic or other aspect of these issues that may be relevant to EPA’s consideration of this petition.” 66 Fed. Reg. 7486, 7487 (2001). EPA received more than 50,000 comments over the next five months. See 68 Fed. Reg. 52924 (2003).

Before the close of the comment period, the White House sought “assistance in identifying the areas in the science of climate change where there are the greatest certainties and uncertainties” from the National Research Council, asking for a response “as soon as possible.” App. 213. The result was a 2001 report titled Climate Change Science: An Analysis of Some Key Questions (NRC Report), which, drawing heavily on the 1995 IPCC report, concluded that “[greenhouse gases are accumulating in Earth’s atmosphere as a result of human activities, causing surface air temperatures and subsurface ocean temperatures to rise. Temperatures are, in fact, rising.” NRC Report 1.

On September 8, 2003, EPA entered an order denying the rulemaking petition. 68 Fed. Reg. 52922. The Agency gave two reasons for its decision: (1) that contrary to the opinions of its former general counsels, the Clean Air Act does not authorize EPA to issue mandatory regulations to address global climate change, see id., at 52925-52929; and (2) that even if the Agency had the authority to set greenhouse gas emission standards, it would be unwise to do so at this time, id., at 52929-52931.

In concluding that it lacked statutory authority over greenhouse gases, EPA observed that Congress “was well aware of the global climate change issue when it last comprehensively amended the [Clean Air Act] in 1990,” yet it declined to adopt a proposed amendment establishing binding *512emissions limitations. Id., at 52926. Congress instead chose to authorize further investigation into climate change. Ibid, (citing §§ 103(g) and 602(e) of the Clean Air Act Amendments of 1990, 104 Stat. 2652, 2703, 42 U. S. C. §§ 7403(g)(1) and 7671a(e)). EPA further reasoned that Congress’ “specially tailored solutions to global atmospheric issues,” 68 Fed. Reg. 52926 — in particular, its 1990 enactment of a comprehensive scheme to regulate pollutants that depleted the ozone layer, see Title VI, 104 Stat. 2649, 42 U. S. C. §§7671-7671q — counseled against reading the general authorization of § 202(a)(1) to confer regulatory authority over greenhouse gases.

EPA stated that it was “urged on in this view,” 68 Fed. Reg. 52928, by this Court’s decision in FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120 (2000). In that case, relying on “tobacco[’s] unique political history,” id., at 159, we invalidated the Food and Drug Administration’s reliance on its general authority to regulate drugs as a basis for asserting jurisdiction over an “industry constituting a significant portion of the American economy,” ibid.

EPA reasoned that climate change had its own “political history”: Congress designed the original Clean Air Act to address local air pollutants rather than a substance that “is fairly consistent in its concentration throughout the world’s atmosphere,” 68 Fed. Reg. 52927; declined in 1990 to enact proposed amendments to force EPA to set carbon dioxide emission standards for motor vehicles, ibid, (citing H. R. 5966, 101st Cong., 2d Sess. (1990)); and addressed global climate change in other legislation, 68 Fed. Reg. 52927. Because of this political history, and because imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco, EPA was persuaded that it lacked the power to do so. Id., at 52928. In essence, EPA concluded that climate change was so important that unless Congress spoke with exacting specificity, it could not have meant the Agency to address it.

*513Having reached that conclusion, EPA believed it followed that greenhouse gases cannot be “air pollutants” within the meaning of the Act. See ibid. (“It follows from this conclusion, that [greenhouse gases], as such, are not air pollutants under the [Clean Air Act’s] regulatory provisions . . . ”). The Agency bolstered this conclusion by explaining that if carbon dioxide were an air pollutant, the only feasible method of reducing tailpipe emissions would be to improve fuel economy. But because Congress has already created detailed mandatory fuel economy standards subject to Department of Transportation (DOT) administration, the Agency concluded that EPA regulation would either conflict with those standards or be superfluous. Id., at 52929.

Even assuming that it had authority over greenhouse gases, EPA explained in detail why it would refuse to exercise that authority. The Agency began by recognizing that the concentration of greenhouse gases has dramatically increased as a result of human activities, and acknowledged the attendant increase in global surface air temperatures. Id., at 52930. EPA nevertheless gave controlling importance to the NRC Report’s statement that a causal link between the two “‘cannot be unequivocally established.’” Ibid, (quoting NRC Report 17). Given that residual uncertainty, EPA concluded that regulating greenhouse gas emissions would be unwise. 68 Fed. Reg. 52930.

The Agency furthermore characterized any EPA regulation of motor-vehicle emissions as a “piecemeal approach” to climate change, id., at 52931, and stated that such regulation would conflict with the President’s “comprehensive approach” to the problem, ibid. That approach involves additional support for technological innovation, the creation of nonregulatory programs to encourage voluntary private-sector reductions in greenhouse gas emissions, and further research on climate change — not actual regulation. Id., at 52932-52933. According to EPA, unilateral EPA regulation of motor-vehicle greenhouse gas emissions might also *514hamper the President’s ability to persuade key developing countries to reduce greenhouse gas emissions. Id., at 52931.

III

Petitioners, now joined by intervenor States and local governments, sought review of EPA’s order in the United States Court of Appeals for the District of Columbia Circuit.16 Although each of the three judges on the panel wrote a separate opinion, two judges agreed “that the EPA Administrator properly exercised his discretion under § 202(a)(1) in denying the petition for rule making.” 415 F. 3d 50, 58 (2005). The court therefore denied the petition for review.

In his opinion announcing the court’s judgment, Judge Randolph avoided a definitive ruling as to petitioners’ standing, id., at 56, reasoning that it was permissible to proceed to the merits because the standing and the merits inquiries “overlapped],” ibid. Assuming without deciding that the statute authorized the EPA Administrator to regulate greenhouse gas emissions that “in his judgment” may “reasonably be anticipated to endanger public health or welfare,” 42 U. S. C. § 7521(a)(1), Judge Randolph concluded that the exercise of that judgment need not be based solely on scientific evidence, but may also be informed by the sort of policy judgments that motivate congressional action. 415 F. 3d, at 58. Given that framework, it was reasonable for EPA to base its decision on scientific uncertainty as well as on other factors, including the concern that unilateral regulation of U. S. motor-vehicle emissions could weaken efforts to reduce greenhouse gas emissions from other countries. Ibid.

Judge Sentelle wrote separately because he believed petitioners failed to “demonstrate] the element of injury neces*515sary to establish standing under Article III.” Id., at 59 (opinion dissenting in part and concurring in judgment). In his view, they had alleged that global warming is “harmful to humanity at large,” but could not allege “particularized injuries” to themselves. Id., at 60 (citing Lujan v. Defenders of Wildlife, 504 U. S. 555, 562 (1992)). While he dissented on standing, however, he accepted the contrary view as the law of the case and joined Judge Randolph’s judgment on the merits as the closest to that which he preferred. 415 F. 3d, at 60-61.

Judge Tatel dissented. Emphasizing that EPA nowhere challenged the factual basis of petitioners’ affidavits, id., at 66, he concluded that at least Massachusetts had “satisfied each element of Article III standing — injury, causation, and redressability,” id., at 64. In Judge Tatel’s view, the “‘substantial probability,’” id., at 66, that projected rises in sea level would lead to serious loss of coastal property was a “far cry” from the kind of generalized harm insufficient to ground Article III jurisdiction. Id., at 65. He found that petitioners’ affidavits more than adequately supported the conclusion that EPA’s failure to curb greenhouse gas emissions contributed to the sea level changes that threatened Massachusetts’ coastal property. Ibid. As to redressability, he observed that one of petitioners’ experts, a former EPA climatologist, stated that “ ‘[achievable reductions in emissions of C02 and other [greenhouse gases] from U. S. motor vehicles would... delay and moderate many of the adverse impacts of global warming.’” Ibid, (quoting declaration of Michael MacCracken, former Executive Director, U. S. Global Change Research Program ¶50 (hereinafter MacCracken Deck), available in 2 Petitioners’ Standing Appendix in No. 03-1361 etc. (CADC), p. 209 (Stdg. App.)). He further noted that the one-time director of EPA’s motor-vehicle pollution control efforts stated in an affidavit that enforceable emission standards would lead to the development of new technologies that “‘would gradually be mandated by other countries around *516the world.’ ” 415 F. 3d, at 66 (quoting declaration of Michael Walsh ¶¶ 7-8, 10, Stdg. App. 309-310, 311). On the merits, Judge Tatel explained at length why he believed the text of the statute provided EPA with authority to regulate greenhouse gas emissions, and why its policy concerns did not justify its refusal to exercise that authority. 415 F. 3d, at 67-82.

Article III of the Constitution limits federal-court jurisdiction to “Cases” and “Controversies.” Those two words confine “the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968). It is therefore familiar learning that no justiciable “controversy” exists when parties seek adjudication of a political question, Luther v. Borden, 7 How. 1 (1849), when they ask for an advisory opinion, Hayburn’s Case, 2 Dall. 409 (1792), see also Clinton v. Jones, 520 U. S. 681,700, n. 33 (1997), or when the question sought to be adjudicated has been mooted by subsequent developments, California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893). This case suffers from none of these defects.

The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U. S. C. § 7607(b)(1). That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Lujan, 504 U. S., at 580 (Kennedy, J., concurring in part and concurring in judgment). “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” Ibid. We will not, therefore, “entertain citi*517zen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” Id., at 581.

EPA maintains that because greenhouse gas emissions inflict widespread harm, the doctrine of standing presents an insuperable jurisdictional obstacle. We do not agree. At bottom, “the gist of the question of standing” is whether petitioners have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.” Baker v. Carr, 369 U. S. 186, 204 (1962). As Justice Kennedy explained in his Lujan concurrence:

“While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that the legal questions presented ... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” 504 U. S., at 581 (internal quotation marks omitted).

To ensure the proper adversarial presentation, Lujan holds that a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury. See id., at 560-561. However, a litigant to whom Congress has “accorded a procedural right to protect his concrete interests,” id., at 572, n. 7 — here, the right to challenge agency action unlawfully withheld, § 7607(b)(1) — “can assert that right without meeting all the normal standards for re*518dressability and immediacy,” ibid. When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant. Ibid.; see also Sugar Cane Growers Cooperative of Fla. v. Veneman, 289 F. 3d 89, 94-95 (CADC 2002) (“A [litigant] who alleges a deprivation of a procedural protection to which he is entitled never has to prove that if he had received the procedure the substantive result would have been altered. All that is necessary is to show that the procedural step was connected to the substantive result”).

Only one of the petitioners needs to have standing to permit us to consider the petition for review. See Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 52, n. 2 (2006). We stress here, as did Judge Tatel below, the special position and interest of Massachusetts. It is of considerable relevance that the party seeking review here is a sovereign State and not, as it was in Lujan, a private individual.

Well before the creation of the modern administrative state, we recognized that States are not normal litigants for the purposes of invoking federal jurisdiction. As Justice Holmes explained in Georgia v. Tennessee Copper Co., 206 U. S. 230, 237 (1907), a case in which Georgia sought to protect its citizens from air pollution originating outside its borders:

“The case has been argued largely as if it were one between two private parties; but it is not. The very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief are wanting here. The State owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a State for an injury to it in its capacity of gwcm-sovereign. In that capacity the State has an interest independent of and behind the titles of its citizens, *519in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”

Just as Georgia’s independent interest “in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine, 527 U. S. 706, 715 (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty”). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) (“One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers”).

These sovereign prerogatives are now lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts (among others) by prescribing standards applicable to the “emission of any air pollutant from any class or classes of new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public *520health or welfare.” 42 U. S. C. § 7521(a)(1). Congress has moreover recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious. § 7607(b)(1). Given that procedural right and Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.17

*521With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” Lujan, 504 U. S., at 560 (internal quotation marks omitted). There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 79 (1978).

The Injury

The harms associated with climate change are serious and well recognized. Indeed, the NRC Report itself — which EPA regards as an “objective and independent assessment of the relevant science,” 68 Fed. Reg. 52930 — identifies a number of environmental changes that have already inflicted significant harms, including “the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of ice on rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . .” NRC Report 16.

Petitioners allege that this only hints at the environmental damage yet to come. According to the climate scientist Michael MacCracken, “qualified scientific experts involved in climate change research” have reached a “strong consensus” that global warming threatens (among other things) a precipitate rise in sea levels by the end of the century, MacCraeken Decl. ¶ 5, Stdg. App. 207, “severe and irreversible changes to natural ecosystems,” id., ¶ 5(d), at 209, a “significant reduction in water storage in winter snowpack in mountainous regions with direct and important economic consequences,” ibid., and an increase in the spread of disease, id., ¶ 28, at 218-219. He also observes that rising ocean temper*522atures may contribute to the ferocity of hurricanes. Id., ¶¶ 23-25, at 216-217.18

That these climate-change risks are “widely shared” does not minimize Massachusetts’ interest in the outcome of this litigation. See Federal Election Comm’n v. Akins, 524 U. S. 11, 24 (1998) (“[W]here a harm is concrete, though widely shared, the Court has found ‘injury in fact’”). According to petitioners’ unchallenged affidavits, global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming. MacCracken Decl. ¶ 5(c), Stdg. App. 208. These rising seas have already begun to swallow Massachusetts’ coastal land. Id., at 196 (declaration of Paul H. Kirshen ¶ 5), 216 (MacCracken Deck ¶23). Because the Commonwealth “owns a substantial portion of the state’s coastal property,” id., at 171 (declaration of Karst R. Hoogeboom ¶ 4),19 it has alleged a particularized injury in its capacity as a landowner. The severity of that injury will *523only increase over the course of the next century: If sea levels continue to rise as predicted, one Massachusetts official believes that a significant fraction of coastal property will be “either permanently lost through inundation or temporarily lost through periodic storm surge and flooding events.” Id., ¶6, at 172.20 Remediation costs alone, petitioners allege, could run well into the hundreds of millions of dollars. Id., ¶ 7, at 172; see also Kirshen Decl. ¶ 12, at 198.21

Causation

EPA does not dispute the existence of a causal connection between manmade greenhouse gas emissions and global warming. At a minimum, therefore, EPA’s refusal to regulate such emissions “contributes” to Massachusetts’ injuries.

EPA nevertheless maintains that its decision not to regulate greenhouse gas emissions from new motor vehicles contributes so insignificantly to petitioners’ injuries that the Agency cannot be haled into federal court to answer for them. For the same reason, EPA does not believe that any realistic possibility exists that the relief petitioners seek would mitigate global climate change and remedy their injuries. That is especially so because predicted increases in greenhouse *524gas emissions from developing nations, particularly China and India, are likely to offset any marginal domestic decrease.

But EPA overstates its case. Its argument rests on the erroneous assumption that a small incremental step, because it is incremental, can never be attacked in a federal judicial forum. Yet accepting that premise would doom most challenges to regulatory action. Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. See Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955) (“[A] reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind”)- They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed. Cf. SEC v. Chenery Corp., 332 U. S. 194, 202 (1947) (“Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations”). That a first step might be tentative does not by itself support the notion that federal courts lack jurisdiction to determine whether that step conforms to law.

And reducing domestic automobile emissions is hardly a tentative step. Even leaving aside the other greenhouse gases, the United States transportation sector emits an enormous quantity of carbon dioxide into the atmosphere — according to the MacCracken affidavit, more than 1.7 billion metric tons in 1999 alone. ¶ 30, Stdg. App. 219. That accounts for more than 6% of worldwide carbon dioxide emissions. Id., at 232 (Oppenheimer Decl. ¶3); see also MacCracken Decl. ¶31, at 220. To put this in perspective: Considering just emissions from the transportation sector, which represent less than one-third of this country's total carbon dioxide emissions, the United States would still rank as the third-largest emitter of carbon dioxide in the world, *525outpaced only by the European Union and China.22 Judged by any standard, U. S. motor-vehicle emissions make a meaningful contribution to greenhouse gas concentrations and hence, according to petitioners, to global warming.

The Remedy

While it may be true that regulating motor-vehicle emissions will not by itself reverse global warming, it by no means follows that we lack jurisdiction to decide whether EPA has a duty to take steps to slow or reduce it. See also Larson v. Valente, 456 U. S. 228, 244, n. 15 (1982) ("[A] plaintiff satisfies the redressability requirement when he shows that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable decision will relieve his every injury”). Because of the enormity of the potential consequences associated with manmade climate change, the fact that the effectiveness of a remedy might be delayed during the (relatively short) time it takes for a new motor-vehicle fleet to replace an older one is essentially irrelevant.23 Nor is it dispositive that developing countries such as China and India are poised to increase greenhouse gas emissions *526substantially over the next century: A reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.

We moreover attach considerable significance to EPA’s “agree[ment] with the President that ‘we must address the issue of global climate change,’ ” 68 Fed. Reg. 52929 (quoting remarks announcing Clear Skies and Global Climate Initiatives, 2002 Public Papers of George W. Bush, Vol. 1, Feb. 14, p. 227 (2004)), and to EPA’s ardent support for various voluntary emission-reduction programs, 68 Fed. Reg. 52932. As Judge Tatel observed in dissent below, “EPA would presumably not bother with such efforts if it thought emissions reductions would have no discernable impact on future global warming.” 415 F. 3d, at 66.

In sum — at least according to petitioners’ uncontested affidavits — the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek. We therefore hold that petitioners have standing to challenge EPA’s denial of their rulemaking petition.24

*527V

The scope of our review of the merits of the statutory issues is narrow. As we have repeated time and again, an agency has broad discretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-845 (1984). That discretion is at its height when the agency decides not to bring an enforcement action. Therefore, in Heckler v. Chaney, 470 U. S. 821 (1985), we held that an agency’s refusal to initiate enforcement proceedings is not ordinarily subject to judicial review. Some debate remains, however, as to the rigor with which we review an agency’s denial of a petition for rulemaking.

There are key differences between a denial of a petition for rulemaking and an agency’s decision not to initiate an enforcement action. See American Horse Protection Assn., Inc. v. Lyng, 812 F. 2d 1, 3-4 (CADC 1987). In contrast to nonenforeement decisions, agency refusals to initiate rule-making “are less frequent, more apt to involve legal as opposed to factual analysis, and subject to special formalities, including a public explanation.” Id., at 4; see also 5 U. S. C. § 555(e). They moreover arise out of denials of petitions for rulemaking which (at least in the circumstances here) the affected party had an undoubted procedural right to file in the first instance. Refusals to promulgate rules are thus susceptible to judicial review, though such review is “ex*528tremely limited” and “highly deferential.” National Customs Brokers & Forwarders Assn. of America, Inc. v. United States, 883 F. 2d 93, 96 (CADC 1989).

EPA concluded in its denial of the petition for rulemaking that it lacked authority under 42 U. S. C. § 7521(a)(1) to regulate new vehicle emissions because carbon dioxide is not an “air pollutant” as that term is defined in § 7602. In the alternative, it concluded that even if it possessed authority, it would decline to do so because regulation would conflict with other administration priorities. As discussed earlier, the Clean Air Act expressly permits review of such an action. § 7607(b)(1). We therefore “may reverse any such action found to be . .. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 7607(d)(9).

On the merits, the first question is whether § 202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a “judgment” that such emissions contribute to climate change. We have little trouble concluding that it does. In relevant part, § 202(a)(1) provides that EPA “shall by regulation prescribe ... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in [the Administrator’s] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. § 7521(a)(1). Because EPA believes that Congress did not intend it to regulate substances that contribute to climate change, the agency maintains that carbon dioxide is not an “air pollutant” within the meaning of the provision.

The statutory text forecloses EPA’s reading. The Clean Air Act’s sweeping definition of “air pollutant” includes “any air pollution agent or combination of such agents, including any physical, chemical... substance or matter which is emit*529ted into or otherwise enters the ambient air....” § 7602(g) (emphasis added). On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word “any.”25 Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt “physical [and] chemical... substance[s] which [are] emitted into . .. the ambient air.” The statute is unambiguous.26

Rather than relying on statutory text, EPA invokes post-enactment congressional actions and deliberations it views as tantamount to a congressional command to refrain from regulating greenhouse gas emissions. Even if such post-enactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting bind*530ing emissions limitations to combat global warming tells us nothing about what Congress meant when it amended § 202(a)(1) in 1970 and 1977.27 And unlike EPA, we have no difficulty reconciling Congress’ various efforts to promote interagency collaboration and research to better understand climate change28 with the Agency’s pre-existing mandate to regulate “any air pollutant” that may endanger the public welfare. See 42 U. S. C. § 7601(a)(1). Collaboration and research do not conflict with any thoughtful regulatory effort; they complement it.29

EPA’s reliance on Brown & Williamson Tobacco Corp., 529 U. S. 120, is similarly misplaced. In holding that tobacco products are not “drugs” or “devices” subject to Food and Drug Administration (FDA) regulation pursuant to the Food, Drug and Cosmetic Act (FDCA), see 529 U. S., at 133, we *531found critical at least two considerations that have no counterpart in this case.

First, we thought it unlikely that Congress meant to ban tobacco products, which the FDCA would have required had such products been classified as “drugs” or “devices.” Id., at 135-137. Here, in contrast, EPA jurisdiction would lead to no such extreme measures. EPA would only regulate emissions, and even then, it would have to delay any action “to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance,” § 7521(a)(2). However much a ban on tobacco products clashed with the “common sense” intuition that Congress never meant to remove those products from circulation, Brown & Williamson, 529 U. S., at 133, there is nothing counterintuitive to the notion that EPA can curtail the emission of substances that are putting the global climate out of kilter.

Second, in Brown & Williamson we pointed to an unbroken series of congressional enactments that made sense only if adopted “against the backdrop of the FDA’s consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco.” Id., at 144. We can point to no such enactments here: EPA has not identified any congressional action that conflicts in any way with the regulation of greenhouse gases from new motor vehicles. Even if it had, Congress could not have acted against a regulatory “backdrop” of disclaimers of regulatory authority. Prior to the order that provoked this litigation, EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority. See App. 54 (Cannon memorandum). There is no reason, much less a compelling reason, to accept EPA’s invitation to read ambiguity into a clear statute.

EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to *532EPA) that Congress has assigned to DOT. See 68 Fed. Reg. 52929. But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's “health” and “welfare,” 42 U. S. C. § 7521(a)(1), a statutory obligation wholly independent of DOT’S mandate to promote energy efficiency. See Energy Policy and Conservation Act, § 2(5), 89 Stat. 874,42 U. S. C. § 6201(5). The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency.

While the Congresses that drafted § 202(a)(1) might not have appreciated the possibility that burning fossil fuels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete. The broad language of § 202(a)(1) reflects an intentional effort to confer the flexibility necessary to forestall such obsolescence. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anticipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (internal quotation marks omitted)). Because greenhouse gases fit well within the Clean Air Act’s capacious definition of “air pollutant,” we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.

VII

The alternative basis for EPA’s decision — that even if it does have statutory authority to regulate greenhouse gases, it would be unwise to do so at this time — rests on reasoning divorced from the statutory text. While the statute does condition the exercise of EPA’s authority on its formation of a “judgment,” 42 U. S. C. § 7521(a)(1), that judgment must relate to whether an air pollutant “eause[s], or contribute[s] to, air pollution which may reasonably be anticipated to en*533danger public health or welfare,” ibid. Put another way, the use of the word “judgment” is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.

If EPA makes a finding of endangerment, the Clean Air Act requires the Agency to regulate emissions of the deleterious pollutant from new motor vehicles. Ibid, (stating that “[EPA] shall by regulation prescribe... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles”). EPA no doubt has significant latitude as to the manner, timing, content, and coordination of its regulations with those of other agencies. But once EPA has responded to a petition for rulemaking, its reasons for action or inaction must conform to the authorizing statute. Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. Ibid. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design.

EPA has refused to comply with this clear statutory command. Instead, it has offered a laundry list of reasons not to regulate. For example, EPA said that a number of voluntary Executive Branch programs already provide an effective response to the threat of global warming, 68 Fed. Reg. 52932, that regulating greenhouse gases might impair the President’s ability to negotiate with “key developing nations” to reduce emissions, id., at 52931, and that curtailing motor-vehicle emissions would reflect “an inefficient, piecemeal approach to address the climate change issue,” ibid.

Although we have neither the expertise nor the authority to evaluate these policy judgments, it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change. Still less do they amount to a *534reasoned justification for declining to form a scientific judgment. In particular, while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Department — not EPA — to formulate United States foreign policy with reference to environmental matters relating to climate. See § 1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. § 1103(b).

Nor can EPA avoid its statutory obligation by noting the uncertainty surrounding various features of climate change and concluding that it would therefore be better not to regulate at this time. See 68 Fed. Reg. 52930-52931. If the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so. That EPA would prefer not to regulate greenhouse gases because of some residual uncertainty — which, contrary to Justice Scalia’s apparent belief, post, at 553-555, is in fact all that it said, see 68 Fed. Reg. 52929-52930 (“We do not believe ... that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time” (emphasis added)) — is irrelevant. The statutory question is whether sufficient information exists to make an endangerment finding.

In short, EPA has offered no reasoned explanation for its refusal to decide whether greenhouse gases cause or contribute to climate change. Its action was therefore “arbitrary, capricious, ... or otherwise not in accordance with law.” 42 U. S. C. § 7607(d)(9)(A). We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform *535EPA's actions in the event that it makes such a finding. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S., at 843-844. We hold only that EPA must ground its reasons for action or inaction in the statute.

VIII

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Pet. for Cert. 22.

California, Connecticut, Illinois, Maine, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington.

District of Columbia, American Samoa, New York City, and Baltimore.

Center for Biological Diversity, Center for Food Safety, Conservation Law Foundation, Environmental Advocates, Environmental Defense, Friends of the Earth, Greenpeace, International Center for Technology Assessment, National Environmental Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U. S. Public Interest Research Group.

Alaska, Idaho, Kansas, Michigan, Nebraska, North Dakota, Ohio, South Dakota, Texas, and Utah.

Alliance of Automobile Manufacturers, National Automobile Dealers Association, Engine Manufacturers Association, Truck Manufacturers Association, C02 Litigation Group, and Utility Air Regulatory Group.

The 1970 version of § 202(a)(1) used the phrase “which endangers the public health or welfare” rather than the more protective “which may reasonably be anticipated to endanger public health or welfare.” See § 6(a) of the Clean Air Amendments of 1970, 84 Stat. 1690. Congress amended § 202(a)(1) in 1977 to give its approval to the decision in Ethyl Corp. v. EPA, 541 F. 2d 1, 25 (CADC 1976) (en banc), which held that the Clean Air Act “and common sense... demand regulatory action to prevent harm, even if the regulator is less than certain that harm is otherwise inevitable.” See § 401(d)(1) of the Clean Air Act Amendments of 1977, 91 Stat. 791; see also H. R. Rep. No. 95-294, p. 49 (1977).

The Council on Environmental Quality had issued a report in 1970 concluding that “[m]an may be changing his weather.” Environmental Quality: The First Annual Report 93. Considerable uncertainty remained in those early years, and the issue went largely unmentioned in the congressional debate over the enactment of the Clean Air Act. But see 116 Cong. Rec. 32914 (1970) (statement of Sen. Boggs referring to Council’s conclusion that “[a]ir pollution alters the climate and may produce global changes in temperature”).

See Intergovernmental Panel on Climate Change, Climate Change 2001: Synthesis Report, pp. 202-203 (2001). By drilling through thick Antarctic ice sheets and extracting “cores,” scientists can examine ice from long ago and extract small samples of ancient air. That air can then be analyzed, yielding estimates of carbon dioxide levels. Ibid.

A more dramatic rise was yet to come: In 2006, carbon dioxide levels reached 382 parts per million, see Dept, of Commerce, National Oceanic & Atmospheric Administration, Mauna Loa C02 Monthly Mean Data, http:// www.esrl.noaa.gov/gmd/ccgg/trends/co2_mm_mlo.dat (all Internet materials as visited Mar. 29, 2007, and available in Clerk of Court’s case file), a level thought to exceed the concentration of carbon dioxide in the atmosphere at any point over the past 20 million years. See Intergovernmental Panel on Climate Change, Technical Summary of Working Group I Report 39 (2001).

Climate Research Board, Carbon Dioxide and Climate: A Scientific Assessment, p. viii (1979).

IPCC, Climate Change: The IPCC Scientific Assessment, p. xi (J. Houghton, G. Jenkins, & J. Ephraums eds. 1991).

The industrialized countries listed in Annex I to the UNFCCC undertook to reduce their emissions of greenhouse gases to 1990 levels by the year 2000. No immediate restrictions were imposed on developing countries, including China and India. They could choose to become Annex I countries when sufficiently developed.

IPCC, Climate Change 1995, The Science of Climate Change, p. 4.

Alliance for Sustainable Communities; Applied Power Technologies, Inc.; Bio Fuels America; The California Solar Energy Industries Assn.; Clements Environmental Corp.; Environmental Advocates; Environmental and Energy Study Institute; Friends of the Earth; Full Circle Energy Project, Inc.; The Green Party of Rhode Island; Greenpeace USA; International Center for Technology Assessment; Network for Environmental and Economic Responsibility of the United Church of Christ; New Jersey Environmental Watch; New Mexico Solar Energy Assn.; Oregon Environmental Council; Public Citizen; Solar Energy Industries Assn.; The SUN DAY Campaign. See App. 7-11.

See 42 U. S. C. § 7607(b)(1) (“A petition for review of action of the Administrator in promulgating any... standard under section 7521 of this title ... or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia”).

The Chief Justice accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 537-538 (dissenting opinion), and “devis[ing] a new doctrine of state standing,” post, at 548. But no less an authority than Hart & Wechsler’s The Federal Courts and the Federal System understands Tennessee Copper as a standing decision. R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s The Federal Courts and the Federal System 290 (5th ed. 2003). Indeed, it devotes an entire section to chronicling the long development of cases permitting States “to litigate as parens patriae to .protect quasi-sovereign interests — i. e., public or governmental interests that concern the state as a whole.” Id., at 289; see, e. g., Missouri v. Illinois, 180 U. S. 208,240-241 (1901) (finding federal jurisdiction appropriate not only “in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State,” but also when the “substantial impairment of the health and prosperity of the towns and cities of the state” are at stake).

Drawing on Massachusetts v. Mellon, 262 U. S. 447 (1923), and Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592 (1982) (citing Missouri v. Illinois, 180 U. S. 208 (1901)), The Chief Justice claims that we “overloo[k] the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest . . . against the Federal Government.” Post, at 539. Not so. Mellon itself disavowed any such broad reading when it noted that the Court had been “called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, [and] not quasi-sovereign rights actually invaded or threatened." 262 U. S., at 484-485 (emphasis added). In any event, we held in Georgia v. Pennsylvania R. Co., 324 U. S. 439, 447 (1945), that there is a critical difference between allowing a State “to protect her citizens from the operation of federal statutes” (which is what Mellon prohibits) and allowing a State to assert its rights under federal law (which it has standing to do). Massachusetts does not here dispute that the Clean Air Act applies to its citizens; it rather seeks to assert its rights under the Act. See also Nebraska v. Wyoming, 515 U. S. 1, 20 (1995) (holding that Wyoming had standing to bring a cross-claim against the United States to vindicate its “ ‘quasi-sovereign’ interests which are ‘independent *521of and behind the titles of its citizens, in all the earth and air within its domain’ ” (quoting Tennessee Copper, 206 U. S., at 237)).

In this regard, MacCracken’s 2004 affidavit — drafted more than a year in advance of Hurricane Katrina — was eerily prescient. Immediately after discussing the “particular concern” that climate change might cause an “increase in the wind speed and peak rate of precipitation of major tropical cyclones (i. e., hurricanes and typhoons),” MacCracken noted that “Hail compaction, sea level rise and recurrent storms are destroying approximately 20-30 square miles of Louisiana wetlands each year. These wetlands serve as a ‘shock absorber’ for storm surges that could inundate New Orleans, significantly enhancing the risk to a major urban population.” ¶¶ 24-25, Stdg. App. 217.

“For example, the [Massachusetts Department of Conservation and Recreation] owns, operates and maintains approximately 53 coastal state parks, beaches, reservations, and wildlife sanctuaries. [It] also owns, operates and maintains sporting and recreational facilities in coastal areas, including numerous pools, skating rinks, playgrounds, playing fields, former coastal fortifications, public stages, museums, bike trails, tennis courts, boathouses and boat ramps and landings. Associated with these coastal properties and facilities is a significant amount of infrastructure, which the Commonwealth also owns, operates and maintains, including roads, parkways, stormwater pump stations, pier[s], sea wal[l] revetments and dams.” Hoogeboom Deck ¶ 4, at 171.

See also id., at 179 (declaration of Christian Jacqz) (discussing possible loss of roughly 14 acres of land per miles of coastline by 2100); Kirshen Decl. ¶ 10, at 198 (alleging that “[w]hen such a rise in sea level occurs, a 10-year flood will have the magnitude of the present 100-year flood and a 100-year flood will have the magnitude of the present 500-year flood”).

In dissent, The Chief Justice dismisses petitioners’ submissions as “conelusory,” presumably because they do not quantify Massachusetts’ land loss with the exactitude he would prefer. Post, at 542. He therefore asserts that the Commonwealth’s injury is “conjectur[al].” See ibid. Yet the likelihood that Massachusetts’ coastline will recede has nothing to do with whether petitioners have determined the precise metes and bounds of their soon-to-be-flooded land. Petitioners maintain that the seas are rising and will continue to rise, and have alleged that such a rise will lead to the loss of Massachusetts’ sovereign territory. No one, save perhaps the dissenters, disputes those allegations. Our cases require nothing more.

See UNFCCC, National Greenhouse Gas Inventory Data for the Period 1990-2004 and Status of Reporting 14 (2006) (reflecting emissions from Annex I countries); UNFCCC, Sixth Compilation and Synthesis of Initial National Communications from Parties not Included in Annex I to the Convention 7-8 (2005) (reflecting emissions from non-Annex I countries); see also Dept, of Energy, Energy Information Admin., International Energy Annual 2004, H.lco2 World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 1980-2004 (Table), http:// www.eia.doe.gov/pub/international/iealf/tablehlco2.xls.

See also Mountain States Legal Foundation v. Gliekman, 92 F. 3d 1228, 1234 (CADC 1996) (“The more drastic the injury that government action makes more likely, the lesser the increment in probability to establish standing”); Village of Elk Grove Village v. Evans, 997 F. 2d 328, 329 (CA7 1993) (“[E]ven a small probability of injury is sufficient to create a case or controversy — to take a suit out of the category of the hypothetical — provided of course that the relief sought would, if granted, reduce the probability”).

In his dissent, The Chief Justice expresses disagreement with the Court’s holding in United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669,687-688 (1973). He does not, however, disavow this portion of Justice Stewart’s opinion for the Court: “Unlike the specific and geographically limited federal action of which the petitioner complained in Sierra Club [v. Morton, 405 U. S. 727 (1972)], the challenged agency action in this case is applicable to substantially all of the Nation’s railroads, and thus allegedly has an adverse environmental impact on all the natural resources of the country. Rather than a limited group of persons who used a picturesque valley in California, all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. But we have already made it clear that standing is not to be denied simply because many people suffer the same injury. Indeed some of the cases on which we relied in Sierra Club demonstrated the patent fact that persons across the Nation could be adversely affected by *527major governmental actions. To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody. We cannot accept that conclusion.” Ibid, (citations omitted and emphasis added).

It is moreover quite wrong to analogize the legal claim advanced by Massachusetts and the other public and private entities who challenge EPA’s parsimonious construction of the Clean Air Act to a mere “lawyer’s game.” See post, at 548.

See Department of Housing and Urban Development v. Rucker, 535 U. S. 125, 131 (2002) (observing that “‘any’... has an expansive meaning, that is, one or some indiscriminately of whatever kind” (some internal quotation marks omitted)).

In dissent,. Justice Scalia maintains that because greenhouse gases permeate the world’s atmosphere rather than a limited area near the earth’s surface, EPA’s exclusion of greenhouse gases from the category of air pollution “agentfe]” is entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). See post, at 558-560. EPA’s distinction, however, finds no support in the text of the statute, which uses the phrase “the ambient air” without distinguishing between atmospheric layers. Moreover, it is a plainly unreasonable reading of a sweeping statutory provision designed to capture “any physical, chemical... substance or matter which is emitted into or otherwise enters the ambient air.” 42 U. S. C. § 7602(g). Justice Scalia does not (and cannot) explain why Congress would define “air pollutant” so carefully and so broadly, yet confer on EPA the authority to narrow that definition whenever expedient by asserting that a particular substance is not an “agent.” At any rate, no party to this dispute contests that greenhouse gases both “ente[r] the ambient air” and tend to warm the atmosphere. They are therefore unquestionably “agent[s]” of air pollution.

See United States v. Price, 361 U. S. 304, 313 (1960) (holding that “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one”); see also Cobell v. Norton, 428 F. 3d 1070, 1075 (CADC 2005) (“[P]ost-enactment legislative history is not only oxymoronic but inherently entitled to little weight”).

See, e. g., National Climate Program Act, §5, 92 Stat. 601, 15 U. S. C. §2901 et seq. (calling for the establishment of a National Climate Program and for additional climate-change research); Global Climate Protection Act of 1987, § 1103, 101 Stat. 1408-1409, note following 15 U. S. C. §2901 (directing EPA and the Secretary of State to “jointly” develop a “coordinated national policy on global climate change” and report to Congress); Global Change Research Act of 1990, Tit. I, 104 Stat. 3097, 15 U. S. C. §§2921-2938 (establishing for the “development and coordination of a comprehensive and integrated United States research program” to aid in “understand[ing] . . . human-induced and natural processes of climate change”); Global Climate Change Prevention Act of 1990, 104 Stat. 4058, 7 U. S. C. §6701 et seq. (directing the Dept, of Agriculture to study the effects of climate change on forestry and agriculture); Energy Policy Act of 1992, §§ 1601-1609, 106 Stat. 2999,42 U. S. C. §§ 13381-13388 (requiring the Secretary of Energy to report on information pertaining to climate change).

We are moreover puzzled by EPA’s roundabout argument that because later Congresses chose to address stratospheric ozone pollution in a specific legislative provision, it somehow follows that greenhouse gases cannot be air pollutants within the meaning of the Clean Air Act.

Chief Justice Roberts,

with whom Justice Scalia, Justice Thomas, and Justice Alito join, dissenting.

Global warming may be a “crisis,” even “the most pressing environmental problem of our time.” Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change.

Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government’s alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here “is the function of Congress and the Chief Executive,” not the federal courts. Lujan v. Defenders of Wildlife, 504 U. S. 555, 576 (1992). I would vacate the judg*536ment below and remand for dismissal of the petitions for review.

Article III, § 2, of the Constitution limits the federal judicial power to the adjudication of “Cases” and “Controversies.” “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006). “Standing to sue is part of the common understanding of what it takes to make a justiciable ease,” Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998), and has been described as “an essential and unchanging part of the case-or-controversy requirement of Article III,” Defenders of Wildlife, supra, at 560.

Our modern framework for addressing standing is familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” DaimlerChrysler, supra, at 342 (quoting Allen v. Wright, 468 U. S. 737, 751 (1984); internal quotation marks omitted). Applying that standard here, petitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency’s failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards.

Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that “States are not normal litigants for the purposes of invoking federal jurisdiction,” and that given “Massachusetts’ stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.” Ante, at 518, 520 (emphasis added).

Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such “special solicitude” is conspicuously absent from the Court’s opinion. The general judicial review provision cited by the Court, 42 *537U. S. C. § 7607(b)(1), affords States no special rights or status. The Court states that “Congress has ordered EPA to protect Massachusetts (among others)” through the statutory provision at issue, § 7521(a)(1), and that “Congress has ... recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Ante, at 519, 520. The reader might think from this unfortunate phrasing that Congress said something about the rights of States in this particular provision of the statute. Congress knows how to do that when it wants to, see, e. g., § 7426(b) (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same.

Nor does the case law cited by the Court provide any support for the notion that Article III somehow implicitly treats public and private litigants differently. The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court’s analysis hinges on Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) — a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing.

In Tennessee Copper, the State of Georgia sought to enjoin copper companies in neighboring Tennessee from discharging pollutants that were inflicting “a wholesale destruction of forests, orchards and crops” in bordering Georgia counties. Id., at 236. Although the State owned very little of the territory allegedly affected, the Court reasoned that Georgia— in its capacity as a “quasi-sovereign” — “has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.” Id., at 237. The Court explained that while “[t]he very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief [were] wanting,” a State “is not lightly to be re*538quired to give up quasi-sovereign rights for pay.” Ibid. Thus while a complaining private litigant would have to make do with a legal remedy — one “for pay” — the State was entitled to equitable relief. See id., at 237-238.

In contrast to the present case, there was no question in Tennessee Copper about Article III injury. See id., at 238-239. There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had “an action at law.” Id., at 238. Tennessee Copper has since stood for nothing more than a State’s right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. See, e. g., Maryland v. Louisiana, 451 U. S. 725, 737 (1981). Nothing about a State’s ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III.

A claim of parens patriae standing is distinct from an allegation of direct injury. See Wyoming v. Oklahoma, 502 U. S. 437, 448-449, 451 (1992). Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a “quasi-sovereign interest” “apart from the interests of particular private parties.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 607 (1982) (emphasis added) (cited ante, at 519). Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens patriae must still show that its citizens satisfy Article III Focusing on Massachusetts’s interests as quasi-sovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for parens patriae standing — a quasi-sovereign interest — and converts it into a sufficient showing for purposes of Article III.

*539What is more, the Court’s reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to “special solicitude” due to its “quasi-sovereign interests,” ante, at 520, but then applies our Article III standing test to the asserted injury of the Commonwealth’s loss of coastal property. See ante, at 522 (concluding that Massachusetts “has alleged a particularized injury in its capacity as a landowner” (emphasis added)). In the context of parens patriae standing, however, we have characterized state ownership of land as a “nonsovereign interes[tj” because a State “is likely to have the same interests as other similarly situated proprietors.” Alfred L. Snapp & Son, supra, at 601.

On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State’s standing to assert a quasi-sovereign interest — as opposed to a direct injury — against the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae “for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them.” Massachusetts v. Mellon, 262 U. S. 447, 485-486 (1923) (citation omitted); see also Alfred L. Snapp & Son, supra, at 610, n. 16.

All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D. C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either. Given that one purpose of the standing requirement is “ ‘to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination,’ ” ante, at 517 (quoting Baker v. Carr, 369 U. S. 186, 204 (1962)), it is ironic that the Court today adopts a new theory *540of Article III standing for States without the benefit of briefing or argument on the point.1

It is not at all clear how the Court’s “special solicitude” for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as a State cannot compensate for petitioners’ failure to demonstrate injury in fact, causation, and redressability.

When the Court actually applies the three-part test, it focuses, as did the dissent below, see 415 F. 3d 50, 64 (CADC 2005) (opinion of Tatel, J.), on the Commonwealth’s asserted loss of coastal land as the injury in fact. If petitioners rely on loss of land as the Article III injury, however, they must ground the rest of the standing analysis in that specific injury. That alleged injury must be “concrete and particularized,” Defenders of Wildlife, 504 U. S., at 560, and “distinct and palpable,” Alien, 468 U. S., at 751 (internal quotation marks omitted). Central to this concept of “particularized” injury is the requirement that a plaintiff be affected in a “personal and individual way,” Defenders of Wildlife, 504 *541U. S., at 560, n. 1, and seek relief that “directly and tangibly benefits him” in a manner distinct from its impact on “the public at large,” id., at 573-574. Without “particularized injury, there can be no confidence of ‘a real need to exercise the power of judicial review’ or that relief can be framed ‘no broader than required by the precise facts to which the court’s ruling would be applied.’ ” Warth v. Seldin, 422 U. S. 490, 508 (1975) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-222 (1974)).

The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon “harmful to humanity at large,” 415 F. 3d, at 60 (Sentelle, J., dissenting in part and concurring in judgment), and the redress petitioners seek is focused no more on them than on the public generally — it is literally to change the atmosphere around the world.

If petitioners’ particularized injury is loss of coastal land, it is also that injury that must be “actual or imminent, not conjectural or hypothetical,” Defenders of Wildlife, supra, at 560 (internal quotation marks omitted), “real and immediate,” Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (internal quotation marks omitted), and “certainly impending,” Whitmore v. Arkansas, 495 U. S. 149, 158 (1990) (internal quotation marks omitted).

As to “actual” injury, the Court observes that “global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming” and that “[t]hese rising seas have already begun to swallow Massachusetts’ coastal land.” Ante, at 522. But none of petitioners’ declarations supports that connection. One declaration states that “a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area,” but there is no elaboration. 2 Petitioners’ Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg. App.). And the declarant goes on to identify a “significan[t]” wow-global-warming cause of Boston’s rising sea level: land *542subsidence. Id., at 197; see also id., at 216. Thus, aside from a single conclusory statement, there is nothing in petitioners’ 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th-century global sea level increases. It is pure conjecture.

The Court’s attempts to identify “imminent” or “certainly impending” loss of Massachusetts coastal land fares no better. See ante, at 522-523. One of petitioners’ declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg. App. 216. Another uses a computer modeling program to map the Commonwealth’s coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. Id., at 179. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. Id., at 177-178. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of Wildlife, supra, at 565, n. 2 (while the concept of “ ‘imminence’ ” in standing doctrine is “somewhat elastic,” it can be “stretched beyond the breaking point”). “Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” Whitmore, supra, at 158 (internal quotation marks omitted; emphasis added).

III

Petitioners’ reliance on Massachusetts’s loss of coastal land as their injury in fact for standing purposes creates insur*543mountable problems for them with respect to causation and redressability. To establish standing, petitioners must show a causal connection between that specific injury and the lack of new motor vehicle greenhouse gas emission standards, and that the promulgation of such standards would likely redress that injury. As is often the case, the questions of causation and redressability overlap. See Allen, 468 U. S., at 758, n. 19 (observing that the two requirements were “initially articulated by this Court as two facets of a single causation requirement” (internal quotation marks omitted)). And importantly, when a party is challenging the Government’s allegedly unlawful regulation, or lack of regulation, of a third party, satisfying the causation and redressability requirements becomes “substantially more difficult.” Defenders of Wildlife, 504 U. S., at 562 (internal quotation marks omitted); see also Warth, swpra, at 504-505.

Petitioners view the relationship between their injuries and EPA’s failure to promulgate new motor vehicle greenhouse gas emission standards as simple and direct: Domestic motor vehicles emit carbon dioxide and other greenhouse gases. Worldwide emissions of greenhouse gases contribute to global warming and therefore also to petitioners’ alleged injuries. Without the new vehicle standards, greenhouse gas emissions — and therefore global warming and its attendant harms — have been higher than they otherwise would have been; once EPA changes course, the trend will be reversed.

The Court ignores the complexities of global warming, and does so by now disregarding the “particularized” injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. First, it is important to recognize the extent of the emissions at issue here. Because local greenhouse gas emissions disperse throughout the atmosphere and remain there for anywhere from 50 to 200 years, it is global emissions data that are relevant. See App. to Pet. for Cert. *544A-73. According to one of petitioners’ declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide emissions and 4 percent of global greenhouse gas emissions. Stdg. App. 232. The amount of global emissions at issue here is smaller still; § 202(a)(1) of the Clean Air Act covers only new motor vehicles and new motor vehicle engines, so petitioners’ desired emission standards might reduce only a fraction of 4 percent of global emissions.

This gets us only to the relevant greenhouse gas emissions; linking them to global warming and ultimately to petitioners’ alleged injuries next requires consideration of further complexities. As EPA explained in its denial of petitioners’ request for rulemaking,

“predicting future climate change necessarily involves a complex web of economic and physical factors including: our ability to predict future global anthropogenic emissions of [greenhouse gases] and aerosols; the fate of these emissions once they enter the atmosphere (e. g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e. g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e. g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e. g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e. g., increases or decreases in agricultural productivity, human health impacts).” App. to Pet. for Cert. A-83 through A-84.

Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehi*545cle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners’ alleged injury — the loss of Massachusetts coastal land — the connection is far too speculative to establish causation.

Redressability is even more problematic. To the tenuous link between petitioners’ alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, “developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century,” ante, at 525-526, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners’ desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world.

Petitioners offer declarations attempting to address this uncertainty, contending that “[i]f the U. S. takes steps to reduce motor vehicle emissions, other countries are very likely to take similar actions regarding their own motor vehicles using technology developed in response.to the U. S. program.” Stdg. App. 220; see also id., at 311-312. In other words, do not worry that other countries will contribute far more to global warming than will U. S. automobile emissions; someone is bound to invent something, and places like the People’s Republic of China or India will surely require use of the new technology, regardless of cost. The Court previously has explained that when the existence of an element of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume *546either to control or to predict,” a party must present facts supporting an assertion that the actor will proceed in such a manner. Defenders of Wildlife, 504 U. S., at 562 (quoting ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of Kennedy, J.); internal quotation marks omitted). The declarations’ conclusory (not to say fanciful) statements do not even come close.

No matter, the Court reasons, because any decrease in domestic emissions will “slow the pace of global emissions increases, no matter what happens elsewhere.” Ante, at 526. Every little bit helps, so Massachusetts can sue over any little bit.

The Court’s sleight of hand is in failing to link up the different elements of the three-part standing test. What must be likely to be redressed is the particular injury in fact. The injury the Court looks to is the asserted loss of land. The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts’s injury. But even if regulation does reduce emissions — to some indeterminate degree, given events elsewhere in the world — the Court never explains why that makes it likely that the injury in fact — the loss of land — will be redressed. Schoolchildren know that a kingdom might be lost “all for the want of a horseshoe nail,” but “likely” redressability is a different matter. The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land.

Petitioners’ difficulty in demonstrating causation and redressability is not surprising given the evident mismatch between the source of their alleged injury — catastrophic global warming — and the narrow subject matter of the Clean Air Act provision at issue in this suit. The mismatch suggests *547that petitioners’ true goal for this litigation may be more symbolic than anything else. The constitutional role of the courts, however, is to decide concrete cases — not to serve as a convenient forum for policy debates. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) (“[Standing] tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action”).

When dealing with legal doctrine phrased in terms of what is “fairly” traceable or “likely” to be redressed, it is perhaps not surprising that the matter is subject to some debate. But in considering how loosely or rigorously to define those adverbs, it is vital to keep in mind the purpose of the inquiry. The limitation of the judicial power to cases and controversies “is crucial in maintaining the tripartite allocation of power set forth in the Constitution.” DaimlerChrysler, 547 U. S., at 341 (internal quotation marks omitted). In my view, the Court today — addressing Article Ill’s “core component of standing,” Defenders of Wildlife, supra, at 560 — fails to take this limitation seriously.

To be fair, it is not the first time the Court has done so. Today’s decision recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669 (1973). SCRAP involved “[p]robably the most attenuated injury conferring Art. Ill standing” and “surely went to the very outer limit of the law” — until today. Whitmore, 495 U. S., at 158-159; see also Lujan v. National Wildlife Federation, 497 U. S. 871, 889 (1990) (SCRAP “has never since been emulated by this Court”). In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that *548increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area, resulting in increased refuse that might find its way into area parks, harming the group’s members. 412 U. S., at 688.

Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation.2

Perhaps the Court recognizes as much. How else to explain its need to devise a new doctrine of state standing to support its result? The good news is that the Court's “special solicitude” for Massachusetts limits the future applicability of the diluted standing requirements applied in this case. The bad news is that the Court’s self-professed relaxation of those Article III requirements has caused us to transgress “the proper — and properly limited — role of the courts in a *549democratic society.” Allen, 468 U. S., at 750 (internal quotation marks omitted).

I respectfully dissent.

The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 520-521, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing, see Republic of Venezuela v. Philip Morris Inc., 287 F. 3d 192,199, n. (CADC 2002) (observing that “parens patriae is merely a species of prudential standing” (internal quotation marks omitted)), can somehow substitute for, or alter the content of, the “irreducible constitutional minimum” requirements of injury in fact, causation, and redressability under Article III. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).

Georgia v. Pennsylvania R. Co., 324 U. S. 439 (1945), is not to the contrary. As the caption makes clear enough, the fact that a State may assert rights under a federal statute as parens patriae in no way refutes our clear ruling that “[a] State does not have standing as parens patriae to bring an action against the Federal Government.” Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, n. 16 (1982).

The difficulty with SCRAP, and the reason it has not been followed, is not the portion cited by the Court. See ante, at 526-527, n. 24. Rather, it is the attenuated nature of the injury there, and here, that is so troubling. Even in SCRAP, the Court noted that what was required was “something more than an ingenious academic exercise in the conceivable,” 412 U. S., at 688, and we have since understood the allegation there to have been “that the string of occurrences alleged would happen immediately,” Whitmore v. Arkansas, 495 U. S. 149, 159 (1990) (emphasis added). That is hardly the case here.

The Court says it is “quite wrong” to compare petitioners’ challenging “EPA’s parsimonious construction of the Clean Air Act to a mere ‘lawyer’s game.’” Ante, at 527, n. 24. Of course it is not the legal challenge that is merely “an ingenious academic exercise in the conceivable,” SCRAP, supra, at 688, but the assertions made in support of standing.

Justice Scalia,

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

I join The Chief Justice’s opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits.

The provision of law at the heart of this case is § 202(a)(1) of the Clean Air Act (CAA or Act), which provides that the Administrator of the Environmental Protection Agency (EPA) “shall by regulation prescribe... standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. § 7521(a)(1) (emphasis added). As the Court recognizes, the statute “conditionfs] the exercise of EPA’s authority on its formation of a ‘judgment.’” Ante, at 532. There is no dispute that the Administrator has made no such judgment in this case. See ante, at 534 (“We need not and do not reach the question whether on remand EPA must make an endangerment finding”); 68 Fed. Reg. 52929 (2003) (“[N]o Administrator has made a finding under any of the CAA’s regulatory provisions that C02 meets the applicable statutory criteria for regulation”).

The question thus arises: Does anything require the Administrator to make a “judgment” whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When *550Congress wishes to make private action force an agency’s hand, it knows how to do so. See, e. g., Brock v. Pierce County, 476 U. S. 253, 254-255 (1986) (discussing the Comprehensive Employment and Training Act (CETA), 92 Stat. 1926, 29 U.S.C. § 816(b) (1976 ed., Supp. V), which “provided] that the Secretary of Labor ‘shall’ issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse”). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists.

Instead, the Court invents a multiple-choice question that the EPA Administrator must answer when a petition for rulemaking is filed. The Administrator must exercise his judgment in one of three ways: (a) by concluding that the pollutant does cause, or contribute to, air pollution that endangers public welfare (in which case EPA is required to regulate); (b) by concluding that the pollutant does not cause, or contribute to, air pollution that endangers public welfare (in which case EPA is not required to regulate); or (c) by “provid[ing] some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether” greenhouse gases endanger public welfare, ante, at 533 (in which case EPA is not required to regulate).

I am willing to assume, for the sake of argument, that the Administrator’s discretion in this regard is not entirely unbounded — that if he has no reasonable basis for deferring judgment he must grasp the nettle at once. The Court, however, with no basis in text or precedent, rejects all of EPA’s stated “policy judgments” as not “amount[ing] to a reasoned justification,” ante, at 533-534, effectively narrowing the universe of potential reasonable bases to a single one: Judgment can be delayed only if the Administrator concludes that “the scientific uncertainty is [too] profound.” Ante, at 534. The Administrator is precluded from concluding for other reasons “that it would ... be better not to regulate *551at this time.” Ibid.1 Such other reasons — perfectly valid reasons — were set forth in the Agency’s statement.

“We do not believe ... that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time. As described in detail below, the President has laid out a comprehensive approach to climate ehange that calls for near-term voluntary actions and incentives along with programs aimed at reducing scientific uncertainties and encouraging technological development so that the government may effectively and efficiently address the climate change issue over the long term.

“[Establishing [greenhouse gas] emission standards for U. S. motor vehicles at this time would . . . result in an inefficient, piecemeal approach to addressing the climate change issue. The U. S. motor vehicle fleet is one of many sources of [greenhouse gas] emissions both here and abroad, and different [greenhouse gas] emission sources face different technological and financial challenges in reducing emissions. A sensible regulatory scheme would require that all significant sources and sinks of [greenhouse gas] emissions be considered in deciding how best to achieve any needed emission reductions.

“Unilateral EPA regulation of motor vehicle [greenhouse gas] emissions could also weaken U. S. efforts to persuade developing countries to reduce the [greenhouse gas] intensity of their economies. Considering the large populations and growing economies of some developing countries, increases in their [greenhouse gas] emissions could quickly overwhelm the effects of [green*552house gas] reduction measures in developed countries. Any potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U. S. emissions reductions. Unavoidably, climate change raises important foreign policy issues, and it is the President’s prerogative to address them.” 68 Fed. Reg. 52929-52931 (footnote omitted).

The Court dismisses this analysis as “resting] on reasoning divorced from the statutory text.” Ante, at 532. “While the statute does condition the exercise of EPA’s authority on its formation of a ‘judgment,’. . . that judgment must relate to whether an air pollutant ‘cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.’” Ante, at 532-533. True but irrelevant. When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U. S. C. § 7521(a)(1). But the statute says nothing at all about the reasons for which the Administrator may defer making a judgment — the permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various “policy” rationales, ante, at 533, that the Court criticizes are not “divorced from the statutory text,” ante, at 532, except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. The reasons EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy. There is no basis in law for the Court’s imposed limitation.

EPA’s interpretation of the discretion conferred by the statutory reference to “its judgment” is not only reasonable, *553it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). As the Administrator acted within the law in declining to make a “judgment” for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone.

Even on the Court’s own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a “judgment” as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: “If,” the Court says, “the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so.” Ante, at 534. But EPA has said precisely that — and at great length, based on information contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions:

“As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities (pp. 9-12). It also noted that ‘[a] diverse array of evidence points to a warming of global surface air temperatures’ (p. 16). The report goes on to state, however, that ‘[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of [GHGs] in the atmosphere and the observed climate changes during the 20th century, cannot be unequivocally established. The fact that the *554magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale’ (p. 17).

“The NRC also observed that ‘there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols’ (p. 1). As a result of that uncertainty, the NRC cautioned that ‘current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).’ Id. It further advised that ‘[Reducing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called “feedbacks” that determine the sensitivity of the climate system to a prescribed increase in [GHGs].’ Id.

“The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e. g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmos*555phere; changes in critically important climate feedbacks (e. g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e. g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that ‘[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood’ (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs.

“Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of [GHGs] and aerosols, and the processes that determine the sensitivity of the climate system.” 68 Fed. Reg. 52930.

I simply cannot conceive of what else the Court would like EPA to say.

Even before reaching its discussion of the word “judgment,” the Court makes another significant error when it concludes that “§ 202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a ‘judgment’ that such emissions contribute to climate change.” Ante, at 528 (emphasis added). For such authorization, the Court relies on *556what it calls “the Clean Air Act’s capacious definition of ‘air pollutant.’” Ante, at 532.

“Air pollutant” is defined by the Act as “any air pollution agent or combination of such agents, including any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U. S. C. § 7602(g). The Court is correct that “[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons,” ante, at 529, fit within the second half of that definition: They are “physical, chemical,... substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air.” But the Court mistakenly believes this to be the end of the analysis. In order to be an “air pollutant” under the Act’s definition, the “substance or matter [being] emitted into . . . the ambient air” must also meet the first half of the definition — namely, it must be an “air pollution agent or combination of such agents.” The Court simply pretends this half of the definition does not exist.

The Court’s analysis faithfully follows the argument advanced by petitioners, which focuses on the word “including” in the statutory definition of “air pollutant.” See Brief for Petitioners 13-14. As that argument goes, anything that follows the word “including” must necessarily be a subset of whatever precedes it. Thus, if greenhouse gases qualify under the phrase following the word “including,” they must qualify under the phrase preceding it. Since greenhouse gases come within the capacious phrase “any physical, chemical, . .. substance or matter which is emitted into or otherwise enters the ambient air,” they must also be “air pollution agent[s] or combination^] of such agents,” and therefore meet the definition of “air pollutant[s].”

That is certainly one possible interpretation of the statutory definition. The word “including” can indeed indicate that what follows will be an “illustrative” sampling of the general category that precedes the word. Federal Land Bank of St Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 *557(1941). Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category. The Government provides a helpful (and unanswered) example: “The phrase ‘any American automobile, including any truck or minivan,’ would not naturally be construed to encompass a foreign-manufactured [truck or] minivan.” Brief for Federal Respondent 34. The general principle enunciated — that the speaker is talking about American automobiles — carries forward to the illustrative examples (trucks and minivans), and limits them accordingly, even though in isolation they are broader. Congress often uses the word “including” in this manner. In 28 U. S. C. § 1782(a), for example, it refers to “a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” Certainly this provision would not encompass criminal investigations underway in a domestic tribunal. See also, e. g., 2 U. S. C. § 54(a) (“The Clerk of the House of Representatives shall, at the request of a Member of the House of Representatives, furnish to the Member, for official use only, one set of a privately published annotated version of the United States Code, including supplements and pocket parts”); 22 U. S. C. § 2304(b)(1) (“the relevant findings of appropriate international organizations, including nongovernmental organizations”).

In short, the word “including” does not require the Court’s (or the petitioners’) result. It is perfectly reasonable to view the definition of “air pollutant” in its entirety: An air pollutant can be “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air,” but only if it retains the general characteristic of being an “air pollution agent or combination of such agents.” This is precisely the conclusion EPA reached: “[A] substance does not meet the CAA definition of ‘air pollutant’ simply because it is a ‘physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.’ It must *558also be an ‘air pollution agent.’ ” 68 Fed. Reg. 52929, n. 3. See also id., at 52928 (“The root of the definition indicates that for a substance to be an ‘air pollutant,’ it must be an ‘agent’ of ‘air pollution’ ”). Once again, in the face of textual ambiguity, the Court’s application of Chevron deference to EPA’s interpretation of the word “including” is nowhere to be found.2 Evidently, the Court defers only to those reasonable interpretations that it favors.

Using (as we ought to) EPA’s interpretation of the definition of “air pollutant,” we must next determine whether greenhouse gases are “agent[s]” of “air pollution.” If so, the statute would authorize regulation; if not, EPA would lack authority.

Unlike “air pollutants,” the term “air pollution” is not itself defined by the CAA; thus, once again we must accept EPA’s interpretation of that ambiguous term, provided its interpretation is a “permissible construction of the statute.” Chevron, 467 U. S., at 843. In this case, the petition for rule-making asked EPA for “regulation of [greenhouse gas] emissions from motor vehicles to reduce the risk of global climate change.” 68 Fed. Reg. 52925. Thus, in deciding whether it had authority to regulate, EPA had to determine whether the concentration of greenhouse gases assertedly responsible for “global climate change” qualifies as “air pollution.” EPA began with the commonsense observation that the “[problems associated with atmospheric concentrations *559of C02,” id., at 52927, bear little resemblance to what would naturally be termed “air pollution”:

“EPA’s prior use of the CAA’s general regulatory provisions provides an important context. Since the inception of the Act, EPA has used these provisions to address air pollution problems that occur primarily at ground level or near the surface of the earth. For example, national ambient air quality standards (NAAQS) established under CAA section 109 address concentrations of substances in the ambient air and the related public health and welfare problems. This has meant setting NAAQS for concentrations of ozone, carbon monoxide, particulate matter and other substances in the air near the surface of the earth, not higher in the atmosphere. . . . C02, by contrast, is fairly consistent in concentration throughout the world’s atmosphere up to approximately the lower stratosphere.” Id., at 52926-52927.

In other words, regulating the buildup of C02 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air.

We need look no further than the dictionary for confirmation that this interpretation of “air pollution” is eminently reasonable. The definition of “pollute,” of course, is “[t]o make or render impure or unclean.” Webster’s New International Dictionary 1910 (2d ed. 1949). And the first three definitions of “air” are as follows: (1) “[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth”; (2) “[t]he body of the earth’s atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part”; (3) “[a] portion of air or of the air considered with respect to physical characteristics or as affecting the *560senses.” Id., at 54. EPA’s conception of “air pollution”— focusing on impurities in the “ambient air” “at ground level or near the surface of the earth” — is perfectly consistent with the natural meaning of that term.

In the end, EPA concluded that since “CAA authorization to regulate is generally based on a finding that an air pollutant causes or contributes to air pollution,” 68 Fed. Reg. 52928, the concentrations of C02 and other greenhouse gases allegedly affecting the global climate are beyond the scope of CAA’s authorization to regulate. “[T]he term ‘air pollution’ as used in the regulatory provisions cannot be interpreted to encompass global climate change.” Ibid. Once again, the Court utterly fails to explain why this interpretation is incorrect, let alone so unreasonable as to be unworthy of Chevron deference.

* *

The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

The Court’s way of putting it is, of course, not quite accurate. The issue is whether it would be better to defer the decision about whether to exercise judgment. This has the effect of deferring regulation but is quite a different determination.

Not only is EPA’s interpretation reasonable, it is far more plausible than the Court’s alternative. As the Court correctly points out, “all airborne compounds of whatever stripe,” ante, at 529, would qualify as “physical, chemical,... substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,” 42 U. S. C. § 7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an “air pollutant.” This reading of the statute defies common sense.

3.5.2.4 City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983) 3.5.2.4 City of Los Angeles v. Lyons, 103 S.Ct. 1660 (1983)

[excerpt]

Plaintiff brought civil rights action against city, seeking damages, injunctive relief and declaratory relief. On remand after an appeal, 615 F.2d 1243, the United States District Court for the Central District of California granted preliminary injunctive relief, and the Court of Appeals, Ninth Circuit, affirmed, 656 F.2d 417. On grant of certiorari, the Supreme Court, Justice White, held that: (1) that plaintiff might have been illegally choked by police did not establish real and immediate threat that he would again be stopped for traffic violation or for any other offense by officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part, and additional allegation that Los Angeles police routinely applied chokeholds in situations where they were not threatened by use of deadly force fell far short of allegations necessary to establish case or controversy, and (2) because plaintiff did not allege that all police officers in Los Angeles always choked any citizen with whom they happened to have encounter, whether for purpose of arrest, issuing citation or for questioning, nor did complaint allege that city ordered or authorized police officers to act in such manner, there was failure to allege case or controversy.

Reversed.

Justice Marshall dissented and filed opinion in which Justice Brennan, Justice Blackmun and Justice Stevens joined.

***

[1] This case began on February 7, 1977, when respondent, Adolph Lyons, filed a complaint for damages, injunction, and declaratory relief in the United States District Court for the Central District of California. The defendants were the City of Los Angeles and four of its police officers. The complaint alleged that on October 6, 1976, at 2 a.m., Lyons was stopped by the defendant officers for a traffic or vehicle code violation and that although Lyons offered no resistance or threat whatsoever, the officers, without provocation or justification, seized Lyons and applied a “chokehold”—either the “bar arm control” hold or the “carotid-artery control” hold or both—rendering him unconscious and causing damage to his larynx. Counts I through IV of the complaint sought damages against the officers and the City. Count V, with which we are principally concerned here, sought a preliminary and permanent injunction against the City barring the use of the control holds. That count alleged that the city's police officers, “pursuant to the authorization, instruction and encouragement of defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,” that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons “justifiably fears that any contact he has with Los Angeles police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.” Lyons alleged the threatened impairment of rights protected by the First, Fourth, Eighth and Fourteenth Amendments. Injunctive relief was sought against the use of the control holds “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.” Count VI sought declaratory relief against the City, i.e., a judgment that use of the chokeholds absent the threat of immediate use of deadly force is a per se violation of various constitutional rights.

[2] The District Court, by order, granted the City's motion for partial judgment on the pleadings and entered judgment for the City on Count V and VI. The Court of Appeals reversed the judgment for the City on Count V and VI, holding over the City's objection that despite our decisions in O'Shea v. Littleton, 414 U.S. 488 (1974), and Rizzo v. Goode, 423 U.S. 362 (1976), Lyons had standing to seek relief against the application of the chokeholds. Lyons v. City of Los Angeles, 615 F.2d 1243 (1980). The Court of Appeals held that there was a sufficient likelihood that Lyons would again be stopped and subjected to the unlawful use of force to constitute a case or controversy and to warrant the issuance of an injunction, if the injunction was otherwise authorized. We denied certiorari. 449 U.S. 934.

[3] On remand, Lyons applied for a preliminary injunction. Lyons pressed only the Count V claim at this point. See n. 6, infra. The motion was heard on affidavits, depositions and government records. The District Court found that Lyons had been stopped for a traffic infringement and that without provocation or legal justification the officers involved had applied a “department-authorized chokehold which resulted in injuries to the plaintiff.” The court further found that the department authorizes the use of the holds in situations where no one is threatened by death or grievous bodily harm, that officers are insufficiently trained, that the use of the holds involves a high risk of injury or death as then employed, and that their continued use in situations where neither death nor serious bodily injury is threatened “is unconscionable in a civilized society.” The court concluded that such use violated Lyons' substantive due process rights under the Fourteenth Amendment. A preliminary injunction was entered enjoining “the use of both the carotid-artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” An improved training program and regular reporting and record keeping were also ordered. The Court of Appeals affirmed in a brief per curiam opinion stating that the District Court had not abused its discretion in entering a preliminary injunction. 656 F.2d 417 (1981). We granted certiorari, 455 U.S. 937 (1982), and now reverse.

[4] Since our grant of certiorari, circumstances pertinent to the case have changed. Originally, Lyons' complaint alleged that at least two deaths had occurred as a result of the application of chokeholds by the police. His first amended complaint alleged that 10 chokehold-related deaths had occurred. By May, 1982, there had been five more such deaths. On May 6, 1982, the Chief of Police in Los Angeles prohibited the use of the bar-arm chokehold in any circumstances. A few days later, on May 12, 1982, the Board of Police Commissioners imposed a six-month moratorium on the use of the carotid-artery chokehold except under circumstances where deadly force is authorized.

[5] Based on these events, on June 3, 1982, the City filed in this Court a Memorandum Suggesting a Question of Mootness, reciting the facts but arguing that the case was not moot. Lyons in turn filed a motion to dismiss the writ of certiorari as improvidently granted. We denied that motion but reserved the question of mootness for later consideration.

[6] In his brief and at oral argument, Lyons has reasserted his position that in light of changed conditions, an injunctive decree is now unnecessary because he is no longer subject to a threat of injury. He urges that the preliminary injunction should be vacated. The City, on the other hand, while acknowledging that subsequent events have significantly changed the posture of this case, again asserts that the case is not moot because the moratorium is not permanent and may be lifted at any time.

[7] We agree with the City that the case is not moot, since the moratorium by **1665 its terms is not permanent. Intervening events have not “irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). We nevertheless hold, for another reason, that the federal courts are without jurisdiction to entertain Lyons' claim for injunctive relief.

III

[8] It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshhold requirement imposed by Article III of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U.S. 83, 94–101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421–425 (1969) (opinion of MARSHALL, J.). Plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Abstract injury is not enough. The plaintiff must show that he “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged official conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.” See, e.g., Golden v. Zwickler, 394 U.S. 103, 109–110 (1969); United Public Workers v. Mitchell, 330 U.S. 75, 89–91 (1947); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941); Massachusetts v. Mellon, 262 U.S. 447, 488 (1923).

[9] In O'Shea v. Littleton, 414 U.S. 488 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff's class more harshly than other defendants. The Court of Appeals reversed the dismissal of the suit by the District Court, ruling that if the allegations were proved, an appropriate injunction could be entered.

[10] We reversed for failure of the complaint to allege a case or controversy. Id., at 493. Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Id., at 495–496. Past wrongs were evidence bearing on “whether there is a real and immediate threat of repeated injury.” Id., at 496. But the prospect of future injury rested “on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” Ibid. The most that could be said for plaintiffs' standing was “that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed.” Id., at 497. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not “sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses....” Id., at 496. It was to be assumed “that [plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.” Id., at 497.

***

[11] Another relevant decision for present purposes is Rizzo v. Goode, 423 U.S. 362 (1976), a case in which plaintiffs alleged widespread illegal and unconstitutional police conduct aimed at minority citizens and against City residents in general. The Court reiterated the holding in O'Shea that past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.

[12] No extension of O'Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

[13] In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City's policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City's policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.

[14] Under O'Shea and Rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain Count V of the complaint.

***

[15] The Court of Appeals thought that Lyons was more immediately threatened than the plaintiffs in those cases since, according to the Court of Appeals, Lyons need only *108 be stopped for a minor traffic violation to be subject to the strangleholds. But even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped. We cannot agree that the “odds,” 615 F.2d, at 1247, that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.

[16] Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

[17] Lyons fares no better if it be assumed that his pending damages suit affords him Article III standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again—a “likelihood of substantial and immediate irreparable injury.” O'Shea v. Littleton, 414 U.S., at 502. The speculative nature of Lyons' claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.

[18] Nor will the injury that Lyons allegedly suffered in 1976 go unrecompensed; for that injury, he has an adequate remedy at law. Contrary to the view of the Court of Appeals, it is not at all “difficult” under our holding “to see how anyone can ever challenge police or similar administrative practices.” 615 F.2d, at 1250. The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there.

[19] Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional. Cf. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). This is not to suggest that such undifferentiated claims should not be taken seriously by local authorities. Indeed, the interest of an alert and interested citizen is an essential element of an effective and fair government, whether on the local, state or national level. A federal court, however, is not the proper forum to press such claims unless the requirements for entry and the prerequisites for injunctive relief are satisfied.

[20] We decline the invitation to slight the preconditions for equitable relief; for as we have held, recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the states' criminal laws in the absence of irreparable injury which is both great and immediate. O'Shea, 414 U.S., at 499, 94 S.Ct., at 677; Younger v. Harris, 401 U.S. 37, 46, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971). Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) held that suits brought under 42 U.S.C. § 1983 are exempt from the flat ban against the issuance of injunctions directed at state court proceedings, 28 U.S.C. § 2283. But this holding did not displace the normal principles of equity, comity and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities. In exercising their equitable powers federal courts must recognize “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U.S. 117, 120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951); O'Shea v. Littleton, 414 U.S., at 500, 94 S.Ct., at 678. See also Rizzo v. Goode, 423 U.S., at 380, 96 S.Ct., at 608; Cleary v. Bolger, 371 U.S. 392, 83 S.Ct. 385, 9 L.Ed.2d 390 (1963); Wilson v. Schnettler, 365 U.S. 381, 81 S.Ct. 632, 5 L.Ed.2d 620 (1961); Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961). The Court of Appeals failed to apply these factors properly and therefore erred in finding that the District Court had not abused its discretion in entering an injunction in this case.

[21] As we noted in O'Shea, 414 U.S., at 503, 94 S.Ct., at 679, withholding injunctive relief does not mean that the “federal law will exercise *113 no deterrent effect in these circumstances.” If Lyons has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983. Furthermore, those who deliberately deprive a citizen of his constitutional rights risk conviction under the federal criminal laws. Ibid.

***

[22] The judgment of the Court of Appeals is accordingly

[23] Reversed.

Dissent

[1] Justice MARSHALL, with whom Justice BRENNAN, Justice BLACKMUN and Justice STEVENS join, dissenting.

[2] The District Court found that the City of Los Angeles authorizes its police officers to apply life-threatening chokeholds to citizens who pose no threat of violence, and that respondent, Adolph Lyons, was subjected to such a chokehold. The Court today holds that a federal court is without power to enjoin the enforcement of the City's policy, no matter how flagrantly unconstitutional it may be. Since no one can show that he will be choked in the future, no one—not even a person who, like Lyons, has almost been choked to death—has standing to challenge the continuation of the policy. The City is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

[3] There is plainly a “case or controversy” concerning the constitutionality of the City's chokehold policy. The constitutionality of that policy is directly implicated by Lyons' claim for damages against the City. The complaint clearly alleges that the officer who choked Lyons was carrying out an official policy, and a municipality is liable under 42 U.S.C. § 1983 for the conduct of its employees only if they acted pursuant to such a policy. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). Lyons therefore has standing to challenge the City's chokehold policy and to obtain whatever relief a court may ultimately deem appropriate. None of our prior decisions suggests that his requests for particular forms of relief raise any additional issues concerning his standing. Standing has always depended on whether a plaintiff has a “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), not on the “precise nature of the relief sought.” Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969) (opinion of MARSHALL, J., joined by WARREN, C.J., and BRENNAN, J.).

[4] Respondent Adolph Lyons is a 24-year-old Negro male who resides in Los Angeles. According to the uncontradicted evidence in the record, at about 2:30 A.M. on **1672 October 6, 1976, Lyons was pulled over to the curb by two officers of the Los Angeles Police Department (LAPD) for a traffic infraction because one of his taillights was burned out. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a pat-down search, Lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed Lyons' hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within five to ten seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.

[5] On February 7, 1977, Lyons commenced this action under 42 U.S.C. § 1983 against the individual officers and the City, alleging violations of his rights under the Fourth, Eighth, and Fourteenth Amendments to the Constitution and seeking damages and declaratory and injunctive relief. He claimed that he was subjected to a chokehold without justification and that defendant officers were “carrying out the official policies, customs and practices of the Los Angeles Police Department and the City of Los Angeles.” Count II, ¶ 13. These allegations were included or incorporated in each of the counts in which the City was named as a defendant. See Counts II through VI. Lyons alleged that the City authorizes the use of chokeholds “in innumerable situations where the police are not threatened by the use of any deadly force whatsoever.” Count V, ¶ 22.

[6] Although the City instructs its officers that use of a chokehold does not constitute deadly force, since 1975 no less than 16 persons have died following the use of a chokehold by an LAPD police officer. Twelve have been Negro males. The evidence submitted to the District Court4 established that for many years it has been the official policy of the City to permit police officers to employ chokeholds in a variety of situations where they face no threat of violence.

***

[7] It is undisputed that chokeholds pose a high and unpredictable risk of serious injury or death. Chokeholds are intended to bring a subject under control by causing pain and rendering him unconscious. Depending on the position of the officer's arm and the force applied, the victim's voluntary or involuntary reaction, and his state of health, an officer may inadvertently crush the victim's larynx, trachea, or thyroid. The result may be death caused by either cardiac arrest or asphyxiation. An LAPD officer described the reaction of a person to being choked as “do[ing] the chicken,” in reference apparently to the reactions of a chicken when its neck is wrung. The victim experiences extreme pain. His face turns blue as he is deprived of oxygen, he goes into spasmodic convulsions, his eyes roll back, his body wriggles, his feet kick up and down, and his arms move about wildly.

***

[8] In the proceedings below the City characterized its own policy as authorizing the use of chokeholds “to gain control of a suspect who is violently resisting the officer or trying to escape,” to “subdue any resistance by suspects,” and to permit an officer, “where ... resisted, but not necessarily threatened with serious bodily harm or death, ... to subdue a suspect who forcibly resists an officer.”

[9] In determining the appropriateness of a preliminary injunction, the District Court recognized that the City's policy is subject to the constraints imposed by the Due Process Clause of the Fourteenth Amendment. The Court found that “[d]uring the course of this confrontation, said officers, without provocation or legal justification, applied a Department-authorized chokehold which resulted in injuries to plaintiff.” (Emphasis added). The Court found that the “City of Los Angeles and the Department authorize the use of these holds under circumstances where no one is threatened by death or grievous bodily harm.” The Court concluded that the use of the chokeholds constitutes “deadly force,” and that the City may not constitutionally authorize the use of such force “in situations where death or serious bodily harm is not threatened.” On the basis of this conclusion, the District Court entered a preliminary injunction enjoining “the use of both the carotid-artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” As the Court of Appeals noted, “[a]ll the trial judge has done, so far, is to tell the city that its police officers may not apply life threatening strangleholds to persons stopped in routine police work unless the application of such force is necessary to prevent serious bodily harm to an officer.” 656 F.2d 417, 418 (1981).

***

III

[10] Since Lyons' claim for damages plainly gives him standing, and since the success of that claim depends upon a demonstration that the City's chokehold policy is unconstitutional, it is beyond dispute that Lyons has properly invoked the District Court's authority to adjudicate the constitutionality of the City's chokehold policy. The dispute concerning the constitutionality of that policy plainly presents a “case or controversy” under Article III. The Court nevertheless holds that a federal court has no power under Article III to adjudicate Lyons' request, in the same lawsuit, for injunctive relief with respect to that very policy. This anomalous result is not supported either by precedent or by the fundamental concern underlying the standing requirement. Moreover, by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this Court's traditional conception of standing and of the remedial powers of the federal courts.

[11] It is simply disingenuous for the Court to assert that its decision requires “[n]o extension” of O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), and Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Ante, at 1666. In contrast to this case O'Shea and Rizzo involved disputes focusing solely on the threat of future injury which the plaintiffs in those cases alleged they faced. In O'Shea the plaintiffs did not allege past injury and did not seek compensatory relief. In Rizzo, the plaintiffs sought only declaratory and injunctive relief and alleged past instances of police misconduct only in an attempt to establish the substantiality of the threat of future injury. There was similarly no claim for damages based on past injuries in Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977), or Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), on which the Court also relies.

[12] These decisions do not support the Court's holding today. As the Court recognized in O'Shea, standing under Article III is established by an allegation of “threatened or actual injury.” Id., 414 U.S., at 493, 94 S.Ct., at 674, quoting Linda R.S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973) (emphasis added). See also 414 U.S., at 493, n. 2, 94 S.Ct., at 675, n. 2. Because the plaintiffs in O'Shea, Rizzo, Mattis, and Zwickler did not seek to redress past injury, their standing to sue depended entirely on the risk of future injury they faced. Apart from the desire to eliminate the possibility of future injury, the plaintiffs in those cases had no other personal stake in the outcome of the controversies.

[13] By contrast, Lyons' request for prospective relief is coupled with his claim for damages based on past injury. In addition to the risk that he will be subjected to a chokehold in the future, Lyons has suffered past injury. Because he has a live claim for damages, he need not rely solely on the threat of future injury to establish his personal stake in the outcome of the controversy. In the cases relied on by the majority, the Court simply had no occasion to decide whether a plaintiff who has standing to litigate a dispute must clear a separate standing hurdle with respect to each form of relief sought.

[14] The Court's decision likewise finds no support in the fundamental policy underlying the Article III standing requirement—the concern that a federal court not decide a legal issue if the plaintiff lacks a sufficient “personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). As this Court stated in Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968), “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” See also Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (standing requirement ensures that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action”).

[15] Because Lyons has a claim for damages against the City, and because he cannot prevail on that claim unless he demonstrates that the City's chokehold policy violates the Constitution, his personal stake in the outcome of the controversy adequately assures an adversary presentation of his challenge to the constitutionality of the policy.[18] Moreover, the resolution of this challenge will be largely dispositive of his requests for declaratory and injunctive relief. No doubt the requests for injunctive relief may raise additional questions. But these questions involve familiar issues relating to the appropriateness of particular forms of relief, and have never been thought to implicate a litigant's standing to sue. The denial of standing separately to seek injunctive relief therefore cannot be justified by the basic concern underlying the Article III standing requirement.

[16] By fragmenting the standing inquiry and imposing a separate standing hurdle with respect to each form of relief sought, the decision today departs significantly from this Court's traditional conception of the standing requirement and of the remedial powers of the federal courts. We have never required more than that a plaintiff have standing to litigate a claim. Whether he will be entitled to obtain particular forms of relief should he prevail has never been understood to be an issue of standing. In determining whether a plaintiff has standing, we have always focused on his personal stake in the outcome of the controversy, not on the issues sought to be litigated, Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), or the “precise nature of the relief sought.” Jenkins v. McKeithen, 395 U.S. 411, 423, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969) (opinion of MARSHALL, J., joined by WARREN, C.J., and BRENNAN, J.).

[17] Our cases uniformly state that the touchstone of the Article III standing requirement is the plaintiff's personal stake in the underlying dispute, not in the particular types of relief sought. Once a plaintiff establishes a personal stake in a dispute, he has done all that is necessary to “invok[e] the court's authority ... to challenge the action sought to be adjudicated.” Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 471–472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). See, e.g., Flast v. Cohen, 392 U.S., at 101, 88 S.Ct., at 1953 (stake in “the dispute to be adjudicated in the lawsuit”); Eisenstadt v. Baird, 405 U.S. 438, 443, 92 S.Ct. 1029, 1033, 31 L.Ed.2d 349 (1972) (plaintiff must have “sufficient interest in challenging the statute's validity”).

[18] The personal stake of a litigant depends, in turn, on whether he has alleged a legally redressable injury. In determining whether a plaintiff has a sufficient personal stake in the outcome of a controversy, this Court has asked whether he “personally has suffered some actual or threatened injury,” Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) (emphasis added), whether the injury “fairly can be traced to the challenged action.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976), and whether plaintiff's injury “is likely to be redressed by a favorable decision.” Simon, supra, 426 U.S., at 38, 96 S.Ct., at 1924. See also Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, at 74, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978); Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975). These well-accepted criteria for determining whether a plaintiff has established the requisite personal stake do not fragment the standing inquiry into a series of discrete questions about the plaintiff's stake in each of the particular types of relief sought. Quite the contrary, they ask simply whether the plaintiff has a sufficient stake in seeking a judicial resolution of the controversy.

[19] Lyons has alleged past injury and a risk of future injury and has linked both to the City's chokehold policy. Under established principles, the only additional question in determining standing under Article III is whether the injuries he has alleged can be remedied or prevented by some form of judicial relief. Satisfaction of this requirement ensures that the lawsuit does not entail the issuance of an advisory opinion without the possibility of any judicial relief, and that the exercise of a court's remedial powers will actually redress the alleged injury. Therefore Lyons needs to demonstrate only that, should he prevail on the merits, “the exercise of the Court's remedial powers would redress the claimed injuries.” Duke Power Co., ibid (emphasis added). See also Warth v. Seldin, 422 U.S., at 508, 95 S.Ct., at 2210; Simon, supra, 426 U.S., at 38, 96 S.Ct., at 1924. Lyons has easily made this showing here, for monetary relief would plainly provide redress for his past injury, and prospective relief would reduce the likelihood of any future injury. Nothing more has ever been required to establish standing.

***

[20] The Court's decision removes an entire class of constitutional violations from the equitable powers of a federal court. It immunizes from prospective equitable relief any policy that authorizes persistent deprivations of constitutional rights as long as no individual can establish with substantial certainty that he will be injured, or injured again, in the future. THE CHIEF JUSTICE asked in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 419, 91 S.Ct. 1999, 2016, 29 L.Ed.2d 619 (1971) (dissenting opinion), “what would be the judicial response to a police order authorizing ‘shoot to kill’ with respect to every fugitive?” His answer was that it would be “easy to predict our collective wrath and outrage.” Ibid. We now learn that wrath and outrage cannot be translated into an order to cease the unconstitutional practice, but only an award of damages to those who are victimized by the practice and live to sue and to the survivors of those who are not so fortunate. Under the view expressed by the majority today, if the police adopt a policy of “shoot to kill,” or a policy of shooting one out of ten suspects, the federal courts will be powerless to enjoin its continuation. Compare Linda R.S. v. Richard D., 410 U.S. 614, 621, 93 S.Ct. 1146, 1150, 35 L.Ed.2d 536 (1973) (WHITE, J., dissenting). The federal judicial power is now limited to levying a toll for such a systematic constitutional violation.

Supreme Court of the United States

461 U.S. 95, 75 L. Ed. 2d 675, 103 S. Ct. 1660, 1983 U.S. LEXIS 152, SCDB 1982-064

No. 81-1064

1983-04-20

CITY OF LOS ANGELES v. LYONS

No. 81-1064.

Argued November 2, 1982

Decided April 20, 1983

*96White, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, Blackmun, and Stevens, JJ., joined, post, p. 113.

*97Frederick N. Merkin argued the cause for petitioner. With him on the briefs were Ira Reiner and Lewis N. Unger.

Michael R. Mitchell argued the cause for respondent. With him on the brief were Fred Okrand and Charles S. Sims.*

Justice White

delivered the opinion of the Court.

The issue here is whether respondent Lyons satisfied the prerequisites for seeking injunctive relief in the Federal District Court.

This case began on February 7, 1977, when respondent, Adolph Lyons, filed a complaint for damages, injunction, and declaratory relief in the United States District Court for the Central District of California. The defendants were the City of Los Angeles and four of its police officers. The complaint alleged that on October 6, 1976, at 2 a. m., Lyons was stopped by the defendant officers for a traffic or vehicle code violation and that although Lyons offered no resistance or threat whatsoever, the Officers, without provocation or justification, seized Lyons and applied a “chokehold”1 — either *98the “bar arm control” hold or the “carotid-artery control” hold or both — rendering him unconscious and causing damage to his larynx. Counts I through IV of the complaint sought damages against the officers and the City. Count V, with which we are principally concerned here, sought a preliminary and permanent injunction against the City barring the use of the control holds. That count alleged that the City’s police officers, “pursuant to the authorization, instruction and encouragement of Defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever,” that numerous persons have been injured as the result of the application of the chokeholds, that Lyons and others similarly situated are threatened with irreparable injury in the form of bodily injury and loss of life, and that Lyons “justifiably fears that any contact he has with Los Angeles Police officers may result in his being choked and strangled to death without provocation, justification or other legal excuse.” Lyons alleged the threatened impairment of rights protected by the First, Fourth, Eighth, and Fourteenth Amendments. Injunctive relief was sought against the use of the control holds “except in situations where the proposed victim of said control reasonably appears to be threatening the immediate use of deadly force.” Count VI sought declaratory relief against the City, i. e., a judgment that use of the chokeholds absent the threat of immediate use of deadly force is a per se violation of various constitutional rights.

The District Court, by order, granted the City’s motion for partial judgment on the pleadings and entered judgment for *99the City on Counts V and VI.2 The Court of Appeals reversed the judgment for the City on Counts V and VI, holding over the City’s objection that despite our decisions in O’Shea v. Littleton, 414 U. S. 488 (1974), and Rizzo v. Goode, 423 U. S. 362 (1976), Lyons had standing to seek relief against the application of the chokeholds. Lyons v. City of Los Angeles, 615 F. 2d 1243 (1980). The Court of Appeals held that there was a sufficient likelihood that Lyons would again be stopped and subjected to the unlawful use of force to constitute a case or controversy and to warrant the issuance of an injunction, if the injunction was otherwise authorized. We denied certiorari. 449 U. S. 934 (1980).

On remand, Lyons applied for a preliminary injunction. Lyons pressed only the Count V claim at this point. See n. 6, infra. The motion was heard on affidavits, depositions, and government records. The District Court found that Lyons had been stopped for a traffic infringement and that without provocation or legal justification the officers involved had applied a “Department-authorized chokehold which resulted in injuries to the plaintiff.” The court further found that the department authorizes the use of the holds in situations where no one is threatened by death or grievous bodily harm, that officers are insufficiently trained, that the use of the holds involves a high risk of injury or death as then employed, and that their continued use in situations where neither death nor serious bodily injury is threatened “is unconscionable in a civilized society.” The court concluded that such use violated Lyons’ substantive due process rights under the Fourteenth Amendment. A preliminary injunc*100tion was entered enjoining “the use of both the carotid artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.” An improved training program and regular reporting and recordkeeping were also ordered.3 The Court of Appeals affirmed in a brief per curiam opinion stating that the District Court had not abused its discretion in entering a preliminary injunction. 656 F. 2d 417 (1981). We granted certiorari, 455 U. S. 937 (1982), and now reverse.

Since our grant of certiorari, circumstances pertinent to the case have changed. Originally, Lyons’ complaint alleged that at least two deaths had occurred as a result of the application of chokeholds by the police. His first amended complaint alleged that 10 chokehold-related deaths had occurred. By May 1982, there had been five more such deaths. On May 6,1982, the Chief of Police in Los Angeles prohibited the use of the bar-arm chokehold in any circumstances. A few days later, on May 12,1982, the Board of Police Commissioners imposed a 6-month moratorium on the use of the carotid-artery chokehold except under circumstances where deadly force is authorized.4

*101Based on these events, on June 3, 1982, the City filed in this Court a memorandum suggesting a question of mootness, reciting the facts but arguing that the case was not moot. Lyons in turn filed a motion to dismiss the writ of certiorari as improvidently granted. We denied that motion but reserved the question of mootness for later consideration. 457 U. S. 1115 (1982).

In his brief and at oral argument, Lyons has reasserted his position that in light of changed conditions, an injunctive decree is now unnecessary because he is no longer subject to a threat of injury. He urges that the preliminary injunction should be vacated. The City, on the other hand, while acknowledging that subsequent events have significantly changed the posture of this case, again asserts that the case is not moot because the moratorium is not permanent and may be lifted at any time.

We agree with the City that the case is not moot, since the moratorium by its terms is not permanent. Intervening events have not “irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979). We nevertheless hold, for another reason, that the federal courts are without jurisdiction to entertain Lyons’ claim for injunctive relief.

HH I — I l-H

It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. Ill of the Constitution by alleging an actual case or controversy. Flast v. Cohen, 392 U. S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U. S. 411, 421-425 (1969) (opinion of Marshall, J.). Plaintiffs must demonstrate a “personal stake in the outcome” in order to “assure that concrete adverseness which sharpens the presentation of issues” necessary for the proper resolution of constitutional questions. Baker v. Carr, 369 U. S. 186, 204 (1962). Abstract injury is not enough. The plaintiff must *102show that he “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challenged official conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or “hypothetical.” See, e. g., Golden v. Zwickler, 394 U. S. 103, 109-110 (1969); Public Workers v. Mitchell, 330 U. S. 75, 89-91 (1947); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941); Massachusetts v. Mellon, 262 U. S. 447, 488 (1923).

In O’Shea v. Littleton, 414 U. S. 488 (1974), we dealt with a case brought by a class of plaintiffs claiming that they had been subjected to discriminatory enforcement of the criminal law. Among other things, a county magistrate and judge were accused of discriminatory conduct in various respects, such as sentencing members of plaintiff’s class more harshly than other defendants. The Court of Appeals reversed the dismissal of the suit- by the District Court, ruling that if the allegations were proved, an appropriate injunction could be entered.

We reversed for failure of the complaint to allege a case or controversy. Id., at 493. Although it was claimed in that case that particular members of the plaintiff class had actually suffered from the alleged unconstitutional practices, we observed that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Id., at 495-496. Past wrongs were evidence bearing on “whether there is a real and immediate threat of repeated injury.” Id., at 496. But the prospect of future injury rested “on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.” Ibid. The most that could be said for plaintiffs’ standing was “that if [plaintiffs] proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory prac*103tices that petitioners are alleged to have followed.” Id., at 497. We could not find a case or controversy in those circumstances: the threat to the plaintiffs was not “sufficiently real and immediate to show an existing controversy simply because they anticipate violating lawful criminal statutes and being tried for their offenses. ...” Id., at 496. It was to be assumed that “[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.” Id., at 497.

We further observed that case-or-controversy considerations “obviously shade into those determining whether the complaint states a sound basis for equitable relief,” id., at 499, and went on to hold that even if the complaint presented an existing case or controversy, an adequate basis for equitable relief against petitioners had not been demonstrated:

“[Plaintiffs] have failed, moreover, to establish the basic requisites of the issuance of equitable relief in these circumstances — the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law. We have already canvassed the necessarily conjectural nature of the threatened injury to which [plaintiffs] are allegedly subjected. And if any of the [plaintiffs] are ever prosecuted and face trial, or if they are illegally sentenced, there are available state and federal procedures which could provide relief from the wrongful conduct alleged.” Id., at 502.

Another relevant decision for present purposes is Rizzo v. Goode, 423 U. S. 362 (1976), a case in which plaintiffs alleged widespread illegal and unconstitutional police conduct aimed at minority citizens and against city residents in general. The Court reiterated the holding in O’Shea that past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy. The claim of injury rested upon “what one of a small, unnamed minority of policemen might do to them in the future *104because of that unknown policeman’s perception” of departmental procedures. 423 U. S., at 372. This hypothesis was “even more attenuated than those allegations of future injury found insufficient in O’Shea to warrant [the] invocation of federal jurisdiction.” Ibid. The Court also held that plaintiffs’ showing at trial of a relatively few instances of violations by individual police officers, without any showing of a deliberate policy on behalf of the named defendants, did not provide a basis for equitable relief.

Golden v. Zwickler, 394 U. S. 103 (1969), a case arising in an analogous situation, is directly apposite. Zwickler sought a declaratory judgment that a New York statute prohibiting anonymous handbills directly pertaining to election campaigns was unconstitutional. Although Zwickler had once been convicted under the statute,5 his sole concern related to a Congressman who had left the House of Representatives for a place on the Supreme Court of New York and who would not likely be a candidate again. A unanimous Court held that because it was “most unlikely” that Zwickler would again be subject to the statute, no case or controversy of “‘sufficient immediacy and reality’” was present to allow a declaratory judgment. Id., at 109. Just as Zwickler’s assertion that the former Congressman could be a candidate for Congress again was “hardly a substitute for evidence that this is a prospect of ‘immediacy and reality,’” ibid., Lyons’ assertion that he may again be subject to an illegal chokehold does not create the actual controversy that must exist for a declaratory judgment to be entered.

We note also our per curiam opinion in Ashcroft v. Mattis, 431 U. S. 171 (1977). There, the father of a boy who had been killed by the police sought damages and a declaration that the Missouri statute which authorized police officers to use deadly force in apprehending a person who committed a felony was unconstitutional. Plaintiff alleged that he had an*105other son, who “‘if ever arrested or brought under an attempt at arrest on suspicion of a felony, might flee or give the appearance of fleeing, and would therefore be in danger of being killed by these defendants or other police officers ....’” Id., at 172, n. 2. We ruled that “[s]uch speculation is insufficient to establish the existence of a present, live controversy.” Id., at 173, n. 2.

No extension of O Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought.6 Lyons’ standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations that would be necessary to establish a case or controversy between these parties.

In order to establish an actual controversy in this case, Lyons would have had not only to allege that he would have *106another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los An-geles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use of the control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures of the City’s policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City’s policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.7

*107Under O’Shea and Rizzo, these allegations were an insufficient basis to provide a federal court with jurisdiction to entertain Count V of the complaint.8 This was apparently the conclusion of the District Court in dismissing Lyons’ claim for injunctive relief. Although the District Court acted without opinion or findings, the Court of Appeals interpreted its action as based on lack of standing, i. e., that under O’Shea and Rizzo, Lyons must be held to have made an “insufficient showing that the police were likely to do this to the plaintiff again.” 615 F. 2d, at 1246. For several reasons — each of. them infirm, in our view — the Court of Appeals thought reliance on O’Shea and Rizzo was misplaced and reversed the District Court.

First, the Court of Appeals thought that Lyons was more immediately threatened than the plaintiffs in those cases since, according to the Court of Appeals, Lyons need only *108be stopped for a minor traffic violation to be subject to the strangleholds. But even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert, and the complaint made no such allegation, that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped. We cannot agree that the “odds,” 615 F. 2d, at 1247, that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief. We note that five months elapsed between October 6, 1976, and the filing of the complaint, yet there was no allegation of further unfortunate encounters between Lyons and the police.

Of course, it may be that among the countless encounters between the police and the citizens of a great city such as Los Angeles, there will be certain instances in which strangleholds will be illegally applied and injury and death unconstitutionally inflicted on the victim. As we have said, however, it is no more than conjecture to suggest that in every instance of a traffic stop, arrest, or other encounter between the police and a citizen, the police will act unconstitutionally and inflict injury without provocation or legal excuse. And it is surely no more than speculation to assert either that Lyons himself will again be involved in one of those unfortunate instances, or that he will be arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury.

Second, the Court of Appeals viewed O’Shea and Rizzo as cases in which the plaintiffs sought “massive structural” relief against the local law enforcement systems and therefore that the holdings in those cases were inapposite to cases such as this where the plaintiff, according to the Court of Appeals, seeks to enjoin only an “established,” “sanctioned” police practice assertedly violative of constitutional rights. O’Shea and Rizzo, however, cannot be so easily confined to their *109facts. If Lyons has made no showing that he is realistically threatened by a repetition of his experience of October 1976, then he has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.

The Court of Appeals also asserted that Lyons “had a live and active claim” against the City “if only for a period of a few seconds” while the stranglehold was being applied to him and that for two reasons the claim had not become moot so as to disentitle Lyons to injunctive relief: First, because under normal rules of equity, a case does not become moot merely because the complained of conduct has ceased; and second, because Lyons’ claim is “capable of repetition but evading review” and therefore should be heard. We agree that Lyons had a live controversy with the City. Indeed, he still has a claim for damages against the City that appears to meet all Art. Ill requirements. Nevertheless, the issue here is not whether that claim has become moot but whether Lyons meets the preconditions for asserting an injunctive claim in a federal forum. The equitable doctrine that cessation of the challenged conduct does not bar an injunction is of little help in this respect, for Lyons’ lack of standing does not rest on the termination of the police practice but on the speculative nature of his claim that he will again experience injury as the result of that practice even if continued.

The rule that a claim does not become moot where it is capable of repetition, yet evades review, is likewise inapposite. Lyons’ claim that he was illegally strangled remains to be litigated in his suit for damages; in no sense does that claim “evade” review. Furthermore, the capable-of-repetition doctrine applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality. DeFunis v. Odegaard, 416 U. S. 312, 319 (1974). As we have indicated, Lyons has not made this demonstration.

*110The record and findings made on remand do not improve Lyons’ position with respect to standing. The District Court, having been reversed, did not expressly address Lyons’ standing to seek injunctive relief, although the City was careful to preserve its position on this question. There was no finding that Lyons faced a real and immediate threat of again being illegally choked. The City’s policy was described as authorizing the use of the strangleholds “under circumstances where no one is threatened with death or grievous bodily harm.” That policy was not further described, but the record before the court contained the department’s existing policy with respect to the employment of chokeholds. Nothing in that policy, contained in a Police Department manual, suggests that the chokeholds, or other kinds of force for that matter, are authorized absent some resistance or other provocation by the arrestee or other suspect.9 On the contrary, police officers were instructed to use chokeholds only when lesser degrees of force do not suffice and then only “to gain control of a suspect who is violently resisting the officer or trying to escape.” App. 230.

Our conclusion is that the Court of Appeals failed to heed O’Shea, Rizzo, and other relevant authority, and that the District Court was quite right in dismissing Count V.

*111V

Lyons fares no better if it be assumed that his pending damages suit affords him Art. Ill standing to seek an injunction as a remedy for the claim arising out of the October 1976 events. The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again — a “likelihood of substantial and immediate irreparable injury.” O’Shea v. Littleton, 414 U. S., at 502. The speculative nature of Lyons’ claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.

Nor will the injury that Lyons allegedly suffered in 1976 go unrecompensed; for that injury, he has an adequate remedy at law. Contrary to the view of the Court of Appeals, it is not at all “difficult” under our holding “to see how anyone can ever challenge police or similar administrative practices.” 615 F. 2d, at 1250. The legality of the violence to which Lyons claims he was once subjected is at issue in his suit for damages and can be determined there. -

Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by .any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional. Cf. Warth v. Seldin, 422 U. S. 490 (1975); Schlesinger v. Reservists to Stop the War, 418 U. S. 208 (1974); United States v. Richardson, 418 U. S. 166 (1974). This is not to suggest that such undifferentiated claims should not be taken seriously by local authorities. Indeed, the interest of an alert and interested citizen is an essential element of an effective and fair government, whether on the local, state, or national level.10 A federal court, how*112ever, is not the proper forum to press such claims unless the requirements for entry and the prerequisites for injunctive relief are satisfied.

We decline the invitation to slight the preconditions for equitable relief; for as we have held, recognition of the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the administration of the States’ criminal laws in the absence of irreparable injury which is both great and immediate. O’Shea, supra, at 499; Younger v. Harris, 401 U. S. 37, 46 (1971). Mitchum v. Foster, 407 U. S. 225 (1972), held that suits brought under 42 U. S. C. § 1983 are exempt from the flat ban against the issuance of injunctions directed at state-court proceedings, 28 U. S. C. §2283. But this holding did not displace the normal principles of equity, comity, and federalism that should inform the judgment of federal courts when asked to oversee state law enforcement authorities. In exercising their equitable powers federal courts must recognize “[t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Stefanelli v. Minard, 342 U. S. 117, 120 (1951); O’Shea v. Littleton, supra, at 500. See also Rizzo v. Goode, 423 U. S., at 380; Cleary v. Bolger, 371 U. S. 392 (1963); Wilson v. Schnettler, 365 U. S. 381 (1961); Pugach v. Dollinger, 365 U. S. 458 (1961). The Court of Appeals failed to apply these factors properly and therefore erred in finding that the District Court had not abused its discretion in entering an injunction in this case.

As we noted in O’Shea, 414 U. S., at 503, withholding in-junctive relief does not mean that the “federal law will exer*113cise no deterrent effect in these circumstances.” If Lyons has suffered an injury barred by the Federal Constitution, he has a remedy for damages under § 1983. Furthermore, those who deliberately deprive a citizen of his constitutional rights risk conviction under the federal criminal laws. Ibid.

Beyond these considerations the state courts need not impose the same standing or remedial requirements that govern federal-court proceedings. The individual States may permit their courts to use injunctions to oversee the conduct of law enforcement authorities on a continuing basis. But this is not the role of a federal court, absent far more justification than Lyons has proffered in this case.

The judgment of the Court of Appeals is accordingly

Reversed.

The police control procedures at issue in this case are referred to as “control holds,” “chokeholds,” “strangleholds,” and “neck restraints.” All these terms refer to two basic control procedures: the “carotid” hold and the “bar arm” hold. In the “carotid” hold, an officer positioned behind a subject places one arm around the subject’s neck and holds the wrist of that arm with his other hand. The officer, by using his lower forearm and bicep muscle, applies pressure concentrating on the carotid arteries located *98on the sides of the subject’s neck. The “carotid” hold is capable of rendering the subject unconscious by diminishing the flow of oxygenated blood to the brain. The “bar arm” hold, which is administered similarly, applies pressure at the front of the subject’s neck. “Bar arm” pressure causes pain, reduces the flow of oxygen to the lungs, and may render the subject unconscious.

The centerpiece of Justice Marshall’s dissent is that Lyons had standing to challenge the City’s policy because to recover damages he would have to prove that what allegedly occurred on October 6, 1976, was pursuant to city authorization. We agree completely that for Lyons to succeed in his damages action, it would be necessary to prove that what happened to him — that is, as alleged, he was choked without any provocation or legal excuse whatsoever — was pursuant to a city policy. For several reasons, however, it does not follow that Lyons had standing to seek the injunction prayed for in Count V.

First, Lyons alleges in Count II of his first amended complaint that on October 6, 1976, the officers were carrying out official policies of the City. That allegation was incorporated by reference in Count V. That policy, however, is described in paragraphs 20 and 23 of Count V as authorizing the use of chokeholds “in situations where [the officers] are threatened by far less than deadly force.” This is not equivalent to the unbelievable assertion that the City either orders or authorizes application of the choke-holds where there is no resistance or other provocation.

Second, even if such an allegation is thought to be contained in the complaint, it is belied by the record made on the application for preliminary injunction.

*107Third, even if the complaint must be read as containing an allegation that officers are authorized to apply the chokeholds where there is no resistance or other provocation, it does not follow that Lyons has standing to seek an injunction against the application of the restraint holds in situations that he has not experienced, as for example, where the suspect resists arrest or tries to escape but does not threaten the use of deadly force. Yet that is precisely the scope of the injunction that Lyons prayed for in Count V.

Fourth, and in any event, to have a case or controversy with the City that could sustain Count V, Lyons would have to credibly allege that he faced a realistic threat from the future application of the City’s policy. Justice Marshall nowhere confronts this requirement — the necessity that Lyons demonstrate that he, himself, will not only again be stopped by the police but will also be choked without any provocation or legal excuse. Justice Marshall plainly does not agree with that requirement, and he was in dissent in O’Shea v. Littleton. We are at issue in that respect.

The dissent notes that a LAPD training officer stated that the police are authorized to employ the control holds whenever an officer “feels” that there is about to be a bodily attack. Post, at 118. The dissent’s emphasis on the word “feels” apparently is intended to suggest that LAPD officers are authorized to apply the holds whenever they “feel” like it. If there is a distinction between permitting the use of the holds when there is a “threat” of serious bodily harm, and when the officer “feels” or believes there is about to be a bodily attack, the dissent has failed to make it clear. The dissent does not, because it cannot, point to any written or oral pronouncement by the LAPD or any evidence showing a pattern of police behavior that would indicate that the official policy would permit the application of the control holds on a suspect who was not offering, or threatening to offer, physical resistance.

Justice Marshall,

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

The District Court found that the city of Los Angeles authorizes its police officers to apply life-threatening choke-holds to citizens who pose no threat of violence, arid that respondent, Adolph Lyons, was subjected to such a chokehold. The Court today holds that a federal court is without power to enjoin the enforcement of the city’s policy, no matter how flagrantly unconstitutional it may be. Since no one can show that he will be choked in the future, no one — not even a person who, like Lyons, has almost been choked to death — has standing to challenge the continuation of the policy. The city is free to continue the policy indefinitely as long as it is willing to pay damages for the injuries and deaths that result. I dissent from this unprecedented and unwarranted approach to standing.

There is plainly a “case or controversy” concerning the constitutionality of the city’s chokehold policy. The constitutionality of that policy is directly implicated by Lyons’ claim for damages against the city. The complaint clearly alleges *114that the officer who choked Lyons was carrying out an official policy, and a municipality is liable under 42 U. S. C. § 1983 for the conduct of its employees only if they acted pursuant to such a policy. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 694 (1978). Lyons therefore has standing to challenge the city’s chokehold policy and to obtain whatever relief a court may ultimately deem appropriate. None of our prior decisions suggests that his requests for particular forms of relief raise any additional issues concerning his standing. Standing has always depended on whether a plaintiff has a “personal stake in the outcome of the controversy,” Baker v. Carr, 369 U. S. 186, 204 (1962), not on the “precise nature of the relief sought.” Jenkins v. McKeithen, 395 U. S. 411, 423 (1969) (opinion of Marshall, J., joined by Warren, C. J., and Brennan, J.).

Respondent Adolph Lyons is a 24-year-old Negro male who resides in Los Angeles. According to the uncontradicted evidence in the record,1 at about 2 a. m. on October 6, 1976, Lyons was pulled over to the curb by two officers of the Los Angeles Police Department (LAPD) for a traffic infraction because one of his taillights was burned out. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a patdown search, Lyons dropped his hands, *115but was ordered to place them back above his head, and one of the officers grabbed Lyons’ hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat.' As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.

On February 7, 1977, Lyons commenced this action under 42 U. S. C. § 1983 against the individual officers and the city, alleging violations of his rights under' the Fourth, Eighth, and Fourteenth Amendments to the Constitution and seeking damages and declaratory and injunctive relief. He claimed that he was subjected to a chokehold without justification and that defendant officers were “carrying out the official policies, customs and practices of the Los Angeles Police Department and the City of Los Angeles.” Count II, ¶ 13.2 These allegations were included or incorporated in each of the Counts in which the city was named as a defendant. See Counts II through VI. Lyons alleged that the city authorizes the use of chokeholds “in innumerable situations where [the police] are not threatened by the use of any deadly force whatsoever.” Count V, ¶ 22.

Although the city instructs its officers that use of a choke-hold does not constitute deadly force, since 1975 no less than 16 persons have died following the use of a chokehold by *116an LAPD police officer. Twelve have been Negro males.3 The evidence submitted to the District Court4 established that for many years it has been the official policy of the city to permit police officers to employ chokeholds in a variety of situations where they face no threat of violence. In reported “altercations” between LAPD officers and citizens the choke-holds are used more frequently than any other means of physical restraint.5 Between February 1975 and July 1980, LAPD officers applied chokeholds on at least 975 occasions, which represented more than three-quarters of the reported altercations.6

It is undisputed that chokeholds pose a high and unpredictable risk of serious injury or death. Chokeholds are intended to bring a subject under control by causing pain and rendering him unconscious. Depending on the position of the officer’s arm and the force applied, the victim’s voluntary *117or involuntary reaction, and his state of health, an officer may inadvertently crush the victim’s larynx, trachea, or hyoid. The result may be death caused by either cardiac arrest or asphyxiation.7 An LAPD officer described the reaction of a person to being choked as “do[ing] the chicken,” *118Exh. 44, p. 93, in reference apparently to the reactions of a chicken when its neck is wrung. The victim experiences extreme pain. His face turns blue as he is deprived of oxygen, he goes into spasmodic convulsions, his eyes roll back, his body wriggles, his feet kick up and down, and his arms move about wildly.

Although there has been no occasion to determine the precise contours of the city’s chokehold policy, the evidence submitted to the District Court provides some indications. LAPD Training Officer Terry Speer testified that an officer is authorized to deploy a chokehold whenever he “feels that there’s about to be a bodily attack made on him.” App. 381 (emphasis added). A training bulletin states that “[c]ontrol holds . . . allow officers to subdue any resistance by the suspects.” Exh. 47, p. 1 (emphasis added). In the proceedings below the city characterized its own policy as authorizing the use of chokeholds “ ‘to gain control of a suspect who is violently resisting the officer or trying to escape,’” to “subdue any resistance by the suspects,”8 and to permit an officer, “where . . . resisted, but not necessarily threatened with serious bodily harm or death, ... to subdue a suspect who forcibly resists an officer.” (Emphasis added.)9

The training given LAPD officers provides additional revealing evidence of the city’s chokehold policy. Officer *119Speer testified that in instructing officers concerning the use of force, the LAPD does not distinguish between felony and misdemeanor suspects. App. 379. Moreover, the officers are taught to maintain the chokehold until the suspect goes limp, id., at 387; App. to Pet. for Cert. 51a, despite substantial evidence that the application of a chokehold invariably induces a “flight or flee” syndrome, producing an involuntary struggle by the victim which can easily be misinterpreted by the officer as willful resistance that must be overcome by prolonging the chokehold and increasing the force applied. See n. 7, supra. In addition, officers are instructed that the chokeholds can be safely deployed for up to three or four minutes. App. 387-388; App. to Pet. for Cert. 48. Robert Jarvis, the city’s expert who has taught at the Los Angeles Police Academy for the past 12 years, admitted that officers are never told that the bar-arm control can cause death if applied for just two seconds. App. 388. Of the nine deaths for which evidence was submitted to the District Court, the average duration of the choke where specified was approximately 40 seconds.

In determining the appropriateness of a preliminary injunction, the District Court recognized that the city’s policy is subject to the constraints imposed by the Due Process Clause of the Fourteenth Amendment. The court found that “[d]uring the course of this confrontation, said officers, without provocation or legal justification, applied a Department-authorized chokehold which resulted in injuries to plaintiff.” (Emphasis added.) The court found that the “City of Los Angeles and the Department authorize the use of these holds under circumstances where no one is threatened by death or grievous bodily harm.” The court concluded that the use of the chokeholds constitutes “deadly force,” and that the city may not constitutionally authorize the use of such force “in situations where death or serious bodily harm is not threatened.” On the basis of this conclusion, the District Court en*120tered a preliminary injunction enjoining “the use of both the carotid-artery and bar arm holds under circumstances which do not threaten death or serious bodily injury.”10 As the Court of Appeals noted, “[a]ll the trial judge has done, so far, is to tell the city that its police officers may not apply life threatening strangleholds to persons stopped in routine police work unless the application of such force is necessary to prevent serious bodily harm to an officer.” 656 F. 2d 417, 418 (1981).

At the outset it is important to emphasize that Lyons’ entitlement to injunctive relief and his entitlement to an award of damages both depend upon whether he can show that the city’s chokehold policy violates the Constitution. An indispensable prerequisite of municipal liability under 42 U. S. C. §1983 is proof that the conduct complained of is attributable to an unconstitutional official policy or custom. Polk County v. Dodson, 454 U. S. 312, 326 (1981); Monell v. New York City Dept. of Social Services, 436 U. S., at 694. It is not enough for a § 1983 plaintiff to show that the employees or agents of a municipality have violated or will violate the Constitution, for a municipality will not be held liable solely on a theory of respondeat superior. See Monell, supra, at 694.

The Court errs in suggesting that Lyons’ prayer for injunc-tive relief in Count V of his first amended complaint concerns a policy that was not responsible for his injuries and that therefore could not support an award of damages. Ante, at 106-107, n. 7. Paragraph 8 of the complaint alleges that Lyons was choked “without provocation, legal justification or ex*121cuse.” Paragraph 13 expressly alleges that “[t]he Defendant Officers were carrying out the official policies, customs and practices of the Los Angeles Police Department and the City of Los Angeles,” and that “by virtue thereof, defendant City is liable for the actions” of the officers. (Emphasis added.) These allegations are incorporated in each of the Counts against the city, including Count V.

There is no basis for the Court’s assertion that Lyons has failed to allege “that the City either orders or authorizes application of the chokeholds where there is no resistance or other provocation.” Ante, at 106, n. 7. I am completely at a loss to understand how paragraphs 8 and 13 can be deemed insufficient to allege that the city’s policy authorizes the use of chokeholds without provocation. The Court apparently finds Lyons’ complaint wanting because, although it alleges that he was choked without provocation and that the officers acted pursuant to an official policy, it fails to allege in haec verba that the city’s policy authorizes the choking of suspects without provocation. I am aware of no case decided since the abolition of the old common-law forms of action, and the Court cites none, that in any way supports this crabbed construction of the complaint. A federal court is capable of concluding for itself that two plus two equals four.11

The Court also errs in asserting that even if the complaint sufficiently alleges that the city’s policy authorizes the use of chokeholds without provocation, such an allegation is in any event “belied by the record made on the application for preliminary injunction.” Ibid. This conclusion flatly contradicts the District Court’s express factual finding, which was left undisturbed by the Court of Appeals, that the officers applied a “Department-authorized chokehold which resulted in *122injuries to plaintiff.” (Emphasis added.) The city does not contend that this factual finding is clearly erroneous.12

In sum, it is absolutely clear that Lyons’ requests for damages and for injunctive relief call into question the constitutionality of the city’s policy concerning the use of chokeholds. If he does not show that that policy is unconstitutional, he will be no more entitled to damages than to an injunction.

III

Since Lyons’ claim for damages plainly gives him standing, and since the success of that claim depends upon a demonstration that the city’s chokehold policy is unconstitutional, it is beyond dispute that Lyons has properly invoked the District Court’s authority to adjudicate the constitutionality of the city’s chokehold policy. The disputé concerning the constitutionality of that policy plainly presents a “case or controversy” under Art. III. The Court nevertheless holds that a federal court has no power under Art. Ill to adjudicate Lyons’ request, in the same lawsuit, for injunctive relief with respect to that very policy. This anomalous result is not supported either by precedent or by the fundamental concern underlying the standing requirement. Moreover, by fragmenting a single claim into multiple claims for particular types of relief and requiring a separate showing of standing for each form of relief, the decision today departs from this *123Court’s traditional conception of standing and of the remedial powers of the federal courts.

It is simply disingenuous for the Court to assert that its decision requires “[n]o extension” of O’Shea v. Littleton, 414 U. S. 488 (1974), and Rizzo v. Goode, 423 U. S. 362 (1976). Ante, at 105. In contrast to this case O’Shea and Rizzo involved disputes focusing solely on the threat of future injury which the plaintiffs in those cases alleged they faced. In O’Shea the plaintiffs did not allege past injury and did not seek compensatory relief.13 In Rizzo, the plaintiffs sought only declaratory and injunctive relief and alleged past instances of police misconduct only in an attempt to establish the substantiality of the threat of future injury. There was similarly no claim for damages based on past injuries in Ashcroft v. Mattis, 431 U. S. 171 (1977), or Golden v. Zwickler, 394 U. S. 103 (1969),14 on which the Court also relies.

*124These decisions do not support the Court’s holding today. As the Court recognized in O’Shea, standing under Art. III is established by an allegation of “‘threatened or actual injury.’” 414 U. S., at 493, quoting Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973) (emphasis added). See also 414 U. S., at 493, n. 2. Because the plaintiffs in O’Shea, Rizzo, Mattis, and Zwickler did not seek to redress past injury, their standing to sue depended entirely on the risk of future injury they faced. Apart from the desire to eliminate the possibility of future injury, the plaintiffs in those cases had no other personal stake in the outcome of the controversies.

By contrast, Lyons’ request for prospective relief is coupled with his claim for damages based on past injury. In addition to the risk that he will be subjected to a chokehold in the future, Lyons has suffered past injury.15 Because he has a live claim for damages, he need not rely solely on the threat of future injury to establish his personal stake in the outcome of the controversy.16 In the cases relied on by the majority, *125the Court simply had no occasion to decide whether a plaintiff who has standing to litigate a dispute must clear a separate standing hurdle with respect to each form of relief sought.17

The Court’s decision likewise finds no support in the fundamental policy underlying the Art. Ill standing requirement — the concern that a federal court not decide a legal issue if the plaintiff lacks a sufficient “personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Baker v. Carr, 369 U. S., at 204. As this Court stated in Flast v. Cohen, 392 U. S. 83, 101 (1968), “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” See also Valley Forge Christian College v. *126Americans United for Separation of Church and State, 454 U. S. 464, 472 (1982) (standing requirement ensures that “the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action”).

Because Lyons has a claim for damages against the city, and because he cannot prevail on that claim unless he demonstrates that the city’s chokehold policy violates the Constitution, his personal stake in the outcome of the controversy adequately assures an adversary presentation of his challenge to the constitutionality of the policy.18 Moreover, the resolution of this challenge will be largely dispositive of his requests for declaratory and injunctive relief. No doubt the requests for injunctive relief may raise additional questions. But these questions involve familiar issues relating to the appropriateness of particular forms of relief, and have never been thought to implicate a litigant’s standing to sue. The denial of standing separately to seek injunctive relief therefore cannot be justified by the basic concern underlying the Art. Ill standing requirement.19

*127C

By fragmenting the standing inquiry and imposing a separate standing hurdle with respect to each form of relief sought, the decision today departs significantly from this Court’s traditional conception of the standing requirement and of the remedial powers of the federal courts. We have never required more than that a plaintiff have standing to litigate a claim. Whether he will be entitled to obtain particular forms of relief should he prevail has never been understood to be an issue of standing. In determining whether a plaintiff has standing, we have always focused on his personal stake in the outcome of the controversy, not on the issues sought to be litigated, Flast v. Cohen, supra, at 99, or the “precise nature of the relief sought.” Jenkins v. McKeithen, 395 U. S., at 423 (opinion of Marshall, J., joined by Warren, C. J., and Brennan, J.).

*1281

Our cases uniformly state that the touchstone of the Art. Ill standing requirement is the plaintiff’s personal stake in the underlying dispute, not in the particular types of relief sought. Once a plaintiff establishes a personal stake in a dispute, he has done all that is necessary to “invok[e] the court’s authority ... to challenge the action sought to be adjudicated.” Valley Forge Christian College, v. Americans United for Separation of Church and State, supra, at 471-472. See, e. g., Flast v. Cohen, 392 U. S., at 101 (stake in “the dispute to be adjudicated in the lawsuit”); Eisenstadt v. Baird, 405 U. S. 438, 443 (1972) (plaintiff must have “sufficient interest in challenging the statute’s validity”).

The personal stake of a litigant depends, in turn, on whether he has alleged a legally redressable injury. In determining whether a plaintiff has a sufficient personal stake in the outcome of a controversy, this Court has asked whether he “personally has suffered some actual or threatened injury,” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979) (emphasis added), whether the injury “fairly can be traced to the challenged action,” Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26, 41 (1976), and whether plaintiff’s injury “is likely to be redressed by a favorable decision.” Id., at 38. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 74 (1978); Warth v. Seldin, 422 U. S. 490, 508 (1975). These well-accepted criteria for determining whether a plaintiff has established the requisite personal stake do not fragment the standing inquiry into a series of discrete questions about the plaintiff’s stake in each of the particular types of relief sought. Quite the contrary, they ask simply whether the plaintiff has a sufficient stake in seeking a judicial resolution of the controversy.

Lyons has alleged past injury and a risk of future injury and has linked both to the city’s chokehold policy. Under established principles, the only additional question in determin*129ing standing under Art. Ill is whether the injuries he has alleged can be remedied or prevented by some form of judicial relief. Satisfaction of this requirement ensures that the lawsuit does not entail the issuance of an advisory opinion without the possibility of any judicial relief, and that the exercise of a court’s remedial powers will actually redress the alleged injury.20 Therefore Lyons needs to demonstrate only that, should he prevail on the merits, “the exercise of the Court’s remedial powers would redress the claimed injuries.” Duke Power Co., supra, at 74. See also Warth v. Seldin, supra, at 508; Simon, supra, at 38. Lyons has easily made this showing here, for monetary relief would plainly provide redress for his past injury, and prospective relief would reduce the likelihood of any future injury. Nothing more has ever been required to establish standing.

The Court’s decision turns these well-accepted principles on their heads by requiring a separate standing inquiry with *130respect to each request for relief. Until now, questions concerning remedy were relevant to the threshold issue of standing only in the limited sense that some relief must be possible. The approach adopted today drastically alters the inquiry into remedy that must be made to determine standing.

The Court’s fragmentation of the standing inquiry is also inconsistent with the way the federal courts have treated remedial issues since the merger of law and equity. The federal practice has been to reserve consideration of the appropriate relief until after a determination of the merits, not to foreclose certain forms of relief by a ruling on the pleadings. The prayer for relief is no part of the plaintiff’s cause of action. See 2A J. Moore & J. Lucas, Moore’s Federal Practice ¶8.18, p. 8-216, and n. 13 (1983) (Moore), and cases cited therein; C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2664 (1983) (Wright, Miller, & Kane). Rather, “[the usual rule is] that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U. S. 678, 684 (1946) (footnote omitted).

Rule 54(c) of the Federal Rules of Civil Procedure specifically provides that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” The question whether a plaintiff has stated a claim turns not on “whether [he] has asked for the proper remedy but whether he is entitled to any remedy.” (Emphasis added.) Wright, Miller, & Kane §2664. This is fully consistent with the approach taken in our standing cases. Supra, at 128-129 and this page, and n. 20.

The Court provides no justification for departing from the traditional treatment of remedial issues and demanding a separate threshold inquiry into each form of relief a plaintiff seeks. It is anomalous to require a plaintiff to demonstrate *131“standing” to seek each particular form of relief requested in the complaint when under Rule 54(c) the remedy to which a party may be entitled need not even be demanded in the complaint.21 See Holt Civic Club v. Tuscaloosa, 439 U. S. 60, 65-66 (1978); Albemarle Paper Co. v. Moody, 422 U. S. 405, 424 (1975). The traditional federal practice is a sound one. Even if it appears highly unlikely at the outset of a lawsuit that a plaintiff will establish that he is entitled to a particular remedy, there are dangers inherent in any doctrine that permits a court to foreclose any consideration of that remedy by ruling on the pleadings that the plaintiff lacks standing to seek it. A court has broad discretion to grant appropriate equitable relief to protect a party who has been injured by unlawful conduct, as well as members of the class, from future injury that may occur if the wrongdoer is permitted to continue his unlawful actions. Where, as here, a plaintiff alleges both past injury and a risk of future injury and presents a concededly substantial claim that a defendant is implementing an unlawful policy, it will rarely be easy to decide with any certainty at the outset of a lawsuit that no equitable relief would be appropriate under any conceivable set of facts that he might establish in support of his claim.

In sum, the Court’s approach to standing is wholly inconsistent with well-established standing principles and clashes with our longstanding conception of the remedial powers of a court and what is necessary to invoke the authority of a court to resolve a particular dispute.

I — I <1

Apart from the question of standing, the only remaining question presented in the petition for certiorari is whether *132the preliminary injunction issued by the District Court must be set aside because it “constituted a substantial interference in the operation of a municipal police department.” Pet. for Cert. i.22 In my view it does not.

In the portion of its brief concerning this second question, the city argues that the District Court ignored the principles of federalism set forth in Rizzo v. Goode, 423 U. S. 362 (1976). Brief for Petitioner 40-47. The city’s reliance on Rizzo is misplaced. That case involved an injunction which “significantly revis[ed] the internal procedures of the Philadelphia police department.” 423 U. S., at 379. The injunction required the police department to adopt “ ‘a comprehensive program for dealing adequately with civilian complaints’ ” to be formulated in accordance with extensive “guidelines” established by the District Court. Id., at 369, quoting Council of Organizations on Phila. Police A. & R. v. Rizzo, 357 F. Supp. 1289, 1321 (1973). Those guidelines specified detailed revisions of police manuals and rules of procedure, as well as the adoption of specific procedures for processing, screening, investigating, and adjudicating citizen complaints. In addition, the District Court supervised the implementation of the comprehensive program, issuing detailed orders concerning the posting and distribution of the revised police procedures and the drawing up of a “Citizen’s Complaint Report” in a format designated by the court. The District Court also reserved jurisdiction to review the progress of the police department. 423 U. S., at 365, n. 2. This Court concluded that the sweeping nature of the injunc-tive relief was inconsistent with “the principles of federalism.” Id., at 380.

*133The principles of federalism simply do not preclude the limited preliminary injunction issued in this case. Unlike the permanent injunction at issue in Rizzo, the preliminary injunction involved here entails no federal supervision of the LAPD’s activities. The preliminary injunction merely forbids the use of chokeholds absent the threat of deadly force, permitting their continued use where such a threat does exist. This limited ban takes the form of a preventive injunction, which has traditionally been regarded as the least intrusive form of equitable relief. Moreover, the city can remove the ban by obtaining approval of a training plan. Although the preliminary injunction also requires the city to provide records of the uses of chokeholds to respondent and to allow the court access to such records, this requirement is hardly onerous, since the LAPD already maintains records concerning the use of chokeholds.

A district court should be mindful that “federal-court intervention in the daily operation of a large city’s police department ... is undesirable and to be avoided if at all possible.” Rizzo, swpra, at 381 (Blackmun, J., dissenting).23 The modest interlocutory relief granted in this case differs markedly, however, from the intrusive injunction involved in Rizzo, and simply does not implicate the federalism concerns *134that arise when a federal court undertakes to “supervise the functioning of the police department.” 423 U. S., at 380.

Apparently because it is unwilling to rely solely on its unprecedented rule of standing, the Court goes on to conclude that, even if Lyons has standing, “[t]he equitable remedy is unavailable.” Ante, at 111. The Court’s reliance on this alternative ground is puzzling for two reasons.

If, as the Court says, Lyons lacks standing under Art. Ill, the federal courts have no power to decide his entitlement to equitable relief on the merits. Under the Court’s own view of Art. Ill, the Court’s discussion in Part V is purely an advisory opinion.

In addition, the question whether injunctive relief is available under equitable principles is simply not before us. We granted certiorari only to determine whether Lyons has standing and whether, if so, the preliminary injunction must be set aside because it constitutes an impermissible interference in the operation of a municipal police department. We did not grant certiorari to consider whether Lyons satisfies the traditional prerequisites for equitable relief. See n. 22, supra.

Even if the issue had been properly raised, I could not agree with the Court’s disposition of it. With the single exception of Rizzo v. Goode, supra,24 all of the cases relied on by the Court concerned injunctions against state criminal proceedings. The rule of Younger v. Harris, 401 U. S. 37 (1971), that such injunctions can be issued only in extraordinary circumstances in which the threat of injury is “great and immediate,” id., at 46, reflects the venerable rule that equity will not enjoin a criminal prosecution, the fact that constitu*135tional defenses can be raised in such a state prosecution, and an appreciation of the friction that injunctions against state judicial proceedings may produce. See ibid.; Steffel v. Thompson, 415 U. S. 452, 462 (1974); 28 U. S. C. §2283.

Our prior decisions have repeatedly emphasized that where an injunction is not directed against a state criminal or quasi-criminal proceeding, “the relevant principles of equity, comity, and federalism” that underlie the Younger doctrine “have little force.” Steffel v. Thompson, supra, at 462, citing Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972). Outside the special context in which the Younger doctrine applies, we have held that the appropriateness of in-junctive relief is governed by traditional equitable considerations. See Doran v. Salem Inn, Inc., 422 U. S. 922, 930 (1975). Whatever the precise scope of the Younger doctrine may be, the concerns of comity and federalism that counsel restraint when a federal court is asked to enjoin a state criminal proceeding simply do not apply to an injunction directed solely at a police department.

If the preliminary injunction granted by the District Court is analyzed under general equitable principles, rather than the more stringent standards of Younger v. Harris, it becomes apparent that there is no rule of law that precludes equitable relief and requires that the preliminary injunction be set aside. “In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion.” Brown v. Chote, 411 U. S. 452, 457 (1973).

The District Court concluded, on the basis of the facts before it, that Lyons was choked without provocation pursuant to an unconstitutional city policy. Supra, at 119. Given the necessarily preliminary nature of its inquiry, there was no way for the District Court to know the precise contours of the city’s policy or to ascertain the risk that Lyons, who had alleged that the policy was being applied in a discriminatory manner, might again be subjected to a chokehold. But in view of the Court’s conclusion that the unprovoked choking of *136Lyons was pursuant to a city policy, Lyons has satisfied “the usual basis for injunctive relief, ‘that there exists some cognizable danger of recurrent violation.’” Rondeau v. Mosinee Paper Corp., 422 U. S. 49, 59 (1975), quoting United States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). The risk of serious injuries and deaths to other citizens also supported the decision to grant a preliminary injunction. Courts of equity have much greater latitude in granting injunctive relief “in furtherance of the public interest than . . . when only private interests are involved.” Virginian R. Co. v. Railway Employee, 300 U. S. 515, 552 (1937). See Wright, Miller, & Kane § 2948; 7 Moore. ¶ 65.04[1]. In this case we know that the District Court would have been amply justified in considering the risk to the public, for after the preliminary injunction was stayed, five additional deaths occurred prior to the adoption of a moratorium. See n. 3, supra. Under these circumstances, I do not believe that the District Court abused its discretion.

Indeed, this Court has approved of a decision that directed issuance of a permanent injunction in a similar situation. See Lankford v. Gelston, 364 F. 2d 197 (CA4 1966), cited with approval in Allee v. Medrano, 416 U. S. 802, 816, n. 9 (1974). See n. 15, supra. In Lankford, citizens whose houses had been searched solely on the basis of uncorroborated, anonymous tips sought injunctive relief. The Fourth Circuit, sitting en banc, held that the plaintiffs were entitled to an injunction against enforcement of the police department policy authorizing such searches, even though there was no evidence that their homes would be searched in the future. Lyons is no less entitled to seek injunctive relief. To hold otherwise is to vitiate “one of the most valuable features of equity jurisdiction, to anticipate and prevent a threatened injury, where the damages would be insufficient or irreparable.” Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65, 82 (1902).

*137Here it is unnecessary to consider the propriety of a permanent injunction. The District Court has simply sought to protect Lyons and other citizens of Los Angeles pending a disposition of the merits. It will be time enough to consider the propriety of a permanent injunction when and if the District Court grants such relief.

. VI

The Court’s decision removes an entire class of constitutional violations from the equitable powers of a federal court. It immunizes from prospective equitable relief any policy that authorizes persistent deprivations of constitutional rights as long as no individual can establish with substantial certainty that he will be injured, or injured again, in the future. The Chief Justice asked in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 419 (1971) (dissenting opinion), “what would be the judicial response to a police order authorizing ‘shoot to kill’ with respect to every fugitive”? His answer was that it would be “easy to predict our collective wrath and outrage.” Ibid. We now learn that wrath and outrage cannot be translated into an order to cease the unconstitutional practice, but only an award of damages to those who are victimized by the practice and live to sue and to the survivors of those who are not so fortunate. Under the view expressed by the majority today, , if the police adopt a policy of “shoot to kill,” or a policy of shooting 1 out of 10 suspects, the federal courts will be powerless to enjoin its continuation. Cf. Linda R. S. v. Richard D., 410 U. S., at 621 (White, J., dissenting). The federal judicial power is now limited to levying a toll for such a systematic constitutional violation.

Thus in a city where Negro males constitute 9% of the population, they have accounted for 75% of the deaths resulting from the use of chokeholds. In addition to his other allegations, Lyons alleged racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. ¶¶ 10, 15, 23, 24, 25, 30.

Of the 16 deaths, 10 occurred prior to the District Court’s issuance of the preliminary injunction, although at that time the parties and the court were aware of only 9. On December 24,1980, the Court of Appeals stayed the preliminary injunction pending appeal. Four additional deaths occurred during the period prior to the grant of a further stay pending filing and disposition of a petition for certiorari, 453 U. S. 1308 (1981) (Rehnquist, J., in chambers), and two more deaths occurred thereafter.

The physiological effects of the chokeholds were described as follows by Dr. A. Griswold, an expert in pathology (id., at 364-367):

“From a medical point of view, the bar arm control is extremely dangerous in an unpredictable fashion. Pressure from a locked forearm across the neck sufficient to compress and close the trachea applied for a sufficient period of time to cause unconsciousness from asphyxia must, to an anatomical certainty, also result in ... a very high risk of a fractured hyoid bone or crushed larynx. The risk is substantial, but at the same time, unpredictable.

“It depends for one thing on which vertical portion of the neck the forearm pressure is exerted. . . .

“Another factor contributing to unpredictability is the reaction of the victim. . . . [The] pressure exerted in a bar arm control. . . can result in a laryngeal spasm or seizure which simply shuts off the trachial air passage, leading to death by asphyxiation. Also, it must result in transmission to the brain of nerve messages that there is immediate, acute danger of death. This transmission immediately sets up a ‘flight or flee’ syndrome wherein the body reacts violently to save itself or escape. Adrenalin output increases enormously; blood oxygen is switched to muscles and strong, violent struggle ensues which is to a great extent involuntary. From a medical point of view, there would be no way to distinguish this involuntary death struggle from a wilful, voluntary resistance. Thus, an instruction to cease applying the hold when ‘resistance ceases’ is meaningless.

“This violent struggle . . . increases the risk of permanent injury or death to the victim. This reserve may already be in a state of reduction by reason of cardiac, respiratory or other disease.

“The LAPD [operates under a] misconception. . . that the length of time for applying the hold is the sole measure of risk. This is simply not true. If sufficient force is applied, the larynx can be crushed or hyoid fractured with death ensuing, in seconds. An irreversible laryngeal spasm can also occur in seconds.

“From a medical point of view, the carotid control is extremely dangerous in a manner that is at least as equally unpredictable as the bar arm control.

“. . . When applied with sufficient pressure, this control will crush the carotid sheath against the bony structure of the neck, foreseeably shutting *118down the supply of oxygenated blood to the brain and leading to unconsciousness in approximately 10 to 15 seconds.

“However, pressure on both carotid sheaths also results in pressure, if inadvertent or unintended, on both of the vagus nerves. The vagus nerves (right and left) arise in the brain and are composed of both sensory and motor fibers. . . . Stimulation of these nerves by pressure can activate reflexes within the vagus system that can result in immediate heart stoppage (cardiac arrest). . . . There is also evidence that cardiac arrest can result from simultaneous pressure on both vagus nerves regardless of the intensity or duration of the pressure.”

Even if the issue were properly before us, I could not agree that this Court should substitute its judgment for that of the District Court. One of the city’s own training officers testified that an officer is authorized to use a chokehold whenever he “feels that there’s about to be a bodily attack made on him.” App. 381. This testimony indicates that an officer is authorized to use a chokehold whenever he subjectively perceives a threat, regardless of whether the suspect has done anything to provide an objective basis for such a perception. The District Court’s finding is not refuted by the statement of the city’s policy which is set forth in an LAPD manual, ante, at 110, for municipal liability under § 1983 may be predicated on proof of an official custom whether or not that custom is embodied in a formal policy. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 694 (1978).

The plaintiff in Mattis did originally seek damages, but after the District Court found that the defendant officers were shielded by the good-faith immunity, he pursued only prospective relief. Although we held that the case had been mooted by the elimination of the damages claim, we in no way suggested that the plaintiff’s requests for declaratory and injunctive relief could not have been entertained had his damages claim remained viable. We held only that where a plaintiff’s “primary claim of a present interest in the controversy is that he will obtain emotional satisfaction from a ruling that his son’s death was wrongful,” 431 U. S., at 172 (footnote omitted), he does not have the personal stake in the outcome required by Art. III. In Zwickler the plaintiff did not even allege that he would or might run for office again; he merely asserted that he “can be ‘a candidate for Congress again.’ ” 394 U. S., at 109. We held that this mere logical possibility was insufficient to present an actual controversy.

In O’Shea itself the Court suggested that the absence of a damages claim was highly pertinent to its conclusion that the plaintiff had no standing. The Court noted that plaintiffs’ “claim for relief against the State’s Attorney[,] where specific instances of misconduct with respect to particular individuals are alleged,” 414 U. S., at 495 (emphasis added), stood in “sharp contrast” to their claim for relief against the magistrate and judge, which did not contain similar allegations. The plaintiffs did seek damages against the State’s Attorney. See Spomer v. Littleton, 414 U. S. 514, 518, n. 5 (1974). Like the claims against the State’s Attorney in O’Shea, Lyons’ claims against the city allege both past injury and the risk of future injury. Whereas in O’Shea the Court acknowledged the significance for standing *125purposes of past injury, the Court today inexplicably treats Lyons’ past injury for which he is seeking redress as wholly irrelevant to the standing inquiry before us.

The Court’s reliance on Rizzo is misplaced for another reason. In Rizzo the Court concluded that the evidence presented at trial failed to establish an “affirmative link between the occurrence of the various incidents of police misconduct and the adoption of any plan or policy by [defendants].” 423 U. S., at 371. Because the misconduct being challenged was, in the Court’s view, the result of the behavior of unidentified officials not named as defendants rather than any policy of the named defendants — the City Managing Director, and the Police Commissioner, id., at 372 — the Court had “serious doubts” whether a case or controversy existed between the plaintiffs and those defendants. Here, by contrast, Lyons has clearly established a case or controversy between himself and the city concerning the constitutionality of the city’s policy. See supra, at 120-122. In Rizzo the Court specifically distinguished those cases where a case or controversy was found to exist because of the existence of an official policy responsible for the past or threatened constitutional deprivations. 423 U. S., at 373-374, distinguishing Hague v. CIO, 307 U. S. 496 (1939); Allee v. Medrano, 416 U. S. 802 (1974); Lankford v. Gelston, supra.

The Court errs in asserting that Lyons has no standing to seek injunctive relief because the injunction prayed for in Count V reaches suspects who, unlike Lyons, offer resistance or attempt to escape. Ante, at 106-107, n. 7. Even if a separate inquiry into Lyons’ standing to seek injunc-tive relief as opposed to damages were appropriate, and even if he had no *127standing to seek the entire injunction he requests, it would not follow that he had no standing to seek any injunctive relief. Even under the Court’s view, Lyons presumably would have standing to seek to enjoin the use of chokeholds without provocation. There would therefore be no justification for reversing the judgment below in its entirety.

The Court’s reliance on the precise terms of the injunction sought in Count V is also misplaced for a more fundamental reason. Whatever may be said for the Court’s novel rule that a separate showing of standing must be made for each form of relief requested, the Court is simply wrong in assuming that the scope of the injunction prayed for raises a question of standing. A litigant is entitled to advance any substantive legal theory which would entitle him to relief. Lyons’ entitlement to relief may ultimately rest on the principle that a municipality may not authorize the use of chokeholds absent a threat of deadly force. This principle, which the District Court tentatively embraced in issuing the preliminary injunction, would support the entire injunction sought in Count V. Alternatively, Lyons’ entitlement to relief may rest on some narrower theory. If Lyons prevails, the appropriateness of the injunction prayed for in Count V will depend on the legal principle upon which the District Court predicates its decision. It may well be judicious for the District Court, in the exercise of its discretion, to rest its decision on a theory that would not support the full scope of the injunction that Lyons requests. But this has nothing whatsoever to do with Lyons’ standing.

This limited inquiry into remedy, which addresses two jurisdictional concerns, provides no support for the Court’s requirement that standing be separately demonstrated with respect to each particular form of relief sought. First, a court must have the power to fashion some appropriate remedy. This concern, an aspect of the more general case-or-controversy requirement, reflects the view that the adjudication of rights which a court is powerless to enforce is tantamount to an advisory opinion. See Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937) (“[The controversy] must be a real and substantial [one] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts”) (emphasis added). Second, a court must determine that there is an available remedy which will have a “substantial probability,” Warth v. Seldin, 422 U. S. 490, 508 (1975), of redressing the plaintiff’s injury. This latter concern is merely a recasting of the causal nexus, supra, at 128, that must exist between the alleged injury and the action being challenged, and ensures that the granting of judicial relief will not be an exercise in futility. See Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59, 74 (1978). These considerations are summarized by the requirement that a plaintiff need only allege an injury that is “legally redressable.” Jenkins v. McKeithen, 395 U. S. 411, 424 (1969) (emphasis added).

Of course, municipalities may be enjoined under § 1983, Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), and this Court has approved of the issuance of injunctions by federal courts against state or municipal police departments where necessary to prevent the continued enforcement of unconstitutional official policies. See, e. g., Allee v. Medrano, 416 U. S. 802 (1974); Hague v. CIO, 307 U. S. 496 (1939); Lankford v. Gelston, 364 F. 2d 197 (CA4 1966) (en bane), cited with approval in Allee, supra, at 816. Although federalism concerns are relevant in fashioning an appropriate relief, we have stated repeatedly that a federal court retains the power to order any available remedy necessary to afford full relief for the invasion of legal rights. See, e. g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 14 (1971); Bell v. Hood, 327 U. S. 678, 684 (1946).

3.5.2.5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 3.5.2.5 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

[excerpt]

504 U.S. 555
Supreme Court of the United States

Lujan v. Defenders of WildlifeJune 12, 1992

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which RENQUIST, C. J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined

Justice SCALIA delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinion with respect to Part III-B, in which The CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join.

[1] This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1536, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.

[2] The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:

[3] “Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], 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, after consultation as appropriate with affected States, to be critical.” 16 U. S. C. § 1536(a)(2).

[4] In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. A revised joint regulation, reinterpreting § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983.

[5] Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation.

* * *

[6] Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);^[1] and (b) “actual or imminent, not `conjectural’ or `hypothetical,’ ” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly. . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.

* * *

[7] When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction—and perhaps on the response of others as well.

* * *

[8] Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen; Simon; Warth.

III

[9] We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.

[10] Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increas[es] the rate of extinction of endangered and threatened species.” Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. “But the `injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “`special interest’ in th[e] subject.”

[11] With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members— Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American . . . role . . . in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] develop[ing] . . . Egypt’s. . . Master Water Plan.” App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” When Ms. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.”

[12] We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species—though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “`Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 461 U. S., at 102 (quoting O’Shea v. Littleton, 414 U. S. 488, 495-496 (1974)). And the affiants’ profession of an “inten[t]” to return to the places they had visited before—where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species—is simply not enough. Such “some day” intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not support a finding of the “actual or imminent” injury that our cases require.

[13] Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” 16 U. S. C. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question.

[14] Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible—though it goes to the outermost limit of plausibility—to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 231, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.

[15] Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects.

* * *

[16] The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question.

* * *

[17] When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary’s authority.

* * *

[18] The short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action.

[19] A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the nonagency activity that affects respondents will be altered or affected by the agency activity they seek to achieve. There is no standing.

[20] The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may commence a civil suit on his own behalf (A) 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.”

* * *

[21] To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).^[7] Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, selfcontained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view.

* * *

[22] Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch—one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-ofpowers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” Massachusetts v. Mellon, 262 U. S., at 489, and to become “`virtually continuing monitors of the wisdom and soundness of Executive action.’ ”

* * *

[23] We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

[24] It is so ordered.

Justice KENNEDY, with whom Justice SOUTER joins, concurring in part and concurring in the judgment.

[1] Although I agree with the essential parts of the Court’s analysis, I write separately to make several observations.

* * *

[2] While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, at 735, n. 8, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court’s discussion of respondents’ “ecosystem nexus,” “animal nexus,” and “vocational nexus” theories, I agree that on this record respondents’ showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 231, n. 4 (1986) (“[R]espondents . . . undoubtedly have alleged a sufficient `injury in fact’ in that the whale watching and studying of their members will be adversely affected by continued whale harvesting”).

[3] In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of redressability that is discussed by the plurality in Part III—B.

[4] I also join Part IV of the Court’s opinion with the following observations. As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons’ steamboat operations, Gibbons v. Ogden, 9 Wheat. 1 (1824). In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view. See Warth v. Seldin, 422 U. S. 490, 500 (1975). In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person . . . to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.” 16 U. S. C. § 1540(g)(1)(A).

* * *

[5] While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented . . . will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of Government.

* * *

Justice BLACKMUN, with whom Justice O’CONNOR joins, dissenting.

[1] I part company with the Court in this case in two respects. First, I believe that respondents have raised genuine issues of fact—sufficient to survive summary judgment—both as to injury and as to redressability. Second, I question the Court’s breadth of language in rejecting standing for “procedural” injuries. I fear the Court seeks to impose fresh limitations on the constitutional authority of Congress to allow citizen suits in the federal courts for injuries deemed “procedural” in nature. I dissent.

* * *

[2] Were the Court to apply the proper standard for summary judgment, I believe it would conclude that the sworn affidavits and deposition testimony of Joyce Kelly and Amy Skilbred advance sufficient facts to create a genuine issue for trial concerning whether one or both would be imminently harmed by the Aswan and Mahaweli projects. In the first instance, as the Court itself concedes, the affidavits contained facts making it at least “questionable” (and therefore within the province of the factfinder) that certain agencyfunded projects threaten listed species. The only remaining issue, then, is whether Kelly and Skilbred have shown that they personally would suffer imminent harm.

[3] I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual or imminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general statements that they intended to revisit the project sites as “simply not enough.” But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas.

* * *

[4] By requiring a “description of concrete plans” or “specification of when the some day [for a return visit] will be,” the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff’s control.

* * *

[5] To be sure, a plaintiff’s unilateral control over his or her exposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility.

[6] I fear the Court’s demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm. Just to survive summary judgment, for example, a property owner claiming a decline in the value of his property from governmental action might have to specify the exact date he intends to sell his property and show that there is a market for the property, lest it be surmised he might not sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child, and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a “description of concrete plans” for her nightly schedule of attempted activities.

* * *

[7] The Court expresses concern that allowing judicial enforcement of “agencies’ observance of a particular, statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to `take Care that the Laws be faithfully executed,’ Art. II, § 3.” In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense—not of the courts—but of Congress, from which that power originates and emanates.

[8] Under the Court’s anachronistically formal view of the separation of powers, Congress legislates pure, substantive mandates and has no business structuring the procedural manner in which the Executive implements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-white terms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. In complex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, itsets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials to follow certain procedures, for example, in the form of reporting, consultation, and certification requirements.

* * *

[9] The consultation requirement of § 7 of the Endangered Species Act is a similar, action-forcing statute. Consultation is designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species.

* * *

[10] Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress’ legislative goals.

* * *

[11] The Court never has questioned Congress’ authority to impose such procedural constraints on Executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.

* * *

III

[12] In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

[13] I dissent.

Supreme Court of the United States

504 U.S. 555, 119 L. Ed. 2d 351, 112 S. Ct. 2130, 1992 U.S. LEXIS 3543, SCDB 1991-085

No. 90-1424

1992-06-12

LUJAN, SECRETARY OF THE INTERIOR v. DEFENDERS OF WILDLIFE et al.

No. 90-1424.

Argued December 3, 1991

Decided June 12, 1992

*556Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which Rehnquist, C. J., and White, Kennedy, Soutek, and Thomas, 33., joined, and an opinion with respect to Part III-B, in which Rehnquist, C. J., and White and Thomas, JJ., joined. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Souter, J., joined, post, p. 579. Stevens, J., filed an opinion concurring in the judgment, post, *557p. 581. Blackmun, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 689.

Edwin S. Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, David C. Shilton, Thomas L. Sansonetti, and Michael Young.

Brian B. O’Neill argued the cause for respondents. With him on the brief were Steven C. Schroer and Richard A. Duncan*

Terence P. Ross, Daniel J. Popeo, and Richard A Samp filed a brief for the Washington Legal Foundation et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the City of Austin et al. by William A Butler, Angus E. Crane, Michael J. Bean, Kenneth Oden, James M. McCormack, and Wm. Robert Irvin; for the American Association of Zoological Parks & Aquariums et al. by Ronald J. Greene and W. Hardy Callcott; for the American Institute of Biological Sciences by Richard J. Wertheimer and Charles M. Chambers; and for the Ecotrop-ica Foundation of Brazil et al. by Durwood J. Zaelke.

A brief of amici curiae was filed for the State of Texas et al. by Patrick J. Mahoney, Dan Morales, Attorney General of Texas, Will Pryor, First Assistant Attorney General, Mary F. Keller, Deputy Attorney General, and Nancy N. Lynch, Mary Ruth Holder, and Shannon J. Kilgore, Assistant Attorneys General, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Daniel E. Lungren, Attorney General of California, Robert A Butterworth, Attorney General of Florida, Michael E. Carpenter, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, Robert Abrams, Attorney General of New York, Lee Fisher, Attorney General of Ohio, and Jeffrey L. Amestoy, Attorney General of Vermont, Victor A Kovner, Leonard J. Koerner, Neal M. Janey, and Louise H. Renne.

Justice Scalia

delivered the opinion of the Court with respect to Parts I, II, III-A, and IY, and an opinion with respect to Part III-B, in which The Chief Justice, Justice White, and Justice Thomas join.

This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting § 7 of the Endangered *558Species Act of 1973 (ESA), 87 Stat. 892, as amended, 16 U. S. C. § 1586, in such fashion as to render it applicable only to actions within the United States or on the high seas. The preliminary issue, and the only one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of the rule.

The ESA, 87 Stat. 884, as amended, 16 U. S. C. § 1531 et seq., seeks to protect species of animals against threats to their continuing existence caused by man. See generally TVA v. Hill, 437 U. S. 153 (1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species which are either endangered or threatened under enumerated criteria, and to define the critical habitat of these species. 16 U. S. C. §§ 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], 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 modifica- . tion of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” 16 U. S. C. § 1536(a)(2).

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf of the Secretary of the Interior, and the Secretary of Commerce respectively, promulgated a joint regulation stating that the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed. Reg. 874 (1978). The next year, however, the Interior Department began to reexamine its position. Letter from Leo Kuliz, Solicitor, Department of the Interior, to Assistant Secretary, Fish and Wildlife and Parks, Aug. 8, 1979. A revised joint regulation, reinterpret*559ing § 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, was proposed in 1983, 48 Fed. Reg. 29990, and promulgated in 1986, 61 Fed. Reg. 19926; 50 CFR 402.01 (1991).

Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmental causes, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the new regulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary to promulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary’s motion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F. Supp. 43, 47-48 (Minn. 1987). The Court of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F. 2d 1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondents moved for summary judgment on the merits. The District Court denied the Secretary’s motion, on the ground that the Eighth Circuit had already determined the standing question in this case; it granted respondents’ merits motion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F. Supp. 1082 (Minn. 1989). The Eighth Circuit affirmed. 911 F. 2d 117 (1990). We granted certiorari, 500 U. S. 915 (1991).

While the Constitution of the United States divides all power conferred upon the Federal Government into “legislative Powers,” Art. I, § 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. Ill, § 1, it does not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and “Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute can bear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s central mechanism of separation of powers de*560pends largely upon common understanding of what activities are appropriate to legislatures, to executives, and to courts. In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety in legislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislative sphere,” whereas “the executive power [is] restrained within a narrower compass and . . . more simple in its nature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No. 48, p. 256 (Carey and McClellan eds. 1990). One of those landmarks, setting apart the “Cases” and “Controversies” that are of the justiciable sort referred to in Article III — “serving] to identify those disputes which are appropriately resolved through the judicial process,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — is the doctrine of standing. Though some of its elements express merely prudential considerations that are part of judicial self-government, the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III. See, e. g., Allen v. Wright, 468 U. S. 737, 751 (1984).

Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U. S. 490, 508 (1975); Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972);1 and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’” Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U. S. 95, 102 (1983)). Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not. .. th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. Welfare *561Rights Organization, 426 U. S. 26, 41-42 (1976). Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43.

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U. S. 215, 231 (1990); Warth, supra, at 508. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i. e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujan v. National Wildlife Federation, 497 U. S. 871, 883-889 (1990); Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 114-115, and n. 31 (1979); Simon, supra, at 45, n. 25; Warth, supra, at 527, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific facts that are necessary to support the claim.” National Wildlife Federation, supra, at 889. In response to a summary judgment motion, however, the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” Fed. Rule Civ. Proc. 56(e), which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.” Gladstone, supra, at 115, n. 31.

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has *562caused him injury, and that a judgment preventing or requiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction — and perhaps on the response of others as well. The existence of one or more of the essential elements of standing “depends on the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict,” ASARCO Inc. v. Kadish, 490 U. S. 605, 615 (1989) (opinion of Kennedy, J.); see also Simon, supra, at 41-42; and it becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury. E. g., Warth, supra, at 505. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen, supra, at 758; Simon, supra, at 44-45; Warth, supra, at 505.

Ill

We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion for summary judgment. Respondents had not made the requisite demonstration of (at least) injury and redressability.

Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad “increases] the rate of extinction of endangered and threatened species.” Complaint ¶ 5, App. 13. Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of *563standing. See, e. g., Sierra Club v. Morton, 405 U. S., at 734. “But the ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Id., at 734-735. To survive the Secretary’s summary judgment motion, respondents had to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened by funded activities abroad, but also that one or more of respondents’ members would thereby be “directly” affected apart from their “ ‘special interest’ in th[e] subject.” Id., at 735, 739. See generally Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 343 (1977).

With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’ members— Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed the traditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe the crocodile directly,” and that she “will suffer harm in fact as the result of [the] American ... role ... in overseeing the rehabilitation of the Aswan High Dam on the Nile . . . and [in] developing] . . . Egypt’s . . . Master Water Plan.” App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of “endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli project funded by the Agency for International Development (AID), although she “was unable to see any of the endangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened, and endemic species habitat including areas that I visited . . . [, which] may severely shorten the future of these species”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future and hope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” Id., at 145-146. When Ms. Skilbred was asked *564at a subsequent deposition if and when she had any plans to return to Sri Lanka, she reiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know [when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” Id., at 318.

We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species — though that is questionable. They plainly contain no facts, however, showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That the women “had visited” the areas of the projects before the projects commenced proves nothing. As we have said in a related context, “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief... if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 461 U. S., at 102 (quoting O’Shea v. Littleton, 414 U. S. 488, 495-496 (1974)). And the affiants’ profession of an “inten[t]” to return to the places they had visited before — where they will presumably, this time, be deprived of the opportunity to observe animals of the endangered species — is simply not enough. Such “some day” intentions — without any description of concrete plans, or indeed even any specification of when the some day will be — do not support a finding of the “actual or imminent” injury that our cases require. See supra, at 560.2

*565Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standing theories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a “contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located a great distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinion in National Wildlife Federation, which held that a plaintiff claiming injury from environmental dam*566age must use the area affected by the challenged activity and not an area roughly “in the vicinity” of it. 497 U. S., at 887-889; see also Sierra Club, 405 U. S., at 735. It makes no difference that the general-purpose section of the ESA states that the Act was intended in part “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,” 16 U. S. C. § 1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights of action in persons who have not been injured in fact, that is, persons who use portions of an ecosystem not perceptibly affected by the unlawful action in question.

Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocational nexus” approach, under which anyone with a professional interest in such animals can sue. Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 688 (1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It is clear that the person who observes or works with a particular animal threatened by a federal decision is facing perceptible harm, since the very subject of his interest will no longer exist. It is even plausible — though it goes to the outermost limit of plausibility — to think that a person who observes or works with animals of a particular species in the very area of the world where that species is threatened by a federal decision is facing such harm, since some animals that *567might have been the subject of his interest will no longer exist, see Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 281, n. 4 (1986). It goes beyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.3

*568B

Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking the separate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge a more generalized level of Government action (rules regarding consultation), the invalidation of which would affect all overseas projects. This programmatic approach has obvious practical advantages, but also obvious difficulties insofar as proof of causation or redressability is concerned. As we have said in another context, “suits challenging, not specifically identifiable Government violations of law, but the particular programs agencies establish to carry out their legal obligations . . . [are], even when premised on allegations of several instances of violations of law,... rarely if ever appropriate for federal-court adjudication.” Allen, 468 U. S., at 759-760.

The most obvious problem in the present case is redress-ability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents’ alleged injury unless the funding agencies were bound by the Secretary’s regulation, which is very much an open question. Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority, see, e. g., 16 U. S. C. § 1533(a)(1) (“The Secretary shall” promulgate regulations determining endangered species); § 1535(d)(1) (“The Secretary is authorized to provide financial assistance to any State”), with respect to consultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lies with *569the agencies, see § 1536(a)(2) (“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any” funded action is not likely to jeopardize endangered or threatened species) (emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies, see 51 Fed. Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here, and the agencies themselves apparently deny the Secretary’s authority. (During the period when the Secretary took the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whether consultation was required with respect to the Mahaweli project, AID insisting that consultation applied only to domestic actions.)

Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because the District Court itself could resolve the issue of the Secretary’s authority as a necessary part of its standing inquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a threshold standing inquiry, resolution by the District Court would not have remedied respondents’ alleged injury anyway, because it would not have been binding upon the agencies. They were not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.4 The *570Court of Appeals tried to finesse this problem by simply proclaiming that “[w]e are satisfied that an injunction requiring the Secretary to publish [respondents’ desired] regulatio[n] . . . would result in consultation.” Defenders of Wildlife, 851 F. 2d, at 1042, 1043-1044. We do not know what would justify that confidence, particularly when the Justice Department (presumably after consultation with the agencies) has taken the position that the regulation is not binding.5 The *571short of the matter is that redress of the only injury in fact respondents complain of requires action (termination of funding until consultation) by the individual funding agencies; and any relief the District Court could have provided in this suit against the Secretary was not likely to produce that action.

A further impediment to redressability is the fact that the agencies generally supply only a fraction of the funding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweli project. Respondents have produced nothing to indicate that the projects they have named will either be suspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U. S., at 43-44, it is entirely conjectural whether the non-agency activity that affects respondents will be altered or affected by the agency activity they seek to achieve.6 There is no standing.

The Court of Appeals found that respondents had standing for an additional reason: because they had suffered a “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “any person may com-*572menee a civil suit on his own behalf (A) 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.” 16 U. S. C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, the citizen-suit provision creates a “procedural righ[t]” to consultation in all “persons” — so that anyone can file suit in federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedly correct consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing from that failure. 911 F. 2d, at 121-122. To understand the remarkable nature of this holding one must be clear about what it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs (e. g., the procedural requirement for a hearing prior to denial of their license application, or the procedural requirement for an environmental impact statement before a federal facility is constructed next door to them).7 Nor is it simply a case where concrete injury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the *573unusual case in which Congress has created a concrete private interest in the outcome of a suit against a private party for the Government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that the injury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject this view.8

We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that *574no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy. For example, in Fairchild v. Hughes, 258 U. S. 126, 129-130 (1922), we dismissed a suit challenging the propriety of the process by which the Nineteenth Amendment was ratified. Justice Brandéis wrote for the Court:

“[This is] not a case within the meaning of . . . Article III ... . Plaintiff has [asserted] only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit. . . .” Ibid.

In Massachusetts v. Mellon, 262 U. S. 447 (1923), we dismissed for lack of Article III standing a taxpayer suit challenging the propriety of certain federal expenditures. We said:

“The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have no such case.... [T]heir complaint... is merely that officials of the executive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and coequal department, an authority which plainly we do not possess.” Id., at 488-489.

In Ex parte Lévitt, 302 U. S. 633 (1937), we dismissed a suit contending that Justice Black’s appointment to this Court violated the Ineligibility Clause, Art. I, §6, cl. 2. *575“It is an established principle,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U. S., at 634. See also Doremus v. Board of Ed. of Hawthorne, 342 U. S. 429, 433-434 (1952) (dismissing taxpayer action on the basis of Mellon).

More recent cases are to the same effect. In United States v. Richardson, 418 U. S. 166 (1974), we dismissed for lack of standing a taxpayer suit challenging the Government’s failure to disclose the expenditures of the Central Intelligence Agency, in alleged violation of the constitutional requirement, Art. I, § 9, cl. 7, that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” We held that such a suit rested upon an impermissible “generalized grievance,” and was inconsistent with “the framework of Article III” because “the impact on [plaintiff] is plainly undifferentiated and ‘common to all members of the public.’ ” Richardson, supra, at 171, 176-177. And in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we dismissed for the same reasons a citizen-taxpayer suit contending that it was a violation of the Incompatibility Clause, Art. I, §6, cl. 2, for Members of Congress to hold commissions in the military Reserves. We said that the challenged action, “standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance . . . . We reaffirm Lévitt in holding that standing to sue may not be predicated upon an interest of th[is] kind . . . .” Schlesinger, supra, at 217, 220. Since Schlesinger we have on two occasions held that an injury amounting only to the alleged violation of a right to have, the Government act in accordance with law was not judicially cognizable because *576“‘assertion of a right to a particular kind of Government conduct, which the Government has violated by acting differently, cannot alone satisfy the requirements of Art. Ill without draining those requirements of meaning.’” Allen, 468 U. S., at 754; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 483 (1982). And only two Terms ago, we rejected the notion that Article III permits a citizen suit to prevent a condemned criminal’s execution on the basis of “ ‘the public interest protections of the Eighth Amendment’ once again, “[t]his allegation raise[d] only the ‘generalized interest of all citizens in constitutional governance’... and [was] an inadequate basis on which to grant... standing.” Whitmore, 495 U. S., at 160.

To be sure, our generalized-grievance cases have typically involved Government violation of procedures assertedly ordained by the Constitution rather than the Congress. But there is absolutely no basis for making the Article III inquiry turn on the source of the asserted right. Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch — one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches. “The province of the court,” as Chief Justice Marshall said in Marbury v. Madison, 1 Cranch 137, 170 (1803), “is, solely, to decide on the rights of individuals.” Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive. The question presented here is whether the public interest in proper administration of the laws (specifically, in agencies’ observance of a particular, statutorily prescribed procedure) can be converted into an individual right by a statute that denominates it as such, and *577that permits all citizens (or, for that matter, a subclass of citizens who suffer no distinctive concrete harm) to sue. If the concrete injury requirement has the separation-of-powers significance we have always said, the answer must be obvious: To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” Massachusetts v. Mellon, 262 U. S., at 489, and to become “ ‘virtually continuing monitors of the wisdom and soundness of Executive action.’” Allen, supra, at 760 (quoting Laird v. Tatum, 408 U. S. 1, 15 (1972)). We have always rejected that vision of our role:

“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers.... This is very far from assuming that the courts are charged more than administrators or legislators with the protection of the rights of the people. Congress and the Executive supervise the acts of administrative agents. . . . But under Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power.” Stark v. Wickard, 321 U. S. 288, 309-310 (1944) (footnote omitted).

*578“Individual rights,” within the meaning of this passage, do not mean public rights that have been legislatively-pronounced to belong to each individual who forms part of the public. See also Sierra Club, 405 U. S., at 740-741, n. 16.

Nothing in this contradicts the principle that “[t]he . . . injury required by Art. Ill may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.’ ” Warth, 422 U. S., at 500 (quoting Linda R. S. v. Richard D., 410 U. S. 614, 617, n. 3 (1973)). Both of the cases used by Linda R. S. as an illustration of that principle involved Congress’ elevating to the status of legally cognizable injuries concrete, defacto injuries that were previously inadequate in law (namely, injury to an individual’s personal interest in living in a racially integrated community, see Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205, 208-212 (1972), and injury to a company’s interest in marketing its product free from competition, see Hardin v. Kentucky Utilities Co., 390 U. S. 1, 6 (1968)). As we said in Sierra Club, “[Statutory] broadening [of] the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U. S., at 738. Whether or not the principle set forth in Warth can be extended beyond that distinction, it is clear that in suits against the Government, at least, the concrete injury requirement must remain.

* * *

We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denying the summary judgment motion filed by the United States. The opinion of the Court of Appeals is hereby reversed, and the cause is remanded for proceedings consistent with this opinion.

It is so ordered.

By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.

The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least imminent, but it contends that respondents could get past summary judgment because “a reasonable finder of fact could conclude ... that... Kelly or Skilbred will soon return to the project sites.” Post, at 691. This analysis suffers either from a factual or from a legal defect, depending on what the “soon” is supposed to mean. If “soon” refers to the standard mandated by our precedents— that the injury be “imminent,” Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) — we are at a loss to see how, as a factual matter, the standard can be met by respondents’ mere profession of an intent, some day, to *565return. But if, as we suspect, “soon” means nothing more than “in this lifetime,” then the dissent has undertaken quite a departure from our precedents. Although “imminence” is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes — that the injury is “ ‘ “certainly impending,” ’ ” id, at 168 (emphasis added). It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiff’s own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. See, e. g., id,., at 156-160; Los Angeles v. Lyons, 461 U. S. 95, 102-106 (1983).

There is no substance to the dissent’s suggestion that imminence is demanded only when the alleged harm depends upon “the affirmative actions of third parties beyond a plaintiff’s control,” post, at 592. Our cases mention third-party-caused contingency, naturally enough; but they also mention the plaintiff’s failure to show that he will soon expose himself to the injury, see, e. g., Lyons, supra, at 105-106; O’Shea v. Littleton, 414 U. S. 488, 497 (1974); Ashcroft v. Mattis, 431 U. S. 171, 172-173, n. 2 (1977) (per curiam). And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while presuming that the plaintiff himself will do so.

Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, “demand . . . detailed descriptions” of damages, such as a “nightly schedule of attempted activities” from plaintiffs alleging loss of consortium. Post, at 593. That case and the others posited by the dissent all involve actual harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established.

The dissent embraces each of respondents’ “nexus” theories, rejecting this portion of our analysis because it is “unable to see how the distant location of the destruction necessarily (for purposes of ruling at summary judgment) mitigates the harm” to the plaintiff. Post, at 694-595. But summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U. S. 317, 322 (1986). Respondents had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to their members was, as our cases require, “certainly impending.” The dissent may be correct that the geographic remoteness of those members (here in the United States) from Sri Lanka and Aswan does not “necessarily” prevent such a finding — but it assuredly does so when no further facts have been brought forward (and respondents have produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. The dissent’s position to the contrary reduces to the notion that distance never prevents harm, a proposition we categorically reject. It cannot be that a person with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Were that the case, the plaintiff in Sierra Club, for example, could have avoided the necessity of establishing anyone’s use of Mineral King by merely identifying one of its members interested in an endangered species of flora or fauna at that location. Justice Blackmun’s accusation that a special rule is being crafted for “environmental claims,” post, at 595, is correct, but he is the craftsman.

Justice Stevens, by contrast, would allow standing on an apparent “animal nexus” theory to all plaintiffs whose interest in the animals is “genuine.” Such plaintiffs, we are told, do not have to visit the animals because the animals are analogous to family members. Post, at 583-584, and n. 2. We decliné to join Justice Stevens in this Linnaean leap. It is unclear to us what constitutes a “genuine” interest; how it differs from *568a “nongenuine” interest (which nonetheless prompted a plaintiff to file suit); and why such an interest in animals should be different from such an interest in anything else that is the subject of a lawsuit.

We need not linger over the dissent’s facially impracticable suggestion, post, at 595-596, that one agency of the Government can acquire the power to direct other agencies by simply claiming that power in its own regulations and in litigation to which the other agencies are not parties. As for the contention that the other agencies will be “collaterally estopped” to challenge our judgment that they are bound by the Secretary of the Interior’s views, because of their participation in this suit, post, at 596-597: Whether or not that is true now, it was assuredly not true when this suit was filed, naming the Secretary alone. “The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.” Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 830 (1989) (empha*570sis added). It cannot be that, by later participating in the suit, the State Department and AID retroactively created a redressability (and hence a jurisdiction) that did not exist at the outset.

The dissent’s rejoinder that redressability was clear at the outset because the Secretary thought the regulation binding on the agencies, post, at 598-599, n. 4, continues to miss the point: The agencies did not agree with the Secretary, nor would they be bound by a district court holding (as to this issue) in the Secretary’s favor. There is no support for the dissent’s novel contention, ibid., that Rule 19 of the Federal Rules of Civil Procedure, governing joinder of indispensable parties, somehow alters our longstanding rule that jurisdiction is to be assessed under the facts existing when the complaint is filed. The redressability element of the Article III standing requirement and the “complete relief” referred to by Rule 19 are not identical. Finally, we reach the dissent’s contention, post, at 599, n. 4, that by refusing to waive our settled rule for purposes of this case we have made “federal subject-matter jurisdiction ... a one-way street running the Executive Branch’s way.” That is so, we are told, because the Executive can dispel jurisdiction where it previously existed (by either conceding the merits or by pointing out that nonparty agencies would not be bound by a ruling), whereas a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct. But any defendant, not just the Government, can dispel jurisdiction by conceding the merits (and presumably thereby suffering a judgment) or by demonstrating standing defects. And permitting a defendant to point out a preexisting standing defect late in the day is not remotely comparable to permitting a plaintiff to establish standing on the basis of the defendant’s litigation conduct occurring after standing is erroneously determined.

Seizing on the fortuity that the case has made its way to this Court, Justice Stevens protests that no agency would ignore “an authoritative construction of the [ESA] by this Court.” Post, at 585. In that he is probably correct; in concluding from it that plaintiffs have demonstrated redressability, he is not. Since, as we have pointed out above, standing *571is to be determined as of the commencement of suit; since at that point it could certainly not be known that the suit would reach this Court; and since it is not likely that an agency would feel compelled to accede to the legal view of a district court expressed in a case to which it was not a party; redressability clearly did not exist.

The dissent criticizes us for “overlooking]” memoranda indicating that the Sri Lankan Government solicited and required AID’s assistance to mitigate the effects of the Mahaweli project on endangered species, and that the Bureau of Reclamation was advising the Aswan project. Post, at 600-601. The memoranda, however, contain no indication whatever that the projects will cease or be less harmful to listed species in the absence of AID funding. In fact, the Sri Lanka memorandum suggests just the opposite: It states that AID’s role will be to mitigate the “ ‘negative impacts to the wildlife,’ ” post, at 600, which means that the termination of AID funding would exacerbate respondents’ claimed injury.

There is this much truth to the assertion that “procedural rights” are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government’s argument that, even if the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents’ “procedural rights” argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected — persons who live (and propose to live) at the other end of the country from the dam.

The dissent’s discussion of this aspect of the case, post, at 601-606, distorts our opinion. We do not hold that an individual cannot enforce procedural rights; he assuredly can, so long as the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing. The dissent, however, asserts that there exist “classes of procedural duties ... so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty.” Post, at 605. If we understand this correctly, it means that the Government’s violation of a certain (undescribed) class of procedural duty satisfies the concrete-injury requirement by itself, without any showing that the procedural violation endangers a concrete interest of the plaintiff (apart from his interest in having the procedure observed). We cannot agree. The dissent is unable to cite a single case in which we actually found standing solely on the basis of a “procedural right” unconnected to the plaintiff’s own concrete harm. Its suggestion that we did so in Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221 (1986), and Robertson v. Methow Valley Citizens Council, 490 U. S. 332 (1989), post, at 602-603, 605, is not supported by the facts. In the former case, we found that the environmental organizations had standing because the “whale watching and studying of their members w[ould] be adversely affected by continued whale harvesting,” see 478 U. S., at 230-231, n. 4; and in the latter we did not so much as mention standing, for the very good reason that the plaintiff was a citizens’ council for the area in which the challenged construction was to occur, so that its members would obviously be concretely affected, see Methow Valley Citizens Council v. Regional Forester, 833 F. 2d 810, 812-813 (CA9 1987).

*579Justice Kennedy,

with whom Justice Souter joins, concurring in part and concurring in the judgment.

Although I agree with the essential' parts of the Court’s analysis, I write separately to make several observations.

I agree with the Court’s conclusion in Part III-A that, on the record before us, respondents have failed to demonstrate that they themselves are “among the injured.” Sierra Club v. Morton, 405 U. S. 727, 735 (1972). This component of the standing inquiry is not satisfied unless

“[plaintiffs ... demonstrate a ‘personal stake in the outcome.’ . . . Abstract injury is not enough. The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Los Angeles v. Lyons, 461 U. S. 95, 101-102 (1983) (citations omitted).

While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sites or announce a date certain upon which they will return, see ante, at 564, this is not a case where it is reasonable to assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, at 735, n. 8, nor do the affiants claim to have visited the sites since the projects commenced. With respect to the Court’s discussion of respondents’ “ecosystem nexus,” “animal nexus,” and “vocational nexus” theories, ante, at 565-567, I agree that on this record respondents’ showing is insufficient to establish standing on any of these bases. I am not willing to foreclose the possibility, however, that in different circumstances a nexus theory similar to those proffered here might support a claim to standing. See Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 231, n. 4 (1986) (“[Rjespondents . . . undoubtedly have alleged a sufficient ‘injury in fact’ in that *580the whale watching and studying of their members will be adversely affected by continued whale harvesting”).

In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient to support standing under our precedents, I would not reach the issue of re-dressability that is discussed by the plurality in Part III-B.

I also join Part IV of the Court’s opinion with the following observations. As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action that do not have clear analogs in our common-law tradition. Modern litigation has progressed far from the paradigm of Marbury suing Madison to get his commission, Marbury v. Madison, 1 Cranch 137 (1803), or Ogden seeking an injunction to halt Gibbons’ steamboat operations, Gibbons v. Ogden, 9 Wheat. 1 (1824). In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view. See Warth v. Seldin, 422 U. S. 490, 500 (1975); ante, at 578. In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provision of the Endangered Species Act does not meet these minimal requirements, because while the statute purports to confer a right on “any person ... to enjoin . . . the United States and any other governmental instrumentality or agency . . . who is alleged to be in violation of any provision of this chapter,” it does not of its own force establish that there is an injury in “any person” by virtue of any “violation.” 16 U. S. C. § 1540(g)(1)(A).

The Court’s holding that there is an outer limit to the power of Congress to confer rights of action is a direct and necessary consequence of the case and controversy limitations found in Article III. I agree that it Would exceed those limitations if, at the behest of Congress and in the ab*581sence of any showing of concrete injury, we were to entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws. While it does not matter how many persons have been injured by the challenged action, the party bringing suit must show that the action injures him in a concrete and personal way. This requirement is not just an empty formality. It preserves the vitality of the adversarial process by assuring both that the parties before the court have an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented... will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). In addition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in the constitutional framework of Government.

An independent judiciary is held to account through its open proceedings and its reasoned judgments. In this process it is essential for the public to know what persons or groups are invoking the judicial power, the reasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injury requirement helps assure that there can be an answer to these questions; and, as the Court’s opinion is careful to show, that is part of the constitutional design.

With these observations, I concur in Parts I, II, III-A, and IV of the Court’s opinion and in the judgment of the Court.

Justice Stevens,

concurring in the judgment.

Because I am not persuaded that Congress intended the consultation requirement in § 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U. S. C. § 1536(a)(2), to apply to activities in foreign countries, I concur in the judgment of reversal. I do not, however, agree with the Court’s conclu*582sion that respondents lack standing because the threatened injury to their interest in protecting the environment and studying endangered species is not “imminent.” Nor do I agree with the plurality’s additional conclusion that respondents’ injury is not “redressable” in this litigation.

In my opinion a person who has visited the critical habitat of an endangered species has a professional interest in preserving the species and its habitat, and intends to revisit them in the future has standing to challenge agency action that threatens their destruction. Congress has found that a wide variety of endangered species of fish, wildlife, and plants are of “aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” 16 U. S. C. § 1531(a)(3). Given that finding, we have no license to demean the importance of the interest that particular individuals may have in observing any species or its habitat, whether those individuals are motivated by esthetic enjoyment, an interest in professional research, or an economic interest in preservation of the species. Indeed, this Court has often held that injuries to such interests are sufficient to confer standing,1 and the Court reiterates that holding today. See ante, at 562-563.

The Court nevertheless concludes that respondents have not suffered “injury in fact” because they have not shown that the harm to the endangered species will produce “imminent” injury to them. See ante, at 564. I disagree. An injury to an individual’s interest in studying or enjoying a species and its natural habitat occurs when someone (whether it be the Government or a private party) takes action that harms that species and habitat. In my judgment, *583therefore, the “imminence” of such an injury should be measured by the timing and likelihood of the threatened environmental harm, rather than — as the Court seems to suggest, ante, at 564, and n. 2 — by the time that might elapse between the present and the time when the individuals would visit the area if no such injury should occur.

To understand why this approach is correct and consistent with our precedent, it is necessary to consider the purpose of the standing doctrine. Concerned about “the proper— and properly limited — role of the courts in a democratic society,” we have long held that “Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party.” Warth v. Seldin, 422 U. S. 490, 498-499 (1975)., The plaintiff must have a “personal stake in the outcome” sufficient to “assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult . . . questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). For that reason, “[a]bstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged statute or official conduct... . The injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural,’ or ‘hypothetical.’ ” O'Shea v. Littleton, 414 U. S. 488, 494 (1974) (quoting Golden v. Zwickler, 394 U. S. 103, 109-110 (1969)).

Consequently, we have denied standing to plaintiffs whose likelihood of suffering any concrete adverse effect from the challenged action was speculative. See, e. g., Whitmore v. Arkansas, 495 U. S. 149, 158-159 (1990); Los Angeles v. Lyons, 461 U. S. 95, 105 (1983); O’Shea, 414 U. S., at 497. In this case, however, the likelihood that respondents will be injured by the destruction of the endangered species is not speculative. If respondents are genuinely interested in the preservation of the endangered species and intend to study or observe these animals in the future, their injury will occur as soon as the animals are destroyed. Thus the only poten*584tial source of “speculation” in this case is whether respondents’ intent to study or observe the animals is genuine.2 In my view, Joyce Kelly and Amy Skilbred have introduced sufficient evidence to negate petitioner’s contention that their claims of injury are “speculative” or “conjectural.” As Justice Blackmun explains, post, at 591-592, a reasonable finder of fact could conclude, from their past visits, their professional backgrounds, and their affidavits and deposition testimony, that Ms. Kelly and Ms. Skilbred will return to the project sites and, consequently, will be injured by the destruction of the endangered species and critical habitat.

The plurality also concludes that respondents’ injuries are not redressable in this litigation for two reasons. First, respondents have sought only a declaratory judgment that the Secretary of the Interior’s regulation interpreting § 7(a)(2) to require consultation only for agency actions in the United States or on the high seas is invalid and an injunction requiring him to promulgate a new regulation requiring consultation for agency actions abroad as well. But, the plurality opines, even if respondents succeed and a new regulation is *585promulgated, there is no guarantee that federal agencies that are not parties to this case will actually consult with the Secretary. See ante, at 568-571. Furthermore, the plurality continues, respondents have not demonstrated that federal agencies can influence the behavior of the foreign governments where the affected projects are located. Thus, even if the agencies consult with the Secretary and terminate funding for foreign projects, the foreign governments might nonetheless pursue the projects and jeopardize the endangered species. See ante, at 571. Neither of these reasons is persuasive.

We must presume that if this Court holds that § 7(a)(2) requires consultation, all affected agencies would abide by that interpretation and engage in the requisite consultations. Certainly the Executive Branch cannot be heard to argue that an authoritative construction of the governing statute by this Court may simply be ignored by any agency head. Moreover, if Congress has required consultation between agencies, we must presume that such consultation will have a serious purpose that is likely to produce tangible results. As Justice Blackmun explains, post, at 599-601, it is not mere speculation to think that foreign governments, when faced with the threatened withdrawal of United States assistance, will modify their projects to mitigate the harm to endangered species.

Although I believe that respondents have standing, I nevertheless concur in the judgment of reversal because I am persuaded that the Government is correct in its submission that § 7(a)(2) does not apply to activities in foreign countries. As with all questions of statutory construction, the question whether a statute applies extraterritorially is one of congressional intent. Foley Bros., Inc. v. Filardo, 336 U. S. 281, 284-285 (1949). We normally assume that “Congress is primarily concerned with domestic conditions,” id., at 285, and therefore presume that “‘legislation of Congress, unless a *586contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States,'” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (quoting Foley Bros., 336 U. S., at 285).

Section 7(a)(2) provides, in relevant part:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or Commerce, as appropriate3], insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) 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, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section....” 16 U. S. C. § 1536(a)(2).

Nothing in this text indicates that the section applies in foreign countries.4 Indeed, the only geographic reference in *587the section is in the “critical habitat” clause,5 which mentions “affected States.” The Secretary of the Interior and the Secretary of Commerce have consistently taken the position that they need not designate critical habitat in foreign countries. See 42 Fed. Reg. 4869 (1977) (initial regulations of the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce). Consequently, neither Secretary interprets § 7(a)(2) to require federal agencies to engage in consultations to ensure that their actions in foreign countries will not adversely affect the critical habitat of endangered or threatened species.

That interpretation is sound, and, in fact, the Court of Appeals did not question it.6 There is, moreover, no indication that Congress intended to give a different geographic scope to the two clauses in § 7(a)(2). To the contrary, Congress recognized that one of the “major causes” of extinction of *588endangered species is the “destruction of natural habitat.” S. Rep. No. 93-307, p. 2 (1973); see also H. Rep. No. 93-412, p. 2 (1973); TVA v. Hill, 437 U. S. 153, 179 (1978). It would thus be illogical to conclude that Congress required federal agencies to avoid jeopardy to endangered species abroad, but not destruction of critical habitat abroad.

The lack of an express indication that the consultation requirement applies extraterritorially is particularly significant because other sections of the ESA expressly deal with the problem of protecting endangered species abroad. Section 8, for example, authorizes the President to provide assistance to “any foreign country (with its consent)... in the development and management of programs in that country which [are] . . . necessary or useful for the conservation of any endangered species or threatened species listed by the Secretary pursuant to section 1533 of this title.” 16 U. S. C. § 1537(a). It also directs the Secretary of the Interior, “through the Secretary of State,” to “encourage” foreign countries to conserve fish and wildlife and to enter into bilateral or multilateral agreements. § 1537(b). Section 9 makes it unlawful to import endangered species into (or export them from) the United States or to otherwise traffic in endangered species “in interstate or foreign commerce.” §§ 1538(a)(1)(A), (E), (F). Congress thus obviously thought about endangered species abroad and devised specific sections of the ESA to protect them. In this context, the absence of any explicit statement that the consultation requirement is applicable to agency actions in foreign countries suggests that Congress did not intend that § 7(a)(2) apply extraterritorially.

Finally, the general purpose of the ESA does not evince a congressional intent that the consultation requirement be applicable to federal agency actions abroad. The congressional findings explaining the need for the ESA emphasize that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence *589of economic growth and development untempered by adequate concern and conservation,” and that these species “are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” §§ 1531(1), (3) (emphasis added). The lack of similar findings about the harm caused by development in other countries suggests that Congress was primarily concerned with balancing development and conservation goals in this country.7

In short, a reading of the entire statute persuades me that Congress did not intend the consultation requirement in § 7(a)(2) to apply to activities in foreign countries. Accordingly, notwithstanding my disagreement with the Court’s disposition of the standing question, I concur in its judgment.

See, e. g., Sierra Club v. Morton, 405 U. S. 727, 734 (1972); United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U. S. 669, 686-687 (1973); Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221, 230-231, n. 4 (1986).

As we recognized in Sierra Club v. Morton, 405 U. S., at 735, the impact of changes in the esthetics or ecology of a particular area does “not fall indiscriminately upon every citizen. The alleged injury will be felt directly only by those who use [the area,] and for whom the aesthetic and recreational values of the area will be lessened ...Thus, respondents would not be injured by the challenged projects if they had not visited the sites or studied the threatened species and habitat. But, as discussed above, respondents did visit the sites; moreover, they have expressed an intent to do so again. This intent to revisit the area is significant evidence tending to confirm the genuine character of respondents’ interest, but I am not at all sure that an intent to revisit would be indispensable in every case. The interest that confers standing in a case of this kind is comparable, though by no means equivalent, to the interest in a relationship among family members that can be immediately harmed by the death of an absent member, regardless of when, if ever, a family reunion is planned to occur. Thus, if the facts of this case had shown repeated and regular visits by the respondents, cf. ante, at 579 (opinion of Kennedy, J.), proof of an intent to revisit might well be superfluous.

The ESA defines “Secretary” to mean “the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4 of 1970.” 16 U. S. C. § 1632(15). As a general matter, “marine species are under the jurisdiction of the Secretary of Commerce and all other species are under the jurisdiction of the Secretary of the Interior.” 61 Fed. Reg. 19926 (1986) (preamble to final regulations governing interagency consultation promulgated by the Fish and Wildlife Service and the National Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce).

Respondents point out that the duties in § 7(a)(2) are phrased in broad, inclusive language: “Each Federal agency” shall consult with the Secretary and ensure that “any action” does not jeopardize “any endangered or threatened species” or destroy or adversely modify the “habitat of such species.” See Brief for Respondents 36; 16 U. S. C. § 1636(a)(2). The Court of Appeals correctly recognized, however, that such inclusive language, by itself, is not sufficient to overcome the presumption against the *587extraterritorial application of statutes. 911 F. 2d 117, 122 (CA8 1990); see also Foley Bros., Inc. v. Filardo, 336 U. S. 281, 282, 287-288 (1949) (statute requiring an 8-hour day provision in “ ‘[ejvery contract made to which the United States ... is a party’” is inapplicable to contracts for work performed in foreign countries).

Section 7(a)(2) has two clauses which require federal agencies to consult with the Secretary to ensure that their actions (1) do not jeopardize threatened or endangered species (the “endangered species clause”), and (2) are not likely to destroy or adversely affect the habitat of such species (the “critical habitat clause”).

Instead, the Court of Appeals concluded that the endangered species clause and the critical habitat clause are “severable,” at least with respect to their “geographical scope,” so that the former clause applies extraterri-torially even if the latter does not. 911 F. 2d, at 125. Under this interpretation, federal agencies must consult with the Secretary to ensure that their actions in foreign countries are not likely to threaten any endangered species, but they need not consult to ensure that their actions are not likely to destroy the critical habitats of these species. I cannot subscribe to the Court of Appeals’ strained interpretation, for there is no indication that Congress intended to give such vastly different scope to the two clauses in § 7(a)(2).

Of course, Congress also found that “the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to [several international agreements],” and that “encouraging the States ... to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation’s international commitments . . . .” 16 U. S. C. §§ 1531(4), (5). The Court of Appeals read these findings as indicative of a congressional intent to make § 7(a)(2)’s consultation requirement applicable to agency action abroad. See 911 F. 2d, at 122-123. I am not persuaded, however, that such a broad congressional intent can be gleaned from these findings. Instead, I think the findings indicate a more narrow congressional intent that the United States abide by its international commitments.

Justice Blackmun,

with whom Justice O’Connor joins, dissenting..

I part company with the Court in this case in two respects. First, I believe that respondents have raised genuine issues of fact — sufficient to survive summary judgment — both as to injury and as to redressability. Second, I question the Court’s breadth of language in rejecting standing for “procedural” injuries. I fear the Court seeks to impose fresh limitations on the constitutional authority of Congress to allow *590citizen suits in the federal courts for injuries deemed “procedural” in nature. I dissent.

Article III of the Constitution confines the federal courts to adjudication of actual “Cases” and “Controversies.” To ensure the presence of a “case” or “controversy,” this Court has held that Article III requires, as an irreducible minimum, that a plaintiff allege (1) an injury that is (2) “fairly traceable to the defendant’s allegedly unlawful conduct” and that is (3) “likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751 (1984).

To survive petitioner’s motion for summary judgment on standing, respondents need not prove that they are actually or imminently harmed. They need show only a “genuine issue” of material fact as to standing. Fed. Rule Civ. Proc. 56(c). This is not a heavy burden. A “genuine issue” exists so long as “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [respondents].” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986). This Court’s “function is not [it]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id., at 249.

The Court never mentions the “genuine issue” standard. Rather, the Court refers to the type of evidence it feels respondents failed to produce, namely, “affidavits or other evidence showing, through specific facts” the existence of injury. Ante, at 563. The Court thereby confuses respondents’ evidentiary burden- (i. e., affidavits asserting “specific facts”) in withstanding a summary judgment motion under Rule 56(e) with the standard of proof (i. e., the existence of a “genuine issue” of “material fact”) under Rule 56(c).

*5911

Were the Court to apply the proper standard for summary judgment, I believe it would conclude that the sworn affidavits and deposition testimony of Joyce Kelly and Amy Skil-bred advance sufficient facts to create a genuine issue for trial concerning whether one or both would be imminently harmed by the Aswan and Mahaweli projects. In the first instance, as the Court itself concedes, the affidavits contained facts making it at least “questionable” (and therefore within the province of the factfinder) that certain agency-funded projects threaten listed species.1 Ante, at 564. The only remaining issue, then, is whether Kelly and Skilbred have shown that they personally would suffer imminent harm.

I think a reasonable finder of fact could conclude from the information in the affidavits and deposition testimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual or imminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general state*592ments that they intended to revisit the project sites as “simply not enough.” Ibid. But those statements did not stand alone. A reasonable finder of fact could conclude, based not only upon their statements of intent to return, but upon their past visits to the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred would make a return trip to the project areas. Contrary to the Court’s contention that Kelly’s and Skilbred’s past visits “prov[e] nothing,” ibid., the fact of their past visits could demonstrate to a reasonable factfinder that Kelly and Skil-bred have the requisite resources and personal interest in the preservation of the species endangered by the Aswan and Mahaweli projects to make good on their intention to return again. Cf. Los Angeles v. Lyons, 461 U. S. 95, 102 (1983) (“Past wrongs were evidence bearing on whether there is a real and immediate threat of repeated injury”) (internal quotation marks omitted). Similarly, Kelly’s and Skilbred’s professional backgrounds in wildlife preservation, see App. 100, 144, 309-310, also make it likely — at least far more likely than for the average citizen — that they would choose to visit these areas of the world where species are vanishing.

By requiring a “description of concrete plans” or “specification of when the some day [for a return visit] will be,” ante, at 564, the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly or Skilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differs from other cases in which the imminence of harm turned largely on the affirmative actions of third parties beyond a plaintiff’s control. See Whitmore v. Arkansas, 495 U. S. 149, 155-156 (1990) (harm to plaintiff death-row inmate from fellow inmate’s execution depended on the court’s one day reversing plaintiff’s conviction or sentence and considering comparable sentences at resentencing); Los Angeles v. Lyons, 461 U. S., at 105 (harm dependent on police’s arresting plaintiff again *593and subjecting him to chokehold); Rizzo v. Goode, 423 U. S. 362, 372 (1976) (harm rested upon “what one of a small, unnamed minority of policemen might do to them in the future because of that unknown policeman’s perception of departmental disciplinary procedures”); O’Shea v. Littleton, 414 U. S. 488, 495-498 (1974) (harm from discriminatory conduct of county magistrate and judge dependent on plaintiffs’ being arrested, tried, convicted, and sentenced); Golden v. Zwickler, 394 U. S. 103, 109 (1969) (harm to plaintiff dependent on a former Congressman’s (then serving a 14-year term as a judge) running again for Congress). To be sure, a plaintiff’s unilateral control over his or her exposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder of fact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity to hear testimony and determine credibility.

I fear the Court’s demand for detailed descriptions of future conduct will do little to weed out those who are genuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federal court summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more and more particularized showings of future harm. Just to survive summary judgment, for example, a property owner claiming a decline in the value of his property from governmental action might have to specify the exact date he intends to sell his property and show that there is a market for the property, lest it be surmised he might not sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on what date she was prepared to start work, that she had arranged daycare for her child, and that she would not have accepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortium should make sure to furnish this Court with a “description of concrete plans” for her nightly schedule of attempted activities.

*5942

The Court also concludes that injury is lacking, because respondents’ allegations of “ecosystem nexus” failed to demonstrate sufficient proximity to the site of the environmental harm. Ante, at 565-566. To support that conclusion, the Court mischaracterizes our decision in Lujan v. National Wildlife Federation, 497 U. S. 871 (1990), as establishing a general rule that “a plaintiff claiming injury from environmental damage must use the area affected by the challenged activity.” Ante, at 565-566. In National Wildlife Federation, the Court required specific geographical proximity because of the particular type of harm alleged in that case: harm to the plaintiff’s visual enjoyment of nature from mining activities. 497 U. S., at 888. One cannot suffer from the sight of a ruined landscape without being close enough to see the sites actually being mined. Many environmental injuries, however, cause harm distant from the area immediately affected by the challenged action. Environmental destruction may affect animals traveling over vast geographical ranges, see, e. g., Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 (1986) (harm to American whale watchers from Japanese whaling activities), or rivers running long geographical courses, see, e. g., Arkansas v. Oklahoma, 503 U. S. 91 (1992) (harm to Oklahoma residents from wastewater treatment plant 39 miles from border). It cannot seriously be contended that a litigant’s failure to use the precise or exact site where animals are slaughtered or where toxic waste is dumped into a river means he or she cannot show injury.

The Court also rejects respondents’ claim of vocational or professional injury. The Court says that it is “beyond all reason” that a zoo “keeper” of Asian elephants would have standing to contest his Government’s participation in the eradication of all the Asian elephants in another part of the world. Ante, at 566. I am unable to see how the distant location of the destruction necessarily (for purposes of ruling *595at summary judgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animal that sustains a keeper’s livelihood, surely there is harm.

1 have difficulty imagining this Court applying its rigid principles of geographic formalism anywhere outside the context of environmental claims. As I understand it, environmental plaintiffs are under no special constitutional standing disabilities. Like other plaintiffs, they need show only that the action they challenge has injured them, without necessarily showing they happened to be physically near the location of the alleged wrong. The Court’s decision today should not be interpreted “to foreclose the possibility . . . that in different circumstances a nexus theory similar to those proffered here might support a claim to standing.” Ante, at 579 (Kennedy, J., concurring in part and concurring in judgment).

A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that a court ruling in their favor would remedy their injury. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 74-75, and n. 20 (1978) (plaintiff must show “substantial likelihood” that relief requested will redress the injury). The plurality identifies two obstacles. The first is that the “action agencies” (e. g., AID) cannot be required to undertake consultation with petitioner Secretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound by being subject to petitioner Secretary’s regulation. Petitioner, however, officially and publicly has taken the position that his regulations regarding consultation under § 7 of the Act are binding on action agencies. 50 CFR § 402.14(a) (1991).2 And he has previously *596taken the same position in this very litigation, having stated in his answer to the complaint that petitioner “admits the Fish and Wildlife Service (FWS) was designated the lead agency for the formulation of regulations concerning section 7 of the [Endangered Species Act].” App. 246. I cannot agree with the plurality that the Secretary (or the Solicitor General) is now free, for the convenience of this appeal, to disavow his prior public and litigation positions. More generally, I cannot agree that the Government is free to play “Three-Card Monte” with its description of agencies’ authority to defeat standing against the agency given the lead in administering a statutory scheme.

Emphasizing that none of the action agencies are parties to this suit (and having rejected the possibility of their being indirectly bound by petitioner’s regulation), the plurality concludes that “there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Ante, at 569. I am not as willing as the plurality is to assume that agencies at least will not try to follow the law. Moreover, I wonder if the plurality has not overlooked the extensive involvement from the inception of this litigation by the Department of State and AID.3 Under *597principles of collateral estoppel, these agencies are precluded from subsequently relitigating the issues decided in this suit.

“[0]ne who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own, and who does this openly to the knowledge of the opposing party, is as much bound by the judgment and as fully entitled to avail himself of it as an estoppel against an adverse party, as he would be if he had been a party to the record.” Souffront v. Compagnie des Sucreries de Porto Rico, 217 U. S. 475, 487 (1910).

This principle applies even to the Federal Government. In Montana v. United States, 440 U. S. 147 (1979), this Court held that the Government was estopped from relitigating in federal court the constitutionality of Montana’s gross receipts tax, because that issue previously had been litigated in state court by an individual contractor whose litigation had been financed and controlled by the Federal Government. “Thus, although not a party, the United States plainly had a sufficient ‘laboring oar’ in the conduct of the state-court litigation to actuate principles of estoppel.” Id., at 155. See also United States v. Mendoza, 464 U. S. 154, 164, n. 9 (1984) (Federal Government estopped where it “constituted a ‘party’ in all but a technical sense”). In my view, the action agencies have had sufficient “laboring oars” in this litigation since its inception to be bound from subsequent *598relitigation of the extraterritorial scope of the § 7 consultation requirement.4 As a result, I believe respondents’ injury would likely be redressed by a favorable decision.

*599The second redressability obstacle relied on by the plurality is that “the [action] agencies generally supply only a fraction of the funding for a foreign project.” Ante, at 571. What this Court might “generally” take to be true does not eliminate the existence of a genuine issue of fact to withstand summary judgment. Even if the action agencies supply only a fraction of the funding for a particular foreign project, it remains at least a question for the finder of fact whether threatened withdrawal of that fraction would affect foreign government conduct sufficiently to avoid harm to listed species.

The plurality states that “AID, for example, has provided less than 10% of the funding for the Mahaweli project.” Ibid. The plurality neglects to mention that this “fraction” amounts to $170 million, see App. 159, not so paltry a sum for a country of only 16 million people with a gross national product of less than $6 billion in 1986 when respondents filed *600the complaint in this action. Federal Research Division, Library of Congress, Sri Lanka: A Country Study (Area Handbook Series) xvi-xvii (1990).

The plurality flatly states: “Respondents have produced nothing to indicate that the projects they have named will ... do less harm to listed species, if that fraction is eliminated.” Ante, at 571. As an initial matter, the relevant inquiry is not, as the plurality suggests, what will happen if AID or other agencies stop funding projects, but what will happen if AID or other agencies comply with the consultation requirement for projects abroad. Respondents filed suit to require consultation, not a termination of funding. Respondents have raised at least a genuine issue of fact that the projects harm endangered species and that the actions of AID and other United States agencies can mitigate that harm.

The plurality overlooks an Interior Department memorandum listing eight endangered or threatened species in the Mahaweli project area and recounting that “[t]he Sri Lankan government has requested the assistance of AID in mitigating the negative impacts to the wildlife involved.” App. 78. Further, a letter from the Director of the Fish and Wildlife Service to AID states:

“The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife. The donor nations and agencies that are financing the [Mahaweli project] will be the key as to how successfully the wildlife is preserved. If wildlife problems receive the same level of attention as the engineering project, then the negative impacts to the environment can be alleviated. This means that there has to be long-term funding in sufficient amounts to stem the negative impacts of this project.” Id., at 216.

*601I do not share the plurality’s astonishing confidence that, on the record here, a factfinder could only conclude that AID was powerless to ensure the protection of listed species at the Mahaweli project.

As for the Aswan project, the record again rebuts the plurality’s assumption that donor agencies are without any authority to protect listed species. Kelly asserted in her affidavit — and it has not been disputed — that the Bureau of Reclamation was “overseeing” the rehabilitation of the Aswan project. Id., at 101. See also id., at 65 (Bureau of Reclamation publication stating: “In 1982, the Egyptian government . . . requested that Reclamation serve as its engineering advisor for the nine-year [Aswan] rehabilitation project”).

I find myself unable to agree with the plurality’s analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions about what the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as to whether their injury would likely be redressed by a decision in their favor.

The Court concludes that any “procedural injury” suffered by respondents is insufficient to confer standing. It rejects the view that the “injury-in-fact requirement [is] satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required by law.” Ante, at 573. Whatever the Court might mean with that very broad language, it cannot be saying that “procedural injuries” as a class are necessarily insufficient for purposes of Article III standing.

Most governmental conduct can be classified as “procedural.” Many injuries caused by governmental conduct, therefore, are categorizable at some level of generality as *602“procedural” injuries. Yet, these injuries are not categorically beyond the pale of redress by the federal courts. When the Government, for example, “procedurally” issues a pollution permit, those affected by the permittee’s pollutants are not without standing to sue. Only later cases will tell just what the Court means by its intimation that “procedural” injuries are not constitutionally cognizable injuries. In the meantime, I have the greatest of sympathy for the courts across the country that will struggle to understand the Court’s standardless exposition of this concept today.

The Court -expresses concern that allowing judicial enforcement of “agencies’ observance of a particular, statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 8.” Ante, at 576, 577. In fact, the principal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of the Executive at the expense — not of the courts — but of Congress, from which that power originates and emanates.

Under the Court’s anachronistically formal view of the separation of powers, Congress legislates pure, substantive mandates and has no business structuring the procedural manner in which the Executive implements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-white terms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. In complex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, it sets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials to follow certain procedures, for example, in the form of reporting, consultation, and certification requirements.

The Court recently has considered two such procedurally oriented statutes. In Japan Whaling Assn. v. American Cetacean Society, 478 U. S. 221 (1986), the Court examined a *603statute requiring the Secretary of Commerce to certify to the President that foreign nations were not conducting fishing operations or trading which “diminis[h] the effectiveness” of an international whaling convention. Id., at 226. The Court expressly found standing to sue. Id., at 230-231, n. 4. In Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 348 (1989), this Court considered injury from violation of the “action-forcing” procedures of the National Environmental Policy Act (NEPA), in particular the requirements for issuance of environmental impact statements.

The consultation requirement of §7 of the Endangered Species Act is a similar, action-forcing statute. Consultation is designed as an integral check on federal agency action, ensuring that such action does not go forward without full consideration of its effects on listed species. Once consultation is initiated, the Secretary is under a duty to provide to the action agency “a written statement setting forth the Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat.” 16 U. S. C. § 1536(b)(3)(A). The Secretary is also obligated to suggest “reasonable and prudent alternatives” to prevent jeopardy to listed species. Ibid. The action agency must undertake as well its own “biological assessment for the purpose of identifying any endangered species or threatened species” likely to be affected by agency action. § 1536(c)(1). After the initiation of consultation, the action agency “shall not make any irreversible or irretrievable commitment of resources” which would foreclose the “formulation or implementation of any reasonable and prudent alternative measures” to avoid jeopardizing listed species. § 1536(d). These action-forcing procedures are “designed to protect some threatened concrete interest,” ante, at 573, n. 8, of persons who observe and work with endangered or threatened species. That is why I am mystified by the Court’s unsupported conclusion that “[tjhis is not a case where plaintiffs *604are seeking to enforce a procedural requirement the disregard of which could impair a separate concrete interest of theirs.” Ante, at 572.

Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximum Executive discretion in the attainment of Congress’ legislative goals. Congress could simply impose a substantive prohibition on Executive conduct; it could say that no agency action shall result in the loss of more than 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive, within certain procedural constraints, to decide how best to effectuate the ultimate goal. See American Power & Light Co. v. SEC, 329 U. S. 90, 105 (1946). The Court never has questioned Congress’ authority to impose such procedural constraints on Executive power. Just as Congress does not violate separation of powers by structuring the procedural manner in which the Executive shall carry out the laws, surely the federal courts do not violate separation of powers when, at the very instruction and command of Congress, they enforce these procedures.

To prevent Congress from conferring standing for “procedural injuries” is another way of saying that Congress may not delegate to the courts authority deemed “executive” in nature. Ante, at 577 (Congress may not “transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, §3”). Here Congress seeks not to delegate “executive” power but only to strengthen the procedures it has legislatively mandated. “We have long recognized that the nondelegation doctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches.” Touby v. United States, 500 U. S. 160, 165 (1991). “Congress does not violate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.” Ibid. (emphasis added).

*605Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executive on grounds that Congress, in turn, has subjected the exercise of that power to judicial review. INS v. Chadha, 462 U. S. 919, 953-954, n. 16 (1983); American Power & Light Co. v. SEC, 329 U. S., at 105-106. The Court’s intimation today that procedural injuries are not constitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In no sense is the Court’s suggestion compelled by our “common understanding of what activities are appropriate to legislatures, to executives, and to courts.” Ante, at 560. In my view, it reflects an unseemly solicitude for an expansion of power of the Executive Branch.

It is to be hoped that over time the Court will acknowledge that some classes of procedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individual plaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that procedural duty. For example, in the context of the NEPA requirement of environmental-impact statements, this Court has acknowledged “it is now well settled that NEPA itself does not mandate particular results [and] simply prescribes the necessary process,” but “these procedures are almost certain to affect the agency’s substantive decision.” Robertson v. Methow Valley Citizens Council, 490 U. S., at 350 (emphasis added). See also Andrus v. Sierra Club, 442 U. S. 347, 350-351 (1979) (“If environmental concerns are not interwoven into the fabric of agency planning, the ‘action-forcing’ characteristics of [the environmental-impact statement requirement] would be lost”). This acknowledgment of an inextricable link between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothing more than the proper deference owed to the judgment of a coordinate branch — Congress—that certain procedures are directly tied to protection against a substantive harm.

*606In short, determining “injury” for Article III standing purposes is a fact-specific inquiry. “Typically ... the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U. S., at 752. There may be factual circumstances in which a congressionally imposed procedural requirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said to work any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantial deference to Congress’ substantive purpose in imposing a certain procedural requirement. In all events, “[o]ur separation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to ‘procedural.’” Mistretta v. United States, 488 U. S. 361, 393 (1989). There is no room for a per se rule or presumption excluding injuries labeled “procedural” in nature.

III

In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law of environmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch 137, 163 (1803).

I dissent.

The record is replete with genuine issues of fact about the harm to endangered species from the Aswan and Mahaweli projects. For example, according to an internal memorandum of the Fish and Wildlife Service, no fewer than eight listed species are found in the Mahaweli project area (Indian elephant, leopard, purple-faced langur, toque macaque, red face malkoha, Bengal monitor, mugger crocodile, and python). App. 78. The memorandum recounts that the Sri Lankan Government has specifically requested assistance from the Agency for International Development (AID) in “mitigating the negative impacts to the wildlife involved.” Ibid. In addition, a letter from the Director of the Fish and Wildlife Service to AID warns: “The magnitude of the Accelerated Mahaweli Development Program could have massive environmental impacts on such an insular ecosystem as the Mahaweli River system.” Id., at 215. It adds: “The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to the wildlife.” Id., at 216. Finally, in an affidavit' submitted by petitioner for purposes of this litigation, an AID official states that an AID environmental assessment “showed that the [Mahaweli] project could affect several endangered species.” Id., at 159.

This section provides in part:

“(a) Requirement for formal consultation. Each Federal agency shall review its actions at the earliest possible time to determine whether any *596action may affect listed species or critical habitat. If such a determination is made, formal consultation is required ....”

The Secretary’s intent to make the regulations binding upon other agencies is even clearer from the discussion accompanying promulgation of the consultation rules. See 61 Fed. Reg. 19928 (1986) (“Several commenters stated that Congress did not intend that the Service interpret or implement section 7, and believed that the Service should recast the regulations as ‘nonbinding guidelines’ that would govern only the Service’s role in consultation .... The Service is satisfied that it has ample authority and legislative mandate to issue this rule, and believes that uniform consultation standards and procedures are necessary to meet its obligations under section 7”).

For example, petitioner’s motion before the District Court to dismiss the complaint identified four attorneys from the Department of State and AID (an agency of the Department of State) as “counsel” to the attorneys from the Justice Department in this action. One AID lawyer actually *597entered a formal appearance before the District Court on behalf of AID. On at least one occasion petitioner requested an extension of time to file a brief, representing that “ ‘[a]n extension is necessary for the Department of Justice to consult with . . . the Department of State [on] the brief.’” See Brief for Respondents 31, n. 8. In addition, AID officials have offered testimony in this action.

The plurality now suggests that collateral-estoppel principles can have no application here, because the participation of other agencies in this litigation arose after its inception. Borrowing a principle from this Court’s statutory diversity jurisdiction cases and transferring it to the constitutional standing context, the Court observes: ‘“The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed.’ ” Ante, at 569, n. 4 (quoting Newman-Green, Inc. v. Alfonzo-Larrain, 490 U. S. 826, 830 (1989)). See also Mollan v. Torrance, 9 Wheat. 537, 539 (1824) (Marshall, C. J.). The plurality proclaims that “[i]t cannot be” that later participation of other agencies in this suit retroactively created a jurisdictional issue that did not exist at the outset. Ante, at 570, n. 4.

The plurality, however, overlooks at least three difficulties with this explanation. In the first place, assuming that the plurality were correct that events as of the initiation of the lawsuit are the only proper jurisdictional reference point, were the Court to follow this rule in this case there would be no question as to the compliance of other agencies, because, as stated at an earlier point in the opinion: “When the Secretary promulgated the regulation at issue here, he thought it was binding on the agencies.” Ante, at 569. This suit was commenced in October 1986, just three months after the regulation took effect. App. 21; 51 Fed. Reg. 19926 (1986). As the plurality further admits, questions about compliance of other agencies with the Secretary’s regulation arose only by later participation of the Solicitor General and other agencies in the suit. Ante, at 569. Thus, it was, to borrow the plurality’s own words, “assuredly not true when this suit was filed, naming the Secretary alone,” ante, at 569, n. 4, that there was any question before the District Court about other agencies being bound.

Second, were the plurality correct that, for purposes of determining redressability, a court may look only to facts as they exist when the complaint is filed, then the Court by implication would render a nullity part of Rule 19 of the Federal Rules of Civil Procedure. Rule 19 provides in part for the joinder of persons if “in the person’s absence complete relief cannot be accorded among those already parties.” This presupposes non-redressability at the outset of the litigation. Under the plurality’s rationale, a district court would have no authority to join indispensable parties, because it would, as an initial matter, have no jurisdiction for lack of the power to provide redress at the outset of the litigation.

Third, the rule articulated in Newman-Green is that the existence of federal jurisdiction “ordinarily” depends on the facts at the initiation of *599the lawsuit. This is no ironclad per se rule without exceptions. Had the Solicitor General, for example, taken a position during this appeal that the § 7 consultation requirement does in fact apply extraterritorially, the controversy would be moot, and this Court would be without jurisdiction.

In the plurality’s view, federal subject-matter jurisdiction appears to be a one-way street running the Executive Branch’s way. When the Executive Branch wants to dispel jurisdiction over an action against an agency, it is free to raise at any point in the litigation that other nonparty agencies might not be bound by any determinations of the one agency defendant. When a plaintiff, however, seeks to preserve jurisdiction in the face of a claim of nonredressability, the plaintiff is not free to point to the involvement of nonparty agencies in subsequent parts of the litigation. The plurality does not explain why the street runs only one way — why some actions of the Executive Branch subsequent to initiation of a lawsuit are cognizable for jurisdictional purposes but others simply are not.

More troubling still is the distance this one-way street carries the plurality from the underlying purpose of the standing doctrine. The purpose of the standing doctrine is to ensure that courts do not render advisory opinions rather than resolve genuine controversies between adverse parties. Under the plurality’s analysis, the federal courts are to ignore their present ability to resolve a concrete controversy if at some distant point in the past it could be said that redress could not have been provided. The plurality perverts the standing inquiry.

3.5.2.6 Injury – Actual or Imminent 3.5.2.6 Injury – Actual or Imminent

3.5.2.7 Clapper v. Amnesty International USA 3.5.2.7 Clapper v. Amnesty International USA

[excerpt]

Clapper v. Amnesty Intern. USA, 568 U.S. 398 (2013)

[1] Justice Alito delivered the opinion of the Court.

[2] Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. § 1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court's approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a. Respondents seek a declaration that § 1881a is unconstitutional, as well as an injunction against § 1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

[3] Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future. But respondents' theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able to establish that this injury is fairly traceable to § 1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of § 1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

[4] The present case involves a constitutional challenge to § 1881a. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the Foreign Intelligence Surveillance Court, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” Surveillance under § 1881a may not be intentionally targeted at any person known to be in the United States or any U.S. person reasonably believed to be located abroad. Additionally, acquisitions under § 1881a must comport with the Fourth Amendment. Moreover, surveillance under § 1881a is subject to congressional oversight and several types of Executive Branch review.

[5] Section 1881a mandates that the Government obtain the Foreign Intelligence Surveillance Court's approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. Among other things, the Government's certification must attest that (1) procedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U.S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines referred to above comport with the Fourth Amendment.

[6] The Foreign Intelligence Surveillance Court's role includes determining whether the Government's certification contains the required elements. . . .

[7] Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. [Respondents] claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government's counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government.

[8] Respondents claim that § 1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. According to respondents, the threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. . . .

III

[9] Respondents assert that they can establish injury in fact that is fairly traceable to § 1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under § 1881a at some point in the future. This argument fails. . . .

[10] [Respondent’s] argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U.S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the Foreign Intelligence Surveillance Court will conclude that the Government's proposed surveillance procedures satisfy § 1881a's many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents' contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. . . .

[11] [Respondent’s] theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingencies—which amounts to mere speculation about whether surveillance would be under § 1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to § 1881a.

[12] First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U.S. persons, cannot be targeted for surveillance under § 1881a. . . .

[13] Accordingly, respondents' theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.

[14] Yet respondents have no actual knowledge of the Government's § 1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under § 1881a. For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions ... in light of that assumption.” Similarly, attorney Scott McKay asserts that, “[b]ecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.” . . .

[15] [Because] § 1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents' allegations are necessarily conjectural. Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.

[16] Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use § 1881a-authorized surveillance (rather than other methods) to do so. The Government has numerous other methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions of FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. The Government may also obtain information from the intelligence services of foreign nations. . . . Even if respondents could demonstrate that their foreign contacts will imminently be targeted—indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to § 1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under § 1881a or some other authority, they cannot satisfy the “fairly traceable” requirement.

[17] Third, even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court's authorization to acquire the communications of respondents' foreign contacts under § 1881a, respondents can only speculate as to whether that court will authorize such surveillance. . . .

[18] We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. In sum, respondents' speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a.

[19] Respondents' alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid § 1881a-authorized surveillance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to § 1881a because the risk of surveillance under § 1881a requires them to take costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. . . .

[20] Respondents' contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. Any ongoing injuries that respondents are suffering are not fairly traceable to § 1881a.

[21] If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. . . .

[22] Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents' first failed theory of standing.

[23] Another reason that respondents' present injuries are not fairly traceable to § 1881a is that even before § 1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. . . .

[24] Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents'] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge—are the same kinds of injuries that this Court held to support standing in cases such as” Laidlaw, [nd] Meese v. Keene, 481 U.S. 465 (1987). . . .

[25] [Each] of these cases was very different from the present case.

[26] In Laidlaw, plaintiffs' standing was based on “the proposition that a company's continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” Because the unlawful discharges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents”—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. Laidlaw would resemble this case only if (1) it were undisputed that the Government was using § 1881a-authorized surveillance to acquire respondents' communications and (2) the sole dispute concerned the reasonableness of respondents' preventive measures.

[27] In Keene, the plaintiff challenged the constitutionality of the Government's decision to label three films as “political propaganda.” The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career.” Unlike the present case, Keene involved “more than a ‘subjective chill’ ” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” . . .

[28] Respondents also suggest that they should be held to have standing because otherwise the constitutionality of § 1881a could not be challenged. It would be wrong, they maintain, to “insulate the government's surveillance activities from meaningful judicial review.” Respondents' suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’ ”

[29] Second, our holding today by no means insulates § 1881a from judicial review. As described above, Congress created a comprehensive scheme in which the Foreign Intelligence Surveillance Court evaluates the Government's certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. Any dissatisfaction that respondents may have about the Foreign Intelligence Surveillance Court's rulings—or the congressional delineation of that court's role—is irrelevant to our standing analysis.

[30] Additionally, if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. . . .

[31] Finally, any electronic communications service provider that the Government directs to assist in § 1881a surveillance may challenge the lawfulness of that directive before the FISC. Indeed, at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments.

***

[32] We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.

[33] It is so ordered.

Dissent

[1] Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.

I . . .

[2] No one here denies that the Government's interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a statutory provision authorizing those interceptions; and, such a judgment would redress the injury by preventing it. Thus, the basic question is whether the injury, i.e., the interception, is “actual or imminent.”

A . . .

[3] The addition of § 1881a in 2008 changed this prior law in three important ways. First, it eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Third, it diminished the court's authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). Thus, using the authority of § 1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a significant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved.

B . . .

[4] Plaintiff Scott McKay [says] in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al–Hussayen, who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al–Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Mohammed, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “communicate[s] by telephone and email with people outside the United States, including Mr. Al–Hussayen himself,” “experts, investigators, attorneys, family members ... and others who are located abroad”; and (6) that prior to 2008 “the U.S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al–Hussayen.”. . .

[5] [Another] plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher, (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with ... former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Pakistan, Afghanistan, [and] the Gaza Strip.” . . .

III

[6] Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of § 1881a, will intercept at least some of the communications just described. First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts and others with knowledge of circumstances related to terrorist activities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of ... foreign power [s].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.”

[7] Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer's obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client, have done; in conversations that concern his clients' families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. Journalists and human rights workers have strong similar motives to conduct conversations of this kind.

[8] At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism.

[9] Third, the Government's past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre–2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al–Hussayen.”

[10] Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the Government. [This] capacity also includes the Government's authority to obtain the kind of information here at issue from private carriers such as AT & T and Verizon. We are further told by amici that the Government is expanding that capacity.

[11] Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statutory criteria. As the intelligence court itself has stated, its review under § 1881a is “narrowly circumscribed.” There is no reason to believe that the communications described would all fail to meet the conditions necessary for approval. Moreover, compared with prior law, § 1881a simplifies and thus expedites the approval process, making it more likely that the Government will use § 1881a to obtain the necessary approval.

[12] The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs' communications, including some that the 2008 amendment, § 1881a, but not the pre–2008 Act, authorizes the Government to intercept. . .

[13] Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened plaintiffs as “speculative.”

[14] The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” But, as the majority appears to concede, see ante, at 1150, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.

[15] The Court's use of the term “certainly impending” is not to the contrary. . . .

[16] Taken together the case law uses the word “certainly” as if it emphasizes, rather than literally defines, the immediately following term “ impending.”

[17] More important, the Court's holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘realistic danger of sustaining a direct injury as a result of the statute's operation.’” It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point ofcausing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city's hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger ” that the relevant harm will occur. . . .

[18] How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent?

[19] Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. . . .

[20] Neither do ordinary declaratory judgment actions always involve the degree of certainty upon which the Court insists here. See, e.g., . . . Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 239–244(1937).

[21] In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. . . .

[22] Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client (e.g., a client accused of terrorism), he must “make an assessment” whether his “client's interests would be compromised” should the Government “acquire the communications.” If so, he must either forgo the communication or travel abroad. . . .

[23] In sum, [the] word “certainly” in the phrase “certainly impending” does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case.

* * *

[24] While I express no view on the merits of the plaintiffs' constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority's contrary conclusion.

Supreme Court of the United States

568 U.S. 398, 185 L. Ed. 2d 264, 133 S. Ct. 1138, 2013 U.S. LEXIS 1858, SCDB 2012-021

No. 11-1025

2013-02-26

CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, et al. v. AMNESTY INTERNATIONAL USA et al.

No. 11-1025.

Argued October 29, 2012

Decided February 26, 2013

*400Auto, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined, post, p. 422.

Solicitor General Verrilli argued the cause for petitioners. With him on the briefs were Acting Assistant Attorney General Delery, Deputy Solicitor General Kneedler, Anthony A. Yang, Douglas N. Letter, Thomas M. Bondy, Henry C. Whitaker, Robert S. Litt, Trida S. Wellman, and Bradley A. Brooker.

Jameel Jaffer argued the cause for respondents. With him on the brief were Steven R. Shapiro, Alexander A. Abdo, Arthur N. Eisenberg, Christopher T. Dunn, and Charles S. Sims. *

Richard A. Samp, Megan L. Brown, and Claire J. Evans filed a brief for John D. Ashcroft et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the Canadian Civil Liberties Association et al. by Carmine D. Boccuzzi and Michael R. Lazerwitz; for the Center for Constitutional Rights et al. by Shayana Kadidal; for the Constitutional Accountability Center by Douglas T. Kendall, Elizabeth B. Wydra, and Rochelle Bobrojf; for the Electronic Privacy Information Center et al. by Marc Rotenberg; for Former Church Committee Members and Staff by Sidney S. Rosdeitcher, Jonathan Hafetz, and Barbara Moses; for the Gun Owners Foundation et al. by William J. Olson, Herbert W. Titus, John S. Miles, Jeremiah L. Morgan, and Gary G. Kreep; for the National Association of Criminal Defense Lawyers by *401 John D. Cline and Joshua L. Dratel; and for the Reporters Committee for Freedom of the Press by Bruce D. Brown and Gregg P. Leslie.

Briefs of amici curiae were filed for the Committee on Civil Rights of the Association of the Bar of the City of New York by Peter T. Barbur and James G. Felakos; and for the New York State Bar Association by Seymour W. James, Jr., and Gregory L. Diskant.

*401Justice Alito

delivered the opinion of the Court.

Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. § 1881a (2006 ed., Supp. V), allows the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons”1 and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s approval. Respondents are United States persons whose work, they allege, requires them to engage in sensitive international communications with individuals who they believe are likely targets of surveillance under § 1881a. Respondents seek a declaration that § 1881a is unconstitutional, as well as an injunction against § 1881a-authorized surveillance. The question before us is whether respondents have Article III standing to seek this prospective relief.

Respondents assert that they can establish injury in fact because there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future. But respondents’ theory of future injury is too speculative to satisfy the well-established requirement that threatened injury must be “certainly impending.” E. g., Whitmore v. Arkansas, 495 U. S. 149, 158 (1990). And even if respondents could demonstrate that the threatened injury is certainly impending, they still would not be able *402to establish that this injury is fairly traceable to § 1881a. As an alternative argument, respondents contend that they are suffering present injury because the risk of § 1881a-authorized surveillance already has forced them to take costly and burdensome measures to protect the confidentiality of their international communications. But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending. We therefore hold that respondents lack Article III standing.

In 1978, after years of debate, Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U. S. C. § 1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson). In enacting FISA, Congress legislated against the backdrop of our decision in United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U. S. 297 (1972) (Keith), in which we explained that the standards and procedures that law enforcement officials must follow when conducting “surveillance of ‘ordinary crime’ ” might not be required in the context of surveillance conducted for domestic national-security purposes. Id., at 322-323. Although the Keith opinion expressly disclaimed any ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers,” id., at 308, it implicitly suggested that a special framework for foreign intelligence surveillance might be constitutionally permissible, see id., at 322-323.

In constructing such a framework for foreign intelligence surveillance, Congress created two specialized courts. In FISA, Congress authorized judges of the Foreign Intelli*403gence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” § 105(a)(3), 92 Stat. 1790; see §§ 105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson §7:2, at 194-195; id., § 16:2, at 528-529. Additionally, Congress vested the Foreign Intelligence Surveillance Court of Review with jurisdiction to review any denials by the FISC of applications for electronic surveillance. § 103(b), 92 Stat. 1788; 1 Kris & Wilson §5:7, at 151-153.

In the wake of the September 11th attacks, President George W. Bush authorized the National Security Agency (NSA) to conduct warrantless wiretapping of telephone and e-mail communications where one party to the communication was located outside the United States and a participant in “the call was reasonably believed to be a member or agent of al Qaeda or an affiliated terrorist organization,” App. to Pet. for Cert. 403a. See id., at 263a-265a, 268a, 273a-279a, 292a-293a; American Civil Liberties Union v. NSA, 493 F. 3d 644, 648 (CA6 2007) (ACLU) (opinion of Batchelder, J.). In January 2007, the FISC issued orders authorizing the Government to target international communications into or out of the United States where there was probable cause to believe that one participant to the communication was a member or agent of al Qaeda or an associated terrorist organization. App. to Pet. for Cert. 3Í2a, 398a, 405a. These FISC orders subjected any electronic surveillance that was then occurring under the NSA’s program to the approval of the FISC. Id., at 405a; see id., at 312a, 404a. After a FISC Judge subsequently narrowed the FISC’s authorization of such surveillance, however, the Executive asked Congress to amend FISA so that it would provide the intelligence community with additional authority to meet the challenges *404of modern technology and international terrorism. Id., at 315a-318a, 331a-333a, 398a; see id., at 262a, 277a-279a, 287a.

When Congress enacted the FISA Amendments Act of 2008 (FISA Amendments Act), 122 Stat. 2436, it left much of FISA intact, but it “established a new and independent source of intelligence collection authority, beyond that granted in traditional FISA.” 1 Kris & Wilson §9:11, at 349-360. As relevant here, § 702 of FISA, 50 U. S. C. § 1881a (2006 ed., Supp. V), which was enacted as part of the FISA Amendments Act, supplements pre-existing FISA authority by creating a new framework under which the Government may seek the FISC’s authorization of certain foreign intelligence surveillance targeting the communications of non-U. S. persons located abroad. Unlike traditional FISA surveillance, § 1881a does not require the Government to demonstrate probable cause that the target of the electronic surveillance is a foreign power or agent of a foreign power. Compare §§ 1805(a)(2)(A), (a)(2)(B), with §§ 1881a(d)(l), (i)(3)(A); 638 F. 3d 118, 126 (CA2 2011); 1 Kris & Wilson § 16:16, at 584. And, unlike traditional FISA, § 1881a does not require the Government to specify the nature and location of each of the particular facilities or places at which the electronic surveillance will occur. Compare §§ 1805(a)(2)(B), (c)(1) (2006 ed. and Supp. V) with §§ 1881a(d)(l), (g)(4), (i)(3)(A); 638 F. 3d, at 125-126; 1 Kris & Wilson §16:16, at 585.2

The present case involves a constitutional challenge to § 1881a. Surveillance under § 1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment. Section 1881a provides that, upon the issuance of an order from the FISC, “the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year ..., the targeting of persons reasonably believed to be located *405outside the United States to acquire foreign intelligence information.” § 1881a(a). Surveillance under § 1881a may not be intentionally targeted at any person known to be in the United States or any U. S. person reasonably believed to be located abroad. §§ 1881a(b)(l)-(3); see also §1801(i). Additionally, acquisitions under § 1881a must comport with the Fourth Amendment. § 1881a(b)(5). Moreover, surveillance under § 1881a is subject to congressional oversight and several types of Executive Branch review. See § § 1881a(f )(2), (0; Amnesty Int’l USA v. McConnell, 646 F. Supp. 2d 633, 640-641 (SDNY 2009).

Section 1881a mandates that the Government obtain the FISC’s approval of “targeting” procedures, “minimization” procedures, and a governmental certification regarding proposed surveillance. §§ 1881a(a), (c)(1), (i)(2), (i)(3). Among other things, the Government’s certification must attest that (1) procedures are in place “that have been approved, have been submitted for approval, or will be submitted with the certification for approval by the [FISC] that are reasonably designed” to ensure that an acquisition is “limited to targeting persons reasonably believed to be located outside” the United States; (2) minimization procedures adequately restrict the acquisition, retention, and dissemination of nonpublic information about unconsenting U. S. persons, as appropriate; (3) guidelines have been adopted to ensure compliance with targeting limits and the Fourth Amendment; and (4) the procedures and guidelines referred to above comport with the Fourth Amendment. § 1881a(g)(2); see § 1801(h).

The FISC’s role includes determining whether the Government’s certification contains the required elements. Additionally, the court assesses whether the targeting procedures are “reasonably designed” (1) to “ensure that an acquisition ... is limited to targeting persons reasonably believed to be located outside the United States” and (2) to “prevent the intentional acquisition of any communication as *406to which the sender and all intended recipients are known . . . to be located in the United States.” § 1881a(i)(2)(B). The court analyzes whether the minimization procedures “meet the definition of minimization procedures under section 1801(h) . . . , as appropriate.” § 1881a(i)(2)(C). The court also assesses whether the targeting and minimization procedures are consistent with the statute and the Fourth Amendment. See § 1881a(i)(3)(A).3

Respondents are attorneys and human rights, labor, legal, and media organizations whose work allegedly requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, sources, and other individuals located abroad. Respondents believe that some of the people with whom they exchange foreign intelligence information are likely targets of surveillance under § 1881a. Specifically, respondents claim that they communicate by telephone and e-mail with people the Government “believes or believed to be associated with terrorist organizations,” “people located in geographic areas that are a special focus” of the Government’s counterterrorism or diplomatic efforts, and activists who oppose governments that are supported by the United States Government. App. to Pet. for Cert. 399a.

Respondents claim that § 1881a compromises their ability to locate witnesses, cultivate sources, obtain information, and communicate confidential information to their clients. Respondents also assert that they “have ceased engaging” in certain telephone and e-mail conversations. Id., at 400a. *407According to respondents, the threat of surveillance will compel them to travel abroad in order to have in-person conversations. In addition, respondents declare that they have undertaken “costly and burdensome measures” to protect the confidentiality of sensitive communications. Ibid.

On the day when the FISA Amendments Act was enacted, respondents filed this action seeking (1) a declaration that § 1881a, on its face, violates the Fourth Amendment, the First Amendment, Article III, and separation-of-powers principles and (2) a permanent injunction against the use of § 1881a. Respondents assért what they characterize as two separate theories of Article III standing. First, they claim that there is an objectively reasonable likelihood that their communications will be acquired under § 1881a at some point in the future, thus causing them injury. Second, respondents maintain that the risk of surveillance under § 1881a is so substantial that they have been forced to take costly and burdensome measures to protect the confidentiality of their international communications; in their view, the costs they have incurred constitute present injury that is fairly traceable to § 1881a.

After both parties moved for summary judgment, the District Court held that respondents do not have standing. 646 F. Supp. 2d, at 636. On appeal, however, a panel of the Second Circuit reversed. The panel agreed with respondents’ argument that they have standing due to the objectively reasonable likelihood that their communications will be intercepted at some time in the future. 638 F. 3d, at 133, 134, 139. In addition, the panel held that respondents have established that they are suffering “present injuries in fact— economic and professional harms—stemming from a reasonable fear of future harmful government conduct.” Id., at 138. The Second Circuit denied rehearing en banc by an equally divided vote. 667 F. 3d 163 (2011).

*408Because of the importance of the issue and the novel view of standing adopted by the Court of Appeals, we granted certiorari, 566 U. S. 1009 (2012), and we now

Article III of the Constitution limits federal courts’ jurisdiction to certain “Cases” and “Controversies.” As we have explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006) (internal quotation marks omitted); Raines v. Byrd, 521 U. S. 811, 818 (1997) (internal quotation marks omitted); see, e. g., Summers v. Earth Island Institute, 555 U. S. 488, 492-493 (2009). “One element of the case-or-eontroversy requirement” is that plaintiffs “must establish that they have standing to sue.” Raines, supra, at 818; see also Summers, supra, at 492-493; DaimlerChrysler Corp., supra, at 342; Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).

The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches. Summers, supra, at 492-493; Daimler-Chrysler Corp., supra, at 341-342, 353; Raines, supra, at 818-820; Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 471-474 (1982); Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221-222 (1974). In keeping with the purpose of this doctrine, “our standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, supra, at 819-820; see Valley Forge Christian College, supra, at 473-474; Schlesinger, supra, at 221-222. “Relaxation of standing re*409quirements is directly related to the expansion of judicial power,” United States v. Richardson, 418 U. S. 166, 188 (1974) (Powell, J., concurring); see also Summers, supra, at 492-493; Schlesinger, supra, at 222, and we have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs, see, e. g., Richardson, supra, at 167-170 (plaintiff lacked standing to challenge the constitutionality of a statute permitting the Central Intelligence Agency to account for its expenditures solely on the certificate of the CIA Director); Schlesinger, supra, at 209-211 (plaintiffs lacked standing to challenge the Armed Forces Reserve membership of Members of Congress); Laird v. Tatum, 408 U. S. 1, 11-16 (1972) (plaintiffs lacked standing to challenge an Army intelligence-gathering program).

To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 149 (2010); see also Summers, supra, at 493; Defenders of Wildlife, 504 U. S., at 560-561. “Although imminence is coneededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes—that the injury is certainly impending.” Id., at 565, n. 2 (internal quotation marks omitted). Thus, we have repeatedly reiterated that “threatened injury must be certainly impending to constitute injury in fact,” and that “[allegations of possible future injury” are not sufficient. Whitmore, 495 U. S., at 158 (emphasis added; internal quotation marks omitted); see also Defenders of Wildlife, supra, at 565, n. 2, 567, n. 3; see Daimler Chrysler Corp., supra, at 345; Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979).

*410i—I 1—I H-4

Respondents assert that they can establish injury in fact that is fairly traceable to § 1881a because there is an objectively reasonable likelihood that their communications with their foreign contacts will be intercepted under § 1881a at some point in the future. This argument fails. As an initial matter, the Second Circuit’s “objectively reasonable likelihood” standard is inconsistent with our requirement that “threatened injury must be certainly impending to constitute injury in fact.” Whitmore, supra, at 158 (internal quotation marks omitted); see also Daimler Chrysler Corp., supra, at 345; Laidlaw, supra, at 190; Defenders of Wildlife, supra, at 565, n. 2; Babbitt, supra, at 298. Furthermore, respondents’ argument rests on their highly speculative fear that: (1) the Government will decide to target the communications of non-U. S. persons with whom they communicate; (2) in doing so, the Government will choose to invoke its authority under § 1881a rather than utilizing another method of surveillance; (3) the Article III judges who serve on the FISC will conclude that the Government’s proposed surveillance procedures satisfy § 188 la’s many safeguards and are consistent with the Fourth Amendment; (4) the Government will succeed in intercepting the communications of respondents’ contacts; and (5) respondents will be parties to the particular communications that the Government intercepts. As discussed below, respondents’ theory of standing, which relies on a highly attenuated chain of possibilities, does not satisfy the requirement that threatened injury must be certainly impending. See Summers, supra, at 496 (rejecting a standing theory premised on a speculative chain of possibilities); Whitmore, supra, at 157-160 (same). Moreover, even if respondents could demonstrate injury in fact, the second link in the above-described chain of contingencies—which amounts to mere speculation about whether surveillance *411would be under § 1881a or some other authority—shows that respondents cannot satisfy the requirement that any injury in fact must be fairly traceable to § 1881a.

First, it is speculative whether the Government will imminently target communications to which respondents are parties. Section 1881a expressly provides that respondents, who are U. S. persons, cannot be targeted for surveillance under § 1881a. See §§ 1881a(b)(1)-(3); 667 F. 3d, at 173 (Raggi, J., dissenting from denial of rehearing en banc). Accordingly, it is no surprise that respondents fail to offer any evidence that their communications have been monitored under § 1881a, a failure that substantially undermines their standing theory. See ACLU, 493 F. 3d, at 655-656, 673-674 (opinion of Batchelder, J.) (concluding that plaintiffs who lacked evidence that their communications had been intercepted did not have standing to challenge alleged NS A surveillance). Indeed, respondents do not even allege that the Government has sought the FISC’s approval for surveillance of their communications. Accordingly, respondents’ theory necessarily rests on their assertion that the Government will target other individuals—namely, their foreign contacts.

Yet respondents have no actual knowledge of the Government’s § 1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under § 1881a. See 667 F. 3d, at 185-187 (opinion of Raggi, J.). For example, journalist Christopher Hedges states: “I have no choice but to assume that any of my international communications may be subject to government surveillance, and I have to make decisions ... in light of that assumption.” App. to Pet. for Cert. 366a (emphasis added and deleted). Similarly, attorney Scott McKay asserts that, “[bjecause of the [FISA Amendments Act], we now have to assume that every one of our international communications may be monitored by the government.” Id., at 375a (emphasis added); see also id., at 337a, 343a-344a, 350a, 356a. “The party in-*412yoking federal jurisdiction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’” Defenders of Wildlife, 504 U. S., at 561. Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because § 1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. See United Presbyterian Church in U. S. A. v. Reagan, 738 F. 2d 1375, 1380 (CADC 1984) (Scalia, J.); 667 F. 3d, at 187 (opinion of Raggi, J.). Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.4

Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, respondents can only speculate as to whether the Government will seek to use § 1881a-authorized surveillance (rather than other methods) to do so. The Government has numerous other *413methods of conducting surveillance, none of which is challenged here. Even after the enactment of the FISA Amendments Act, for example, the Government may still conduct electronic surveillance of persons abroad under the older provisions óf FISA so long as it satisfies the applicable requirements, including a demonstration of probable cause to believe that the person is a foreign power or agent of a foreign power. See § 1805. The Government may also obtain information from the intelligence services of foreign nations. Brief for Petitioners 33. And, although we do not reach the question, the Government contends that it can conduct FISA-exempt human and technical surveillance programs that are governed by Executive Order 12333. See Exec. Order No. 12333, §§ 1.4, 2.1-2.5, 3 CFR 202, 210-212 (1981), reprinted as amended, note following 50 U. S. C. §401, pp. 543, 547-548. Even if respondents could demonstrate that their foreign contacts will imminently be targeted— indeed, even if they could show that interception of their own communications will imminently occur—they would still need to show that their injury is fairly traceable to § 1881a. But, because respondents can only speculate as to whether any (asserted) interception would be under § 1881a or some other authority, they cannot satisfy the “fairly traceable” requirement.

Third, even if respondents could show that the Government will seek the FISC’s authorization to acquire the communications of respondents’ foreign contacts under § 1881a, respondents can only speculate as to whether that court will authorize such surveillance. In the past, we have been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment. In Whitmore, for example, the plaintiff’s theory of standing hinged largely on the probability that he would obtain federal habeas relief and be convicted upon retrial. In holding that the plaintiff lacked standing, we explained that “[i]t is just not possible for a litigant to prove in advance *414that the judicial system will lead to any particular result in his case.” 495 U. S., at 159-160; see Defenders of Wildlife, supra, at 562.

We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors. Section 1881a mandates that the Government must obtain the FISC’s approval of targeting procedures, minimization procedures, and a governmental certification regarding proposed surveillance. §§ 1881a(a), (e)(1), (i)(2), (i)(3). The court must, for example, determine whether the Government’s procedures are “reasonably designed ... to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” § 1801(h); see §§ 1881a(i)(2), (i)(3)(A). And, critically, the court must also assess whether the Government’s targeting and minimization procedures comport with the Fourth Amendment. § 1881a(i)(3)(A).

Fourth, even if the Government were to obtain the FISC’s approval to target respondents’ foreign contacts under § 1881a, it is unclear whether the Government would succeed in acquiring the communications of respondents’ foreign contacts. And fifth, even if the Government were to conduct surveillance of respondents’ foreign contacts, respondents can only speculate as to whether their own communications with their foreign contacts would be incidentally acquired.

In sum, respondents’ speculative chain of possibilities does not establish that injury based on potential future surveillance is certainly impending or is fairly traceable to § 1881a.5

*415B

Respondents’ alternative argument—namely, that they can establish standing based on the measures that they have undertaken to avoid § 1881a-authorized surveillance—fares no better. Respondents assert that they are suffering ongoing injuries that are fairly traceable to § 1881a because the risk of surveillance under § 1881a requires them to take' costly and burdensome measures to protect the confidentiality of their communications. Respondents claim, for instance, that the threat of surveillance sometimes compels them to avoid certain e-mail and phone conversations, to “tal[k] in generalities rather than specifics,” or to travel so that they can have in-person conversations. Tr. of Oral Arg. 38; App. to Pet. for Cert. 338a, 345a, 367a, 400a.6 The Second Circuit panel concluded that, because respondents are already suffering such ongoing injuries, the likelihood of interception under § 1881a is relevant only to the question whether respondents’ ongoing injuries are “fairly traceable” to § 1881a. See 638 F. 3d, at 133-134; 667 F. 3d, at 180 (opinion of Raggi, J.). Analyzing the “fairly traceable” element of standing under a relaxed reasonableness standard, see 638 F. 3d, at 133-134, the Second Circuit then held that “plaintiffs *416have established that they suffered present injuries in fact— economic and professional harms—stemming from a reasonable fear oí future harmful government conduct,” id., at 138.

The Second Circuit’s analysis improperly allowed respondents to establish standing by asserting that they suffer present costs and burdens that are based on a fear of surveillance, so long as that fear is not “fanciful, paranoid, or otherwise unreasonable.” See id., at 134. This improperly waters down the fundamental requirements of Article III. Respondents’ contention that they have standing because they incurred certain costs as a reasonable reaction to a risk of harm is unavailing—because the harm respondents seek to avoid is not certainly impending. In other words, respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending. See Pennsylvania v. New Jersey, 426 U. S. 660, 664 (1976) (per curiam); National Family Planning & Reproductive Health Assn., Inc. v. Gonzales, 468 F. 3d 826, 831 (CADC 2006). Any ongoing injuries that respondents are suffering are not fairly traceable to § 1881a.

If the law were otherwise, an enterprising plaintiff would be able to secure a lower standard for Article III standing simply by making an expenditure based on a nonparanoid fear. As Judge Raggi accurately noted, under the Second Circuit panel’s reasoning, respondents could, “for the price of a plane ticket, . . . transform their standing burden from one requiring a showing of actual or imminent. . . interception to one requiring a showing that their subjective fear of such interception is not fanciful, irrational, or clearly unreasonable.” 667 F. 3d, at 180 (internal quotation marks omitted). Thus, allowing respondents to bring this action based on costs they incurred in response to a speculative threat would be tantamount to accepting a repackaged version of respondents’ first failed theory of standing. See ACLU, 493 F. 3d, at 656-657 (opinion of Batchelder, J.).

*417Another reason that respondents’ present injuries are not fairly traceable to § 1881a is that even before § 1881a was enacted, they had a similar incentive to engage in many of the countermeasures that they are now taking. See id., at 668-670. For instance, respondent Scott McKay’s declaration describes—and the dissent heavily relies on—McKay’s “knowledge” that thousands of communications involving one of his clients were monitored in the past. App. to Pet. for Cert. 370a; post, at 426-426, 429. But this surveillance was conducted pursuant to FISA authority that predated § 1881a. See Brief for Petitioners 32, n. 11; Al-Kidd v. Gonzales, No. 06-cv-93, 2008 WL 5123009 (D Idaho, Dec. 4, 2008). Thus, because the Government was allegedly conducting surveillance of McKay’s client before Congress enacted § 1881a, it is difficult to see how the safeguards that McKay now claims to have implemented can be traced to § 1881a.

Because respondents do not face a threat of certainly impending interception under § 1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance,7 and our decision in Laird makes it clear that such a fear is insufficient to create standing. See 408 U. S., at 10-15. The plaintiffs in Laird argued that their exercise of First Amendment rights was being “chilled by the mere existence, without more, of [the Army’s] investigative and data-gathering activity.” Id., at 10. While acknowledging that prior cases had held that constitutional violations may arise from the chilling effect of “regulations that fall short of a direct prohibition against the exercise of *418First Amendment rights,” the Court declared that none of those cases involved a “chilling effect arising] merely from the individual’s knowledge that a governmental agency was engaged in certain activities or from the individual’s concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual.” Id., at 11. Because “[allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm,” id., at 13-14, the plaintiffs in Laird—and respondents here—lack standing. See ibid.) ACLU, supra, at 661-662 (opinion of Batchelder, J.) (holding that plaintiffs lacked standing because they “allege[d] only a subjective apprehension” of alleged NS A surveillance and “a personal (self-imposed) unwillingness to communicate”); United Presbyterian Church, 738 F. 2d, at 1378 (holding that plaintiffs lacked standing to challenge the legality of ah Executive Order relating to surveillance because “the ‘chilling effect’ which is produced by their fear of being subjected to illegal surveillance and which deters them from conducting constitutionally protected activities, is foreclosed as a basis for standing” by Laird).

For the reasons discussed above, respondents’ self-inflicted injuries are not fairly traceable to the Government’s purported activities under § 1881a, and their subjective fear of surveillance does not give rise to standing.

Respondents incorrectly maintain that “[t]he kinds of injuries incurred here—injuries incurred because of [respondents’] reasonable efforts to avoid greater injuries that are otherwise likely to flow from the conduct they challenge— are the same kinds of injuries that this Court held to support. standing in cases such as” Laidlaw, Meese v. Keene, 481 U. S. *419 465 (1987), and Monsanto. Brief for Respondents 24. As an initial matter, none of these cases holds or even suggests that plaintiffs can establish standing simply by claiming that they .experienced a “chilling effect” that resulted from a governmental policy that does not regulate, constrain, or compel any action on their part. Moreover, each of these cases was very different from the present case.

In Laidlaw, plaintiffs’ standing was based on “the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms.” 528 U. S., at 184. Because the unlawful discharges of pollutants were “concededly ongoing,” the only issue was whether “nearby residents”—who were members of the organizational plaintiffs—acted reasonably in refraining from using the polluted area. Id., at 183-184. Laidlaw is therefore quite unlike the present case, in which it is not “concede[d]” that respondents would be subject to unlawful surveillance but for their decision to take preventive measures. See ACLU, 493 F. 3d, at 686 (opinion of Batchelder, J.) (distinguishing Laidlaw on this ground); id., at 689-690 (Gibbons, J., concurring) (same); 667 F. 3d, at 182-183 (opinion of Raggi, J.) (same). Laidlaw would resemble this case only if (1) it were undisputed that the Government was using § 1881a-authorized surveillance to acquire respondents’ communications and (2) the sole dispute concerned the reasonableness of respondents’ preventive measures.

In Keene, the plaintiff challenged the constitutionality of the Government’s decision to label three films as “political propaganda.” 481 U. S., at 467. The Court held that the plaintiff, who was an attorney and a state legislator, had standing because he demonstrated, through “detailed affidavits,” that he “could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his *420political career.” Id., at 467, 473-475. Unlike the present case, Keene involved “more than a ‘subjective chill’” based on speculation about potential governmental action; the plaintiff in that case was unquestionably regulated by the relevant statute, and the films that he wished to exhibit had already been labeled as “political propaganda.” See ibid.; ACLU, 493 F. 3d, at 663-664 (opinion of Batchelder, J.); id., at 691 (Gibbons, J., concurring).

Monsanto, on which respondents also rely, is likewise in-apposite. In Monsanto, conventional alfalfa farmers had standing to seek injunctive relief because the agency’s decision to deregulate a variety of genetically engineered alfalfa gave rise to a “significant risk of gene flow to non-genetically-engineered varieties of alfalfa.” 561 U. S., at 155. The standing analysis in that case hinged on evidence that genetically engineered alfalfa “ ‘seed fields [we]re currently being planted in all the major alfalfa seed production areas’ ”; the bees that pollinate alfalfa “ ‘have a range of at least two to ten miles’ and the alfalfa seed farms were concentrated in an area well within the bees’ pollination range. Id., at 154, and n. 3. Unlike the conventional alfalfa farmers in Monsanto, however, respondents in the present case present no concrete evidence to substantiate their fears, but instead rest on mere conjecture about possible governmental actions.

Respondents also suggest that they should be held to have standing because otherwise the constitutionality of § 1881a could not be challenged. It would be wrong, they maintain, to “insulate the government’s surveillance activities from meaningful judicial review.” Brief for Respondents 60. Respondents’ suggestion is both legally and factually incorrect. First, “ ‘[t]he assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing.’” Valley Forge Christian College, 454 U. S., at 489; Schlesinger, 418 U. S., at 227; see also Richard *421 son, 418 U. S., at 179; Raines, 521 U. S., at 835 (Souter, J., joined by Ginsburg, J., concurring in judgment).

Second, our holding today by no means insulates § 1881a from judicial review. As described above, Congress created a comprehensive scheme in which the FISC evaluates the Government’s certifications, targeting procedures, and minimization procedures—including assessing whether the targeting and minimization procedures comport with the Fourth Amendment. §§1881a(a), (c)(1), (i)(2), (i)(3). Any dissatisfaction that respondents may have about the FISC’s rulings—or the congressional delineation of that court’s role—is irrelevant to our standing analysis.

Additionally, if the Government intends to use or disclose information obtained or derived from a § 1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition. §§ 1806(c), (e), 1881e(a) (2006 ed. and Supp. V).8 Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using § 188 la-authorized surveillance, the Government would be required to make a disclosure. Although the foreign client might not have a viable Fourth Amendment claim, see, e. g., United States v. Verdugo-Urquidez, 494 U. S. 259, 261 (1990), it is possible that the monitoring of the target’s conversations with his or her attorney would provide grounds for a claim of standing on the part of the attorney. Such an attorney would certainly have a stronger eviden-tiary basis for establishing standing than do respondents in the present case. In such a situation., unlike in the pres*422ent case, it would at least be clear that the Government had acquired the foreign client’s communications using § 188 la-authorized surveillance.

Finally, any electronic communications service provider that the Government directs to assist in § 1881a surveillance may challenge the lawfulness of that directive before the FISC. §§ 1881a(h)(4), (h)(6). Indeed, at the behest of a service provider, the Foreign Intelligence Surveillance Court of Review previously analyzed the constitutionality of electronic surveillance directives issued pursuant to a now-expired set of FISA amendments. See In re Directives Pursuant to Section 105B of Foreign Intelligence Surveillance Act, 551 F. 3d 1004, 1006-1016 (2008) (holding that the provider had standing and that the directives were constitutional).

* * *

We hold that respondents lack Article III standing because they cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of nonimminent harm. We therefore reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

It was suggested at oral argument that the Government could help resolve the standing inquiry by disclosing to a court, perhaps through an in camera proceeding, (1) whether it is intercepting respondents’ communications and (2) what targeting or minimization procedures it is using. See Tr. of Oral Arg. 13-14, 44, 56. This suggestion is puzzling. As an initial matter, it is respondents’ burden to prove their standing by pointing to specific facts, Lujan v. Defenders of Wildlife, 504 U. S. 555, 561 (1992), not the Government’s burden to disprove standing by revealing details of its surveillance priorities. Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U. S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program. Even if the terrorist’s attorney were to comply with a protective order prohibiting him from sharing the Government’s disclosures with his client, the court’s postdiselosure decision about whether to dismiss the suit for lack of standing would surely signal to the terrorist whether his name was on the list of surveillance targets.

Our cases do not uniformly require plaintiffs to demonstrate that it is literally certain that the harms they identify will come about. In some instances, we have found standing based on a “substantial risk” that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm. Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 153 (2010). See also Pennell v. San Jose, 485 U. S. 1, 8 (1988); Blum v. Yaretsky, 457 U. S. 991, 1000-1001 (1982); Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). But to the extent that the “substantial risk” standard is relevant and is distinct from the “certainly impending” *415requirement, respondents fall short of even that standard, in light of the attenuated chain of inferences necessary to find harm here. See supra, at 411-414. In addition, plaintiffs bear the burden of pleading and proving concrete facts showing that the defendant’s actual action has caused the substantial risk of harm. Plaintiffs cannot rely on speculation about “ ‘the unfettered choices made by independent actors not before the courts.’” Defenders of Wildlife, 504 U. S., at 562.

Justice Breyer,

with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.

The plaintiffs’ standing depends upon the likelihood that the Government, acting under the authority of 50 U. S. C. § 1881a (2006 ed., Supp. V), will harm them by intercepting at least some of their private, foreign, telephone, or e-mail conversations. In my view, this harm is not “speculative.” Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen. This Court has often found the occurrence of similar future events sufficiently cer*423tain to support standing. I dissent from the Court’s contrary conclusion.

Article III specifies that the “judicial Power” of the United States extends only to actual “Cases” and “Controversies.” § 2. It thereby helps to ensure that the legal questions presented to the federal courts will not take the form of abstract intellectual problems resolved in the “rarified atmosphere of a debating society” but instead those questions will be presented “in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982) (purpose of Article III); Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (similar); Babbitt v. Farm Workers, 442 U. S. 289, 297 (1979) (similar).

The Court has recognized that the precise boundaries of the “case or controversy” requirement are matters of “degree ... not discernible by any precise test.” Ibid. At the same time, the Court has developed a subsidiary set of legal rules that help to determine when the Constitution’s requirement is met. See Lujan, 504 U. S., at 560-561; id., at 583 (Stevens, J., concurring in judgment). Thus, a plaintiff must have “standing” to bring a legal claim. And a plaintiff has that standing, the Court has said, only if the action or omission that the plaintiff challenges has caused, or will cause, the plaintiff to suffer an injury that is “concrete and particularized,” “actual or imminent,” and “redressfcble] by a favorable decision.” Id., at 560-561 (internal quotation marks omitted).

No one here denies that the Government’s interception of a private telephone or e-mail conversation amounts to an injury that is “concrete and particularized.” Moreover, the plaintiffs, respondents here, seek as relief a judgment declaring unconstitutional (and enjoining enforcement of) a statutory provision authorizing those interceptions; and, such a *424judgment would redress the injury by preventing it. Thus, the basic question is whether the injury, i. e., the interception, is “actual or imminent.”

Since the plaintiffs fear interceptions of a kind authorized by § 1881a, it is important to understand just what kind of surveillance that section authorizes. Congress enacted § 1881a in 2008, as an amendment to the pre-existing Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. § 1801 et seq. Before the amendment, the Act authorized the Government (acting within the United States) to monitor private electronic communications between the United States and a foreign country if (1) the Government’s purpose was, in significant part, to obtain foreign intelligence information (which includes information concerning a “foreign power” or “territory” related to our “national defense” or “security” or the “conduct of . . . foreign affairs”), (2) the Government’s surveillance target was “a foreign power or an agent of a foreign power,” and (3) the Government used surveillance procedures designed to “minimize the acquisition and retention, and prohibit the dissemination, of” any private information acquired about Americans. §§ 1801(e), (h), 1804(a).

In addition, the Government had to obtain the approval of the Foreign Intelligence Surveillance Court. To do so, it had to submit an application describing (1) each “specific target,” (2) the “nature of the information sought,” and (3) the “type of communications or activities to be subjected to the surveillance.” § 1804(a). It had to certify that, in significant part, it sought to obtain foreign intelligence information. Ibid. It had to demonstrate probable cause to believe that each specific target was “a foreign power or an agent of a foreign power.” §§ 1804(a), 1805(a). It also had to describe instance-specific procedures to be used to minimize intrusions upon Americans’ privacy (compliance *425with which the court subsequently could assess). §§ 1804(a), 1805(d)(3).

The addition of § 1881a in 2008 changed this prior law in three important ways. First, it eliminated the requirement that the Government describe to the court each specific target and identify each facility at which its surveillance would be directed, thus permitting surveillance on a programmatic, not necessarily individualized, basis. § 1881a(g). Second, it eliminated the requirement that a target be a “foreign power or an agent of a foreign power.” Ibid. Third, it diminished the court’s authority to insist upon, and eliminated its authority to supervise, instance-specific privacy-intrusion minimization procedures (though the Government still must use court-approved general minimization procedures). § 1881a(e). Thus, using the authority of § 1881a, the Government can obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories by showing the court (1) that “a significant purpose of the acquisition is to obtain foreign intelligence information,” and (2) that it will use general targeting and privacy-intrusion minimization procedures of a kind that the court had previously approved. § 1881a(g).

It is similarly important to understand the kinds of communications in which the plaintiffs say they engage and which they believe the Government will intercept. Plaintiff Scott McKay, for example, says in an affidavit (1) that he is a lawyer; (2) that he represented “Mr. Sami Omar Al-Hussayen, who was acquitted in June 2004 on terrorism charges”; (3) that he continues to represent “Mr. Al-Hussayen, who, in addition to facing criminal charges after September 11, was named as a defendant in several civil cases”; (4) that he represents Khalid Sheik Mohammed, a detainee, “before the Military Commissions at Guantánamo Bay, Cuba”; (5) that in representing these clients he “commu-*426nicatefe] by telephone and email with people outside the United States, including Mr. Al-Hussayen himself,” “experts, investigators, attorneys, family members ... and others who are located abroad”; and (6) that prior to 2008 “the U. S. government had intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Al-Hussayen.” App. to Pet. for Cert. 369a-371a.

Another plaintiff, Sylvia Royce, says in her affidavit (1) that she is an attorney; (2) that she “represent^] Moham-medou Ould Salahi, a prisoner who has been held at Guantá-namo Bay as an enemy combatant”; (3) that, “[i]n connection with [her] representation of Mr. Salahi, [she] received] calls from time to time from Mr. Salahi’s brother,... a university student in Germany”; and (4) that she has been told that the Government has threatened Salahi “that his family members would be arrested and mistreated if he did not cooperate.” Id., at 349a-351a.

The plaintiffs have noted that McKay no longer represents Mohammed and Royce no longer represents Ould Salahi. Brief for Respondents 15, n. 11. But these changes are irrelevant, for we assess standing as of the time a suit is filed, see Davis v. Federal Election Comm’n, 554 U. S. 724, 734 (2008), and in any event McKay himself continues to represent Al Hussayen, his partner now represents Mohammed, and Royce continues to represent individuals held in the custody of the U. S. military overseas.

A third plaintiff, Joanne Mariner, says in her affidavit (1) that she is a human rights researcher; (2) that “some of the work [she] do[es] involves trying to track down people who were rendered by the CIA to countries in which they were tortured”; (3) that many of those people “the CIA has. said are (or were) associated with terrorist organizations”; and (4) that, to do this research, she “communicate[s] by telephone and e-mail with . . . former detainees, lawyers for detainees, relatives of detainees, political activists, journalists, and fixers” “all over the world, including in Jordan, Egypt, Paki*427stan, Afghanistan, [and] the Gaza Strip.” App. to Pet. for Cert. 343a-344a.

Other plaintiffs, including lawyers, journalists, and human rights researchers, say in affidavits (1) that they have jobs that require them to gather information from foreigners located abroad; (2) that they regularly communicate electronically (e. g., by telephone or e-mail) with foreigners located abroad; and (3) that in these communications they exchange “foreign intelligence information” as the Act defines it. Id., at 334a-375a.

HH H-I

Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that the Government, acting under the authority of § 1881a, will intercept at least some of the communications just described. First, the plaintiffs have engaged, and continue to engage, in electronic communications of a kind that the 2008 amendment, but not the prior Act, authorizes the Government to intercept. These communications include discussions with family members of those detained at Guantanamo, friends and acquaintances of those persons, and investigators, experts, and others with knowledge of circumstances related to terrorist activities. These persons are foreigners located outside the United States. They are not “foreign power[s]” or “agent[s] of . . . foreign powerfe].” And the plaintiffs state that they exchange with these persons “foreign intelligence information,” defined to include information that “relates to” “international terrorism” and “the national defense or the security of the United States.” See 50 U. S. C. § 1801 (2006 ed. and Supp. V); see, e. g., App. to Pet. for Cert. 342a, 366a, 373a-374a.

Second, the plaintiffs have a strong motive to engage in, and the Government has a strong motive to listen to, conversations of the kind described. A lawyer representing a client normally seeks to learn the circumstances surrounding the crime (or the civil wrong) of which the client is accused. *428A fair reading of the affidavit of Scott McKay, for example, taken together with elementary considerations of a lawyer’s obligation to his client, indicates that McKay will engage in conversations that concern what suspected foreign terrorists, such as his client, have done; in conversations that concern his clients’ families, colleagues, and contacts; in conversations that concern what those persons (or those connected to them) have said and done, at least in relation to terrorist activities; in conversations that concern the political, social, and commercial environments in which the suspected terrorists have lived and worked; and so forth. See, e. g., id., at 373a~374a. Journalists and human rights workers have strong similar motives to conduct conversations of this kind. See, e. g., id., at 342a (declaration of Joanne Mariner, stating that “some of the information [she] exchangefs] by telephone and e-mail relates to terrorism and counterterrorism, and much of the information relates to the foreign affairs of the United States”).

At the same time, the Government has a strong motive to conduct surveillance of conversations that contain material of this kind. The Government, after all, seeks to learn as much as it can reasonably learn about suspected terrorists (such as those detained at Guantanamo), as well as about their contacts and activities, along with those of friends and family members. See Executive Office of the President, Office of Management and Budget, Statement of Administration Policy on S. 2248, p. 4 (Dec. 17, 2007) (“Part of the value of the [new authority] is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States”). And the Government is motivated to do so, not simply by the desire to help convict those whom the Government believes guilty, but also by the critical, overriding need to protect America from terrorism. See id., at 1 (“Protection of the American people and American interests at home and abroad requires access to timely, accurate, and *429insightful intelligence on the capabilities, intentions, and activities of . . . terrorists”).

Third, the Government’s past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) “intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.” App. to Pet. for Cert. 370a.

Fourth, the Government has the capacity to conduct electronic surveillance of the kind at issue. To some degree this capacity rests upon technology available to the Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions § 16:6, p. 562 (2d ed. 2012) (“NSA’s technological abilities are legendary”); id., § 16:12, at 572-577 (describing the National Security Agency’s capacity to monitor “very broad facilities” such as international switches). See, e. g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, N. Y. Times, Dec. 24,' 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States); Lichtblau & Shane, Bush Is Pressed Over New Report on Surveillance, N. Y. Times, May 12, 2006, p. A1 (reporting capacity to obtain access to records of many, if not most, telephone calls made in the United States); Priest & Arkin, A Hidden World, Growing Beyond Control, Washington Post, July 19, 2010, p. A1 (reporting that every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, telephone calls, and other types of communications). Cf. Statement of Administration Policy on S. 2248, supra, at 3 (rejecting a provision of the Senate bill that would require intelligence analysts to count “the number of persons located in the United States whose communications were reviewed” as “impossible to implement” (internal quotation marks *430omitted)). This capacity also includes the Government’s authority to obtain the kind of information here at issue from private carriers such as AT&T and Verizon. See 50 U. S. C. § 1881a(h). We are farther told by amici that the Government is expanding that capacity. See Brief for Electronic Privacy Information Center et al. 22-23 (National Security Agency will be able to conduct surveillance of most electronic communications between domestic and foreign points).

Of course, to exercise this capacity the Government must have intelligence court authorization. But the Government rarely files requests that fail to meet the statutory criteria. See Letter from Ronald Weich, Assistant Attorney General, to Joseph R. Biden, Jr., 1 (Apr. 30, 2012) (In 2011, of the 1,676 applications to the intelligence court, 2 were withdrawn by the Government, and the remaining 1,674 were approved, 30 with some modification), online at http://www.justice.gov/ nsd/foia/foia_library/2011fisa-ltr.pdf. (as visited Feb. 22, 2013, and available in Clerk of Court’s case file). As the intelligence court itself has stated, its review under § 1881a is “ ‘narrowly circumscribed.’ ” In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, No. Mise. 08-01 (Aug. 27, 2008), p. 3. There is no reason to believe that the communications described would all fail to meet the conditions necessary for approval. Moreover, compared with prior law, § 1881a simplifies and thus expedites the approval process, making it more likely that the Government will use § 1881a to obtain the necessary approval.

The upshot is that (1) similarity of content, (2) strong motives, (3) prior behavior, and (4) capacity all point to a very strong likelihood that the Government will intercept at least some of the plaintiffs’ communications, including some that the 2008 amendment, § 1881a, but not the pre-2008 Act, authorizes the Government to intercept.

At the same time, nothing suggests the presence of some special factor here that might support a contrary conclusion. *431The Government does not deny that it has both the motive and the capacity to listen to communications of the kind described by the plaintiffs. Nor does it describe any system for avoiding the interception of an electronic communication that happens to include a party who is an American lawyer, journalist, or human rights worker. One can, of course, always imagine some special circumstance that negates a virtual likelihood, no matter how strong. But the same is true about most, if not all, ordinary inferences about future events. Perhaps, despite pouring rain, the streets will remain dry (due to the presence of a special chemical). But ordinarily a party that seeks to defeat a strong natural inference must bear the burden of showing that some such special circumstance exists. And no one has suggested any such special circumstance here.

Consequently, we need only assume that the Government is doing its job (to find out about, and combat, terrorism) in order to conclude that there is a high probability that the Government will intercept at least some electronic communication to which at least some of the plaintiffs are parties. The majority is wrong when it describes the harm threatened the plaintiffs as “speculative.”

The majority more plausibly says that the plaintiffs have failed to show that the threatened harm is “certainly impending.” Ante, at 409 (internal quotation marks omitted). But, as the majority appears to concede, see ante, at 414, and n. 5, certainty is not, and never has been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.

*432The Court’s use of the term “certainly impending” is not to the contrary. Sometimes the Court has used the phrase “certainly impending” as if the phrase described a sufficient, rather than a necessary, condition for jurisdiction. See Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923) (“If the injury is certainly impending that is enough”). See also Babbitt, 442 U. S., at 298 (same). On other occasions, it has used the phrase as if it concerned when, not whether, an alleged injury would occur. Thus, in Lujan, 504 U. S., at 564, n. 2, the Court considered a threatened future injury that consisted of harm that the plaintiffs would suffer when they “soon” visited a government project area that (they claimed) would suffer environmental damage. The Court wrote that a “mere profession of an intent, some day, to return” to the project area did not show the harm was “imminent,” for “soon” might mean nothing more than “in this lifetime.” Id., at 564-565, n. 2 (internal quotation marks omitted). Similarly, in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), the Court denied standing because the Senator’s future injury (stemming from a campaign finance law) would not affect him until his reelection. That fact, the Court said, made the injury “too remote temporally to satisfy Article III standing.” Id., at 225-226.

On still other occasions, recognizing that “‘imminence’ is concededly a somewhat elastic concept,” Lujan, supra, at 565, n. 2, the Court has referred to, or used (sometimes along with “certainly impending”), other phrases such as “reasonable probability” that suggest less than absolute, or literal, certainty. See Babbitt, supra, at 298 (plaintiff “must demonstrate a realistic danger of sustaining a direct injury” (emphasis added)); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 190 (2000) (“[I]t is the plaintiff’s burden to establish standing by demonstrating that... the defendant’s allegedly wrongful behavior will likely occur or continue”). See also Monsanto Co. v. Geertson Seed Farms, 561 U. S. 139, 153 (2010) (“ ‘ “reason*433able probability” ’ ” and “substantial risk”); Davis, 554 U. S., at 734 (“realistic and impending threat of direct injury”); MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 129 (2007) (“genuine threat of enforcement”); Department of Commerce v. United States House of Representatives, 525 U. S. 316, 333 (1999) (“substantially likely” (internal quotation marks omitted)); Clinton v. City of New York, 524 U. S. 417, 432 (1998) (“sufficient likelihood of economic injury”); Pennell v. San Jose, 485 U. S. 1, 8 (1988) (“realistic danger” (internal quotation marks omitted)); Blum v. Yaretsky, 457 U. S. 991, 1001 (1982) (“quite realistic” threat); Bryant v. Yellen, 447 U. S. 352, 367-368 (1980) (“likely”); Buckley v. Valeo, 424 U. S. 1, 74 (1976) (per curiam) (“reasonable probability”). Taken together the case law uses the word “certainly” as if it emphasizes, rather than literally defines, the immediately following term “impending.”

More important, the Court’s holdings in standing cases show that standing exists here. The Court has often found standing where the occurrence of the relevant injury was far less certain than here. Consider a few, fairly typical, cases. Consider Pennell, supra. A city ordinance forbade landlords to raise the rent charged to a tenant by more than 8 percent where doing so would work an unreasonably severe hardship on that tenant. Id., at 4-5. A group of landlords sought a judgment declaring the ordinance unconstitutional. The Court held that, to have standing, the landlords had to demonstrate a “ ‘realistic danger of sustaining a direct injury as a result of the statute’s operation.’ ” Id., at 8 (emphasis added). It found that the landlords had done so by showing a likelihood of enforcement and a “probability,” ibid., that the ordinance would make the landlords charge lower rents—even though the landlords had not shown (1) that they intended to raise the relevant rents to the point of *434causing unreasonably severe hardship; (2) that the tenants would challenge those increases; or (3) that the city’s hearing examiners and arbitrators would find against the landlords. Here, even more so than in Pennell, there is a “realistic danger” that the relevant harm will occur.

Or, consider Blum, supra. A group of nursing home residents receiving Medicaid benefits challenged the constitutionality (on procedural grounds) of a regulation that permitted their nursing home to transfer them to a less desirable home. Id., at 999-1000. Although a Medicaid committee had recommended transfers, Medicaid-initiated transfer had been enjoined and the nursing home itself had not threatened to transfer the plaintiffs. But the Court found “standing” because “the threat of transfers” was “not ‘imaginary or speculative’” but “quite realistic,” hence “sufficiently substantial.” Id., at 1000-1001 (quoting Younger v. Harris, 401 U. S. 37, 42 (1971)). The plaintiffs’ injury here is not imaginary or speculative, but “quite realistic.”

Or, consider Davis, supra. The plaintiff, a candidate for the United States House of Representatives, self-financed his campaigns. He challenged the constitutionality of an election law that relaxed the limits on an opponent’s contributions when a self-financed candidate’s spending itself exceeded certain other limits. His opponent, in fact, had decided not to take advantage of the increased contribution limits that the statute would have allowed. Id., at 734. But the Court nonetheless found standing because there was a “realistic and impending threat,” not a certainty, that the candidate’s opponent would do so at the time the plaintiff filed the complaint. Id., at 734-735. The threat facing the plaintiffs here is as “realistic and impending.”

Or, consider MedImmune, supra. The plaintiff, a patent licensee, sought a declaratory judgment that the patent was invalid. But, the plaintiff did not face an imminent threat of suit because it continued making royalty payments to the patent holder. In explaining why the plaintiff had standing, *435we (1) assumed that if the plaintiff stopped making royalty-payments it would have standing (despite the fact that the patent holder might not bring suit), (2) rejected the Federal Circuit’s “reasonable apprehension of imminent suit” requirement, and (3) instead suggested that a “genuine threat of enforcement” was likely sufficient. Id., at 128,129, 132, n. 11 (internal quotation marks omitted). A “genuine threat” is present here.

Moreover, courts have often found probabilistic injuries sufficient to support standing. In Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59 (1978), for example, the plaintiffs, a group of individuals living near a proposed nuclear powerplant, challenged the constitutionality of the Price-Anderson Act, a statute that limited the plant’s liability in the case of a nuclear accident. The plaintiffs said that, without the Act, the defendants would not build a nuclear plant. And the building of the plant would harm them, in part, by emitting “non-natural radiation into [their] environment.” Id., at 74. The Court found standing in part due to “our generalized concern about exposure to radiation and the apprehension flowing from the uncertainty about the health and genetic consequences of even small emissions.” Ibid, (emphasis added). See also Monsanto Co., 561 U. S., at 153-154 (“A substantial risk of gene flow injures respondents in several ways” (emphasis added)).

See also lower court cases, such as Mountain States Legal Foundation v. Glickman, 92 F. 3d 1228, 1234-1235 (CADC 1996) (plaintiffs attack Government decision to limit timber harvesting; standing based upon increased risk of wildfires); Natural Resources Defense Council v. EPA, 464 F. 3d 1, 7 (CADC 2006) (plaintiffs attack Government decision deregulating methyl bromide; standing based upon increased lifetime risk of developing skin cancer); Constellation Energy Commodities Group, Inc. v. FERC, 457 F. 3d 14, 20 (CADC 2006) (standing based on increased risk of nonreeovery inherent in the reduction of collateral securing a debt of uncer*436tain amount); Sutton v. St. Jude Medical S. C., Inc., 419 F. 3d 568, 570-575 (CA6 2005) (standing based on increased risk of harm caused by implantation of defective medical device); Johnson v. Allsteel, Inc., 259 F. 3d 885, 888-891 (CA7 2001) (standing based on increased risk that Employee Retirement Income Security Act of 1974 beneficiary will not be covered due to increased amount of discretion given to ERISA administrator).

How could the law be otherwise? Suppose that a federal court faced a claim by homeowners that (allegedly) unlawful dam-building practices created a high risk that their homes would be flooded. Would the court deny them standing on the ground that the risk of flood was only 60, rather than 90, percent?

Would federal courts deny standing to a plaintiff in a diversity action who claims an anticipatory breach of contract where the future breach depends on probabilities? The defendant, say, has threatened to load wheat onto a ship bound for India despite a promise to send the wheat to the United States. No one can know for certain that this will happen. Perhaps the defendant will change his mind; perhaps the ship will turn and head for the United States. Yet, despite the uncertainty, the Constitution does not prohibit a federal court from hearing such a claim. See 23 R. Lord, Williston on Contracts §63:35 (4th ed. 2002) (plaintiff may bring an anticipatory breach suit even though the defendant’s promise is one to perform in the future, it has not yet been broken, and defendant may still retract the repudiation). E. g., Wisconsin Power & Light Co. v. Century Indemnity Co., 130 F. 3d 787, 792-793 (CA7 1997) (plaintiff could sue insurer that disclaimed liability for all costs that would be incurred in the future if environmental agencies required cleanup); Combs v. International Ins. Co., 354 F. 3d 568, 598-601 (CA6 2004) (similar).

Would federal courts deny standing to a plaintiff who seeks to enjoin as a nuisance the building of a nearby pond *437which, the plaintiff believes, will very likely, but not inevitably, overflow his land? See 42 Am. Jur. 2d, Injunctions §§2, 5 (2010) (noting that an injunction is ordinarily preventive in character and restrains actions that have not yet been taken, but threaten injury). E. g., Central Delta Water Agency v. United States, 306 F. 3d 938, 947-950 (CA9 2002) (standing to seek injunction where method of operating dam was highly likely to severely hamper plaintiffs’ ability to grow crops); Consolidated Companies, Inc. v. Union Pacific R. Co., 499 F. 3d 382, 386 (CA5 2007) (standing to seek injunction requiring cleanup of land adjacent to plaintiff’s tract because of threat that contaminants might migrate to plaintiff’s tract).

Neither do ordinary declaratory judgment actions always involve the degree of certainty upon which the Court insists here. See, e. g., Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941) (insurance company could seek declaration that it need not pay claim against insured automobile driver who was in an accident even though the driver had not yet been found liable for the accident); Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 239-244 (1937) (insurance company could seek declaration that it need not pay plaintiff for disability although plaintiff had not yet sought disability payments). See also, e. g., Associated Indemnity Corp. v. Fairchild Industries, Inc., 961 F. 2d 32, 35-36 (CA2 1992) (insured could seek declaration that insurance company must pay liability even before insured found liable).

In some standing cases, the Court has found that a reasonable probability of future injury comes accompanied with present injury that takes the form of reasonable efforts to mitigate the threatened effects of the future injury or to prevent it from occurring. Thus, in Monsanto Co., 561 U. S., at 153-156, the plaintiffs, a group of conventional alfalfa growers) challenged an agency decision to deregulate genetically *438engineered alfalfa. They claimed that deregulation would harm them because their neighbors would plant the genetically engineered seed, bees would obtain pollen from the neighbors’ plants, and the bees would then (harmfully) contaminate their own conventional alfalfa with the genetically modified gene. The lower courts had found a “reasonable probability” that this injury would occur. Ibid, (internal quotation marks omitted).

Without expressing views about that probability, we found standing because the plaintiffs would suffer present harm by trying to combat the threat. Ibid. The plaintiffs, for example, “would have to conduct testing to find out whether and to what extent their crops have been contaminated.” Id., at 154. And they would have to take “measures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically-engineered alfalfa.” Ibid. We held that these “harms, which [the plaintiffs] will suffer even if their crops are not actually infected with” the genetically modified gene, “are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis.” Id., at 155.

Virtually identical circumstances are present here. Plaintiff McKay, for example, points out that, when he communicates abroad about, or in the interests of, a client (e. g., a client accused of terrorism), he must “make an assessment” whether his “client’s interest would be compromised” should the Government “acquire the communications.” App. to Pet. for Cert. 375a. If so, he must either forgo the communication or travel abroad. Id., at 371a-372a (“I have had to take measures to protect the confidentiality of information that I believe is particularly sensitive,” including “travel that is both time-consuming and expensive”).

Since travel is expensive, since forgoing communication can compromise the client’s interests, since McKay’s assessment itself takes time and effort, this case does not differ significantly from Monsanto. And that is so whether we *439consider the plaintiffs’ present necessary expenditure of time and effort as a separate concrete, particularized, imminent harm, or consider it as additional evidence that the future harm (an interception) is likely, to occur. See also Friends of the Earth, Inc., 528 U. S., at 183-184 (holding that plaintiffs who curtailed their recreational activities on a river due to reasonable concerns about the effect of pollutant discharges into that river had standing); Meese v. Keene, 481 U. S. 465, 475 (1987) (stating that “the need to take ... affirmative steps to avoid the risk of harm . . . constitutes a cognizable injury”).

The majority cannot find support in cases that use the words “certainly impending” to deny standing. While I do not claim to have read every standing case, I have examined quite a few, and not yet found any such case. The majority refers to Whitmore v. Arkansas, 495 U. S. 149 (1990). But in that case the Court denied standing to a prisoner who challenged the validity of a death sentence given to a different prisoner who refused to challenge his own sentence. The plaintiff feared that in the absence of an appeal, his fellow prisoner’s death sentence would be missing from the State’s death penalty database and thereby skew the database against him, making it less likely his challenges to his own death penalty would succeed. The Court found no standing. Id., at 161. But the fellow prisoner’s lack of appeal would have harmed the plaintiff only if (1) the plaintiff separately obtained federal habeas relief and was then recon-victed and resentenced to death, (2) he sought review of his new sentence, and (3) during that review, his death sentence was affirmed only because it was compared to an artificially skewed database. Id., at 156-157. These events seemed not very likely to occur.

In Daimler Chrysler Corp. v. Cuno, 547 U. S. 332 (2006), taxpayers challenged the constitutionality of a tax break offered by state and local governments to a car manufacturer. *440We found no standing. But the plaintiffs would have suffered resulting injury only if the tax break had depleted state and local treasuries and the legislature had responded by raising their taxes. Id., at 344.

In Lujan, the case that may come closest to supporting the majority, the Court also found no standing. But, as I pointed out, supra, at 432, Lujan is a case where the Court considered when, not whether, the threatened harm would occur. 504 U. S., at 564, n. 2. The relevant injury there consisted of a visit by an environmental group’s members to a project site where they would find (unlawful) environmental depredation. Id., at 564. The Court pointed out that members had alleged that they would visit the project sites “soon.” But it wrote that “soon” might refer to almost any time in the future. Ibid., n. 2. By way of contrast, the ongoing threat of terrorism means that here the relevant interceptions will likely take place imminently, if not now.

The Court has, of course, denied standing in other cases. But they involve injuries less likely, not more likely, to occur than here. In a recent case, Summers v. Earth Island Institute, 555 U. S. 488 (2009), for example, the plaintiffs challenged a regulation exempting certain timber sales from public comment and administrative appeal. The plaintiffs claimed that the regulations injured them by interfering with their esthetic enjoyment and recreational use of the forests. The Court found this harm too unlikely to occur to support standing. Id., at 496. The Court noted that one plaintiff had not pointed to a specific affected forest that he would visit. The Court concluded that “[tjhere may be a chance, but . . . hardly a likelihood,” that the plaintiff’s “wanderings will bring him to a parcel about to be affected by a project unlawfully subject to the regulations.” Id., at 495 (emphasis added).

In sum, as the Court concedes, see ante, at 414, and n. 5, the word “certainly” in the phrase “certainly impending” *441does not refer to absolute certainty. As our case law demonstrates, what the Constitution requires is something more akin to “reasonable probability” or “high probability.” The use of some such standard is all that is necessary here to ensure the actual concrete injury that the Constitution demands. The considerations set forth in Parts II and III, supra, make clear that the standard is readily met in this case.

⅜ * *

While I express no view on the merits of the plaintiffs’ constitutional claims, I do believe that at least some of the plaintiffs have standing to make those claims. I dissent, with respect, from the majority’s contrary conclusion.

3.5.2.8 List v. Driehaus 3.5.2.8 List v. Driehaus

[excerpt]

[1] Justice THOMAS delivered the opinion of the Court.

[2] Petitioners in this case seek to challenge an Ohio statute that prohibits certain "false statements" during the course of a political campaign. The question in this case is whether their pre-enforcement challenge to that law is justiciable — and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have.

[3] The Ohio statute at issue prohibits certain "false statement[s]" "during the course of any campaign for nomination or election to public office or office of a political party." As relevant here, the statute makes it a crime for any person to "[m]ake a false statement concerning the voting record of a candidate or public official," or to "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not,"

* * *

[4] Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev.Code Ann. §§ 3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. § 3599.39.

[5] Petitioner Susan B. Anthony List (SBA) is a "pro-life advocacy organization." During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to "educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion." The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus' district condemning that vote. The planned billboard would have read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." The advertising company that owned the billboard space refused to display that message, however, after Driehaus' counsel threatened legal action.

[6] On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated [the Ohio statute] by falsely stating that he had voted for "taxpayer-funded abortion."^[2] Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA's communications with allied organizations, political party committees, and Members of Congress and their staffs.

[7] On October 18, 2010 — after the panel's probable-cause determination, but before the scheduled Commission hearing — SBA filed suit in Federal District Court, seeking declaratory and injunctive relief on the ground that [the Ohio statute’s provisions] violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action pending completion of the Commission proceedings. The Sixth Circuit denied SBA's motion for an injunction pending appeal. Driehaus and SBA eventually agreed to postpone the full Commission hearing until after the election.

[8] When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA's consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that [the relevant Ohio statutory provisions prohibiting false statements during political campaigns] are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA's speech about Driehaus had been chilled; that SBA "intends to engage in substantially similar activity in the future"; and that it "face[d] the prospect of its speech and associational rights again being chilled and burdened," because "[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself."

[9] The District Court dismissed [the action] as non-justiciable, concluding that [it presented] no sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied.

[10] Regarding the first factor, the Sixth Circuit concluded that SBA's prior injuries — the probable-cause determination and the billboard rejection — "do not help it show an imminent threat of future prosecution," particularly where "the Commission never found that SBA ... violated Ohio's false-statement law." The court further reasoned that it was speculative whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that "it plans to lie or recklessly disregard the veracity of its speech" in the future, but rather maintains that the statements it intends to make are factually true.

[11] As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA's future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA's suit was not ripe for review.

[12] We granted certiorari, and now reverse.

III

[13] Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const., Art. III, § 2. The doctrine of standing gives meaning to these constitutional limits by "identify[ing] those disputes which are appropriately resolved through the judicial process."^[5] Lujan v. Defenders of Wildlife (1992). "The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, (2013) . To establish Article III standing, a plaintiff must show (1) an "injury in fact," (2) a sufficient "causal connection between the injury and the conduct complained of," and (3) a "likel[ihood]" that the injury "will be redressed by a favorable decision." Lujan,.

[14] This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a "personal stake in the outcome of the controversy." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be "concrete and particularized" and "actual or imminent, not `conjectural' or `hypothetical.'" Lujan,. An allegation of future injury may suffice if the threatened injury is "certainly impending," or there is a "`substantial risk' that the harm will occur." Clapper.

[15] "`The party invoking federal jurisdiction bears the burden of establishing' standing." Id. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan.

[16] One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. [] Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a pre-enforcement challenge consistent with Article III.

[17] In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him.

[18] We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion's prosecution showed that his "concern with arrest" was not "`chimerical.'" Under those circumstances, we said, "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."

[19] In Babbitt, we considered a pre-enforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an "agricultural product ... by the use of dishonest, untruthful and deceptive publicity.'" The plaintiffs contended that the law "unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals."

[20] Building on Steffel, we explained that a plaintiff could bring a pre-enforcement suit when he "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." We found those circumstances present in Babbitt. In that case, the law "on its face proscribe[d] dishonest, untruthful, and deceptive publicity." The plaintiffs had "actively engaged in consumer publicity campaigns in the past" and alleged "an intention to continue" those campaigns in the future. And although they did not "plan to propagate untruths," they argued that "`erroneous statement is inevitable in free debate.'" We concluded that the plaintiffs' fear of prosecution was not "imaginary or wholly speculative," and that their challenge to the consumer publicity provision presented an Article III case or controversy.

* * *

[21] Here, [petitioners] contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement.

[22] First, petitioners have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest." Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported "taxpayer-funded abortion," and it has alleged an "inten[t] to engage in substantially similar activity in the future." [ ] Because petitioners' intended future conduct concerns political speech, it is certainly "affected with a constitutional interest."

[23] Next, petitioners' intended future conduct is "arguably ... proscribed by [the] statute" they wish to challenge. The Ohio false statement law sweeps broadly, and covers the subject matter of petitioners' intended speech. Both [petitioners] have alleged an intent to "[m]ake" statements "concerning the voting record of a candidate or public official," and to "disseminate" statements "concerning a candidate ... to promote the election, nomination, or defeat of the candidate," And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported "taxpayer-funded abortion" — the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners' intended speech is "arguably proscribed" by the law.

[24] Respondents incorrectly rely on Golden v. Zwickler, (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. The Court dismissed the plaintiff's challenge to the electoral leafletting ban as non-justiciable because his "sole concern was literature relating to the Congressman and his record," and "it was most unlikely that the Congressman would again be a candidate." Under those circumstances, any threat of future prosecution was "wholly conjectural."

[25] Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Because petitioners' alleged future speech is not directed exclusively at Driehaus, it does not matter whether he "may run for office again." As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio's false statement statute.

[26] Respondents, echoing the Sixth Circuit, contend that SBA's fears of enforcement are misplaced because SBA has not said it "`plans to lie or recklessly disregard the veracity of its speech.'" The Sixth Circuit reasoned that because SBA "can only be liable for making a statement `knowing' it is false," SBA's insistence that its speech is factually true "makes the possibility of prosecution for uttering such statements exceedingly slim."

[27] The Sixth Circuit misses the point. SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law.

[28] Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not "`chimerical.'" Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA's speech violated the false statement statute. Indeed, future complainants may well "invoke the prior probable-cause finding to prove that SBA knowingly lied."

[29] The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows "any person" with knowledge of the purported violation to file a complaint. Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. And petitioners, who intend to criticize candidates for political office, are easy targets.

[30] Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission "`handles about 20 to 80 false statement complaints per year,'"and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from "imaginary or speculative."

[31] We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the "practical effect" of the Ohio false statement scheme is "to permit a private complainant... to gain a campaign advantage without ever having to prove the falsity of a statement." "[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election." Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a pre-election probable-cause finding, "such a determination itself may be viewed [by the electorate] as a sanction by the State."

[32] Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case.

* * *

[33] In sum, we find that [petitioners] have alleged a credible threat of enforcement.

[34] In concluding that petitioners' claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. Respondents contend that these "prudential ripeness" factors confirm that the claims at issue are non-justiciable. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners' claims non-justiciable "on grounds that are `prudential,' rather than constitutional," "[t]hat request is in some tension with our recent reaffirmation of the principle that `a federal court's obligation to hear and decide' cases within its jurisdiction `is virtually unflagging.'" Lexmark Int'l, Inc. v. Static Control Components, Inc., (2014).

[35] In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the "fitness" and "hardship" factors are easily satisfied here. First, petitioners' challenge to the Ohio false statement statute presents an issue that is "purely legal, and will not be clarified by further factual development." And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.

* * *

[36] Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met.

[37] It is so ordered.

[1] Section 3517.21(B) provides in relevant part:

"No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

. . . . .

"(9) Make a false statement concerning the voting record of a candidate or public official;

"(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate."

[2] The dispute about the falsity of SBA's speech concerns two different provisions of the ACA: (1) the subsidy to assist lower income individuals in paying insurance premiums, and (2) the direct appropriation of federal money for certain health programs such as community health centers. See Brief for Petitioners 4-5.

[3] Petitioners also challenged a related "disclaimer provision," App. 126-127, 156-157, under Ohio Rev.Code Ann. § 3517.20, and COAST raised pre-emption and due process claims. Reply Brief 21, n. 7. Petitioners do not pursue their "disclaimer," pre-emption, or due process claims before us. Ibid. We also need not address SBA's separate challenge to the Commission's investigatory procedures; petitioners have conceded that the procedures claim stands or falls with the substantive prohibition on false statements. Ibid.; see Tr. of Oral Arg. 19. Finally, the parties agree that petitioners' as-applied claims "are better read as facial objections to Ohio's law." Reply Brief 19. Accordingly, we do not separately address the as-applied claims.

[4] SBA named Driehaus, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. COAST named the Commission, the Commission's members and its staff attorney (in their official capacities), and the Ohio Secretary of State (in her official capacity) as defendants. All named defendants are respondents here.

[5] The doctrines of standing and ripeness "originate" from the same Article III limitation. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). As the parties acknowledge, the Article III standing and ripeness issues in this case "boil down to the same question." Med-Immune, Inc. v. Genentech, Inc., 549 U.S. 118, 128, n. 8, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); see Brief for Petitioners 28; Brief for Respondents 22. Consistent with our practice in cases like Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 299, n. 11, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), we use the term "standing" in this opinion.

Supreme Court of the United States

134 S. Ct. 2334, 189 L. Ed. 2d 246, 82 U.S.L.W. 4489

No. 13–193.

2014-06-16

SUSAN B. ANTHONY LIST, et al., Petitioners
v.
Steven DRIEHAUS et al.

No. 13-193.

Supreme Court of the United States

Argued April 22, 2014.
Decided June 16, 2014.

*2336Syllabus^*

Respondent Driehaus, a former Congressman, filed a complaint with the Ohio Elections Commission alleging that petitioner Susan B. Anthony List (SBA) violated an Ohio law that criminalizes certain false statements made during the course of a political campaign. Specifically, Driehaus alleged that SBA violated the law when it stated that his vote for the Patient Protection and Affordable Care Act (ACA) was a vote in favor of "taxpayer funded abortion." After Driehaus lost his re-election bid, the complaint was dismissed, but SBA continued to pursue a separate suit in Federal District Court challenging the law on First Amendment grounds. Petitioner Coalition Opposed to Additional Spending and Taxes (COAST) also filed a First Amendment challenge to the Ohio law, alleging that it had planned to disseminate materials presenting a similar message but refrained due to the proceedings against SBA. The District Court consolidated the two lawsuits and dismissed them as nonjusticiable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds.

Held : Petitioners have alleged a sufficiently imminent injury for Article III purposes. Pp. 2341 - 2347.

(a) To establish Article III standing, a plaintiff must show, inter alia, an "injury in fact," which must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical.' " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351. When challenging a law prior to its enforcement, a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895. Pp. 2341 - 2343.

(b) Petitioners have alleged a credible threat of enforcement of the Ohio law. Pp. 2343 - 2346.

(1) Petitioners have alleged "an intention to engage in a course of conduct arguably *2337affected with a constitutional interest" by pleading specific statements they intend to make in future election cycles. Pp. 2343 - 2344.

(2) Petitioners' intended future conduct is also "arguably ... proscribed by [the] statute." The Ohio false statement statute sweeps broadly, and a panel of the Ohio Elections Commission already found probable cause to believe that SBA violated the law when it made statements similar to those petitioners plan to make in the future. Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113, is distinguishable; the threat of prosecution under an electoral leafletting ban in that case was wholly conjectural because the plaintiff's "sole concern" related to a former Congressman who was unlikely to run for office again. Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. Nor does SBA's insistence that its previous statements were true render its fears of enforcement misplaced. After all, that insistence did not prevent the Commission from finding probable cause for a violation the first time. Pp. 2344 - 2345.

(3) Finally, the threat of future enforcement is substantial. There is a history of past enforcement against petitioners. Past enforcement against the same conduct is good evidence that the threat of enforcement is not " 'chimerical.' " Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505. The credibility of that threat is bolstered by the fact that a complaint may be filed with the State Commission by "any person," Ohio Rev.Code Ann. § 3517.153(A), not just a prosecutor or agency.

The threatened Commission proceedings are of particular concern because of the burden they impose on electoral speech. Moreover, the target of a complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days before an election. But this Court need not decide whether the threat of Commission proceedings standing alone is sufficient; here, those proceedings are backed by the additional threat of criminal prosecution. Pp. 2345 - 2346.

(c) The Sixth Circuit separately considered two other "prudential factors": "fitness" and "hardship." This Court need not resolve the continuing vitality of the prudential ripeness doctrine in this case because those factors are easily satisfied here. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. ----, 134 S.Ct. 1377, 188 L.Ed.2d 392. P. 2347.

525 Fed.Appx. 415, reversed and remanded.

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

Michael A. Carvin, Washington, DC, for Petitioners.

Eric J. Feigin, for the United States as amicus curiae, by special leave of the Court, supporting partial reversal.

Eric E. Murphy, State Solicitor, for Respondents.

Christopher P. Finney, The Finney Law Firm, Cincinnati, OH, Curt C. Hartman, The Law Firm of Curt C. Hartman, Amelia, OH, Robert A. Destro, Arlington, VA, Michael A. Carvin, Counsel of Record, Yaakov M. Roth, Jones Day, Washington, DC, David R. Langdon, Joshua B. Bolinger, Langdon Law LLC, West Chester, OH, for Petitioners.

Michael DeWine, Attorney General of Ohio, Eric E. Murphy, State Solicitor, Counsel of Record, Samuel C. Peterson, Peter K. Glenn-Applegate, Deputy Solicitors, *2338Columbus, OH, for State Respondents Kimberly Allison, Degee Wilhelm, Helen Balcolm, Terrance Conroy, Lynn Grimshaw, Jayme Smoot, William Vasil, Philip Richter, Ohio Elections Commission, and Jon Husted.

Justice THOMAS delivered the opinion of the Court.

Petitioners in this case seek to challenge an Ohio statute that prohibits certain "false statements" during the course of a political campaign. The question in this case is whether their preenforcement challenge to that law is justiciable-and in particular, whether they have alleged a sufficiently imminent injury for the purposes of Article III. We conclude that they have.

The Ohio statute at issue prohibits certain "false statement[s]" "during the course of any campaign for nomination or election to public office or office of a political party." Ohio Rev.Code Ann. § 3517.21(B) (Lexis 2013). As relevant here, the statute makes it a crime for any person to "[m]ake a false statement concerning the voting record of a candidate or public official," § 3517.21(B)(9), or to "[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not," § 3517.21(B)(10).¹

"[A]ny person" acting on personal knowledge may file a complaint with the Ohio Elections Commission (or Commission) alleging a violation of the false statement statute. § 3517.153(A) (Lexis Supp. 2014). If filed within 60 days of a primary election or 90 days of a general election, the complaint is referred to a panel of at least three Commission members. §§ 3517.156(A), (B)(1) (Lexis 2013). The panel must then hold an expedited hearing, generally within two business days, § 3517.156(B)(1), to determine whether there is probable cause to believe the alleged violation occurred, § 3517.156(C). Upon a finding of probable cause, the full Commission must, within 10 days, hold a hearing on the complaint. § 3517.156(C)(2); see also Ohio Admin. Code § 3517-1-10(E) (2008).

The statute authorizes the full Commission to subpoena witnesses and compel production of documents. Ohio Rev.Code Ann. § 3517.153(B) (Lexis Supp. 2014). At the full hearing, the parties may make *2339opening and closing statements and present evidence. Ohio Admin. Code §§ 3517-1-11(B)(2)(c), (d), (g). If the Commission determines by "clear and convincing evidence" that a party has violated the false statement law, the Commission "shall" refer the matter to the relevant county prosecutor. Ohio Rev.Code Ann. §§ 3517.155(D)(1)-(2) (Lexis Supp. 2014). Alternatively, the Commission's regulations state that it may simply issue a reprimand. See Ohio Admin. Code § 3517-1-14(D). Violation of the false statement statute is a first-degree misdemeanor punishable by up to six months of imprisonment, a fine up to $5,000, or both. Ohio Rev.Code Ann. §§ 3599.40 (Lexis 2013), 3517.992(V) (Lexis Supp. 2014). A second conviction under the false statement statute is a fourth-degree felony that carries a mandatory penalty of disfranchisement. § 3599.39.

Petitioner Susan B. Anthony List (SBA) is a "pro-life advocacy organization." 525 Fed.Appx. 415, 416 (C.A.6 2013). During the 2010 election cycle, SBA publicly criticized various Members of Congress who voted for the Patient Protection and Affordable Care Act (ACA). In particular, it issued a press release announcing its plan to "educat[e] voters that their representative voted for a health care bill that includes taxpayer-funded abortion." App. 49-50. The press release listed then-Congressman Steve Driehaus, a respondent here, who voted for the ACA. SBA also sought to display a billboard in Driehaus' district condemning that vote. The planned billboard would have read: "Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion." Id., at 37. The advertising company that owned the billboard space refused to display that message, however, after Driehaus' counsel threatened legal action.

On October 4, 2010, Driehaus filed a complaint with the Ohio Elections Commission alleging, as relevant here, that SBA had violated §§ 3517.21(B)(9) and (10) by falsely stating that he had voted for "taxpayer-funded abortion." ² Because Driehaus filed his complaint 29 days before the general election, a Commission panel held an expedited hearing. On October 14, 2010, the panel voted 2 to 1 to find probable cause that a violation had been committed. The full Commission set a hearing date for 10 business days later, and the parties commenced discovery. Driehaus noticed depositions of three SBA employees as well as individuals affiliated with similar advocacy groups. He also issued discovery requests for all evidence that SBA would rely on at the Commission hearing, as well as SBA's communications with allied organizations, political party committees, and Members of Congress and their staffs.

On October 18, 2010-after the panel's probable-cause determination, but before the scheduled Commission hearing-SBA filed suit in Federal District Court, seeking declaratory and injunctive relief on the ground that §§ 3517.21(B)(9) and (10) violate the First and Fourteenth Amendments of the United States Constitution. The District Court stayed the action under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), pending completion of the Commission proceedings. The Sixth Circuit denied SBA's motion for an injunction pending appeal. Driehaus *2340and SBA eventually agreed to postpone the full Commission hearing until after the election.

When Driehaus lost the election in November 2010, he moved to withdraw his complaint against SBA. The Commission granted the motion with SBA's consent. Once the Commission proceedings were terminated, the District Court lifted the stay and SBA amended its complaint. As relevant here, the amended complaint alleged that Ohio Rev.Code Ann. §§ 3517.21(B)(9) and (10) are unconstitutional both facially and as applied. Specifically, the complaint alleged that SBA's speech about Driehaus had been chilled; that SBA "intends to engage in substantially similar activity in the future"; and that it "face [d] the prospect of its speech and associational rights again being chilled and burdened," because "[a]ny complainant can hale [it] before the [Commission], forcing it to expend time and resources defending itself." App. 121-122.

The District Court consolidated SBA's suit with a separate suit brought by petitioner Coalition Opposed to Additional Spending and Taxes (COAST), an advocacy organization that also alleged that the same Ohio false statement provisions are unconstitutional both facially and as applied.³ According to its amended complaint, COAST intended to disseminate a mass e-mail and other materials criticizing Driehaus' vote for the ACA as a vote "to fund abortions with tax dollars," but refrained from doing so because of the Commission proceedings against SBA. Id., at 146, 148, 162. COAST further alleged that it "desires to make the same or similar statements about other federal candidates who voted for" the ACA, but that fear "of finding itself subject to the same fate" as SBA has deterred it from doing so. Id., at 149, 157.⁴

The District Court dismissed both suits as non-justiciable, concluding that neither suit presented a sufficiently concrete injury for purposes of standing or ripeness. The Sixth Circuit affirmed on ripeness grounds. 525 Fed.Appx. 415. The Court of Appeals analyzed three factors to assess whether the case was ripe for review: (1) the likelihood that the alleged harm would come to pass; (2) whether the factual record was sufficiently developed; and (3) the hardship to the parties if judicial relief were denied.

Regarding the first factor, the Sixth Circuit concluded that SBA's prior injuries-the probable-cause determination and the billboard rejection-"do not help it show an imminent threat of future prosecution," particularly where "the Commission never found that SBA ... violated Ohio's false-statement law." Id., at 420. The court further reasoned that it was speculative *2341whether any person would file a complaint with the Commission in the future, in part because Driehaus took a 2-year assignment with the Peace Corps in Africa after losing the election. Finally, the court noted that SBA has not alleged that "it plans to lie or recklessly disregard the veracity of its speech" in the future, but rather maintains that the statements it intends to make are factually true. Id., at 422.

As for the remaining factors, the court concluded that the factual record was insufficiently developed with respect to the content of SBA's future speech, and that withholding judicial relief would not result in undue hardship because, in the time period leading up to the 2010 election, SBA continued to communicate its message even after Commission proceedings were initiated. The Sixth Circuit therefore determined that SBA's suit was not ripe for review, and that its analysis as to SBA compelled the same conclusion with respect to COAST.

We granted certiorari, 571 U.S. ----, --- S.Ct. ----, --- L.Ed.2d ---- (2014), and now reverse.

III

Article III of the Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. Const., Art. III, § 2. The doctrine of standing gives meaning to these constitutional limits by "identify[ing] those disputes which are appropriately resolved through the judicial process." ⁵Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches." Clapper v. Amnesty Int'l USA, 568 U.S. ----, ----, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). To establish Article III standing, a plaintiff must show (1) an "injury in fact," (2) a sufficient "causal connection between the injury and the conduct complained of," and (3) a "likel[ihood]" that the injury "will be redressed by a favorable decision." Lujan, supra, at 560-561, 112 S.Ct. 2130 (internal quotation marks omitted).

This case concerns the injury-in-fact requirement, which helps to ensure that the plaintiff has a "personal stake in the outcome of the controversy." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (internal quotation marks omitted). An injury sufficient to satisfy Article III must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical.' " Lujan, supra, at 560, 112 S.Ct. 2130 (some internal question marks omitted). An allegation of future injury may suffice if the threatened injury is "certainly impending," or there is a " 'substantial risk' that the harm will occur." Clapper, 568 U.S., at ----, ----, n. 5, 133 S.Ct., at 1147, 1150, n. 5 (emphasis deleted and internal quotation marks omitted).

*2342" 'The party invoking federal jurisdiction bears the burden of establishing' standing." Id., at ----, 133 S.Ct., at 1148. "[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, supra, at 561, 112 S.Ct. 2130.

One recurring issue in our cases is determining when the threatened enforcement of a law creates an Article III injury. When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law. See Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) ("[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights"); see also MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007) ("[W]here threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat"). Instead, we have permitted pre-enforcement review under circumstances that render the threatened enforcement sufficiently imminent. Specifically, we have held that a plaintiff satisfies the injury-in-fact requirement where he alleges "an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). Several of our cases illustrate the circumstances under which plaintiffs may bring a preenforcement challenge consistent with Article III.

In Steffel, for example, police officers threatened to arrest petitioner and his companion for distributing handbills protesting the Vietnam War. Petitioner left to avoid arrest; his companion remained and was arrested and charged with criminal trespass. Petitioner sought a declaratory judgment that the trespass statute was unconstitutional as applied to him.

We determined that petitioner had alleged a credible threat of enforcement: He had been warned to stop handbilling and threatened with prosecution if he disobeyed; he stated his desire to continue handbilling (an activity he claimed was constitutionally protected); and his companion's prosecution showed that his "concern with arrest" was not " 'chimerical.' " 415 U.S., at 459, 94 S.Ct. 1209. Under those circumstances, we said, "it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Ibid.

In Babbitt, we considered a preenforcement challenge to a statute that made it an unfair labor practice to encourage consumers to boycott an "agricultural product ... by the use of dishonest, untruthful and deceptive publicity.' " 442 U.S., at 301, 99 S.Ct. 2301. The plaintiffs contended that the law "unconstitutionally penalize[d] inaccuracies inadvertently uttered in the course of consumer appeals." Ibid.

Building on Steffel, we explained that a plaintiff could bring a preenforcement suit when he "has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder." Babbitt, supra, at 298, 99 S.Ct. 2301. We found those circumstances *2343present in Babbitt. In that case, the law "on its face proscribe [d] dishonest, untruthful, and deceptive publicity." 442 U.S., at 302, 99 S.Ct. 2301. The plaintiffs had "actively engaged in consumer publicity campaigns in the past" and alleged "an intention to continue" those campaigns in the future. Id., at 301, 99 S.Ct. 2301. And although they did not "plan to propagate untruths," they argued that " 'erroneous statement is inevitable in free debate.' " Ibid. We concluded that the plaintiffs' fear of prosecution was not "imaginary or wholly speculative," and that their challenge to the consumer publicity provision presented an Article III case or controversy. Id., at 302, 99 S.Ct. 2301.

Two other cases bear mention. In Virginia v. American Booksellers Assn. Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), we held that booksellers could seek preenforcement review of a law making it a crime to " 'knowingly display for commercial purpose' " material that is " 'harmful to juveniles' " as defined by the statute. Id., at 386, 108 S.Ct. 636. At trial, the booksellers introduced 16 books they believed were covered by the statute and testified that costly compliance measures would be necessary to avoid prosecution for displaying such books. Just as in Babbitt and Steffel, we determined that the "pre-enforcement nature" of the suit was not "troubl[ing]" because the plaintiffs had "alleged an actual and well-founded fear that the law will be enforced against them." 484 U.S., at 393, 108 S.Ct. 636.

Finally, in Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), we considered a preenforcement challenge to a law that criminalized " ' knowingly provid[ing] material support or resources to a foreign terrorist organization.' " Id., at 8, 130 S.Ct. 2705. The plaintiffs claimed that they had provided support to groups designated as terrorist organizations prior to the law's enactment and would provide similar support in the future. The Government had charged 150 persons with violating the law and declined to disavow prosecution if the plaintiffs resumed their support of the designated organizations. We held that the claims were justiciable: The plaintiffs faced a " 'credible threat' " of enforcement and " 'should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.' " Id., at 15, 130 S.Ct. 2705.

Here, SBA and COAST contend that the threat of enforcement of the false statement statute amounts to an Article III injury in fact. We agree: Petitioners have alleged a credible threat of enforcement. See Babbitt, 442 U.S., at 298, 99 S.Ct. 2301.

First, petitioners have alleged "an intention to engage in a course of conduct arguably affected with a constitutional interest." Ibid. Both petitioners have pleaded specific statements they intend to make in future election cycles. SBA has already stated that representatives who voted for the ACA supported "taxpayer-funded abortion," and it has alleged an "inten[t] to engage in substantially similar activity in the future." App. 49-50, 122. See also Humanitarian Law Project, supra, at 15-16, 130 S.Ct. 2705 (observing that plaintiffs had previously provided support to groups designated as terrorist organizations and alleged they "would provide similar support [to the same terrorist organizations] again if the statute's allegedly unconstitutional bar were lifted"). COAST has alleged that it previously intended to disseminate materials criticizing a vote for *2344the ACA as a vote "to fund abortions with tax dollars," and that it "desires to make the same or similar statements about other federal candidates who voted for [the ACA]." App. 146, 149, 162. Because petitioners' intended future conduct concerns political speech, it is certainly "affected with a constitutional interest." Babbitt, supra, at 298, 99 S.Ct. 2301; see also Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) ("[T]he constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office").

Next, petitioners' intended future conduct is "arguably ... proscribed by [the] statute" they wish to challenge. Babbitt, supra, at 298, 99 S.Ct. 2301. The Ohio false statement law sweeps broadly, see supra, at 2338 - 2339, and n. 1, and covers the subject matter of petitioners' intended speech. Both SBA and COAST have alleged an intent to "[m]ake" statements "concerning the voting record of a candidate or public official," § 3517.21(B)(9), and to "disseminate" statements "concerning a candidate ... to promote the election, nomination, or defeat of the candidate," § 3517.21(B)(10). And, a Commission panel here already found probable cause to believe that SBA violated the statute when it stated that Driehaus had supported "taxpayer-funded abortion"-the same sort of statement petitioners plan to disseminate in the future. Under these circumstances, we have no difficulty concluding that petitioners' intended speech is "arguably proscribed" by the law.

Respondents incorrectly rely on Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In that case, the plaintiff had previously distributed anonymous leaflets criticizing a particular Congressman who had since left office. Id., at 104-106, and n. 2, 89 S.Ct. 956. The Court dismissed the plaintiff's challenge to the electoral leafletting ban as nonjusticiable because his " sole concern was literature relating to the Congressman and his record," and "it was most unlikely that the Congressman would again be a candidate." Id., at 109, 89 S.Ct. 956 (emphasis added). Under those circumstances, any threat of future prosecution was "wholly conjectural." Ibid.

Here, by contrast, petitioners' speech focuses on the broader issue of support for the ACA, not on the voting record of a single candidate. See Reply Brief 4-5 (identifying other elected officials who plan to seek reelection as potential objects of SBA's criticisms). Because petitioners' alleged future speech is not directed exclusively at Driehaus, it does not matter whether he "may run for office again." Brief for Respondents 33 (internal quotation marks omitted). As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio's false statement statute.

Respondents, echoing the Sixth Circuit, contend that SBA's fears of enforcement are misplaced because SBA has not said it " 'plans to lie or recklessly disregard the veracity of its speech.' " Id., at 15 (quoting 525 Fed.Appx., at 422). The Sixth Circuit reasoned that because SBA "can only be liable for making a statement 'knowing' it is false," SBA's insistence that its speech is factually true "makes the possibility of prosecution for uttering such statements exceedingly slim." Id., at 422.

The Sixth Circuit misses the point. SBA's insistence that the allegations in its press release were true did not prevent the Commission panel from finding *2345probable cause to believe that SBA had violated the law the first time around. And, there is every reason to think that similar speech in the future will result in similar proceedings, notwithstanding SBA's belief in the truth of its allegations. Nothing in this Court's decisions requires a plaintiff who wishes to challenge the constitutionality of a law to confess that he will in fact violate that law. See, e.g.,Babbitt, 442 U.S., at 301, 99 S.Ct. 2301 (case was justiciable even though plaintiffs disavowed any intent to "propagate untruths").

Finally, the threat of future enforcement of the false statement statute is substantial. Most obviously, there is a history of past enforcement here: SBA was the subject of a complaint in a recent election cycle. We have observed that past enforcement against the same conduct is good evidence that the threat of enforcement is not " ' chimerical.' " Steffel, 415 U.S., at 459, 94 S.Ct. 1209; cf. Clapper, 568 U.S., at ----, 133 S.Ct., at 1148 (plaintiffs' theory of standing was "substantially undermine[d]" by their "fail [ure] to offer any evidence that their communications ha[d] been monitored" under the challenged statute). Here, the threat is even more substantial given that the Commission panel actually found probable cause to believe that SBA's speech violated the false statement statute. Indeed future complainants may well "invoke the prior probable-cause finding to prove that SBA knowingly lied." Brief for Petitioners 32.

The credibility of that threat is bolstered by the fact that authority to file a complaint with the Commission is not limited to a prosecutor or an agency. Instead, the false statement statute allows "any person" with knowledge of the purported violation to file a complaint. § 3517.153(A). Because the universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations, there is a real risk of complaints from, for example, political opponents. See Brief for Michael DeWine, Attorney General of Ohio, as Amicus Curiae 8 (hereinafter DeWine Brief); see also id., at 6 (noting that "the Commission has no system for weeding out frivolous complaints"). And petitioners, who intend to criticize candidates for political office, are easy targets.

Finally, Commission proceedings are not a rare occurrence. Petitioners inform us that the Commission " 'handles about 20 to 80 false statement complaints per year,' " Brief for Petitioners 46, and respondents do not deny that the Commission frequently fields complaints alleging violations of the false statement statute. Cf. Humanitarian Law Project, 561 U.S., at 16, 130 S.Ct. 2705 (noting that there had been numerous prior prosecutions under the challenged statute). Moreover, respondents have not disavowed enforcement if petitioners make similar statements in the future. See Tr. of Oral Arg. 29-30; see also Humanitarian Law Project, supra, at 16, 130 S.Ct. 2705 ("The Government has not argued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do"). In fact, the specter of enforcement is so substantial that the owner of the billboard refused to display SBA's message after receiving a letter threatening Commission proceedings. On these facts, the prospect of future enforcement is far from "imaginary or speculative." Babbitt, supra, at 298, 99 S.Ct. 2301.

We take the threatened Commission proceedings into account because administrative action, like arrest or prosecution, may give rise to harm sufficient to justify pre-enforcement review. See *2346Ohio Civil Rights Comm'n v. Dayton Christian Schools, Inc., 477 U.S. 619, 625-626, n. 1, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986) ("If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not"). The burdens that Commission proceedings can impose on electoral speech are of particular concern here. As the Ohio Attorney General himself notes, the "practical effect" of the Ohio false statement scheme is "to permit a private complainant ... to gain a campaign advantage without ever having to prove the falsity of a statement." DeWine Brief 7. "[C]omplainants may time their submissions to achieve maximum disruption of their political opponents while calculating that an ultimate decision on the merits will be deferred until after the relevant election." Id., at 14-15. Moreover, the target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election. And where, as here, a Commission panel issues a preelection probable-cause finding, "such a determination itself may be viewed [by the electorate] as a sanction by the State." Id., at 13.

Although the threat of Commission proceedings is a substantial one, we need not decide whether that threat standing alone gives rise to an Article III injury. The burdensome Commission proceedings here are backed by the additional threat of criminal prosecution. We conclude that the combination of those two threats suffices to create an Article III injury under the circumstances of this case. See Babbitt, supra, at 302, n. 13, 99 S.Ct. 2301 (In addition to the threat of criminal sanctions, "the prospect of issuance of an administrative cease-and-desist order or a court-ordered injunction against such prohibited conduct provides substantial additional support for the conclusion that appellees' challenge ... is justiciable" (citations omitted)).

That conclusion holds true as to both SBA and COAST. Respondents, relying on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), appear to suggest that COAST lacks standing because it refrained from actually disseminating its planned speech in order to avoid Commission proceedings of its own. See Brief for Respondents 26-27, 34. In Younger, the plaintiff had been indicted for distributing leaflets in violation of the California Criminal Syndicalism Act. When he challenged the constitutionality of the law in federal court, several other plaintiffs intervened, arguing that their own speech was inhibited by Harris' prosecution. The Court concluded that only the plaintiff had standing because the intervenors "d[id] not claim that they ha[d] ever been threatened with prosecution, that a prosecution [wa]s likely, or even that a prosecution [wa]s remotely possible." 401 U.S., at 42, 91 S.Ct. 746.

That is not this case. Unlike the intervenors in Younger, COAST has alleged an intent to engage in the same speech that was the subject of a prior enforcement proceeding. Also unlike the intervenors in Younger, who had never been threatened with prosecution, COAST has been the subject of Commission proceedings in the past. See, e.g., COAST Candidates PAC v. Ohio Elections Comm'n, 543 Fed.Appx. 490 (C.A.6 2013). COAST is far more akin to the plaintiff in Steffel, who was not arrested alongside his handbilling companion but was nevertheless threatened with prosecution for similar speech. 415 U.S., at 459, 94 S.Ct. 1209.

In sum, we find that both SBA and COAST have alleged a credible threat of enforcement.

*2347V

In concluding that petitioners' claims were not justiciable, the Sixth Circuit separately considered two other factors: whether the factual record was sufficiently developed, and whether hardship to the parties would result if judicial relief is denied at this stage in the proceedings. 525 Fed.Appx., at 419. Respondents contend that these "prudential ripeness" factors confirm that the claims at issue are nonjusticiable. Brief for Respondents 17. But we have already concluded that petitioners have alleged a sufficient Article III injury. To the extent respondents would have us deem petitioners' claims nonjusticiable "on grounds that are 'prudential,' rather than constitutional," "[t]hat request is in some tension with our recent reaffirmation of the principle that 'a federal court's obligation to hear and decide' cases within its jurisdiction 'is virtually unflagging.' " Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. ----, ----, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (quoting Sprint Communications, Inc. v. Jacobs, 571 U.S. ----, ----, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013); some internal quotation marks omitted).

In any event, we need not resolve the continuing vitality of the prudential ripeness doctrine in this case because the "fitness" and "hardship" factors are easily satisfied here. First, petitioners' challenge to the Ohio false statement statute presents an issue that is "purely legal, and will not be clarified by further factual development." Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). And denying prompt judicial review would impose a substantial hardship on petitioners, forcing them to choose between refraining from core political speech on the one hand, or engaging in that speech and risking costly Commission proceedings and criminal prosecution on the other.

* * *

Petitioners in this case have demonstrated an injury in fact sufficient for Article III standing. We accordingly reverse the judgment of the United States Court of Appeals for the Sixth Circuit and remand the case for further proceedings consistent with this opinion, including a determination whether the remaining Article III standing requirements are met.

It is so ordered.

.Section 3517.21(B) provides in relevant part:

. . . . .

"(9) Make a false statement concerning the voting record of a candidate or public official;

3.5.2.9 Injury – Concrete and Particular 3.5.2.9 Injury – Concrete and Particular

3.5.2.10 Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) 3.5.2.10 Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)

[excerpt]

Spokeo v. Robbins

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, THOMAS, BREYER, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.

[1] This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84 Stat. 1127, as amended, 15 U.S.C. § 1681 et seq.

[2] Spokeo operates a “people search engine.” If an individual visits Spokeo’s Web site and inputs a person’s name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals.

[3] The District Court dismissed Robins’ complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and, second, that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Based on these two observations, the Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution.

[4] This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both “concrete and particularized.” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181 (2000). The Ninth Circuit’s analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.

[5] The FCRA seeks to ensure “fair and accurate credit reporting.” § 1681(a)(1). To achieve this end, the Act regulates the creation and the use of “consumer report[s]” by “consumer reporting agenc[ies]” for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§ 1681a(d)(1)(A)-(C); § 1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual’s “credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living.” § 1681a(d)(1).

[6] The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to “follow reasonable procedures to assure maximum possible accuracy of” consumer reports, § 1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, § 1681e(d); to limit the circumstances in which such agencies provide consumer reports “for employment purposes,” § 1681b(b)(1); and to post toll-free numbers for consumers to request reports, § 1681j(a).

[7] The Act also provides that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).

[9] Spokeo is alleged to qualify as a “consumer reporting agency” under the FCRA.[4] It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual’s address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. According to Robins, Spokeo markets its services to a variety of users, including not only “employers who want to evaluate prospective employees,” but also “those who want to investigate prospective romantic partners or seek other personal information.” Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free.

[9] At some point in time, someone (Robins’ complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins’ complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree. According to Robins’ complaint, all of this information is incorrect.

[10] Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above.

[11] The District Court initially denied Spokeo’s motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice. The court found that Robins had not “properly pled” an injury in fact, as required by Article III.

[12] The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent, the court began by stating that “the violation of a statutory right is usually a sufficient injury in fact to confer standing.” The court recognized that “the Constitution limits the power of Congress to confer standing.” But the court held that those limits were honored in this case because Robins alleged that “Spokeo violated his statutory rights, not just the statutory rights of other people,” and because his “personal interests in the handling of his credit information are individualized rather than collective.” The court thus concluded that Robins’ “alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III.”

[13] We granted certiorari.

[14] The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated “legislative Powers,” Art. I, § 1; it confers upon the President “[t]he executive Power,” Art. II, § 1, cl. 1; and it endows the federal courts with “[t]he judicial Power of the United States,” Art. III, § 1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See Lujan v. Defenders of Wildlife (1992).

[15] Although the Constitution does not fully explain what is meant by “[t]he judicial Power of the United States,” Art. III, § 1, it does specify that this power extends only to “Cases” and “Controversies,” Art. III, § 2. And "'[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.'”

[16] Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Warth v. Seldin (1975). In this way, “[t]he law of Article III standing … serves to prevent the judicial process from being used to usurp the powers of the political branches,” Clapper v. Amnesty Int’l USA (2013) and confines the federal courts to a properly judicial role.

[17] Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. Lujan, 504 U.S. at 560. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must “clearly … allege facts demonstrating” each element.

[18] This case primarily concerns injury in fact, the “[f]irst and foremost” of standing’s three elements. Injury in fact is a constitutional requirement, and “[i]t is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”

[19] To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” We discuss the particularization and concreteness requirements below.

[20] For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.”

* * *

[21] Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.” Under the Ninth Circuit’s analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins’ complaint alleges “concrete, de facto” injuries for essentially two reasons. First, the court noted that Robins “alleges that Spokeo violated his statutory rights, not just the statutory rights of other people.” Second, the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized.

* * *

[22] A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term — “real,” and not “abstract.” Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.

[23] “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.

[24] In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Similarly, Justice Kennedy’s concurrence in that case explained that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”

[25] Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, (“[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation … is insufficient to create Article III standing”); see also Lujan.

[26] This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See, e.g., Clapper v. Amnesty Int’l. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel), 570 (slander per se) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified.

* * *

[26] In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA’s procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency’s consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.

[27] Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit’s ultimate conclusion — that Robins adequately alleged an injury in fact — was correct.

* * *

[28] The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.

[29] It is so ordered.

Justice THOMAS, concurring.

[1] The Court vacates and remands to have the Court of Appeals determine “whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement.” In defining what constitutes a concrete injury, the Court explains that “concrete” means “`real,'” and “not `abstract,'” but is not “necessarily synonymous with `tangible.'”

[2] I join the Court’s opinion. I write separately to explain how, in my view, the injury-in-fact requirement applies to different types of rights. The judicial power of common-law courts was historically limited depending on the nature of the plaintiff’s suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine.

[3] Standing doctrine limits the “judicial power” to “`cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.'” Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000). To understand the limits that standing imposes on “the judicial Power,” therefore, we must “refer directly to the traditional, fundamental limitations upon the powers of common-law courts.” Honig v. Doe (1988) (Scalia, J., dissenting). These limitations preserve separation of powers by preventing the judiciary’s entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party.

[4] Common-law courts imposed different limitations on a plaintiff’s right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically, common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. * * * In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded.

* * *

[5] Common-law courts, however, have required a further showing of injury for violations of “public rights” — rights that involve duties owed “to the whole community, considered as a community, in its social aggregate capacity.”

* * *

[6] Generally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws. Even in limited cases where private plaintiffs could bring a claim for the violation of public rights, they had to allege that the violation caused them “some extraordinary damage, beyond the rest of the [community].”

* * *

[7] These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court’s description of the injury-in-fact requirement. “Injury in fact” is the first of three “irreducible” requirements for Article III standing. Lujan v. Defenders of Wildlife (1992). The injury-in-fact requirement often stymies a private plaintiff’s attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a “concrete” injury particular to himself.

* * *

[8] This requirement applies with special force when a plaintiff files suit to require an executive agency to “follow the law”; at that point, the citizen must prove that he “has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public.” Thus, in a case where private plaintiffs sought to compel the U.S. Forest Service to follow certain procedures when it regulated “small fire-rehabilitation and timber-salvage projects,” we held that “deprivation of a procedural right without some concrete interest that is affected by the deprivation… is insufficient to create Article III standing,” even if “accorded by Congress.” Summers v. Earth Island Institute (2009).

* * * *

[9] The separation-of-powers concerns underlying our public-rights decisions are not implicated when private individuals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government action. And by limiting Congress’ ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion.

* * *

[10] But where one private party has alleged that another private party violated his private rights, there is generally no danger that the private party’s suit is an impermissible attempt to police the activity of the political branches or, more broadly, that the legislative branch has impermissibly delegated law enforcement authority from the executive to a private individual. See Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 317-321 (2008).

[11] When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts’ power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin (1975). A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right.

* * *

[12] A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population.

* * *

[13] Thus, Congress cannot authorize private plaintiffs to enforce public rights in their own names, absent some showing that the plaintiff has suffered a concrete harm particular to him.

[14] Given these principles, I agree with the Court’s decision to vacate and remand. The Fair Credit Reporting Act creates a series of regulatory duties. Robins has no standing to sue Spokeo, in his own name, for violations of the duties that Spokeo owes to the public collectively, absent some showing that he has suffered concrete and particular harm. These consumer protection requirements include, for example, the requirement to “post a toll-free telephone number on [Spokeo’s] website through which consumers can request free annual file disclosures.” see 15 U.S.C. § 1681j; 16 CFR § 610.3(a)(1) (2010).

[15] But a remand is required because one claim in Robins’ complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b) requires Robins to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” § 1681e(b). If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. If that provision, however, vests any and all consumers with the power to police the “reasonable procedures” of Spokeo, without more, then Robins has no standing to sue for its violation absent an allegation that he has suffered individualized harm. On remand, the Court of Appeals can consider the nature of this claim.

Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting.

[1] In the Fair Credit Reporting Act of 1970 (FCRA or Act), 15 U.S.C. § 1681 et seq., Congress required consumer reporting agencies, whenever preparing a consumer report, to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” § 1681e(b). To promote adherence to the Act’s procedural requirements, Congress granted adversely affected consumers a right to sue noncomplying reporting agencies. § 1681n (willful noncompliance); § 1681o (negligent noncompliance).Thomas Robins instituted suit against Spokeo, Inc., alleging that Spokeo was a reporting agency governed by the FCRA, and that Spokeo maintains on its Web site an inaccurate consumer report about Robins.

[2] In particular, Robins alleged that Spokeo posted “a picture … purport[ing] to be an image of Robins [that] was not in fact [of him],” and incorrectly reported that Robins “was in his 50s, … married, … employed in a professional or technical field, and … has children.” Robins further alleged that Spokeo’s profile of him continues to misrepresent “that he has a graduate degree, that his economic health is `Very Strong[,]’ and that his wealth level [is in] the `Top 10%.'” Spokeo displayed that erroneous information, Robins asserts, when he was “out of work” and “actively seeking employment.” Because of the misinformation, Robins stated, he encountered “[imminent and ongoing] actual harm to [his] employment prospects.” As Robins elaborated on brief, Spokeo’s report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities.

[3] I agree with much of the Court’s opinion. Robins, the Court holds, meets the particularity requirement for standing under Article III. The Court acknowledges that Congress has the authority to confer rights and delineate claims for relief where none existed before.

* * *

[4] But Congress can create new individual rights, and it can enact effective remedies for those rights.

[5] I part ways with the Court, however, on the necessity of a remand to determine whether Robins’ particularized injury was “concrete.” Judged by what we have said about “concreteness,” Robins’ allegations carry him across the threshold. The Court’s opinion observes that time and again, our decisions have coupled the words “concrete and particularized.” citing as examples, Susan B. Anthony List v. Driehaus (2014); Summers v. Earth Island Institute (2009); Sprint Communications Co. v. APCC Services, Inc. (2008); Massachusetts v. EPA (2007). True, but true too, in the four cases cited by the Court, and many others, opinions do not discuss the separate offices of the terms “concrete” and “particularized.”

[6] Inspection of the Court’s decisions suggests that the particularity requirement bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large.

* * *

[7] Robins’ claim does not present a question of that character. He seeks redress, not for harm to the citizenry, but for Spokeo’s spread of misinformation specifically about him.

[8] Concreteness as a discrete requirement for standing, the Court’s decisions indicate, refers to the reality of an injury, harm that is real, not abstract, but not necessarily tangible.

* * *

[9] Robins would not qualify, the Court observes, if he alleged a “bare” procedural violation, ante, at 1549, one that results in no harm, for example, “an incorrect zip code.” Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo’s inaccuracies bore on Robins’ “ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him.”); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 (“An applicant can lose [a] job for being over-qualified; a suitor can lose a woman if she reads that he is married.”). The FCRA’s procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410-2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins’ complaint already conveys concretely: Spokeo’s misinformation “cause[s] actual harm to [his] employment prospects.”

* * *

[10] For the reasons stated, I would affirm the Ninth Circuit’s judgment.

Supreme Court of the United States

136 S. Ct. 1540, 194 L. Ed. 2d 635

No. 13–1339.

2016-05-16

SPOKEO, INC., petitioner
v.
Thomas ROBINS.

No. 13-1339.

Supreme Court of the United States

Argued Nov. 2, 2015.
Decided May 16, 2016.
As Revised May 24, 2016.

Andrew J. Pincus, Washington, DC, for petitioner.

William S. Consovoy, Arlington, VA, for respondent.

Malcolm L. Stewart, for the United States as amicus curiae, by special leave of the Court, supporting the respondent.

John Nadolenco, Mayer Brown LLP, Los Angeles, CA, Donald M. Falk, Mayer Brown LLP, Two Palo Alto Square, Palo Alto, CA, Andrew J. Pincus, Archis A. Parasharami, Stephen C.N. Lilley, Daniel E. Jones, Thomas P. Wolf, Mayer Brown LLP, Washington, DC, for petitioner.

Jay Edelson, Rafey S. Balabanian, Ryan D. Andrews, Roger Perlstadt, Edelson PC, Chicago, IL, Michael H. Park, Consovoy McCarthy Park PLLC, New York, NY, William S. Consovoy, J. Michael Connolly, Consovoy McCarthy Park PLLC, Arlington, VA, Patrick Strawbridge, Consovoy McCarthy Park PLLC, Boston, MA, for respondent.

Justice ALITOdelivered the opinion of the Court.

This case presents the question whether respondent Robins has standing to maintain an action in federal court against petitioner Spokeo under the Fair Credit Reporting Act of 1970 (FCRA or Act), 84 Stat. 1127, as amended, 15 U.S.C. § 1681 et seq.

Spokeo operates a "people search engine." If an individual visits Spokeo's Web site and inputs a person's name, a phone number, or an e-mail address, Spokeo conducts a computerized search in a wide variety of databases and provides information about the subject of the search. Spokeo performed such a search for information about Robins, and some of the information it gathered and then disseminated was incorrect. When Robins learned of these inaccuracies, he filed a complaint on his own behalf and on behalf of a class of similarly situated individuals.

The District Court dismissed Robins' complaint for lack of standing, but a panel of the Ninth Circuit reversed. The Ninth Circuit noted, first, that Robins had alleged that "Spokeo violated his statutory rights, not just the statutory rights of other people," and, second, that "Robins's personal interests in the handling of his credit information are individualized rather than collective." 742 F.3d 409, 413 (2014). Based on these two observations, the *1545Ninth Circuit held that Robins had adequately alleged injury in fact, a requirement for standing under Article III of the Constitution. Id., at 413-414.

This analysis was incomplete. As we have explained in our prior opinions, the injury-in-fact requirement requires a plaintiff to allege an injury that is both "concrete and particularized." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(emphasis added). The Ninth Circuit's analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness). We therefore vacate the decision below and remand for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.

The FCRA seeks to ensure "fair and accurate credit reporting." § 1681(a)(1). To achieve this end, the Act regulates the creation and the use of "consumer report[s]"1 by "consumer reporting agenc[ies]"2 for certain specified purposes, including credit transactions, insurance, licensing, consumer-initiated business transactions, and employment. See §§ 1681a(d)(1)(A)-(C); § 1681b. Enacted long before the advent of the Internet, the FCRA applies to companies that regularly disseminate information bearing on an individual's "credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living." § 1681a(d)(1).

The FCRA imposes a host of requirements concerning the creation and use of consumer reports. As relevant here, the Act requires consumer reporting agencies to "follow reasonable procedures to assure maximum possible accuracy of" consumer reports, § 1681e(b); to notify providers and users of consumer information of their responsibilities under the Act, § 1681e(d); to limit the circumstances in which such agencies provide consumer reports "for employment purposes," § 1681b(b)(1); and to post toll-free numbers for consumers to request reports, § 1681j(a).

The Act also provides that "[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual3 ] is liable to that [individual]" for, among other things, either "actual damages" or statutory damages of $100 to $1,000 per violation, costs of the action and attorney's fees, and possibly punitive damages. § 1681n(a).

*1546Spokeo is alleged to qualify as a "consumer reporting agency" under the FCRA.4 It operates a Web site that allows users to search for information about other individuals by name, e-mail address, or phone number. In response to an inquiry submitted online, Spokeo searches a wide spectrum of databases and gathers and provides information such as the individual's address, phone number, marital status, approximate age, occupation, hobbies, finances, shopping habits, and musical preferences. App. 7, 10-11. According to Robins, Spokeo markets its services to a variety of users, including not only "employers who want to evaluate prospective employees," but also "those who want to investigate prospective romantic partners or seek other personal information." Brief for Respondent 7. Persons wishing to perform a Spokeo search need not disclose their identities, and much information is available for free.

At some point in time, someone (Robins' complaint does not specify who) made a Spokeo search request for information about Robins, and Spokeo trawled its sources and generated a profile. By some means not detailed in Robins' complaint, he became aware of the contents of that profile and discovered that it contained inaccurate information. His profile, he asserts, states that he is married, has children, is in his 50's, has a job, is relatively affluent, and holds a graduate degree. App. 14. According to Robins' complaint, all of this information is incorrect.

Robins filed a class-action complaint in the United States District Court for the Central District of California, claiming, among other things, that Spokeo willfully failed to comply with the FCRA requirements enumerated above.

The District Court initially denied Spokeo's motion to dismiss the complaint for lack of jurisdiction, but later reconsidered and dismissed the complaint with prejudice. App. to Pet. for Cert. 23a. The court found that Robins had not "properly pled" an injury in fact, as required by Article III. Ibid.

The Court of Appeals for the Ninth Circuit reversed. Relying on Circuit precedent,5 the court began by stating that "the violation of a statutory right is usually a sufficient injury in fact to confer standing." 742 F.3d, at 412. The court recognized that "the Constitution limits the power of Congress to confer standing." Id., at 413. But the court held that those limits were honored in this case because Robins alleged that "Spokeo violated his statutory rights, not just the statutory rights of other people," and because his "personal interests in the handling of his credit information are individualized rather than collective." Ibid. (emphasis in original). The court thus concluded that Robins' "alleged violations of [his] statutory rights [were] sufficient to satisfy the injury-in-fact requirement of Article III." Id., at 413-414.

We granted certiorari. 575 U.S. ----, 135 S.Ct. 1892, 191 L.Ed.2d 762 (2015).

The Constitution confers limited authority on each branch of the Federal Government. It vests Congress with enumerated *1547"legislative Powers," Art. I, § 1; it confers upon the President "[t]he executive Power," Art. II, § 1, cl. 1; and it endows the federal courts with "[t]he judicial Power of the United States," Art. III, § 1. In order to remain faithful to this tripartite structure, the power of the Federal Judiciary may not be permitted to intrude upon the powers given to the other branches. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

Although the Constitution does not fully explain what is meant by "[t]he judicial Power of the United States," Art. III, § 1, it does specify that this power extends only to "Cases" and "Controversies," Art. III, § 2. And " '[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.' " Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997).

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. See id., at 820, 117 S.Ct. 2312. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498-499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). In this way, "[t]he law of Article III standing ... serves to prevent the judicial process from being used to usurp the powers of the political branches," Clapper v. Amnesty Int'l USA, 568 U.S. ----, ----, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013); Lujan, supra, at 576-577, 112 S.Ct. 2130and confines the federal courts to a properly judicial role, see Warth, supra, at 498, 95 S.Ct. 2197.

Our cases have established that the "irreducible constitutional minimum" of standing consists of three elements. Lujan, 504 U.S., at 560, 112 S.Ct. 2130. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id., at 560-561, 112 S.Ct. 2130; Friends of the Earth, Inc., 528 U.S., at 180-181, 120 S.Ct. 693. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Where, as here, a case is at the pleading stage, the plaintiff must "clearly ... allege facts demonstrating" each element. Warth, supra, at 518, 95 S.Ct. 2197.6

This case primarily concerns injury in fact, the "[f]irst and foremost" of standing's three elements. Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Injury in fact is a constitutional requirement, and "[i]t is settled that Congress *1548cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Raines, supra, at 820, n. 3, 117 S.Ct. 2312; see Summers v. Earth Island Institute, 555 U.S. 488, 497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979)("In no event ... may Congress abrogate the Art. III minima").

To establish injury in fact, a plaintiff must show that he or she suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S., at 560, 112 S.Ct. 2130(internal quotation marks omitted). We discuss the particularization and concreteness requirements below.

For an injury to be "particularized," it "must affect the plaintiff in a personal and individual way." Ibid., n. 1; see also, e.g., Cuno, supra, at 342, 126 S.Ct. 1854(" 'plaintiff must allege personal injury' "); Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)(" 'distinct' "); Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)("personal"); Valley Forge, supra, at 472, 102 S.Ct. 752(standing requires that the plaintiff " 'personally has suffered some actual or threatened injury' "); United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)(not "undifferentiated"); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F.3d 1279, 1292-1293 (C.A.D.C.2007)(collecting cases).7

Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be "concrete." Under the Ninth Circuit's analysis, however, that independent requirement was elided. As previously noted, the Ninth Circuit concluded that Robins' complaint alleges "concrete, de facto " injuries for essentially two reasons. 742 F.3d, at 413. First, the court noted that Robins "alleges that Spokeo violated his statutory rights, not just the statutory rights of other people." Ibid. Second, the court wrote that "Robins's personal interests in the handling of his credit information are individualized rather than collective ." Ibid . (emphasis added). Both of these observations concern particularization, not concreteness. We have made it clear time and time again that an injury in fact must be both concrete and particularized. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. ----, ----, 134 S.Ct. 2334, 2341-2342, 189 L.Ed.2d 246 (2014); Summers, supra, at 493, 129 S.Ct. 1142; Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008); Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007).

A "concrete" injury must be "de facto "; that is, it must actually exist. See Black's Law Dictionary 479 (9th ed. 2009). When we have used the adjective "concrete," we have meant to convey the usual meaning of the term-"real," and not "abstract." Webster's Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.

*15492

"Concrete" is not, however, necessarily synonymous with "tangible." Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009)(free speech); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(free exercise).

In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 775-777, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." 504 U.S., at 578, 112 S.Ct. 2130. Similarly, Justice Kennedy's concurrence in that case explained that "Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before." Id., at 580, 112 S.Ct. 2130(opinion concurring in part and concurring in judgment).

Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. For that reason, Robins could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III. See Summers, 555 U.S., at 496, 129 S.Ct. 1142("[D]eprivation of a procedural right without some concrete interest that is affected by the deprivation ... is insufficient to create Article III standing"); see also Lujan, supra, at 572, 112 S.Ct. 2130.

This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness. See, e.g., Clapper v. Amnesty Int'l USA, 568 U.S. ----, 133 S.Ct. 1138, 185 L.Ed.2d 264. For example, the law has long permitted recovery by certain tort victims even if their harms may be difficult to prove or measure. See, e.g., Restatement (First) of Torts §§ 569 (libel), 570(slander per se ) (1938). Just as the common law permitted suit in such instances, the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact. In other words, a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified. See Federal Election Comm'n v. Akins, 524 U.S. 11, 20-25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)(confirming that a group of voters' "inability to obtain information" that Congress had decided to make public is a sufficient injury in fact to satisfy Article III); Public Citizen v. Department of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)(holding that two advocacy organizations'

*1550failure to obtain information subject to disclosure under the Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue").

In the context of this particular case, these general principles tell us two things: On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA's procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency's consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.8

Because the Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its standing analysis was incomplete. It did not address the question framed by our discussion, namely, whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement. We take no position as to whether the Ninth Circuit's ultimate conclusion-that Robins adequately alleged an injury in fact-was correct.

* * *

The judgment of the Court of Appeals is vacated, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice THOMAS, concurring.

The Court vacates and remands to have the Court of Appeals determine "whether the particular procedural violations alleged in this case entail a degree of risk sufficient to meet the concreteness requirement." Ante, at 1550. In defining what constitutes a concrete injury, the Court explains that "concrete" means " 'real,' " and "not 'abstract,' " but is not "necessarily synonymous with 'tangible.' " Ante, at 1548 - 1549.

I join the Court's opinion. I write separately to explain how, in my view, the injury-in-fact requirement applies to different types of rights. The judicial power of common-law courts was historically limited depending on the nature of the plaintiff's suit. Common-law courts more readily entertained suits from private plaintiffs who alleged a violation of their own rights, in contrast to private plaintiffs who asserted claims vindicating public rights. Those limitations persist in modern standing doctrine.

Standing doctrine limits the "judicial power" to " 'cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.' " Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000)(quoting Steel Co. v. Citizens for a Better Environment , 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). To understand the limits that standing imposes on "the judicial Power," therefore, we must "refer directly to the traditional, fundamental *1551limitations upon the powers of common-law courts." Honig v. Doe, 484 U.S. 305, 340, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)(Scalia, J., dissenting). These limitations preserve separation of powers by preventing the judiciary's entanglement in disputes that are primarily political in nature. This concern is generally absent when a private plaintiff seeks to enforce only his personal rights against another private party.

Common-law courts imposed different limitations on a plaintiff's right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically, common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. "Private rights" are rights "belonging to individuals, considered as individuals." 3 W. Blackstone, Commentaries *2 (hereinafter Blackstone). "Private rights" have traditionally included rights of personal security (including security of reputation), property rights, and contract rights. See 1 id., at *130-*139; Woolhander & Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 693 (2004). In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded. Thus, when one man placed his foot on another's property, the property owner needed to show nothing more to establish a traditional case or controversy. See Entick v. Carrington, 2 Wils. K.B. 275, 291, 95 Eng. Rep. 807, 817 (1765). Many traditional remedies for private-rights causes of action-such as for trespass, infringement of intellectual property, and unjust enrichment-are not contingent on a plaintiff's allegation of damages beyond the violation of his private legal right. See Brief for Restitution and Remedies Scholars as Amici Curiae 6-18; see also Webb v. Portland Mfg. Co., 29 F.Cas. 506, 508 (No. 17,322) (Me.1838) (stating that a legal injury "imports damage in the nature of it" (internal quotation marks omitted)).

Common-law courts, however, have required a further showing of injury for violations of "public rights"-rights that involve duties owed "to the whole community, considered as a community, in its social aggregate capacity." 4 Blackstone *5. Such rights include "free navigation of waterways, passage on public highways, and general compliance with regulatory law." Woolhander & Nelson, 102 Mich. L. Rev., at 693. Generally, only the government had the authority to vindicate a harm borne by the public at large, such as the violation of the criminal laws. See id., at 695-700. Even in limited cases where private plaintiffs could bring a claim for the violation of public rights, they had to allege that the violation caused them "some extraordinary damage, beyond the rest of the [community]." 3 Blackstone *220 (discussing nuisance); see also Commonwealth v. Webb, 27 Va. 726, 729 (Gen.Ct.1828).* An action to redress a public nuisance, for example, was historically considered an action to vindicate the violation of a public right at common law, lest "every subject in the kingdom" be able to "harass the offender with separate actions." 3 Blackstone *219; see also 4 id., at *167 (same). But if the plaintiff could allege "special damage" as *1552the result of a nuisance, the suit could proceed. The existence of special, individualized damage had the effect of creating a private action for compensatory relief to an otherwise public-rights claim. See 3 id., at *220. Similarly, a plaintiff had to allege individual damage in disputes over the use of public lands. E.g., Robert Marys's Case, 9 Co. Rep. 111b, 112b, 77 Eng. Rep. 895, 898-899 (K.B. 1613) (commoner must establish not only injuria [legal injury] but also damnum [damage] to challenge another's overgrazing on the commons).

These differences between legal claims brought by private plaintiffs for the violation of public and private rights underlie modern standing doctrine and explain the Court's description of the injury-in-fact requirement. "Injury in fact" is the first of three "irreducible" requirements for Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The injury-in-fact requirement often stymies a private plaintiff's attempt to vindicate the infringement of public rights. The Court has said time and again that, when a plaintiff seeks to vindicate a public right, the plaintiff must allege that he has suffered a "concrete" injury particular to himself. See Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221-223, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)(explaining this where plaintiffs sought to enforce the Incompatibility Clause, Art. I, § 6, cl. 2, against Members of Congress holding reserve commissions in the Armed Forces); see also Lujan, supra, at 572-573, 112 S.Ct. 2130(evaluating standing where plaintiffs sought to enforce the Endangered Species Act); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 183-184, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)(Clean Water Act). This requirement applies with special force when a plaintiff files suit to require an executive agency to "follow the law"; at that point, the citizen must prove that he "has sustained or is immediately in danger of sustaining a direct injury as a result of that [challenged] action and it is not sufficient that he has merely a general interest common to all members of the public." Ex parte Levitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937)(per curiam ). Thus, in a case where private plaintiffs sought to compel the U.S. Forest Service to follow certain procedures when it regulated "small fire-rehabilitation and timber-salvage projects," we held that "deprivation of a procedural right without some concrete interest that is affected by the deprivation ... is insufficient to create Article III standing," even if "accorded by Congress." Summers v. Earth Island Institute, 555 U.S. 488, 490, 496-497, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009).

But the concrete-harm requirement does not apply as rigorously when a private plaintiff seeks to vindicate his own private rights. Our contemporary decisions have not required a plaintiff to assert an actual injury beyond the violation of his personal legal rights to satisfy the "injury-in-fact" requirement. See, e.g., Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)(holding that nominal damages are appropriate when a plaintiff's constitutional rights have been infringed but he cannot show further injury).

The separation-of-powers concerns underlying our public-rights decisions are not implicated when private individuals sue to redress violations of their own private rights. But, when they are implicated, standing doctrine keeps courts out of political disputes by denying private litigants the right to test the abstract legality of government action. See Schlesinger, supra, at 222, 94 S.Ct. 2925. And by limiting *1553Congress' ability to delegate law enforcement authority to private plaintiffs and the courts, standing doctrine preserves executive discretion. See Lujan, supra, at 577, 112 S.Ct. 2130(" 'To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed' "). But where one private party has alleged that another private party violated his private rights, there is generally no danger that the private party's suit is an impermissible attempt to police the activity of the political branches or, more broadly, that the legislative branch has impermissibly delegated law enforcement authority from the executive to a private individual. See Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 317-321 (2008).

When Congress creates new private causes of action to vindicate private or public rights, these Article III principles circumscribe federal courts' power to adjudicate a suit alleging the violation of those new legal rights. Congress can create new private rights and authorize private plaintiffs to sue based simply on the violation of those private rights. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A plaintiff seeking to vindicate a statutorily created private right need not allege actual harm beyond the invasion of that private right. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-374, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)(recognizing standing for a violation of the Fair Housing Act); Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137-138, 59 S.Ct. 366, 83 L.Ed. 543 (1939)(recognizing that standing can exist where "the right invaded is a legal right,-one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege"). A plaintiff seeking to vindicate a public right embodied in a federal statute, however, must demonstrate that the violation of that public right has caused him a concrete, individual harm distinct from the general population. See Lujan, supra, at 578, 112 S.Ct. 2130(noting that, whatever the scope of Congress' power to create new legal rights, "it is clear that in suits against the Government, at least, the concrete injury requirement must remain"). Thus, Congress cannot authorize private plaintiffs to enforce public rights in their own names, absent some showing that the plaintiff has suffered a concrete harm particular to him.

Given these principles, I agree with the Court's decision to vacate and remand. The Fair Credit Reporting Act creates a series of regulatory duties. Robins has no standing to sue Spokeo, in his own name, for violations of the duties that Spokeo owes to the public collectively, absent some showing that he has suffered concrete and particular harm. See supra, at 1546 - 1547. These consumer protection requirements include, for example, the requirement to "post a toll-free telephone number on [Spokeo's] website through which consumers can request free annual file disclosures." App. 23, First Amended Complaint ¶ 74; see 15 U.S.C. § 1681j; 16 CFR § 610.3(a)(1) (2010).

But a remand is required because one claim in Robins' complaint rests on a statutory provision that could arguably establish a private cause of action to vindicate the violation of a privately held right. Section 1681e(b)requires Spokeo to "follow reasonable procedures to assure maximum *1554possible accuracy of the information concerning the individual about whom the report relates. " § 1681e(b)(emphasis added). If Congress has created a private duty owed personally to Robins to protect his information, then the violation of the legal duty suffices for Article III injury in fact. If that provision, however, vests any and all consumers with the power to police the "reasonable procedures" of Spokeo, without more, then Robins has no standing to sue for its violation absent an allegation that he has suffered individualized harm. On remand, the Court of Appeals can consider the nature of this claim.

Justice GINSBURG, with whom Justice SOTOMAYORjoins, dissenting.

In the Fair Credit Reporting Act of 1970 (FCRA or Act), 15 U.S.C. § 1681 et seq., Congress required consumer reporting agencies, whenever preparing a consumer report, to "follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates." § 1681e(b). To promote adherence to the Act's procedural requirements, Congress granted adversely affected consumers a right to sue noncomplying reporting agencies. § 1681n (willful noncompliance); § 1681o (negligent noncompliance).1 Thomas Robins instituted suit against Spokeo, Inc., alleging that Spokeo was a reporting agency governed by the FCRA, and that Spokeo maintains on its Web site an inaccurate consumer report about Robins. App. 13.

In particular, Robins alleged that Spokeo posted "a picture ... purport [ing] to be an image of Robins [that] was not in fact [of him]," and incorrectly reported that Robins "was in his 50s, ... married, ... employed in a professional or technical field, and ... has children." Id., at 14. Robins further alleged that Spokeo's profile of him continues to misrepresent "that he has a graduate degree, that his economic health is 'Very Strong [,]' and that his wealth level [is in] the 'Top 10%.' " Ibid. Spokeo displayed that erroneous information, Robins asserts, when he was "out of work" and "actively seeking employment." Ibid. Because of the misinformation, Robins stated, he encountered "[imminent and ongoing] actual harm to [his] employment prospects." Ibid.2 As Robins elaborated on brief, Spokeo's report made him appear overqualified for jobs he might have gained, expectant of a higher salary than employers would be willing to pay, and less mobile because of family responsibilities. See Brief for Respondent 44.

I agree with much of the Court's opinion. Robins, the Court holds, meets the particularity requirement for standing under Article III. See ante, at 1548, 1550 (remanding only for concreteness inquiry). The Court acknowledges that Congress has the authority to confer rights and delineate claims for relief where none existed before. Ante, at 1549; see Federal Election Comm'n v. Akins, 524 U.S. 11, 19-20, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998)(holding that inability to procure information to which Congress has created a right in the Federal Election Campaign Act of 1971 qualifies as concrete injury satisfying Article III's standing requirement); Public Citizen v. Department *1555of Justice, 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989)(holding that plaintiff advocacy organizations' inability to obtain information that Congress made subject to disclosure under the Federal Advisory Committee Act "constitutes a sufficiently distinct injury to provide standing to sue"); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)(identifying, as Article III injury, violation of plaintiff's right, secured by the Fair Housing Act, to "truthful information concerning the availability of housing").3 Congress' connection of procedural requirements to the prevention of a substantive harm, the Court appears to agree, is "instructive and important." Ante, at 1549; see Lujan v. Defenders of Wildlife, 504 U.S. 555, 580, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)(KENNEDY, J., concurring in part and concurring in judgment) ("As Government programs and policies become more complex and far reaching, we must be sensitive to the articulation of new rights of action...."); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 3 ("Congress cannot authorize individual plaintiffs to enforce generalized rights that belong to the whole public. But Congress can create new individual rights, and it can enact effective remedies for those rights."). See generally Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. Pa. L. Rev. 613 (1999).

I part ways with the Court, however, on the necessity of a remand to determine whether Robins' particularized injury was "concrete." See ante, at 1550. Judged by what we have said about "concreteness," Robins' allegations carry him across the threshold. The Court's opinion observes that time and again, our decisions have coupled the words "concrete and particularized." Ante, at 1548 (citing as examples, Susan B. Anthony List v. Driehaus, 573 U.S. ----, ----, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014); Summers v. Earth Island Institute, 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009); Sprint Communications Co. v. APCC Services, Inc., 554 U.S. 269, 274, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008); Massachusetts v. EPA, 549 U.S. 497, 517, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007)). True, but true too, in the four cases cited by the Court, and many others, opinions do not discuss the separate offices of the terms "concrete" and "particularized."

Inspection of the Court's decisions suggests that the particularity requirement bars complaints raising generalized grievances, seeking relief that no more benefits the plaintiff than it does the public at large. See, e.g., Lujan, 504 U.S., at 573-574, 112 S.Ct. 2130(a plaintiff "seeking relief that no more directly and tangibly benefits him than it does the public at large does not state an Article III case or controversy" (punctuation omitted)); Perkins v. Lukens Steel Co., 310 U.S. 113, 125, 60 S.Ct. 869, 84 L.Ed. 1108 (1940)(plaintiffs lack standing because they failed to show injury to "a particular right of their own, as distinguished from the public's interest in the administration of the law"). Robins' claim does not present a question of that character. He seeks redress, not for harm to the citizenry, but for Spokeo's spread of misinformation specifically about him.

Concreteness as a discrete requirement for standing, the Court's decisions indicate, *1556refers to the reality of an injury, harm that is real, not abstract, but not necessarily tangible. See ante, at 1548 - 1549; ante, at 1543 ( THOMAS , J., concurring). Illustrative opinions include Akins, 524 U.S., at 20, 118 S.Ct. 1777("[C]ourts will not pass upon abstract, intellectual problems, but adjudicate concrete, living contests between adversaries." (internal quotation marks and alterations omitted)); Diamond v. Charles, 476 U.S. 54, 67, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)(plaintiff's "abstract concern does not substitute for the concrete injury required by Art [icle] III" (internal quotation marks and ellipsis omitted)); Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)("Plaintiffs must demonstrate a personal stake in the outcome.... Abstract injury is not enough." (internal quotation marks omitted)); Babbitt v. Farm Workers, 442 U.S. 289, 297-298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)("The difference between an abstract question and a 'case or controversy' is one of degree, of course, and is not discernable by any precise test. The basic inquiry is whether the conflicting contentions of the parties present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." (citation, some internal quotation marks, and ellipsis omitted)); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 40, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)( "organization's abstract concern ... does not substitute for the concrete injury required by Art. III"); California Bankers Assn. v. Shultz, 416 U.S. 21, 69, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974)("There must be ... concrete adverseness"; "[a]bstract injury is not enough." (internal quotation marks omitted)); Railway Mail Assn. v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945)(controversy must be "definite and concrete, not hypothetical or abstract"); Coleman v. Miller, 307 U.S. 433, 460, 59 S.Ct. 972, 83 L.Ed. 1385 (1939)(opinion of Frankfurter, J.) ("[I]t [is] not for courts to pass upon ... abstract, intellectual problems but only ... concrete, living contest [s] between adversaries call[ing] for the arbitrament of law.").

Robins would not qualify, the Court observes, if he alleged a "bare" procedural violation, ante, at 1549, one that results in no harm, for example, "an incorrect zip code," ante, at 1550. Far from an incorrect zip code, Robins complains of misinformation about his education, family situation, and economic status, inaccurate representations that could affect his fortune in the job market. See Brief for Center for Democracy & Technology et al. as Amici Curiae 13 (Spokeo's inaccuracies bore on Robins' "ability to find employment by creating the erroneous impression that he was overqualified for the work he was seeking, that he might be unwilling to relocate for a job due to family commitments, or that his salary demands would exceed what prospective employers were prepared to offer him."); Brief for Restitution and Remedies Scholars et al. as Amici Curiae 35 ("An applicant can lose [a] job for being over-qualified; a suitor can lose a woman if she reads that he is married."). The FCRA's procedural requirements aimed to prevent such harm. See 115 Cong. Rec. 2410-2415 (1969). I therefore see no utility in returning this case to the Ninth Circuit to underscore what Robins' complaint already conveys concretely: Spokeo's misinformation "cause[s] actual harm to [his] employment prospects." App. 14.

* * *

For the reasons stated, I would affirm the Ninth Circuit's judgment.

3.5.2.11 Causation and Redressability 3.5.2.11 Causation and Redressability

3.5.2.12 Warth v. Seldin 3.5.2.12 Warth v. Seldin

[excerpt]

422 U.S. 490
Supreme Court of the United States

Warth v. SeldinJune 25, 1975

In Warth, various organizations and individuals in Rochester, New York sued the affluent suburb of Pennfield to enjoin enforcement of an exclusionary zoning ordinance (a local law imposing land use rules – minimum lot sizes, maximum density, etc. – that effectively excluded any moderate income housing from the town). The Supreme Court denied the assertion of standing by people of low and moderate income and as members of minority groups. The Court said it was necessary to resolve the question:

whether petitioners' inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents' alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents' restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and that, if the court affords the relief requested, the asserted inability of petitioners will be removed.

We find the record devoid of the necessary allegations. one of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance's strictures; and none has even been denied a variance or permit by respondent officials. [Here,] by their own admission, realization of petitioners' desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing. [But] the record is devoid of any indication that [were] the court to remove the obstructions attributable to respondents, such relief would benefit petitioners. Indeed, petitioners' descriptions of their individual financial situations and housing needs suggest precisely the contrary—that their inability to reside in Penfield is the consequence of the economics of the area housing market, rather than of respondents' assertedly illegal acts.

Justice Brennan’s dissenting opinion replied, among other things, that petitioners:

cannot be expected, prior to discover and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts.

In another section of the opinion, the Court set forth standards for determining when a plaintiff has standing to assert the rights of a third party:

The petitioners who assert standing on the basis of their status as taxpayers of the city of Rochester present a different set of problems. These ‘taxpayer-petitioners' claim that they are suffering economic injury consequent to Penfield's allegedly discriminatory and exclusionary zoning practices. Their argument, in brief, is that Penfield's persistent refusal to allow or to facilitate construction of low- and moderate-cost housing forces the city of Rochester to provide more such housing than it otherwise would do; that to provide such housing, Rochester must allow certain tax abatements; and that as the amount of tax-abated property increases, Rochester taxpayers are forced to assume an increased tax burden in order to finance essential public services.

‘Of course, pleadings must be something more than an ingenious academic exercise in the conceivable.’ United States v. SCRAP, 412 U.S., at 688. We think the complaint of the taxpayer-petitioners is little more than such an exercise. Apart from the conjectural nature of the asserted injury, the line of causation between Penfield's actions and such injury is not apparent from the complaint. Whatever may occur in Penfield, the injury complained of—increases in taxation—results only from decisions made by the appropriate Rochester authorities, who are not parties to this case.

But even if we assume that the taxpayer-petitioners could establish that Penfield's zoning practices harm them (Cf. United States v. SCRAP, 412 U.S. 669, 688—690 (1973). But see Roe v. Wade, 410 U.S. 113, 127—129 (1973)), their complaint nonetheless was properly dismissed. Petitioners do not, even if they could, assert any personal right under the Constitution or any statute to be free of action by a neighboring municipality that may have some incidental adverse effect on Rochester. On the contrary, the only basis of the taxpayer-petitioners' claim is that Penfield's zoning ordinance and practices violate the constitutional and statutory rights of third parties, namely, persons of low and moderate income who are said to be excluded from Penfield. In short the claim of these petitioners falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. As we have observed above, this rule of judicial self-governance is subject to exceptions, the most prominent of which is that Congress may remove it by statute. Here, however, no statute expressly or by clear implication grants a right of action, and thus standing to seek relief, to persons in petitioners' position. In several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties' rights. See, e.g., Doe v. Bolton, 410 U.S. 179, 188 (1973); Griswold v. Connecticut, 381 U.S. 479, 481 (1965); Barrows v. Jackson, 346 U.S. 249 (1953). But the taxpayer-petitioners are not themselves subject to Penfield's zoning practices. Nor do they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose rights assertedly are violated. E.g., Sullivan v. Little Hunting Park, Inc., 396 U.S., at 237; NAACP v. Alabama, 357 U.S. 449, 458—460 (1958); Pierce v. Society of Sisters, 368 U.S., at 534—536. No relationship, other than an incidental congruity of interest, is alleged to exist between the Rochester taxpayers and persons who have been precluded from living in Penfield. Nor do the taxpayer-petitioners show that their prosecution of the suit is necessary to insure protection of the rights asserted, as there is no indication that persons who in fact have been excluded from Penfield are disabled from asserting their own right in a proper case (See generally Sedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). Cf. Bigelow v. Virginia, 421 U.S. 809, 815—817 (1975).). In sum, we discern no justification for recognizing in the Rochester taxpayers a right of action on the asserted claim.

Supreme Court of the United States

422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197, 1975 U.S. LEXIS 76, SCDB 1974-140

No. 73-2024

1975-06-25

WARTH et al. v. SELDIN et al.

No. 73-2024.

Argued March 17, 1975 —

Decided June 25, 1975

*492 Emmelyn Logan-Baldwin argued the cause for petitioners. With her on the briefs were Sanford Liebschutz and Michael Nelson.

James M. Hartman argued the cause for respondents. With him on the brief were Douglas S. Gates, J. William Ernstrom, and Luther C. Nadler.*

*493Mr. Justice Powell

delivered the opinion of the Court.

Petitioners, various organizations and individuals resident in the Rochester, N. Y., metropolitan area, brought this action in the District Court for the Western District of New York against the town of Penfield, an incorporated municipality adjacent to Rochester, and against members of Penfield’s Zoning, Planning, and Town Boards. Petitioners claimed that the town’s zoning ordinance, by its terms and as enforced by the defendant board members, respondents here, effectively excluded persons of low and moderate income from living in the town, in contravention of petitioners’ First, Ninth, and Fourteenth Amendment rights and in violation of 42 U. S. C. §§ 1981, 1982, and 1983. The District Court dismissed the complaint and denied a motion to add petitioner Housing Council in the Monroe County Area, Inc., as party-plaintiff and also a motion by petitioner Rochester Home Builders Association, Inc., for leave to intervene as party-plaintiff. The Court of Appeals for the Second Circuit affirmed, holding that none of the plaintiffs, and neither Housing Council nor Home Builders Association, had standing to prosecute the action. 495 F. 2d 1187 (1974). We granted the petition for certiorari. 419 U. S. 823 (1974). For reasons that differ in certain respects from those upon which the Court of Appeals relied, we affirm.

I .

Petitioners Metro-Act of Rochester, Inc., and eight individual plaintiffs, on behalf of themselves and all persons similarly situated,1 filed this action on January 24, *4941972, averring jurisdiction in the District Court under 28 U. S. C. §§ 1331 and 1343. The complaint identified Metro-Act as a not-for-profit New York corporation, the purposes of which are “to alert ordinary citizens to problems of social concern; ... to inquire into the reasons for the critical housing shortage for low and moderate income persons in the Rochester area and to urge action on the part of citizens to alleviate the general housing shortage for low and moderate income persons.” 2 Plaintiffs Vinkey, Reichert, Warth, and Harris were described as residents of the city of Rochester, all of whom owned real property in and paid property taxes to that city.3 Plaintiff Ortiz, “a citizen of Spanish/Puerto Rican extraction,” App. 7, also owned real property in and paid taxes to Rochester. Ortiz, however, resided in Wayland, N. Y., some 42 miles from Penfield where he was employed.4 The complaint described plaintiffs Broadnax, Reyes, and Sinkler as residents of Rochester and “persons fitting within the classification of low and moderate income as hereinafter defined. ...”5 Ibid. Al*495though the complaint does not expressly so state, the record shows that Broadnax, Reyes, and Sinkler are members of ethnic or racial minority groups: Reyes is of Puerto Rican ancestry; Broadnax and Sinkler are Negroes.

Petitioners’ complaint alleged that Penfield’s zoning ordinance, adopted in 1962, has the purpose and effect of excluding persons of low and moderate income from residing in the town. In particular, the ordinance allocates 98% of the town’s vacant land to single-family detached housing, and allegedly by imposing unreasonable requirements relating to lot size, setback, floor area, and habitable space, the ordinance increases the cost of single-family detached housing beyond the means of persons of low and moderate income. Moreover, according to petitioners, only 0.3% of the land available for residential construction is allocated to multifamily structures (apartments, townhouses, and the like), and even on this limited space, housing for low- and moderate-income persons is not economically feasible because of low density and other requirements. Petitioners also alleged that “in furtherance of a policy of exclusionary zoning,” id., at 22, the defendant members of Penfield’s Town, Zoning, and Planning Boards had acted in an arbitrary and discriminatory manner: they had delayed action on proposals for low- and moderate-cost housing for inordinate periods of time; denied such proposals for arbitrary and insubstantial reasons; refused to grant necessary variances and permits, or to allow tax abatements; failed to provide necessary support services for low- and moderate-cost housing projects; and had *496amended the ordinance to make approval of such projects virtually impossible.

In sum, petitioners alleged that, in violation of their “rights, privileges and immunities secured by the Constitution and laws of the United States,” id., at 17, the town and its officials had made “practically and economically impossible the construction of sufficient numbers of low and moderate income . . . housing in the Town of Pen-field to satisfy the minimum housing requirements of both the Town of Penfield and the metropolitan Rochester area . ...”6 Petitioners alleged, moreover, that by precluding low- and moderate-cost housing, the town’s zoning practices also had the effect of excluding persons of minority racial and ethnic groups, since most such persons have only low or moderate incomes.

Petitioners further alleged certain harm to themselves. The Rochester property owners and taxpayers — Vinkey, Reichert, Warth, Harris, and Ortiz — claimed that because of Penfield’s exclusionary practices, the city of Rochester had been forced to impose higher tax rates on them and others similarly situated than would otherwise have been necessary. The low- and moderate-income, minority plaintiffs — Ortiz, Broadnax, Reyes, and Sinkler — claimed that Penfield’s zoning practices had prevented them from acquiring, by lease or purchase, residential property in the town, and thus had forced them and their families to reside in less attractive environments. To relieve these various harms, petitioners asked the District Court to declare the Pen-field ordinance unconstitutional, to enjoin the defendants from enforcing the ordinance, to order the defendants to enact and administer a new ordinance designed to alleviate the effects of their past actions, and to award $750,-000 in actual and exemplary damages.

*497On May 2, 1972, petitioner Rochester Home Builders Association, an association of firms engaged in residential construction in the Rochester metropolitan area, moved the District Court for leave to intervene as a party-plaintiff. In essence, Home Builders’ intervenor complaint repeated the allegations of exclusionary zoning practices made by the original plaintiffs. It claimed that these practices arbitrarily and capriciously had prevented its member firms from building low- and moderate-cost housing in Penfield, and thereby had deprived them of potential profits. Home Builders prayed for equitable relief identical in substance to that requested by the original plaintiffs, and also for $750,000 in damages.7 On June 7, 1972, Metro-Act and the other original plaintiffs moved to join petitioner Housing Council in the Monroe County Area, Inc., as a party plaintiff. Housing Council is a not-for-profit New York corporation, its membership comprising some 71 public and private organizations interested in housing problems. An affidavit accompanying the motion stated that 17 of Housing Council’s member groups were or hoped to be involved in the development of low- and moderate-cost housing, and that one of its members — the Penfield Better Homes Corp. — “is and has been actively attempting to develop moderate income housing” in Penfield, “but has been stymied by its inability to secure the necessary approvals . . . .” 8

Upon consideration of the complaints and of extensive supportive materials submitted by petitioners, the District Court held that the original plaintiffs, Home Builders, and Housing Council lacked standing to prosecute *498the action, that the original complaint failed to state a claim upon which relief could be granted, that the suit should not proceed as a class action, and that, in the exercise of discretion, Home Builders should not be permitted to intervene. The court accordingly denied the motion to add Housing Council as a party-plaintiff, denied Home Builders’ motion to intervene, and dismissed the complaint. The Court of Appeals affirmed, reaching only the standing questions.

We address first the principles of standing relevant to the claims asserted by the several categories of petitioners in this case. In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. E. g., Barrows v. Jackson, 346 U. S. 249, 255-256 (1953). In both dimensions it is founded in concern about the proper — and properly limited — role of the courts in a democratic society. See Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 221-227 (1974); United States v. Richardson, 418 U. S. 166, 188-197 (1974) (Powell, J., concurring).

In its constitutional dimension, standing imports justiciability: whether the plaintiff has made out a “case or controversy” between himself and the defendant within the meaning of Art. III. This is the threshold question in every federal case, determining the power of the court to entertain the suit. As an aspect of justiciability, the standing question is whether the plaintiff has “alleged such a- personal stake in the outcome of the controversy” as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on *499his behalf. Baker v. Carr, 369 U. S. 186, 204 (1962).9 The Art. Ill judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally. A federal court’s jurisdiction therefore can be invoked only when the plaintiff himself has suffered “some threatened or actual injury resulting from the putatively illegal action . . . .” Linda R. S. v. Richard, D., 410 U. S. 614, 617 (1973). See Data Processing Service v. Camp, 397 U. S. 150, 151-154 (1970).10

Apart from this minimum constitutional mandate, this Court has recognized other limits on the class of persons who may invoke the courts’ decisional and remedial powers. First, the Court has held that when the asserted harm is a “generalized grievance” shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction. E. g., Schlesinger v. Reservists to Stop the War, supra; United States v. Richardson, supra; Ex parte Levitt, 302 U. S. 633, 634 (1937). Second, even when the plaintiff has alleged injury sufficient to meet the “case or controversy” requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. E. g., Tileston v. Ullman, 318 U. S. 44 (1943). See United States v. Raines, 362 U. S. 17 (1960); Barrows v. *500 Jackson, supra. Without such limitations — closely related to Art. Ill concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. See, e. g., Schlesinger v. Reservists to Stop the War, 418 U. S., at 222.11

Although standing in no way depends on the merits of the plaintiff's contention that particular conduct is illegal, e. g., Flast v. Cohen, 392 U. S. 83, 99 (1968), it often turns on the nature and source of the claim asserted. The actual or threatened injury required by Art. Ill may exist solely by virtue of “statutes creating legal rights, the invasion of which creates standing ....'' See Linda R. S. v. Richard D., supra, at 617 n. 3; Sierra Club v. Morton, 405 U. S. 727, 732 (1972). Moreover, the source of the plaintiff's claim to relief assumes critical importance with respect to the prudential rules of standing that, apart from Art. Ill's minimum requirements, serve to limit the role of the courts in resolving public disputes. Essentially, the standing question in such cases is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief.12 In some circumstances, counter*501vailing considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiff’s claim to relief rests on the legal rights of third parties. See United States v. Raines, 362 U. S., at 22-23. In such instances, the Court has found, in effect, that the constitutional or statutory provision in question implies a right of action in the plaintiff. See Pierce v. Society of Sisters, 268 U. S. 510 (1925); Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 237 (1969). See generally Part IV, infra. Moreover, Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules. Of course, Art. Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. E. g., United States v. SCRAP, 412 U. S. 669 (1973). But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim. E. g., Sierra Club v. Morton, supra, at 737; FCC v. Sanders Radio Station, 309 U. S. 470, 477 (1940).

One further preliminary matter requires discussion. For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E. g., Jenkins v. McKeithen, 395 U. S. 411, 421-422 (1969). At the same time, it is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing. If, after this oppor*502tunity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed.

Ill

With these general considerations in mind, we turn first to the claims of petitioners Ortiz, Reyes, Sinkler, and Broadnax, each of whom asserts standing as a person of low or moderate income and, coincidentally, as a member of a minority racial or ethnic group. We must assume, taking the allegations of the complaint as true, that Penfield’s zoning ordinance and the pattern of enforcement by respondent officials have had the purpose and effect of excluding persons of low and moderate income, many of whom are members of racial or ethnic minority groups. We also assume, for purposes here, that such intentional exclusionary practices, if proved in a proper case, would be adjudged violative of the constitutional and statutory rights of the persons excluded.

But the fact that these petitioners share attributes common to persons who may have been excluded from residence in the town is an insufficient predicate for the conclusion that petitioners themselves have been excluded, or that the respondents’ assertedly illegal actions have violated their rights. Petitioners must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent. Unless these petitioners can thus demonstrate the requisite case or controversy between themselves personally and respondents, “none may seek relief on behalf of himself or any other member of the class.” O’Shea v. Littleton, 414 U. S. 488, 494 (1974). See, e. g., Bailey v. Patterson, 369 U. S. 31, 32-33 (1962).

*503In their complaint, petitioners Ortiz, Reyes, Sinkler, and Broadnax alleged in conclusory terms that they are among the persons excluded by respondents’ actions.13 None of them has ever resided in Penfield; each claims at least implicitly that he desires, or has desired, to do so. Each asserts, moreover, that he made some effort, at some time, to locate housing in Penfield that was at once within his means and adequate for his family’s needs. Each claims that his efforts proved fruitless.14 *504We may assume, as petitioners allege, that respondents’ actions have contributed, perhaps substantially, to the cost of housing in Penfield. But there remains the question whether petitioners’ inability to locate suitable housing in Penfield reasonably can be said to have resulted, in any concretely demonstrable way, from respondents’ alleged constitutional and statutory infractions. Petitioners must allege facts from which it reasonably could be inferred that, absent the respondents’ restrictive zoning practices, there is a substantial probability that they would have been able to purchase or lease in Penfield and that, if the court affords the relief requested, the asserted inability of petitioners will be removed. Linda R. S. v. Richard D., 410 U. S. 614 (1973).

We find the record devoid of the necessary allegations. As the Court of Appeals noted, none of these petitioners has a present interest in any Penfield property; none is himself subject to the ordinance’s strictures; and none has ever been denied a variance or permit by respondent officials. 495 F. 2d, at 1191. Instead, petitioners claim that respondents’ enforcement of the ordinance against third parties — developers, builders, and the like — has had the consequence of precluding the construction of housing suitable to their needs at prices they might be able to afford. The fact that the harm to petitioners may have resulted indirectly does not in itself preclude stand*505ing. When a governmental prohibition or restriction imposed on one party causes specific harm to a third party, harm that a constitutional provision or statute was intended to prevent, the indirectness of the injury does not necessarily deprive the person harmed of standing to vindicate his rights. E. g., Roe v. Wade, 410 U. S. 113, 124 (1973). But it may make it substantially more difficult to meet the minimum requirement of Art. Ill: to establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.

Here, by their own admission, realization of petitioners’ desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing. The record specifically refers to only two such efforts: that of Penfield Better Homes Corp., in late 1969, to obtain the rezoning of certain land in Penfield to allow the construction of subsidized cooperative townhouses that could be purchased by persons of moderate income; and a ' similar effort by O’Brien Homes, Inc., in late 1971.15 But *506the record is devoid of any indication that these projects, or other like projects; would have satisfied petitioners’ needs at prices they could afford, or that, were the court to remove the obstructions attributable to respondents, such relief would benefit petitioners. Indeed, petitioners’ descriptions of their individual financial situations and housing needs suggest precisely the contrary— that their inability to reside in Penfield is the consequence of the economics of the area housing market, rather than of respondents’ assertedly illegal acts.16 In *507short, the facts alleged fail to support an actionable causal relationship between Penfield’s zoning practices and petitioners’ asserted injury.

In support of their position, petitioners refer to several decisions in the District Courts and Courts of Appeals, acknowledging standing in low-income, minority-group plaintiffs to challenge exclusionary zoning practices.17 In those cases, however, the plaintiffs challenged zoning restrictions as applied to particular projects that would supply housing within their means, and of which they were intended residents. The plaintiffs thus were able to demonstrate that unless relief from assertedly illegal actions was forthcoming, their immediate and personal interests would be harmed. Petitioners here assert no like circumstances. Instead, they rely on little more than the remote possibility, unsubstantiated by allegations of fact, that their situation might have been better had respondents acted otherwise, and might improve were the court to afford relief.

*508We hold only that a plaintiff who seeks to challenge exclusionary zoning practices must allege specific, concrete facts demonstrating that the challenged practices harm him, and that he personally would benefit in a tangible way from the court’s intervention.18 Absent the necessary allegations of demonstrable, particularized injury, there can be no confidence of “a real need to exercise the power of judicial review” or that relief can be framed “no broader than required by the precise facts to which the court’s ruling would be applied.” Schlesinger v. Reservists to Stop the War, 418 U. S., at 221-222.

The petitioners who assert standing on the basis of their status as taxpayers of the city of Rochester present a different set of problems. These “taxpayer-petitioners” claim that they are suffering economic injury consequent to Penfield’s allegedly discriminatory and exclusionary zoning practices. Their argument, in brief, is that Penfield’s persistent refusal to allow or to facilitate construction of low- and moderate-cost housing forces the city of Rochester to provide more such housing than it otherwise would do; that to provide such housing, Rochester must allow certain tax abatements; and *509that as the amount of tax-abated property increases, Rochester taxpayers are forced to assume an increased tax burden in order to finance essential public services.

“Of course, pleadings must be something more than an ingenious academic exercise in the conceivable.” United States v. SCRAP, 412 U. S., at 688. We think the complaint of the taxpayer-petitioners is little more than such an exercise. Apart from the conjectural nature of the asserted injury, the line of causation between Pen-field’s actions and such injury is not apparent from the complaint. Whatever may occur in Penfield, the injury complained of — increases in taxation — results only from decisions made by the appropriate Rochester authorities, who are not. parties to this case.

But even if we assume that the taxpayer-petitioners could establish that Penfield’s zoning practices harm them,19 their complaint nonetheless was properly dismissed. Petitioners do not, even if they could, assert any personal right under the Constitution or any statute to be free of action by a neighboring municipality that may have some incidental adverse effect on Rochester. On the contrary, the only basis of the taxpayer-petitioners’ claim is that Penfield’s zoning ordinance and practices violate the constitutional and statutory rights of third parties, namely, persons of low and moderate income who are said to be excluded from Penfield. In short the claim of these petitioners falls squarely within the prudential standing rule that normally bars litigants from asserting the rights or legal interests of others in order to obtain relief from injury to themselves. As we have observed above, this rule of judicial self-governance is subject to exceptions, the most prominent of which is that Congress may remove it by statute. Here, how*510ever, no statute expressly or by clear implication grants a right of action, and thus standing to seek relief, to persons in petitioners’ position. In several cases, this Court has allowed standing to litigate the rights of third parties when enforcement of the challenged restriction against the litigant would result indirectly in the violation of third parties’ rights. See, e. g., Doe v. Bolton, 410 U. S. 179, 188 (1973); Griswold v. Connecticut, 381 U. S. 479, 481 (1965); Barrows v. Jackson, 346 U. S. 249 (1953). But the taxpayer-petitioners are not themselves subject to Penfield’s zoning practices. Nor dó they allege that the challenged zoning ordinance and practices preclude or otherwise adversely affect a relationship existing between them and the persons whose rights assertedly are violated. E. g., Sullivan v. Little Hunting Park, Inc., 396 U. S., at 237; NAACP v. Alabama, 357 U. S. 449, 458-460 (1958); Pierce v. Society of Sisters, 268 U. S., at 534-536. No relationship, other than an incidental congruity of interest, is alleged to exist between the Rochester taxpayers and persons who have been precluded from living in Penfield. Nor do the taxpayer-petitioners show that their prosecution of the suit is necessary to insure protection of the rights asserted, as there is no indication that persons who in fact have been excluded from Penfield are disabled from asserting their own right in a proper case.20 In sum, we discern no justification for recognizing in the Rochester taxpayers a right of action on the asserted claim.

We turn next to the standing problems presented by the petitioner associations — Metro-Act of Rochester, *511Inc., one of the original plaintiffs; Housing Council in the Monroe County Area, Inc., which the original plaintiffs sought to join as a party-plaintiff; and Rochester Home Builders Association, Inc., which moved in the District Court for leave to intervene as plaintiff. There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members’ associational ties. E. g., NAACP v. Alabama, supra, at 458-460; Anti-Fascist Committee v. McGrath, 341 U. S. 123, 183-187 (1951) (Jackson, J., concurring). With the limited exception of Metro-Act, however, none of the associational petitioners here has asserted injury to itself.

Even in the absence of injury to itself, an association' 'may have standing solely as the representative of its members. E. g., National Motor Freight Assn. v. United States, 372 U. S. 246 (1963). The possibility of such representational standing, however, does not eliminate or attenuate the constitutional requirement of a case or controversy. See Sierra Club v. Morton, 405 U. S. 727 (1972). The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit. Id., at 734 — 741. So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.

*512A

Petitioner Metro-Act’s claims to standing on its own behalf as a Rochester taxpayer, and on behalf of its members who are Rochester taxpayers or persons of low or moderate income, are precluded by our holdings in Parts III and IV, supra, as to the individual petitioners, and require no further discussion. Metro-Act also alleges, however, that 9%' of its membership is composed of present residents of Penfield. It claims that, as a result of the persistent pattern of exclusionary zoning practiced by respondents and the consequent exclusion of persons of low and moderate income, those of its members who are Penfield residents- are deprived of the benefits of living in a racially and ethnically integrated community. Referring to our decision in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972), Metro-Act argues that such deprivation is a sufficiently palpable injury to satisfy the Art. Ill case-or-controversy requirement, and that it has standing as the representative of its members to seek redress.

We agree with the Court of Appeals that Trafficante is not controlling here. In that case, two residents of an apartment complex alleged that the owner had discriminated against rental applicants on the basis of race, in violation of § 804 of the Civil Rights Act of 1968, 82 Stat. 83, 42 U. S. C. § 3604. They claimed that, as a result of such discrimination, “they had been injured in that (1) they had lost the social benefits of living in an integrated community; (2) they had missed business and professional advantages which would have accrued if they had lived with members of minority groups; (3) they had suffered embarrassment and economic damage in social, business, and professional activities from being 'stigmatized’ as residents of a 'white ghetto.’ ” 409 U. S., at 208. In light of the clear congressional purpose *513in enacting the 1968 Act, and the broad definition of “person aggrieved” in § 810 (a), 42 U. S. C. § 3610 (a), we held that petitioners, as “person [s] who claim[ed] to have been injured by a discriminatory housing practice,” had standing to litigate violations of the Act. We concluded that Congress had given residents of housing facilities covered by the statute an actionable right to be free from the adverse consequences to them of racially discriminatory practices directed at and immediately harmful to others. 409 U. S., at 212.

Metro-Act does not assert on behalf of its members any right of action under the 1968 Civil Rights Act, nor can the complaint fairly be read to make out any such claim.21 In this, we think, lies the critical distinction between Traficante and the situation here. As we have *514observed above, Congress may create a statutory right or entitlement the alleged deprivation of which can confer standing to sue even where the plaintiff would have suffered no judicially cognizable injury in the absence of statute. Linda R. S. v. Richard D., 410 U. S., at 617 n. 3, citing Traficante v. Metropolitan Life Ins., Co., supra, at 212 (White, J., concurring). No such statute is applicable here.

Even if we assume, arguendo, that apart from any statutorily created right the asserted harm to Metro-Act’s Penfield members is sufficiently direct and personal to satisfy the case-or-controversy requirement of Art. Ill, prudential considerations strongly counsel against according them or Metro-Act standing to prosecute this action. We do not understand Metro-Act to argue that Penfield residents themselves have been denied any constitutional rights, affording them a cause of action under 42 U. S. C. § 1983. Instead, their complaint is that they have been harmed indirectly by the exclusion of others. This is an attempt to raise putative rights of third parties, and none of the exceptions that allow such claims is present here.22 In these circumstances, we conclude that it is inappropriate to allow Metro-Act to invoke the judicial process.

Petitioner Home Builders, in its intervenor-complaint, asserted standing to represent its member firms engaged in the development and construction of residential housing in the Rochester area, including Penfield. Home Builders alleged that the Penfield zoning restrictions, *515together with refusals by the town officials to grant variances and permits for the construction of low- and moderate-cost housing, had deprived some of its members of “substantial business opportunities and profits.” App. 156. Home Builders claimed damages of $750,000 and also joined in the original plaintiffs’ prayer for declaratory and injunctive relief.

As noted above, to justify any relief the association must show that it has suffered harm, or that one or more of its members are injured. E. g., Sierra Club v. Morton, 405 U. S. 727 (1972). But, apart from this, whether an association has standing to invoke the court’s remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind. E.g., National Motor Freight Assn. v. United States, 372 U. S. 246 (1963). See Data Processing Service v. Camp, 397 U. S. 150 (1970). Cf. Fed. Rule Civ. Proc. 23 (b)(2).

The present case, however, differs significantly as here an association seeks relief in damages for alleged injuries to its members. Home Builders alleges no monetary injury to itself, nor any assignment of the damages claims of its members. No award therefore can be made to the association as such. Moreover, in the circumstances of this case, the damages claims are not common to the entire membership, nor shared by all in equal degree. To the contrary, whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individual*516ized proof. Thus, to obtain relief in damages, each member of Home Builders who claims injury as a result of respondents’ practices must be a party to the suit, and Home Builders has no standing to claim damages on his behalf.

Home Builders’ prayer for prospective relief fails for a different reason. It can have standing as the representative of its members only if it has alleged facts sufficient to make out a case or controversy had the members themselves brought suit. No such allegations were made. The complaint refers to no specific project of any of its members that is currently precluded either by the ordinance or by respondents’ action in enforcing it. There is no averment that any member has applied to respondents for a building permit or a variance with respect to any current project. Indeed, there is no indication that respondents have delayed or thwarted any project currently proposed by Home Builders’ members, or that any of its members has taken advantage of the remedial processes available under the ordinance. In short, insofar as the complaint seeks prospective relief, Home Builders has failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention. See, e. g., United Public Workers v. Mitchell, 330 U. S. 75, 86-91 (1947); Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941).

A like problem is presented with respect to petitioner Housing Council. The affidavit accompanying the motion to join it as plaintiff states that the Council includes in its membership “at least seventeen” groups that have been, are, or will be involved in the development of low- and moderate-cost housing. But, with one exception, the complaint does not suggest that any of these groups has focused its efforts on Penfield or has any specific *517plan to do so. Again with the same exception, neither the complaint nor any materials of record indicate that any member of Housing Council has taken any step toward building housing in Penfield, or has had dealings of any nature with respondents. The exception is the Penfield Better Homes Corp. As we have observed above, it applied to respondents in late 1969 for a zoning variance to allow construction of a housing project designed for persons of moderate income. The affidavit in support of the motion to join Housing Council refers specifically to this effort, and the supporting materials detail at some length the circumstances surrounding the rejection of Better Homes’ application. It is therefore possible that in 1969, or within a reasonable time thereafter, Better Homes itself and possibly Housing Council as its representative would have had standing to seek review of respondents’ action. The complaint, however, does not allege that the Penfield Better Homes project remained viable in 1972 when this complaint was filed, or that respondents’ actions continued to block a then-current construction project.23 In short, neither the complaint nor the record supplies any basis from which to infer that the controversy between respondents and Better Homes, however vigorous it may once have been, remained a live, concrete dispute when this complaint was filed.

The rules of standing, whether as aspects of the Art. Ill case-or-controversy requirement or as reflections of pru*518dential considerations defining and limiting the role of the courts, are threshold determinants of the propriety of judicial intervention. It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers. We agree with the District Court and the Court of Appeals that none of the petitioners here has met this threshold requirement. Accordingly, the judgment of the Court of Appeals is

Affirmed.

In his affidavit submitted in opposition to respondents’ motion to dismiss, petitioner Ortiz stated:

“Since my job at that time and continuing until May of 1972 was in the Town of Penfield, I initiated inquiries about renting and/or buying a home in the Town of Penfield. However, because of my income being low or moderate, I found that there were no apartment units large enough to house my family of wife and seven children, nor were there apartment units that were available reasonably priced so that I could even afford to rent the largest apartment unit. I have been reading ads in the Rochester metropolitan newspapers since coming to Rochester in 1966 and during that time and to the present time, I have not located either rental housing or housing to buy in Penfield.” App. 37.

Petitioner Reyes averred that, for some time before locating and purchasing their present residence in Rochester, she and her husband had searched for a suitable residence in suburban communities: “[0]ur investigation for housing included the Rochester bedroom communities of Webster, Irondequoit, Penfield and Perinton. Our search over a period of two years led us to no possible purchase in any of these towns.” Id.., at 428. Petitioner Sinkler stated *504that she had “searched for alternate housing in the Rochester metropolitan area,” including the town of Penfield, and had found that “a black person has no choice of housing . . . .” In particular, “there are no apartments available in the Town of Penfield which a person of my income level can afford.” Id., at 452-453. Petitioner Broadnax said only that she had “bought newspapers and read ads and walked to look for apartments until I found the place where I now reside. I found that there was virtually no choice of housing in the Rochester area.” Id., at 407.

Penfield Better Homes contemplated a series of one- to three-bedroom units and hoped to sell them — at that time — to persons who earned from $5,000 to $8,000 per year. The Penfield Planning Board denied the necessary variance on September 9, 1969, because of incompatibility with the surrounding neighborhood, projected traffic congestion, and problems of severe soil erosion during construction. Id., at 629-633, 849-859, 883-884. O’Brien Homes, Inc., projected 51 buildings, each containing four family units, designed for single people and small families, and capable of being purchased by persons “of low income and accumulated funds” and “of moderate income with limited funds for down, payment . . . .” Id., at 634. The variance for this project was denied by the Planning Board on October 12, 1971; a revision of the proposal was reconsidered by the Planning Board in April 1972, and, from all indications of record, apparently remains under consideration. The record also indicates the existence of several proposals for “planned unit developments”; but we are not told whether these projects *506would allow sale at prices that persons of low or moderate income are likely to be able to afford. There is, more importantly, not the slightest suggestion that they would be adequate, and of sufficiently low cost, to meet these petitioners’ needs.

Ortiz states in his affidavit that he is now purchasing and resides in a six-bedroom dwelling in Wayland, N. Y.; and that he owns and receives rental income from a house in Rochester. He is concerned with finding a house or apartment large enough for himself, his wife, and seven children, but states that he can afford to spend a maximum of $120 per month for housing. Id., at 370. Broadnax seeks a four-bedroom house or apartment for herself and six children, and can spend a maximum of about $120 per month for housing. Id., at 417-418. Sinkler also states that she can spend $120 per month for housing for herself and two children. Id., at 452-453. Thus, at least in the cases of Ortiz and Broadnax, it is doubtful that their stated needs could have been satisfied by the small housing units contemplated in the only moderate-cost projects specifically described in the record. Moreover, there is no indication that any of the petitioners had the resources necessary to acquire the housing available in the projects. The matter is left entirely obscure. The income and housing budget figures supplied in petitioners' affidavits are presumably for the year 1972. The vague description of the proposed O’Brien development strongly suggests that the units, even if adequate for their needs, would have been beyond the means at least of Sinkler and Broadnax. See n. 15, supra. The Penfield Better Homes projected price figures were for 1969, and must be assumed — even if subsidies might still be available — to have increased substantially by 1972, when the complaint was filed. Petitioner Reyes presents a special case: she states that her family *507has an income of over $14,000 per year, that she can afford $231 per month for housing, and that, in the past and apparently now, she wants to purchase a residence. As noted above, see n. 5, supra, the term “low and moderate income” is nowhere defined in the complaint; but Tenfield Better Homes defined the term as between $5,000 and $8,000 per year. See n. 15, supra. Since that project was to be subsidized, presumably petitioner Reyes would have been ineligible. There is no indication that in nonsubsidized projects, removal of the challenged zoning restrictions — in 1972— would have reduced the price on new single-family residences to a level that petitioner Reyes thought she could afford.

The amicus brief of the Lawyers’ Committee for Civil Rights under Law argues, to the contrary, that petitioners’ allegations do state colorable claims under the 1968 Act, and that Metro-Act’s Penfield members are “person[s] aggrieved” within the meaning of § 810 (a). It is significant, we think, that petitioners nowhere adopt this argument. As we read the complaint, petitioners have not alleged that respondents “refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, . . . or national origin,” or that they “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, ... or national origin.” 42 U. S. C. §§ 3604 (a) and (b) (emphasis added). Instead, the gravamen of the complaint is that the challenged zoning practices have the purpose and effect of excluding persons of low and moderate income from residing in the town, and that this in turn has the consequence of excluding members of racial or ethnic minority groups. This reading of the complaint is confirmed by petitioners’ brief in this Court. Brief for Petitioners 41. We intimate no view as to whether, had the complaint alleged purposeful racial or ethnic discrimination, Metro-Act would have stated a claim under § 804. See Park View Heights Corp. v. City of Black Jack, 467 F. 2d 1208 (CA8 1972).

Mr. Justice Douglas,

dissenting.

With all respect, I think that the Court reads the complaint and the record with antagonistic eyes. There are in the background of this case continuing strong tides of opinion touching on very sensitive matters, some of which involve race, some class distinctions based on wealth.

A clean, safe, and well-heated home is not enough for some people. Some want to live where the neighbors are congenial and have social and political outlooks similar to their own. This problem of sharing areas of the community is akin to that when one wants to control the kind of person who shares his own abode. Metro-Act of Rochester, Inc., and the Housing Council in the Monroe County Area, Inc. — two of the associations which bring this suit — do in my opinion represent the communal feeling of the actual residents and have standing.

The associations here are in a position not unlike that confronted by the Court in NAACP v. Alabama, 357 U. S. 449 (1958). Their protest against the creation of this segregated community expresses the desire of their members to live in a desegregated community — a desire which gives standing to sue under the Civil Rights Act *519of 1968 as we held in Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972). Those who voice these views here seek to rely on other Civil Rights Acts and on the Constitution, but they too should have standing, by virtue of the dignity of their claim, to have the case decided on the merits.

Standing has become a barrier to access to the federal courts, just as “the political question” was in earlier decades. The mounting caseload of federal courts is well known. But cases such as this one reflect festering sores in our society; and the American dream teaches that if one reaches high enough and persists there is a forum where justice is dispensed. I would lower the technical barriers and let the courts serve that ancient need. They can in time be curbed by legislative or constitutional restraints if an emergency arises.

We are today far from facing an emergency. For in all frankness, no Justice of this Court need work more than four days a week to carry his burden. I have found it a comfortable burden carried even in my months of hospitalization.

As Mr. Justice Brennan makes clear in his dissent, the alleged purpose of the ordinance under attack was to preclude low- and moderate-income people and nonwhites from living in Penfield. The zoning power is claimed to have been used here to foist an un-American community model on the people of this area. I would let the case go to trial and have all the facts brought out. Indeed, it would be better practice to decide the question of standing only when the merits have been developed.

I would reverse the Court of Appeals.

Mr. Justice Brennan,

with whom Mr. Justice White and Mr. Justice Marshall join, dissenting.

In this case, a wide range of plaintiffs, alleging various kinds of injuries, claimed to have been affected by the *520Penfield zoning ordinance, on its face and as applied, and by other practices of the defendant officials of Pen-field. Alleging that as a result of these laws and practices low- and moderate-income and minority people have been excluded from Penfield, and that this exclusion is unconstitutional, plaintiffs sought injunctive, declaratory, and monetary relief. The Court today, in an opinion that purports to be a “standing” opinion but that actually, I believe, has overtones of outmoded notions of pleading and of justiciability, refuses to find that any of the variously situated plaintiffs can clear numerous hurdles, some constructed here for the first time, necessary to establish “standing.” While the Court gives lip service to the principle, oft repeated in recent years,1 that “standing in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal,” ante, at 500, in fact the opinion, which tosses out of court almost every conceivable kind of plaintiff who could be injured by the activity claimed to be unconstitutional, can be explained only by an indefensible hostility to the claim on the merits. I can appreciate the Court’s reluctance to adjudicate the complex and difficult legal questions involved in determining the constitutionality of practices which assertedly limit residence in a particular municipality to those who are white and relatively well off, and I also understand that the merits of this case could involve grave sociological and political ramifications. But courts cannot refuse to hear a case on the merits merely because they would prefer not to, and it is quite clear, when the record is viewed with dispassion, that at least three of the groups of plaintiffs have made *521allegations, and supported them with affidavits and documentary evidence, sufficient to survive a motion to dismiss for lack of standing.2

Before considering the three groups I believe clearly to have standing — the low-income, minority plaintiffs, Rochester Home Builders Association, Inc., and the Housing Council in the Monroe County Area, Inc. — it will be helpful to review the picture painted by the allegations as a whole, in order better to comprehend the interwoven interests of the various plaintiffs. Indeed, one glaring defect of the Court’s opinion is that it views each set of plaintiffs as if it were prosecuting a separate lawsuit, refusing to recognize that the interests are intertwined, and that the standing of any one group must take into account its position vis-a-vis the others. For example, the Court says that the low-income minority plaintiffs have not alleged facts sufficient to show that but for the exclusionary practices claimed, they would be able to reside in Penfield. The Court then intimates that such a causal relationship could be shown only if “the initial focus [is] on a particular project.” Ante, at 508 n. 18. Later, the Court objects to the ability of the Housing Council to prosecute the suit on behalf of its member, Penfield Better Homes Corp., despite the fact that Better Homes had displayed an interest in a particular project, because that project was no longer live. Thus, we must suppose that even if the low-income plaintiffs had alleged a desire to live in the Better Homes project, that allegation would *522be insufficient because it appears that that particular project might never be built. The rights of low-income minority plaintiffs who desire to live in a locality, then, seem to turn on the willingness of a third party to litigate the legality of preclusion of a particular project, despite the fact that the third party may have no economic incentive to incur the costs of litigation with regard to one project, and despite the fact that the low-income minority plaintiffs’ interest is not to live in a particular project but to live somewhere in the town in a dwelling they can afford.

Accepting, as we must, the various allegations and affidavits as true, the following picture emerges: The Pen-field zoning ordinance, by virtue of regulations concerning “lot area, set backs, . . . population density, density of use, units per acre, floor area, sewer requirements, traffic flow, ingress and egress[, and] street location,” makes “practically and economically impossible the construction of sufficient numbers of low and moderate income” housing. App. 25. The purpose of this ordinance was to preclude low- and moderate-income people and nonwhites from living in Penfield, id., at 15, and, particularly because of refusals to grant zoning variances and building permits and by using special permit procedures and other devices, id., at 17, the defendants succeeded in keeping “low and moderate income persons . . . and non-white persons . . . from residing within ... Penfield.” Id., at 18.

As a result of these practices, various of the plaintiffs were affected in different ways. For example, plaintiffs Ortiz, Reyes, Sinkler, and Broadnax, persons of low or moderate income and members of minority groups, alleged that “as a result” of respondents’ exclusionary scheme, id., at 18, 21, 23-24, 26, 29 (emphasis supplied), they could not live in Penfield, although they *523desired and attempted to do so, and consequently incurred greater commuting costs, lived in substandard housing, and had fewer services for their families and poorer schools for their children than if they had lived in Penfield. Members of the Rochester Home Builders Association were prevented from constructing homes for low- and moderate-income people in Penfield, id., at 153, harming them economically. And Penfield Better Homes, a member of the Housing Council, was frustrated in its attempt to build moderate-income housing, id., at 174.

Thus, the portrait which emerges from the allegations and affidavits is one of total, purposeful, intransigent exclusion of certain classes of people from the town, pursuant to a conscious scheme never deviated from. Because of this scheme, those interested in building homes for the excluded groups were faced with insurmountable difficulties, and those of the excluded groups seeking homes in the locality quickly learned that their attempts were futile. Yet, the Court turns the very success of the allegedly unconstitutional scheme into a barrier to a lawsuit seeking its invalidation. In effect, the Court tells the low-income minority and building company plaintiffs they will not be permitted to prove what they have alleged — that they could and would build and live in the town if changes were made in the zoning ordinance and its application — because they have not succeeded in breaching, before the suit was filed, the very barriers which are the subject of the suit.

Low-income and Minority Plaintiffs

As recounted above, plaintiffs Ortiz, Broadnax, Reyes, and Sinkler alleged that “as a result” of respondents’ exclusionary practices, they were unable, 'despite at*524tempts, to find the housing they desired in Penfield, and consequently have incurred high commuting expenses, received poorer municipal services,3 and, in some instances, have been relegated to live in substandard housing.4 The Court does not, as it could not, suggest that *525the injuries, if proved, would be insufficient to give petitioners the requisite “personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues,” Baker v. Carr, 369 U. S. 186, 204 (1962); Flast v. Cohen, 392 U. S. 83, 99 (1968). Rather, it is abundantly clear that the harm alleged satisfies the “injury in fact, economic or otherwise,” Data Processing Service v. Camp, 397 U. S. 150, 152 (1970), requirement which is prerequisite to standing in federal court. The harms claimed — consisting of out-of-pocket losses as well as denial of specifically enumerated services available in Penfield but not in these petitioners’ present communities, see nn. 3 and 4, supra — are obviously more palpable and concrete than those held sufficient to sustain standing in other cases. See United States v. SCRAP, 412 U. S. 669, 686 (1973); Sierra Club v. Morton, 405 U. S. 727, 735 n. 8, 738, and n. 13 (1972). Cf. Data Processing, supra, at 154.

Instead, the Court insists that these petitioners’ allegations are insufficient to show that the harms suffered were caused by respondents’ allegedly unconstitutional practices, because “their inability to reside in Penfield [may be] the consequence of the economics of the area housing market, rather than of respondents’ assertedly illegal acts.” Ante, at 506.

True, this Court has held that to maintain standing, a plaintiff must not only allege an injury but must also assert a “ ‘direct’ relationship between the alleged injury *526and the claim sought to be adjudicated,” Linda R. S. v. Richard D., 410 U. S. 614, 618 (1973) — that is, “[t]he party who invokes [judicial] power must be able to show . . . that he has sustained or is immediately in danger of sustaining some direct injury as the result of [a statute’s] enforcement.” Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (emphasis supplied); Linda R. S., supra, at 618. But as the allegations recited above show, these petitioners have alleged precisely what our cases require — that because of the exclusionary practices of respondents, they cannot live in Penfield and have suffered harm.5

Thus, the Court’s real holding is not that these petitioners have not alleged an injury resulting from respondents’ action, but that they are not to be allowed to prove one, because “realization of petitioners’ desire to live in Penfield always has depended on the efforts and willingness of third parties to build low- and moderate-cost housing,” ante, at 505, and “the record is devoid of any indication that . . . [any] projects, would have satisfied petitioners’ needs at prices they could afford.” Ante, at 506.

Certainly, this is not the sort of demonstration that can or should be required of petitioners at this preliminary stage. In SCRAP, supra, a similar challenge was made: it was claimed that the allegations were vague, 412 U. S., at 689 n. 15, and that the causation theory *527asserted was untrue, id., at 689. We said: “If . . . these allegations were in fact untrue, then the appellants should have moved for summary judgment on the standing issue and demonstrated to the District Court that the allegations were sham and raised no genuine issue of fact. We cannot say . . . that the appellees could not prove their allegations which, if proved, would place them squarely among those persons injured in fact.” Id., at 689-690.6 See also Jenkins v. McKeithen, 396 U. S. 411, 421-422 (1969).

Here, the very fact that, as the Court stresses, these petitioners’ claim rests in part upon proving the intentions and capabilities of third parties to build in Penfield suitable housing which they can afford, coupled with the exclusionary character of the claim on the merits, makes it particularly inappropriate to assume that these petitioners’ lack of specificity reflects a fatal weakness in their theory of causation.7 Obviously they cannot be ex*528pected, prior to discovery and trial, to know the future plans of building companies, the precise details of the housing market in Penfield, or everything which has transpired in 15 years of application of the Penfield zoning ordinance, including every housing plan suggested and refused. To require them to allege such facts is to require them to prove their case on paper in order to get into court at all, reverting to the form of fact pleading long abjured in the federal courts. This Court has not required such unachievable specificity in standing cases in the past, see SCRAP, supra, and Jenkins, supra, and the fact that it does so now can only be explained by an indefensible determination by the Court to close the doors of the federal courts to claims of this kind. Understandably, today’s decision will be read as revealing hostility to breaking down even unconstitutional zoning *529barriers that frustrate the deep human yearning of low-income and minority groups for decent housing they can afford in decent surroundings, see nn. 3 and 4, supra.

Ill

Associations Including Building Concerns

Two of the petitioners are organizations among whose members are building concerns. Both of these organizations, Home Builders and Housing Council, alleged that these concerns have attempted to build in Penfield low- and moderate-income housing, but have been stymied by the zoning ordinance and refusal to grant individual relief therefrom.

Specifically, Home Builders, a trade association of concerns engaged in constructing and maintaining residential housing in the Rochester area, alleged that “[djuring the past 15 years, over 80%- of the private housing units constructed in the Town of Penfield have been constructed by [its] members.” App. 147. Because of respondents’ refusal to grant relief from Pen-field’s restrictive housing statutes, members of Home Builders could not proceed with planned low- and moderate-income housing projects, id., at 157, and thereby lost profits. Id., at 156.

Housing Council numbers among its members at least 17 groups involved in the development and construction of low- and middle-income housing. In particular, one member, Penfield Better Homes, “is and has been actively attempting to develop moderate income housing in . . . Penfield” (emphasis supplied), id., at 174, but has been unable to secure the necessary approvals. Ibid.

The Court finds that these two organizations lack standing to seek prospective relief for basically the same reasons: none of their members is, as far as the allegations show, currently involved in developing a particular *530project. Thus, Home Builders has “failed to show the existence of any injury to its members of sufficient immediacy and ripeness to warrant judicial intervention,” ante, at 516 (emphasis supplied), while “the controversy between respondents and Better Homes, however vigorous it may once have been, [has not] remained a live, concrete dispute.” Ante, at 517.

Again, the Court ignores the thrust of the complaints and asks petitioners to allege the impossible. According to the allegations, the building concerns’ experience in the past with Penfield officials has shown any plans for low- and moderate-income housing to be futile for, again according to the allegations, the respondents are engaged in a purposeful, conscious scheme to exclude such housing. Particularly with regard to a low- or moderate-income project, the cost of litigating, with respect to any particular project, the legality of a refusal to approve it may well be prohibitive. And the merits of the exclusion of this or that project is not at the heart of the complaint; the claim is that respondents will not approve any project which will provide residences for low- and moderate-income people.

When this sort of pattern-and-practice claim is at the heart of the controversy, allegations of past injury, which members of both of these organizations have clearly made, and of a future intent, if the barriers are cleared, again to develop suitable housing for Penfield, should be more than sufficient. The past experiences, if proved at trial, will give credibility and substance to the claim of interest in future building activity in Penfield. These parties, if their allegations are proved, certainly have the requisite personal stake in the outcome of this controversy, and the Court’s conclusion otherwise is only a conclusion that this controversy may not be litigated in a federal court.

I would reverse the judgment of the Court of Appeals.

Specifically, petitioner Ortiz claims, among other things, that the Penfield schools offer a much broader curriculum, including vocational education, than the school his children attend, as well as special tutoring and counseling programs not available to his children. Penfield also provides a comprehensive recreational program, while his community offers very little, and a full-time, comprehensive public library, while his community has only limited library services. App. 377-400.

Petitioner Broadnax claimed that if she lived in Penfield, there would be playgrounds for her children, effective police protection, and adequate garbage disposal, all of which are lacking in her present community. Id., at 419. As a result, her children are not safe and there are mice, rats, and roaches in her house. Id., at 416-417, 419.

Petitioner Reyes stated, similarly, that she is currently living with inadequate police protection, id., at 426, and sending her children to inferior schools, id., at 433.

Finally, petitioner Sinkler also said that in her current home, police protection is inadequate, id., at 443, there are no play areas for children, id., at 449, and the schools are totally inadequate. Id., at 454.

These are only summaries of the affidavits, which are quite specific in detailing the inadequacies of petitioners’ current communities and the injuries suffered thereby as well as, in Ortiz’ affidavit, the services provided by Penfield which would alleviate many of these problems.

Petitioner Broadnax said that because of the poor choice of housing available at her income, she was forced to rent an apartment which has “many leaks in the roof, bad wiring, roach infestation, rat and mice infestation, crumbling house foundation, broken front door, broken hot water heater, etc.” Id., at 410. As a result, aside from the ordinary dangers such conditions obviously present, one son’s asthma condition has been exacerbated. Id., at 413.

Petitioner Sinkler stated that, again because only housing in *525Rochester central city is available to moderate-income, minority people, she is living in a seventh-floor apartment with exposed radiator pipes, no elevator, and no screens, and violence, theft, and sexual attacks are frequent. Id., at 441-446.

Once again, the above are short summaries of long, detailed accounts of the harms suffered.

The Court, glancing at the projects mentioned in the record which might have been built but for the exclusionary practices alleged, concludes that petitioners Ortiz and Broadnax earned too little to afford suitable housing in them, and that petitioner Reyes earned too much. Ante, at 506-507, n. 16. As the Court implicitly acknowledges, petitioner Sinkler at least may well have been able to live in the Better Homes Project. Further, there appears in the record as it stands a report of the Penfield Housing Task Force on Moderate Income Housing, App. 487-581, prepared for the Pen-*528field Town Board itself, which defines “moderate income families as families having incomes between $5,500 and $11,000 per year, depending on the size of the family,” id., at 492, and moderate-income housing as housing “priced below $20,000 or [carrying] a rental price of less than $150 a month,” id., at 493. See also, with respect to “low income,” id., at 527. Thus, while the Court might not know what was meant by "low” and “moderate” income housing, ante, at 494^495, n. 5, and 506-507, n. 16, respondents clearly did. The petitioners here under discussion fell within the Board’s own definition of moderate-income families, except for petitioner Reyes, who alleges that she could afford a house for $20,000 but not more. App. 428. And the Task Force Report does set out, id., at 503-516, changes in the zoning ordinance and its application which could result in housing which moderate-income people could afford, even to the extent of setting out a budget provided by a builder for a house costing $18,900, id., at 507. The causation theory which the Court finds improbable, then, was adopted by a task force of the Town Board itself. Of course, we do not know at this stage whether the particular named plaintiffs would certainly have benefited from the changes recommended by the task force, but at least there is a good chance that, after discovery and trial, they could show they would.

3.5.2.13 Prudential Standing – 3rd Party Standing and Generalized Grievances Limits 3.5.2.13 Prudential Standing – 3rd Party Standing and Generalized Grievances Limits

3.5.2.14 Singleton v. Wulff 3.5.2.14 Singleton v. Wulff

[excerpt]

428 U.S. 106
Supreme Court of the United States

Singleton v. WulffJuly 1, 1976

[1] JUSTICE BLACKMUN delivered the opinion of the Court:

[2] This case involves a claim of a State's unconstitutional interference with the decision to terminate pregnancy. The particular object of the challenge is a Missouri statute excluding abortions that are not "medically indicated" from the purposes for which Medicaid benefits are available to needy persons. In its present posture, however, the case presents [an issue] not going to the merits of this dispute: whether the plaintiff-appellees, as physicians who perform non-medically indicated abortions, have standing to maintain the suit, to which we answer that they do.

[3] The suit was filed in the United States District Court for the Eastern District of Missouri by two Missouri licensed physicians. Each plaintiff avers, in an affidavit filed in opposition to a motion to dismiss, that he "has provided, and anticipates providing abortions to welfare patients who are eligible for Medicaid payments." The plaintiffs further allege in their affidavits that all Medicaid applications filed in connection with abortions performed by them have been refused by the defendant, who is the responsible state official, in reliance on the challenged [statutory provision].

[4] In any event, each plaintiff states that he anticipates further refusals by the defendant to fund non-medically indicated abortions. Each avers that such refusals "deter [him] from the practice of medicine in the manner he considers to be most expertise [sic] and beneficial for said patients . . . and chill and thwart the ordinary and customary functioning of the doctor-patient relationship."

* * *

[5] Two distinct standing questions are presented. We have distinguished them in prior cases, e. g., Data Processing Service v. Camp, 397 U. S., at 152-153; Flast v. Cohen, 392 U. S. 83, 99 n. 20 (1968); Barrows v. Jackson, 346 U. S. 249, 255 (1953), and they are these: First, whether the plaintiff-respondents allege "injury in fact," that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court's Art. III jurisdiction, and, second, whether, as a prudential matter, the plaintiff-respondents are proper proponents of the particular legal rights on which they base their suit.

[6] A. The first of these questions needs little comment, for there is no doubt now that the respondent-physicians suffer concrete injury from the operation of the challenged statute. Their complaint and affidavits, described above, allege that they have performed and will continue to perform operations for which they would be reimbursed under the Medicaid program, were it not for the limitation of reimbursable abortions to those that are "medically indicated." If the physicians prevail in their suit to remove this limitation, they will benefit, for they will then receive payment for the abortions. The State (and Federal Government) will be out of pocket by the amount of the payments. The relationship between the parties is classically adverse, and there clearly exists between them a case or controversy in the constitutional sense. Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 37-39 (1976); Investment Co. Institute v. Camp, 401 U. S. 617, 620-621 (1971); Data Processing Service v. Camp, 397 U. S., at 151-156.

[7] B. The question of what rights the doctors may assert in seeking to resolve that controversy is more difficult. The Court of Appeals adverted to what it perceived to be the doctor's own "constitutional rights to practice medicine." 508 F. 2d, at 1213. We have no occasion to decide whether such rights exist. Assuming that they do, the doctors, of course, can assert them. It appears, however, that the Court of Appeals also accorded the doctors standing to assert, and indeed granted them relief based partly upon, the rights of their patients. We must decide whether this assertion of jus tertii was a proper one.

[8] Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not. See Ashwander v. TVA, 297 U. S. 288, 345-348 (1936) (Brandeis, J., concurring) (offering the standing requirement as one means by which courts avoid unnecessary constitutional adjudications). Second, third parties themselves usually will be the best proponents of their own rights. The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them. The holders of the rights may have a like preference, to the extent they will be bound by the courts' decisions under the doctrine of stare decisis. See, e. g., Baker v. Carr, 369 U. S. 186, 204 (1962) (standing requirement aimed at "assur[ing] that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends"); Holden v. Hardy, 169 U. S. 366, 397 (1898) (assertion of third parties' rights would come with "greater cogency" from the third parties themselves). These two considerations underlie the Court's general rule: "Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party." Barrows v. Jackson, 346 U. S., at 255. See also Flast v. Cohen, 392 U. S., at 99 n. 20; McGowan v. Maryland, 366 U. S. 420, 429 (1961).

114

[9] Like any general rule, however, this one should not be applied where its underlying justifications are absent. With this in mind, the Court has looked primarily to two factual elements to determine whether the rule should apply in a particular case. The first is the relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of the right is not unnecessary in the sense that the right's enjoyment will be unaffected by the outcome of the suit.

[10] Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Thus in Griswold v. Connecticut, 381 U. S. 479 (1965), where two persons had been convicted of giving advice on contraception, the Court permitted the defendants, one of whom was a licensed physician, to assert the privacy rights of the married persons whom they advised. The Court pointed to the "confidential" nature of the relationship between the defendants and the married persons, and reasoned that the rights of the latter were "likely to be diluted or adversely affected" if they could not be asserted in such a case. Id., at 481. See also Eisenstadt v. Baird, 405 U. S. 438, 445-446 (1972) (stressing "advocate" relationship and "impact of the litigation on the third-party interests"); Barrows v. Jackson, 346 U. S., at 259 (owner of real estate subject to racial covenant granted standing to challenge such covenant in part because she was "the one in whose charge and keeping repose[d] the power to continue to use her property to discriminate or to discontinue such use"). A doctor-patient relationship similar to that in Griswold existed in Doe v. Bolton, where the Court also permitted physicians to assert the rights of their patients.410 U. S., at 188-189. Indeed, since that right was the right to an abortion, Doe would flatly control the instant case were it not for the fact that there the physicians were seeking protection from possible criminal prosecution.

[11] The other factual element to which the Court has looked is the ability of the third party to assert his own right. Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply. If there is some genuine obstacle to such assertion, however, the third party's absence from court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and the party who is in court becomes by default the right's best available proponent. Thus, in NAACP v. Alabama, 357 U. S. 449 (1958), the Court held that the National Association for the Advancement of Colored People, in resisting a court order that it divulge the names of its members, could assert the First and Fourteenth Amendments rights of those members to remain anonymous. The Court reasoned that "[t]o require that [the right] be claimed by the members themselves would result in nullification of the right at the very moment of its assertion." Id., at 459. See also Eisenstadt v. Baird, 405 U. S., at 446; Barrows v. Jackson, 346 U. S., at 259.

[12] Application of these principles to the present case quickly yields its proper result. The closeness of the relationship is patent, as it was in Griswold and in Doe. A woman cannot safely secure an abortion without the aid of a physician, and an impecunious woman cannot easily secure an abortion without the physician's being paid by the State. The woman's exercise of her right to an abortion, whatever its dimension, is therefore necessarily at stake here. Moreover, the constitutionally protected abortion decision is one in which the physician is intimately involved. See Roe v. Wade, 410 U. S., at 153-156. Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State's interference with, or discrimination against, that decision.

[13] As to the woman's assertion of her own rights, there are several obstacles. For one thing, she may be chilled from such assertion by a desire to protect the very privacy of her decision from the publicity of a court suit. A second obstacle is the imminent mootness, at least in the technical sense, of any individual woman's claim. Only a few months, at the most, after the maturing of the decision to undergo an abortion, her right thereto will have been irrevocably lost, assuming, as it seems fair to assume, that unless the impecunious woman can establish Medicaid eligibility she must forgo abortion. It is true that these obstacles are not insurmountable. Suit may be brought under a pseudonym, as so frequently has been done. A woman who is no longer pregnant may nonetheless retain the right to litigate the point because it is “`capable of repetition yet evading review.' “Roe v. Wade, 410 U. S., at 124-125. And it may be that a class could be assembled, whose fluid membership always included some women with live claims. But if the assertion of the right is to be "representative" to such an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by a physician.

[14] For these reasons, we conclude that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision, and we decline to restrict our holding to that effect in Doe to its purely criminal context. In this respect, the judgment of the Court of Appeals is affirmed.

* * *

[15] Singleton v. Wulff focuses on two factors in determining whether a plaintiff can sue on behalf of a third party: the closeness of the relationship between the plaintiff and the injured third party, and the likelihood that the third party can sue on its own behalf. Consider how these factors were applied in the following cases:

[16] BARROWS v. JACKSON, 346 U.S. 249 (1953): Barrows, a white person who had signed a racially restrictive covenant, was sued for breach of contract for allowing nonwhites to occupy the property. As a defense, Barrows raised the rights of blacks, who were not parties to the lawsuit, to be free from discrimination. The Court allowed third party standing, permitting the white defendant to raise the interests of black persons to rent and own property in the community. The Court stated that “it would be difficult if not impossible for the person whose rights are asserted to present their grievance before any court.” Because black people were not parties to the covenant, they had no legal basis for participating in the breach of contract suit. (The suit occurred before open housing laws were enacted that would have allowed African Americans to challenge the covenants as impermissible discrimination.)

[17] CRAIG v. BOREN, 429 U.S. 190 (1976): Oklahoma law permitted women to buy 3.2 percent beer at age 18, but said that men could not do so until age 21. A bartender challenged the law on behalf of male customers between the ages of 18 and 21. The bartender suffered economic loss from the law, thus fulfilling the injury requirement. The Court allowed the bartender standing to assert the rights of his customers and explained that “vendors and those in like positions have been uniformly permitted to resist efforts at restricting their operations by acting as advocates for the rights of third parties who seek access to their market or function.”

[18] GILMORE v. UTAH, 429 U.S. 1012 (1976): Gary Gilmore was sentenced to death in the state of Utah but chose not to pursue habeas corpus relief in federal court. His mother sued for a stay of execution on his behalf. In a five-to-four decision, the Court refused to hear his mother’s claim. The Court’s per curiam opinion said that the defendeant had waived his rights by not pursuing them.

[19] Chief Justice Burger, in a concurring opinion, said that the mother should be denied standing: “When the record establishing a knowing and intelligent waiver of Gary Mark Gilmore’s right to seek appellate review is combined with the December 8 written response submitted to this Court, it is plain that the Court is without jurisdiction to entertain the “next friend” application filed by Bessie Gilmore. This Court has jurisdiction pursuant to Art. III of the Constittion on ly over ‘cases and controversies,’ and we can issue stays only in aid of our jurisdiction. There is no dispute, presently before us, between Gary Mark Gilmore and the State of Utah, and the application of Bessie Gilmore manifestly fails to meet the statutory requirements to invoke this Court’s power to review the action of the Supreme Court of Utah. No authority to the contrary has been brought to our attention, and nothing suggested in dissent bears on the threshold question of jurisdiction.

[20] In 2004, the Court returned to the issue of third party standing in a high profile case addressing whether the words “under God” in the Pledge of Allegiance are constitutional. The Court dismissed the case on standing grounds. In ELK GROVE UNIFIED SCHOOL DISTRICT v. NEWDOW, 542 U.S. 1 (2004), the Court held that a father lacked standing to sue on behalf of his daughter because he lacked legal custody for the girl and the mother who had legal custody did not want to sue. Justice Stevens wrote, “In our view, it is improper for the federal courts to entertain a claim by a plaintiff whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the plaintiff’s claimed standing. When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow’s right to communicate with his child – which both California law and the First Amendment recognize – and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.” Yet, why is Newdow’s ability to sue based on who has custody of the girl? Does he not have a claim that his own right to control the religious upbringing of his daughter is infringed by the requirement of “under God” in the Pledge of Allegiance?

Supreme Court of the United States

428 U.S. 106, 49 L. Ed. 2d 826, 96 S. Ct. 2868, 1976 U.S. LEXIS 161, SCDB 1975-171

No. 74—1393

1976-07-01

SINGLETON, CHIEF, BUREAU OF MEDICAL SERVICES, DEPARTMENT OF HEALTH AND WELFARE OF MISSOURI v. WULFF et al.

No. 74—1393.

Argued March 23, 1976

Decided July 1, 1976

*107 Michael L. Boicaurt, Assistant Attorney General of Missouri, argued the cause for petitioner. With him on the brief was John G. Danforth, Attorney General.

Frank Busman argued the cause and filed a brief for respondents.

*108Mr. Justice Blackmun

delivered the opinion of the Court (Parts I, II-A, and III) together with an opinion (Part II-B), in which Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall joined.

• Like its companions,1 this case involves a claim of a State’s unconstitutional interference with the decision to terminate pregnancy. The particular object of the challenge is a Missouri statute excluding abortions that are not “medically indicated” from the purposes for which Medicaid benefits are available to needy persons. In its present posture, however, the case presents two issues not going to the merits of this dispute. The first is whether the plaintiff-appellees, as physicians who perform nonmedically indicated abortions, have standing to maintain the suit, to which we answer that they do. The second is whether the Court of Appeals, exercising jurisdiction because the suit had been dismissed in the District Court for lack of standing, properly proceeded to a determination of the merits, to which we answer that it did not.

Missouri participates in the so-called Medicaid program, under which the Federal Government partially underwrites qualifying state plans for medical assistance to the needy. See 42 U. S. C. § 1396 et seq. (1970 ed. and Supp. IV). Missouri’s plan, which is set out in Mo. Rev. Stat. §§ 208.151-208.158 (Supp. 1975), includes, in § 208.152, a list of 12 categories of medical services that are eligible for Medicaid funding. The last is:

“(12) Family planning services as defined by federal rules and regulations; provided, however, that such family planning services shall not in-*109elude abortions unless such abortions are medically indicated.”

This provision is the subject of the litigation before us.2

The suit was filed in the United States District Court for the Eastern District of Missouri by two ■ Missouri-licensed physicians. Each plaintiff avers, in an affidavit filed in opposition to a motion to dismiss, that he “has provided, and anticipates providing abortions to welfare patients who are eligible for Medicaid payments.” App. 32, 36.3 The plaintiffs further allege in their affidavits that all Medicaid applications filed in connection with abortions performed by them have been refused by the defendant, who is the responsible state official,4 in reliance on the challenged § 208.152 (12). App. 32, 36. It is not entirely clear who has filed these applications. One affiant states that “he and [his] patients have been refused,” id., at 32; the other refers to “those who have submitted applications for such payments on his behalf” and states that such “payments'have been refused.” Id., at 36. Indeed, it is not entirely clear to whom the payments would go if they were made. We assume, however, 'from .the statute’s several references to payments “on behalf of” eligible persons, see §§208.151 and 208.-152, that the provider of the services himself seeks *110reimbursement from the State. In any event, each plaintiff states that he anticipates further refusals by the defendant to fund nonmedically indicated abortions. Each avers that such refusals “deter [him] from the practice of medicine in the manner he considers to be most expertise [sic] and beneficial for said patients . . . and chill and thwart the ordinary and customary functioning of the doctor-patient relationship.” App. 32, 36.

The complaint sought a declaration of the statute's invalidity and an injunction against its enforcement. A number of grounds were stated, among them that the statute, “on its face and as applied,” is unconstitutionally vague, “[d]eprives plaintiffs of their right to practice medicine according to the highest standards of medical practice”; “[d]eprives plaintiffs’ patients of the fundamental right of a woman to determine for herself whether to bear children”; “[infringes upon plaintiffs’ right to render and their patients’ right to receive safe and adequate medical advice and treatment”; and “[d]eprives plaintiffs and their patients, each in their own classification, of the equal protection of the laws.” Id., at 16, 12-13.

The defendant’s sole pleading in District Court was a pre-answer motion to dismiss. Dismissal was sought upon several alternative grounds: that there was no case or controversy; that the plaintiffs lacked “standing to litigate the constitutional issues raised”; that injunctive relief “cannot be granted” because of absence of “irreparable harm” to the plaintiffs; that the plaintiffs “personally could suffer no harm”; and that in any case they “cannot litigate the alleged deprivation or infringement of the civil rights of their welfare patients.” Id., at 2<D25.

The plaintiffs having responded to this motion with a memorandum and also with the affidavits described *111above, the three-judge panel that had been convened to hear the case dismissed the count now before us “for lack of standing.” The court saw no “logical nexus between the status asserted by the plaintiffs and the claim they seek to have adjudicated.” Wulff v. State Bd. of Registration for Healing Arts, 380 F. Supp. 1137, 1144 (1974).

The United States Court of Appeals for the Eighth Circuit reversed. 508 F. 2d 1211 (1974). It reasoned that Roe v. Wade, 410 U. S. 113 (1973), and Doe v. Bolton, 410 U. S. 179 (1973), as interpreted in several of its own earlier decisions, had “ ‘paved the way for physicians to assert their constitutional rights to practice medicine/ ” citing Nyberg v. City of Virginia, 495 F. 2d 1342, 1344 (CA8), appeal dismissed and cert. denied, 419 U. S. 891 (1974). Those rights were said to include “ ‘the right to advise and perform abortions/ ” and furthermore to be “ ‘inextricably bound up with the privacy rights of women who seek abortions.’ ” 508 F. 2d, at 1213. Clearly, the restriction of Medicaid benefits affected the plaintiff physicians “both professionally and monetarily.” Id., at 1214. The result, in the Court of Appeals’ view, was that they had alleged sufficient “ ‘injury in fact,’ ” and also an interest “ ‘arguably within the zone of interests to be protected ; . . by the . .. constitutional guarantee in question,’ ” ibid., quoting Data Processing Service v. Camp, 397 U. S. 150, 153 (1970).

Although it found the matter “not without its difficulty,” 508 F. 2d, at 1214, the Court of Appeals next concluded that, being “urged by appellants” (respondents here), it should proceed from the standing question to the merits of the case. This, rather than a remand, it considered proper because the question of the statute’s validity could not profit from further refinement, and indeed was one whose answer was in no doubt. The *112statute was “obviously unconstitutional,” and it therefore appeared “that the case might well have been decided by one federal judge.” Id., at 1215. The court, accordingly, chose “to make final determination of this case.” Ibid. Proceeding to the merits, the court found a “clear violation of the Equal Protection Clause.” Ibid. The statute constituted a “special regulation on abortion,” and discriminated against both the patient and the physician “by reason of the patient’s poverty.” Id., at 1215-1216. Section 208.152 (12) was therefore declared unconstitutional by the Court of Appeals. Injunctive relief was felt to be unnecessary, it being assumed that the State would comply with the declaration and cease any discrimination between needy patients seeking therapeutic and nontherapeutic abortions. 508 F. 2d, at 1213-1216. We granted certiorari, limited to the two questions identified in the opening paragraph of this opinion. 422 U. S. 1041 (1975).

Although we are not certain that they have been clearly separated in the District Court’s and Court of Appeals’ opinions, two distinct standing questions are presented. We have distinguished them in prior cases, e. g., Data Processing Service v. Camp, 397 U. S., at 152-153; Flast v. Cohen, 392 U. S. 83, 99 n. 20 (1968); Barrows v. Jackson, 346 U. S. 249, 255 (1953), and they are these: First, whether the plaintiff-respondents allege “injury in fact,” that is, a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to a federal court’s Art. Ill jurisdiction, and, second, whether, as a prudential matter, the plaintiff-respondents are proper proponents of the particular legal rights on which they base their suit.

A. The first of these questions needs little comment, for there is no doubt now that the respondent-physicians *113suffer concrete injury from the operation of the challenged statute. Their complaint and affidavits, described above, allege that they have performed and will continue to perform operations for which they would be reimbursed under the Medicaid program, were it not for the limitation of reimbursable abortions to those that are “medically indicated.” If the physicians prevail in their suit to remove this limitation, they will benefit, for they will then receive payment for the abortions. The State (and Federal Government) will'be out of pocket by the amount of the payments. The relationship between the parties is classically adverse, and there clearly exists between them a case or controversy in the constitutional sense. Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 37-39 (1976); Investment Co. Institute v. Camp, 401 U. S. 617, 620-621 (1971); Data Processing Service v. Camp, 397 U. S., at 151-156.

B. The question of what rights the doctors may assert in seeking to resolve that controversy is more difficult. The Court of Appeals adverted to what it perceived to be the doctor’s own “constitutional rights to practice medicine.” 508 F. 2d, at 1213. We have no occasion to decide whether such rights exist. Assuming that they do, the doctors, of course, can assert them. It appears, however, that the Court of Appeals also accorded the doctors standing to assert, and indeed granted them relief based partly upon, the rights of their patients. We must decide whether this assertion of jus tertii was a proper one.

Federal courts must hesitate before resolving a controversy, even one within their constitutional power to resolve, on the basis of the rights of third persons not parties to the litigation. The reasons are two. First, the courts should not adjudicate such rights unnecessarily, and it may be that in fact the holders of those *114rights either do not wish to assert them, or will be able to enjoy them regardless of whether the in-court litigant is successful or not. See Ashwander v. TV A, 297 U. S. 288, 345-348 (1936) (Brandéis, J., concurring) (offering the standing requirement as one means by which courts avoid unnecessary constitutional adjudications). Second, third parties themselves usually will be the best proponents of their own rights. The courts depend on effective advocacy, and therefore should prefer to construe legal rights only when the most effective advocates of those rights are before them. The holders of the rights may have a like preference, to the extent they will be bound by the courts’ decisions under the doctrine of stare decisis. See, e. g., Baker v. Carr, 369 U. S. 186, 204 (1962) (standing requirement aimed at “assuring] that concrete adverseness which sharpens the presentation of the issues upon which the court so largely depends”); Holden v. Hardy, 169 U. S. 366, 397 (1898) (assertion of third parties’ rights would come with “greater cogency” from the third parties themselves). These two considerations underlie the Court’s general rule: “Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party.” Barrows v. Jackson, 346 U. S., at 255. See also Flast v. Cohen, 392 U. S., at 99 n. 20; McGowan v. Maryland, 366 U. S. 420, 429 (1961).

Like any general rule, however, this one should not be applied where its underlying justifications are absent. With this in mind, the Court has looked primarily to two factual elements to determine whether the rule should apply in a particular case. The first is the relationship of the litigant to the person whose right he seeks to assert. If the enjoyment of the right is inextricably bound up with the activity the litigant wishes to pursue, the court at least can be sure that its construction of *115the right is not unnecessary in the sense that the right’s enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter. Thus in Griswold v. Connecticut, 381 U. S. 479 (1965), where two persons had been convicted of giving advice on contraception, the Court permitted the defendants, one of whom was a licensed physician, to assert the privacy rights of the married persons whom they advised. The Court pointed to the “confidential” nature of the relationship between the defendants and the married persons, and reasoned that the rights of the latter were “likely to be diluted or adversely affected” if they could not be asserted in such a case. Id., at 481. See also Eisenstadt v. Baird, 405 U. S. 438, 445-446 (1972) (stressing “advocate” relationship and “impact of the litigation on the third-party interests”); Barrows v. Jackson, 346 U. S., at 259 (owner of real estate subject to racial covenant granted standing to challenge such covenant in part because she was “the one in whose charge and keeping repose [d] the power to continue to use her property to discriminate or to discontinue such use”). A doctor-patient relationship similar to that in Griswold existed in Doe v. Bolton, where the Court also permitted physicians to assert the rights of their patients.5 410 U. S., at 188-189. Indeed, since that right was the right to an abortion, Doe would flatly control the instant case were it not for the fact that there the physicians were seeking protection from possible criminal prosecution.

The other factual element to which the Court has looked is the ability of the third party to assert his own *116right. Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply. If there is some genuine obstacle to such assertion, however, the third party’s absence from court loses its tendency to suggest that his right is not truly at stake, or truly important to him, and fhe party who is in court becomes by default the right’s best available proponent. Thus, in NAACP v. Alabama, 357 U. S. 449 (1958), the Court held that the National Association for the Advancement of Colored People, in resisting a court order that it divulge the names of its members, could assert the First and Fourteenth Amendments rights of those members to remain anonymous. The Court reasoned that “[tjo require that [the right] be claimed by the members themselves would result in nullification of the right at the very moment of its assertion.” Id., at 459. See also Eisenstadt v. Baird, 405 U. S., at 446; Barrows v. Jackson, 346 U. S., at 259.6

*117Application of these principles to the present case quickly yields its proper result. The closeness of the relationship is patent, as it was in Griswold and in Doe. A woman cannot safely secure an abortion without the aid of a physician, and an impecunious woman cannot easily secure an abortion without the physician’s being paid by the State. The woman’s exercise of her right to an abortion, whatever its dimension, is therefore necessarily at stake here. Moreover, the constitutionally protected abortion decision is one in which the physician is intimately involved. See Roe v. Wade, 410 U. S., at 153-156. Aside from the woman herself, therefore, the physician is uniquely qualified to litigate the constitutionality of the State’s interference with, or discrimination against, that decision.

As to the woman’s assertion of her own rights, there are several obstacles. For one thing, she may be chilled from such assertion by a desire to protect the very privacy of her decision from the publicity of a court suit. A second obstacle is the imminent mootness, at least in the technical sense, of any individual woman’s claim. Only a few months, at the most, after the maturing of the decision to undergo an abortion, her right thereto will have been irrevocably lost, assuming, as it seems fair to assume, that unless the impecunious woman can establish Medicaid eligibility she must forgo abortion. It is true that these obstacles are not insurmountable. Suit may be brought under a pseudonym, as so frequently has been done. A woman who is no longer pregnant may nonetheless retain the right to litigate the point because it is “ 'capable of repetition yet evading review.’ ” Roe v. Wade, 410 U. S., at 124-125. And it may be that a class could be assembled, whose fluid membership always included some women with live claims. But if the assertion of the right is to be “representative” to such *118an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by a physician.

For these reasons, we conclude that it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision, and we decline to restrict our holding to that effect in Doe to its purely criminal context.7 In this respect, the judgment of the Court of Appeals is affirmed.

*119III

On this record, we do not agree, however, with the action of the Court of Appeals in proceeding beyond the issue of standing to a resolution of the merits of the case. Petitioner urges that this action was particularly inappropriate because the case is one in which the requested injunctive relief could be granted or denied on the merits only by a three-judge district court, with direct appeal here. We find it unnecessary to reach this contention, or the respondents’ arguments that a three-judge court was not required because the statute is so patently unconstitutional and because in any event only declaratory relief is warranted. Quite apart from these considerations, the Court of Appeals’ resolution of the merits *120seems to us to be an unacceptable exercise of its appellate jurisdiction.

As noted, with respect to the complaint’s count that is before us, petitioner filed in the District Court only a pre-answer motion to dismiss for lack of standing. He filed no answer, and no other pleading addressed to the merits. He did answer some interrogatories, App. 26, but stipulated to no facts, and gave no intimation of what defenses, if any, he might have other than the plaintiffs’ alleged lack of standing. The District Court granted his motion to dismiss and no more. That dismissal was the “final decision” appealed from, see 28 U. S. C. § 1291, and on appeal petitioner limited himself entirely to the standing determination that underlay it. In short, petitioner has never been heard in any way on the merits of the case.

It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below. In Hormel v. Helvering, 312 U. S. 552, 556 (1941), the Court explained that this is “essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues . . . [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” We have no idea what evidence, if any, petitioner would, or could, offer in defense of this statute, but this is only because petitioner has had no opportunity to proffer such evidence. Moreover, even assuming that there is no such evidence, petitioner should have the opportunity to present whatever legal arguments he may have in defense of the statute. We think he was justified in not presenting those arguments to the Court of Appeals, and in assuming, rather, that he would at least be allowed to answer the complaint, should the Court of Appeals reinstate it.

*121The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases. We announce no general rule. Certainly there are circumstances in which a federal appellate court is justified in resolving an issue not passed on below, as where the proper resolution is beyond any doubt, see Turner v. City of Memphis, 369 U. S. 350 (1962), or where “injustice might otherwise result.” Hormel v. Helvering, 312 U. S., at 557.8 Suffice it to say that this is not such a case. The issue resolved by the Court of Appeals has never been passed upon in any decision of this Court. This being so, injustice was more likely to be caused than avoided by deciding the issue without petitioner’s having had an opportunity to be heard.

Assuming, therefore, that the Court of Appeals had jurisdiction to proceed to the merits in this case, we hold that it should not have done so. To that extent, its judgment is reversed, and the case is remanded with directions that it be returned to the District Court so that petitioner may file an answer to the complaint and the litigation proceed accordingly.

It is so ordered.

Mr. Justice Powell objects that such an obstacle is not enough, that our prior cases allow assertion of third-party rights only when such assertion by the third parties themselves would be “in all practicable terms impossible.” Post, at 126. Carefully analyzed, our cases do not go that far. The Negro real-estate purchaser in Barrows, if he could prove that the racial covenant alone stood in the way of his purchase (as presumably he could easily have done, given the amicable posture of the seller in that case), could surely have sought a declaration of its invalidity or an injunction against its enforcement. The Association members in NAACP v. Alabama could have obtained a similar declaration or injunction, suing anonymously by the use of pseudonyms. The recipients of contraceptives in Eisenstadt (or their counterparts in Griswold and Doe, for that matter) could have sought similar relief as necessary to the enjoyment of their constitutional rights. The point is not that these were easy alternatives, but that they differed only in the degree of difficulty, if they differed at all, from the alternative in this case of the women themselves seeking a declaration or injunction that would force the State to pay the doctors for their abortions.

Mr. Justice Powell would so limit Doe, and the other cases cited, explaining them as cases in which the State “directly interfered with the abortion decision” and “directly interdicted the normal functioning of the physician-patient relationship by criminalizing certain procedures.” Post, at 128, There is no support in the language of the cited cases for this distinction, and we are given no logical reason why “direct” interference with a litigant’s conduct should provide a special reason for allowing him to assert third-party rights. Moreover, a “direct interference” or “interdiction” test does not appear to be supported by precedent. We have allowed jus tertii assertion where the interference was no more direct than it is here, In Pierce v. Society of Sisters, 268 U. S. 510 (1925), for example, private schools were permitted to assert the rights of parents as against a state requirement that their children receive a public education, even though the private schools were not thereby “interdicted” at all, but only reduced to the role of supplementing the public school education. Conversely, we regularly disallow jus tertii assertion even though the State has “interdicted” the litigant’s conduct to the point of “criminalizing” it. See Brown v. United States, 411 U. S. 223, 230 (1973) (Fourth Amendment rights of others); Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973) (rights of others to be free from application of same statute); McGowan v. Maryland, 366 U. S, 420, 429-430 (1961) (store owners convicted of violating Sunday closing laws could not assert religious liberty rights of customers). Finally, it is not clear why a “direct interference” or “interdiction” test would not allow the jus tertii assertion in this case. For a doctor who cannot afford to work for nothing, and a woman who cannot afford to pay him, the State’s refusal to fund an abortion, is as effective *119an “interdiction” of it as would ever be necessary. Furthermore, since the right asserted in this case is not simply the right to have an abortion, but the right to have abortions nondiscriminatorily funded, the denial of such funding is as complete an “interdiction” of the exercise of the right as could ever exist.

MR. Justice Powell also voices the concern that our decision today will be “difficult to cabin,” and threatens to allow “any provider of services ... to assert his client's or customer’s constitutional rights, if any, in an attack on a welfare statute that excludes from coverage his particular transaction.” Post, at 129, 129-130. It is true that it is mofe difficult to predict the pattern of results in future cases when the Court elects to proceed, as it does today, by assessing relevant factors in individual cases (and we give no decisive or pre-eminent importance to any one of these factors), rather than by adopting a set of per se rules, such as those Mr. Justice Powell would apparently prefer based on the “direct interdiction” of the litigant’s conduct and the impossibility of third-party assertion. Still, we cannot share the Justice’s alarm. Unless the “provider of services” that he has in mind enjoys with his “client” a confidential relationship such as that of the doctor and patient, unless the “client’s” claim is imminently moot, as the pregnant woman’s technically is, the standing issue in such a future case will not be definitively controlled by this one. Beyond that, we simply decline to speculate on cases not before us.

Mr. Justice Stevens,

concurring in part.

In this case (1) the plaintiff-physicians have a financial stake in the outcome' of the litigation, and (2) they claim that the statute impairs their own constitutional rights. They therefore clearly have standing to bring this action.

Because these two facts are present, I agree that the analysis in Part II-B of Mr. Justice Blackmun’s opinion provides an adequate basis for considering the arguments *122based on the effect of the statute on the constitutional rights of their patients. Because I am not sure whether the analysis in Part II-B would, or should, sustain the doctors’ standing, apart from those two facts, I join only Parts I, II-A, and III of the Court’s opinion.

Mr. Justice Powell,

with whom The Chief Justice, Mr. Justice Stewart, and Mr. Justice Rehnquist join,

concurring in part and dissenting in part.

The Court holds that the respondents have standing to bring this suit and to assert their own constitutional rights, if any, in an attack on Mo. Rev. Stat. § 208.152 (12) (Supp. 1975). The Court also holds that the Court of Appeals erred in proceeding to the merits of respondents’ challenge. I agree with both of these holdings and therefore concur in Parts I, II-A, and III of Justice Blackmun’s opinion, as well as in the first four sentences of Part II-B.

The Court further holds that after remand to- the District Court the respondents may assert, in addition to their own rights, the constitutional rights of their patients who would be eligible for Medicaid assistance in obtaining elective abortions but for the exclusion of such abortions in §208.152 (12). I dissent from this holding.

As the Court notes, ante, at 109-110, respondents by complaint and affidavit established their Art. Ill standing to invoke the judicial power of the District Court. They have performed abortions for which Missouri’s Medicaid system would compensate them directly1 if the challenged statutory section did not preclude it. Re*123spondents allege an intention to continue to perform such abortions, and that the statute deprives them of compensation. These arguments, if proved, would give respondents a personal stake in the controversy over the statute's constitutionality. See Warth v. Seldin, 422 U. S. 490, 498-499 (1975); cf. id., at 502-508; Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 40-46 (1976).

We noted in Warth, and the Court is careful to reiterate today, ante, at 112, that the Art. Ill standing inquiry often is only the first of two inquiries necessary to determine whether a federal court should entertain a claim at the instance of a particular party. The Art. Ill question is one of power within our constitutional system, as courts may decide only actual cases and controversies between the parties who stand before the court. See Simon v. Eastern Ky. Welfare Rights Org., supra, at 41-42. Beyond this question, however, lies the further and less easily defined inquiry of whether it is prudent to proceed to decision on particular issues even at the instance of a party whose Art. Ill standing is clear. This inquiry has taken various forms, including the one presented by this case: whether, in defending against or anticipatorily attacking state action, a party may argue that it contravenes someone else's constitutional rights.2

*124This second inquiry is a matter of “judicial self-governance.” Warth v. Seldin, supra, at 509. The usual — and wise — stance of the federal courts when policing their own exercise of power in this manner is one of cautious reserve. See generally Ashwander v. TV A, 297 U. S. 288, 346-348 (1936) (Brandéis, J., concurring) . This caution has given rise to the general rule that a party may not defend against or attack governmental action on the ground that it infringes the rights of some third party, ante, at 114, and to the corollary that any exception must rest on specific factors outweighing the policies behind the rule itself.3 See Barrows v. Jack *125 son, 346 U. S. 249, 257 (1953); cf. generally United States v. Richardson, 418 U. S. 166, 188-197 (1974) (Powell, J., concurring).

The plurality acknowledges this general rule, but identifies “two factual elements” — thought to be derived from prior cases — that justify the adjudication of the asserted third-party rights: (i) obstacles to the assertion by the third party of her own rights, and (ii) the existence of some “relationship” such as' the one between physician and patient. In my view these factors do not justify allowing these physicians to assert their patients’ rights.

Our prior decisions are enlightening. In Barrows v. Jackson, supra, a covenantor who breached a racially restrictive covenant by -selling to Negroes was permitted to set up the buyers’ rights to equal protection hr defense against a damages action by the covenantees. See Shelley v. Kraemer, 334 U. S. 1 (1948). The Court considered the general rule outweighed by “the need to protect [these] fundamental rights” in a situation “in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court.” 346 U. S., at 257. It would indeed have been difficult if not impossible for the rightholders to assert their own rights: the operation of the restrictive covenant and the threat of damages actions for its breach tended to insure they would not come into possession of the land, and there was at the time little chance of a successful suit based on a covenantor’s failure to sell to them. In a second case, NAACP v. Alabama, 357 U. S. 449 (1958), an organization was allowed to resist an order to produce its membership list by asserting the associational rights *126of its members to anonymity because, as the plurality notes, ante, at 116, the members themselves would have had to forgo the rights in order to assert them. And in Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court considered it necessary to relax the rule and permit a distributor of contraceptives to assert the constitutional rights of the recipients because the statutory scheme operating to deny the contraceptives to the recipients appeared to offer them no means of challenge. Id., at 446.

The plurality purports to derive from these cases the principle that a party may assert another’s rights if there is “some genuine obstacle” to the third party’s own litigation. Ante, at 116. But this understates the teaching of those cases: On their facts they indicate that such an assertion is proper, not when there is merely some “obstacle” to the rightholder’s own litigation, but when such litigation is in all practicable terms impossible. Thus, in its framing of this principle, the plurality has gone far beyond our major precedents.

Moreover, on the plurality’s own statement of this principle and on its own discussion of the facts, the litigation of third-party rights cannot be justified in this case. The plurality virtually concedes, as it must, that the two alleged “obstacles” to the women’s assertion of their rights are chimerical. Our docket regularly contains cases in which women, using pseudonyms, challenge statutes that allegedly infringe their right to exercise the abortion decision. Nor is there basis for the “obstacle” of incipient mootness when the plurality itself quotes from the portion of Roe v. Wade, 410 U. S. 113, 124-25 (1973), that shows no such obstacle exists. In short, in light of experience which we share regularly in reviewing appeals and petitions for certiorari, the “obstacles” identified by the plurality as justifying departure from the general rule *127simply are not significant. Rather than being a logical descendant of Barrows, NAACP, and Eisenstadt, this case is much closer to Warth v. Seldin, supra, in which taxpayers were refused leave to assert the constitutional rights of low-income persons in part because there was no obstacle to those low-income persons' asserting their own rights in a proper case.4 See 422 U. S., at 509-510; cf. McGowan v. Maryland, 366 U. S. 420, 430 (1961).

The plurality places primary reliance on a second element, the existence of a “confidential relationship” between the rightholder and the party seeking to assert her rights.5 Focusing on the professional relationships *128present in Griswold, Doe and Planned Parenthood of Missouri v. Danforth, ante, p. 52, the plurality suggests that allowing the physicians in this case to assert their patients’ rights flows naturally from those three. Indeed, its conclusion is couched in terms of the general appropriateness of allowing physicians to assert the privacy interests of their patients in attacks on “governmental interference with the abortion decision.” Ante, at 115, 118.

With all respect, I do not read these cases as merging the physician and his patient for constitutional purposes. The principle they support turns not upon the confidential nature of a physician-patient relationship but upon the nature of the State’s impact upon that relationship. In each instance the State directly interdicted the normal functioning of the physician-patient relationship by criminalizing certain procedures. In the circumstances of direct interference, I agree that one party to the relationship should be permitted to assert the constitutional rights of the other, for a judicial rule of self-restraint should not preclude an attack on a State’s proscription of constitutionally protected activity. See also Meyer v. Nebraska, 262 U. S. 390 (1923). But Missouri has not directly interfered with the abortion decision — neither the physicians nor their patients are forbidden to engage *129in the procedure.6 The only impact of § 208.152 (12) is that, because of the way Missouri chose to structure its Medicaid payments, it causes these doctors financial detriment. This affords them Art. Ill standing because they aver injury in fact, but it does not justify abandonment of the salutary rule against assertion of third-party rights.

The physicians have offered no special reason for allowing them to assert their patients’ rights in an attack on this welfare statute, and I can think of none. Moreover, there are persuasive reasons not to permit them to do so. It seems wholly inappropriate, as a matter of judicial self-governance, for a court to reach unnecessarily to decide a difficult constitutional issue in a case in which nothing more is at stake than remuneration for professional services. And second, this case may well set a precedent that will prove difficult to cabin. No reason immediately comes to mind, after today’s holding, why any provider of services should be denied standing to assert his client’s or customer’s constitutional rights, *130if any, in an attack on a welfare statute that excludes from coverage his particular transaction.7

Putting it differently, the Court’s holding invites litigation by those who perhaps have the least legitimate ground for seeking to assert the rights of third parties. *131Before today I certainly would not have thought that an interest in being compensated for professional services, without more, would be deemed a sufficiently compelling reason to justify departing from a rule of restraint that well serves society and our judicial system. The Court quite recently stated, with respect to the rule against assertion of third-party rights as well as certain other doctrines of judicial self-restraint, that “[t]hese principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. . . . Constitutional judgments . . . are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.” Broadrick v. Oklahoma, 413 U. S., at 610-611 (citation omitted). Today’s holding threatens to make just such “roving commissions” of the federal courts.

The inquiry also has been framed, in appropriate cases, as whether a person with Art. Ill standing is asserting an interest arguably within the zone of interests intended to be protected by the constitutional or statutory provision on which he relies, see, e. g., Data Processing Service v. Camp, 397 U. S. 150, 153-156 (1970), or whether a person should be allowed to attack a statute, not on the ground that it is unconstitutional as applied to him, but that it would be unconstitutional as applied to third parties, see, e. g., United States v. Raines, 362 U. S. 17 (1960); Dombrowski v. Pfister, 380 U. S. 479, 486-488 (1965); Broadrick v. Oklahoma, *124 413 U. S. 601, 611-618 (1973). Cf. generally United States v. Richardson, 418 U. S. 166, 196 n. 18 (1974) (Powell, J., concurring).

1 agree with the plurality, ante, at 113-114, that a fundamental policy behind the general rule is a salutary desire to avoid unnecessary constitutional adjudication. See Ashwander v. TV A, 297 U. S., at 346-348 (Brandeis, J., concurring). The plurality perceives a second basis for the rule in the courts' need for effective advocacy. While this concern is relevant, it should receive no more emphasis in this context .than in the context of Art. Ill standing requirements. There the need for effective advocacy or a factual sharpening of issues long was the touchstone of discussion. See Baker v. Carr, 369 U. S. 186, 204 (1962); Flast v. Cohen, 392 U. S. 83, 99 (1968). Perhaps a more accurate formulation of the Art. Ill limitation — one consistent with the concerns underlying the constitutional provision — is that the plaintiff’s stake in a controversy must insure that exercise of the court’s remedial powers is both necessary and sufficient to give him relief. See Warth v. Seldin, 422 U. S. 490, 498-499, 508 (1975); Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 38, and n. 16 (1976). The Court today uses this formulation. Ante, at 112-113. A similar focus upon the proper judicial role, rather than quality of advocacy, is preferable in the area of prudential limitations upon judicial power. See Warth v. Seldin, supra, at 498; cf. Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 225-226 (1974).

Congress by statute may foreclose any inquiry into competing policy considerations and give a party with Art. Ill standing the *125right to assert the interests of third parties or even the public interest. See Warth v. Seldin, supra, at 500-501.

The plurality retrospectively analyzes the facts in Banows, NAACP, and Eisenstadt in an effort to show that litigation by the rightholders was possible in each case. Ante, at 116 n. 6. While this technically may be true, it also is true that the Court in Barrows and NAACP expressly emphasized the extreme difficulty of such litigation. Moreover, the plurality underestimates the difficulty confronting a would-be Negro vendee in Barrows who attempted to prove that race alone blocked his deal with a covenantor. And the plurality denigrates the difficulty of the NAA.CP members’ assertion of their own right to anonymity when in the text on the same page it quotes, approvingly, the very language in the NAACP case expressing the difficulty of such litigation. As for Eisenstadt, allowing the assertion of third-party rights there was justified not only because of the difficulty of rightholders’ litigation, but also because the State directly interdicted a course of conduct that allegedly enjoyed constitutional protection. As explained infra, Part II-B, the Court rightly shows special solicitude in that situation.

In any event, as argued above in the text, my basic disagreement with the plurality rests on the facts of this case, and the application of the plurality’s own test — “some genuine obstacle” to the right-holder’s assertion of her own rights. There simply is no such obstacle here.

The plurality’s primary emphasis upon this relationship is in *128marked contrast to the Court’s previous position that the relationship between litigant and rightholder was subordinate in importance to “the impact of the litigation on the third-party interests.” Eisenstadt v. Baird, 405 U. S. 438, 445 (1972). I suspect the plurality’s inversion of the previous order results from the weakness of the argument that this litigation is necessary to protect third-party interests. I would keep the emphasis where it has been before, and would consider the closeness of any “relationship” only as a factor imparting confidence that third-party interests will be represented adequately in a case in which allowing their assertion is justified on other grounds. Cf. n. 2, supra.

The plurality contends that assertion of third-party rights has been allowed where “the interference was no more direct than it is here,” ante, at 118 n. 7, and cites Pierce v. Society of Sisters, 268 U. S. 510 (1925). Pierce is of little or no precedential value since the Court did not address — or even mention — the issue of third-party rights in that case. More importantly, however, the interference with the normal functioning of the private school-parent relationship was as complete as if it had been proscribed: as the statute required that children be sent “ 'to a public school for the period of time a public school shall be held during the current year,’ ” id., at 530, there was no practical way for parents to send their children to private schools. As the Court- noted, “[t]he inevitable practical result of enforcing the Act . . . would be destruction of appellees' primary schools,’ and perhaps all other private primary schools for normal children within the State of Oregon.” Id., at 534.

The plurality says it is proceeding “by assessing relevant factors in individual cases . . . , rather than by adopting a set of per se rules,” and implies that I am advocating the latter course. Ante, at 119 n. 7. The fact is that I have not proposed any such set of rules. Rather, my dissent is grounded in the decisions of the Court from which I believe today’s holding departs.

By divining from previous cases two factors, and two factors alone, whose application to the facts of this case “quickly yields its proper result,” ante, at 117, the plurality appears to have articulated a new rule of third-party standing that leaves little room for flexibility. The ease with which the plurality would allow assertion of such standing in this case — based on nothing more substantial than a professional (or perhaps only an abortion-clinic) relationship and dimly perceived “obstacles” to the rightholder’s own litigation — suggests that “the proper result” usually will be third-party standing.

The plurality’s attempt to distinguish this case from the next one involving another provider of services is not reassuring. Three distinguishing factors are suggested. The first one, a “confidential” relationship, is analytically empty (especially when one recognizes that, realistically, the “confidential” relationship in a case of this kind often is set in an assembly-line type abortion clinic). Moreover, it is unsupported by nearly half of the’cases the plurality relies upon in finding “relationship” one of the two elements yielding third-party standing: there was no “confidential” relationship in Barrows or Eisenstadt — or, so far as the opinion shows, with respect to one of the defendants in Griswold. The second suggested distinction is that the woman’s right in this case “is one that may be impaired by its assertion.” I do not understand how a woman’s litigation over her right to malee an abortion decision impairs her ability to make that decision. Finally, the plurality falls back on the contention that the woman’s claim here is “imminently moot,” a point which the plurality’s own citation to Roe proves to be irrelevant. As these three “distinctions” seem insubstantial, I repeat: Today’s holding will be difficult to cabin.

3.5.2.15 Flast v. Cohen 3.5.2.15 Flast v. Cohen

Summary of Flast v. Cohen and other Taxpayer Standing Cases

upreme Court of the United States
392 U.S. 83

Flast v. Cohen [Summary of Flast v. Cohen, 392 U.S. 83 (1968) and other Taxpayer Standing Cases]June 10, 1968

Summary of Flast v. Cohen, 392 U.S. 83 (1968) and other Taxpayer Standing Cases

The problem of widely diffused injuries is associated with that of taxpayer standing. The Court has rarely recognized such standing, but did so in Flast v. Cohen, 392 U.S. 83 (1968), which involved a taxpayer challenge to aid to religious schools. The Court said that taxpayer standing would be permitted in Flast because there was a "logical nexus between the status asserted and the claim thought to be adjudicated." According to the Court, the nexus demanded of federal taxpayers has two aspects to it.

First, the taxpayer must establish a logical link between the status and the type of legislative enactment attacked. [It] will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory measure. Secondly, the taxpayer must establish a nexus between the status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending powers.

The Court held that the requirement was satisfied in the case of a taxpayer challenging an expenditure of public funds as violative of the establishment clause.

In other cases, the Court has denied taxpayer standing. See Frothingham v. Mellon, 262 U.S. 447 (1923) (refusing to allow taxpayer to enjoin under the tenth amendment expenditures made to reduce maternal and infant mortality under federal statute), and Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982), in which the Court refused to permit a taxpayer to challenge under the establishment clause a conveyance of property formerly used as a military hospital to the Valley Forge Christian College. In Valley Forge, the Court emphasized that the plaintiffs challenged a property transfer, not an expenditure of funds.

In Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007), the Court essentially confined Flast to its facts. Hein involved a challenge to President Bush’s Faith-Based and Community Initiatives Program. Taxpayers complained that the executive branch had used public money to fund conferences with the purpose and effect of promoting religion. They contended that the resulting expenditures violated the establishment clause. Justice Alito, writing for himself, Chief Justice Roberts, and Justice Kennedy, said that Flast meant only that taxpayers could challenge an explicit congressional decision to use taxpayer funds for arguably religious purposes. If the executive branch used a general appropriation to promote religion, taxpayers could not bring suit. Justice Scalia, writing for himself and Justice Thomas, contended that Flast was an anomaly and should be overruled. Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, contended that for purposes of standing, there was no relevant distinction between a specific congressional appropriation and the executive’s use of taxpayer funds for religious purposes.

Source: Mark V. Tushnet, Louis M. Seidman, Cass R. Sunstein, Geoffrey R. Stone: Constitutional Law, 7th ed. Wolters Kluwer (2017).

Supreme Court of the United States

392 U.S. 83, 20 L. Ed. 2d 947, 88 S. Ct. 1942, 1968 U.S. LEXIS 1347, SCDB 1967-159

No. 416

1968-06-10

FLAST et al. v. COHEN, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, et al.

No. 416.

Argued March 12, 1968.

Decided June 10, 1968.

*84Leo Pfeifer argued the cause for appellants. With him on the briefs were David I. Ashe, Ernest Fleischman, and Alan H. Levine.

Solicitor General Griswold argued the cause for ap-pellees. With him on the brief were Assistant Attorney General Weisl, Alan S. Rosenthal, and Robert V. Zener.

Sam, J. Ervin, Jr., argued the cause and filed a brief for Americans for Public Schools et al., as amici curiae, urging reversal.

Briefs of amici curiae, urging reversal, were filed by Melvin J. Sykes and Sanford Jay Rosen for the Council of Chief State School Officers et al.; by Henry C. Clausen for United Americans for Public Schools; by Norman Dorsen and Charles H. Tuttle for the National Council of Churches; by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State, and by Arnold Forster, Edwin J. Lukas, Joseph B. Robison, Paul Hartman, and Sol Rabkin for the American Jewish Committee et al.

Briefs of amici curiae, urging affirmance, were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; by Julius Berman and Reuben E. Gross for the National Jewish Commission on Law and Public Affairs, and by Herbert Brownell, Thomas F. Daly, and William E. McCurdy, Jr., for Spira et al.

*85Mr. Chief Justice Warren

delivered the opinion of the Court.

In Frothingham v. Mellon, 262 U. S. 447 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. In this case, we must decide whether the Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment.

Appellants filed suit in the United States District Court for the Southern District of New York to enjoin the allegedly unconstitutional expenditure of federal funds under Titles I and II of the Elementary and Secondary Education Act of 1965, 79 Stat. 27, 20 U. S. C. §§ 241a et seg., 821 et seq. (1964 ed., Supp. II). The complaint alleged that the seven appellants had as a common attribute that “each pay[s] income taxes of the United States,” and it is clear from the complaint that the appellants were resting their standing to maintain the action solely on their status as federal taxpayers.1 The appellees, who are charged by Congress with administering the Elementary and Secondary Education Act of 1965, were sued in their official capacities.

The gravamen of the appellants’ complaint was that federal funds appropriated under the Act were being used to finance instruction in reading, arithmetic, and other subjects in religious schools, and to purchase textbooks *86and other instructional materials for use in such schools. Such expenditures were alleged to be in contravention of the Establishment and Free Exercise Clauses of the First Amendment. Appellants’ constitutional attack focused on the statutory criteria which state and local authorities must meet to be eligible for federal grants under the Act. Title I of the Act establishes a program for financial assistance to local educational agencies for the education of low-income families. Federal payments are made to state educational agencies, which pass the payments on in the form of grants to local educational agencies. Under § 205 of the Act, 20 U. S. C. § 241e, a local educational agency wishing to have a plan or program funded by a grant must submit the plan or program to the appropriate state educational agency for approval. The plan or program must be “consistent with such basic criteria as the [appellee United States Commissioner of Education] may establish.” The specific criterion of that section attacked by the appellants is the requirement

“that, to the extent consistent with the number of educationally deprived children in the school district of the local educational agency who are enrolled in private elementary and secondary schools, such agency has made provision for including special educational services and arrangements (such as dual enrollment, educational radio and television, and mobile educational services and equipment) in which such children can participate . . . .” 20 U. S. C. §241e (a)(2).

Under § 206 of the Act, 20 U. S. C. § 241f, the Commissioner of Education is given broad powers to supervise a State’s participation in Title I programs and grants. Title II of the Act establishes a program of federal grants for the acquisition of school library resources, textbooks, *87and other printed and published instructional materials “for the use of children and teachers in public and private elementary and secondary schools.” 20 U. S. C. § 821. A State wishing to participate in the program must submit a plan to the Commissioner for approval, and the plan must

“provide assurance that to the extent consistent with law such library resources, textbooks, and other instructional materials will be provided on an equitable basis for the use of children and teachers in private elementary and secondary schools in the State . . . .” 20 U. S. C. § 823 (a)(3)(B).

While disclaiming any intent to challenge as unconstitutional all programs under Title I of the Act, the complaint alleges that federal funds have been disbursed under the Act, “with the consent and approval of the [appellees],” and that such funds have been used and will continue to be used to finance “instruction in reading, arithmetic and other subjects and for guidance in religious and sectarian schools” and “the purchase of textbooks and instructional and_ library materials for use in religious and sectarian schools.” Such expenditures of federal tax funds, appellants alleged, violate the First Amendment because “they constitute a law respecting an establishment of religion” and because “they prohibit the free exercise of religion on the part of the [appellants] ... by reason of the fact that they constitute compulsory taxation for religious purposes.” The complaint asked for a declaration that appellees’ actions in approving the expenditure of federal funds for the alleged purposes were not authorized by the Act or, in the alternative, that if appellees’ actions are deemed within the authority and intent of the Act, “the Act is to that extent unconstitutional and void.” The complaint also prayed for an injunction to enjoin appel-*88lees from approving any expenditure of federal funds for the allegedly unconstitutional purposes. The complaint further requested that a three-judge court be convened as provided in 28 U. S. C. §§ 2282, 2284.

The Government moved to dismiss the complaint on the ground that appellants lacked standing to maintain the action. District Judge Frankel, who considered the motion, recognized that Frothingham v. Mellon, supra, provided “powerful” support for the Government’s position, but he ruled that the standing question was of sufficient substance to warrant the convening of a three-judge court to decide the question. 267 F. Supp. 351 (1967). The three-judge court received briefs and heard arguments limited to the standing question, and the court ruled on the authority of Frothingham that appellants lacked standing. Judge Frankel dissented. 271 F. Supp. 1 (1967). From the dismissal of their complaint on that ground, appellants appealed directly to this Court, 28 U. S. C. § 1253, and we noted probable jurisdiction. 389 U. S. 895 (1967). For reasons explained at length below, we hold that appellants do have standing as federal taxpayers to maintain this action, and the judgment below must be reversed.

We must deal first with the Government’s contention that this Court lacks jurisdiction on direct appeal because a three-judge court was improperly convened below.2 Under 28 U. S. C. § 1253, direct appeal to this *89Court from a district court lies only “from an order granting or denying ... an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.” Thus, if the Government is correct, we lack jurisdiction over this direct appeal.

The Government’s argument on this question is two-pronged. First, noting that appellants have conceded that the case should be deemed one limited to the practices of the New York City Board of Education, the Government contends that appellants wish only to forbid specific local programs which they find objectionable and not to enjoin the operation of the broad range of programs under the statutory scheme. Only if the latter relief is sought, the Government argues, can a three-judge court properly be convened under 28 U. S. C. § 2282. We cannot accept the Government’s argument in the context of this case. It is true that the appellants’ complaint makes specific reference to the New York City Board of Education’s programs which are funded under the challenged statute, and we can assume that appellants’ proof at trial would focus on those New York City programs. However, we view these allegations of the complaint as imparting specificity and focus to the issues in the lawsuit and not as limiting the impact of the constitutional challenge made in this ease. The injunctive relief sought by appellants is not limited to programs in operation in New York City but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282 “to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme ... by issuance of a broad injunctive order.” Kennedy v. Mendoza-Martinez, 372 U. S. 144, 154 (1963). If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York *90City’s federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served by the convening of a three-judge court, despite appellants’ focus on New York City’s programs.

Secondly, the Government argues that a three-judge court should not have been convened because appellants question not the constitutionality of the Elementary and Secondary Education Act of 1965 but its administration.3 The decision in Zemel v. Rusk, 381 U. S. 1 (1965), is dis-positive on this issue. It is true that appellants’ complaint states a noneonstitutional ground for relief, namely, that appellees’ actions in approving the expenditure of federal funds for allegedly unconstitutional programs are in excess of their authority under the Act. However, the complaint also requests an alternative and constitutional ground for relief, namely, a declaration that, if appellees’ actions “are within the authority and intent of the Act, the Act is to that extent unconstitutional and void.” The Court noted in Zemel v. Rusk, supra, “[W]e have often held that a litigant need not abandon his nonconstitutional arguments in order to ob*91tain a three-judge court.” 381 U. S., at 5-6. See also Florida Lime Growers v. Jacobsen, 362 U. S. 73 (1960); Allen v. Grand Central Aircraft Co., 347 U. S. 535 (1954). The complaint in this case falls within that rule.

Thus, since the three-judge court was properly convened below,4 direct appeal to this Court is proper. We turn now to the standing question presented by this case.

II.

This Court first faced squarely5 the question whether a litigant asserting only his status as a taxpayer has standing to maintain a suit in a federal court in Frothingham v. Mellon, supra, and that decision must be the starting point for analysis in this case. The taxpayer in Frothingham attacked as unconstitutional the Maternity Act of 1921, 42 Stat. 224, which established a federal program of grants to those States which would undertake programs to reduce maternal and infant mortality. The taxpayer alleged that Congress, in enacting the challenged statute, had exceeded the powers delegated to it under Article I of the Constitution and had invaded the legislative province reserved to the several States by the Tenth Amendment. The taxpayer complained that the result of the allegedly unconstitutional enactment would be to increase her future federal tax *92liability and “thereby take her property without due process of law.” 262 U. S., at 486. The Court noted that a federal taxpayer’s “interest in the moneys of the Treasury ... is comparatively minute and indeterminable” and that “the effect upon future taxation, of any payment out of the [Treasury’s] funds, . . . [is] remote, fluctuating and uncertain.” Id., at 487. As a result, the Court ruled that the taxpayer had failed to allege the type of “direct injury” necessary to confer standing. Id., at 488.

Although the barrier Frothingham erected against federal taxpayer suits has never been breached, the decision has been the source of some confusion and the object of considerable criticism. The confusion has developed as commentators have tried to determine whether Frothingham establishes a constitutional bar to taxpayer suits or whether the Court was simply imposing a rule of self-restraint which was not constitutionally compelled.6 The conflicting viewpoints are reflected in the arguments made to this Court by the parties in this case. The Government has pressed upon us the view that Frothingham announced a constitutional rule, compelled by the Article III limitations on federal court jurisdiction and grounded in considerations of the doctrine of separation of powers. Appellants, however, insist that *93Frothingham expressed no more than a policy of judicial self-restraint which can be disregarded when compelling reasons for assuming jurisdiction over a taxpayer’s suit exist. The opinion delivered in Frothingham can be read to support either position.7 The concluding sentence of the opinion states that, to take jurisdiction of the taxpayer’s suit, “would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” 262 U. S., at 489. Yet the concrete reasons given for denying standing to a federal taxpayer suggest that the Court’s holding rests on something less than a constitutional foundation. For example, the Court conceded that standing had previously been conferred on municipal taxpayers to sue in that capacity. However, the Court viewed the interest of a federal taxpayer in total federal tax revenues as “comparatively minute and indeterminable” when measured against a municipal taxpayer’s interest in a smaller city treasury. Id., at 486-487. This suggests that the petitioner in Frothingham was denied standing not because she was a taxpayer but because her tax bill was not large enough. In addition, the Court spoke of the “attendant inconveniences” of entertaining that taxpayer’s suit because it might open the door of federal courts to countless such suits “in respect of every other appropriation act and statute whose administration requires the outlay of public money, and whose validity may be questioned.” Id., at 487. Such a statement suggests pure policy considerations.

*94To the extent that Frothingham has been viewed as resting on policy considerations, it has been criticized as depending on assumptions not consistent with modern conditions. For example, some commentators have pointed out that a number of corporate taxpayers today have a federal tax liability running into hundreds of millions of dollars, and such taxpayers have a far greater monetary stake in the Federal Treasury than they do in any municipal treasury.8 To some degree, the fear expressed in Frothingham that allowing one taxpayer to sue would inundate the federal courts with countless similar suits has been mitigated by the ready availability of the devices of class actions and joinder under the Federal Rules of Civil Procedure, adopted subsequent to the decision in Frothingham.9 Whatever the merits of the current debate over Frothingham, its very existence suggests that we should undertake a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.

III.

The jurisdiction of federal courts is defined and limited by Article III of the Constitution. In terms relevant to the question for decision in this case, the judicial power of federal courts is constitutionally restricted to “cases” and “controversies.” As is so often the situation in constitutional adjudication, those two words have an iceberg quality, containing beneath their surface simplicity submerged complexities which go to the very heart of our constitutional form of government. Embodied in the *95words “cases” and “controversies” are two complementary but somewhat different limitations. In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine.

Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question,10 when the parties are asking for an advisory opinion,11 when the question sought to be adjudicated has been mooted by subsequent developments,12 and when there is no standing to maintain the action.13 Yet it remains true that “[jjusticiability is . . . not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures . . . .” Poe v. Ullman, 367 U. S. 497, 508 (1961).

Part of the difficulty in giving precise meaning and form to the concept of justiciability stems from the un*96certain historical antecedents of the case-and-controversy doctrine. For example, Mr. Justice Frankfurter twice suggested that historical meaning could be imparted to the concepts of justiciability and case and controversy by reference to the practices of the courts of Westminster when the Constitution was adopted. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 150 (1951) (concurring opinion); Coleman v. Miller, 307 U. S. 433, 460 (1939) (separate opinion). However, the power of English judges to deliver advisory opinions was well established at the time the Constitution was drafted. 3 K. Davis, Administrative Law Treatise 127-128 (1958). And it is quite clear that “the oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions.” C. Wright, Federal Courts 34 (1963).14 Thus, the implicit policies embodied in Article III, and not history alone, impose the rule against advisory opinions on federal courts. When the federal judicial power is invoked to pass upon the validity of actions by the Legislative and Executive Branches of the Government, the rule against advisory opinions implements the separation of powers prescribed by the Constitution and confines federal courts to the role assigned them by Article III. See Muskrat v. United States, 219 U. S. 346 (1911); 3 H. Johnston, Correspondence and Public Papers of John Jay 486-489 (1891) (correspondence between Secretary of State Jefferson and Chief Justice Jay). However, the rule against advisory opinions also recognizes that such suits often “are not pressed before the Court with that clear concreteness provided when a question emerges precisely *97framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaced situation embracing conflicting and demanding interests.” United States v. Fruehauj, 365 U. S. 146, 157 (1961). Consequently, the Article III prohibition against advisory opinions reflects the complementary constitutional considerations expressed by the justiciability doctrine: Federal judicial power is limited to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.

Additional uncertainty exists in the doctrine of jus-ticiability because that doctrine has become a blend of constitutional requirements and policy considerations. And a policy limitation is “not always clearly distinguished from the constitutional limitation.” Barrows v. Jackson, 346 U. S. 249, 255 (1953). For example, in his concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 345-348 (1936), Mr. Justice Brandéis listed seven rules developed by this Court “for its own governance” to avoid passing prematurely on constitutional questions. Because the rules operate in “cases confessedly within [the Court’s] jurisdiction,” id., at 346, they find their source in policy, rather than purely constitutional, considerations. However, several of the cases cited by Mr. Justice Brandéis in illustrating the rules of self-governance articulated purely constitutional grounds for decision. See, e. g., Massachusetts v. Mellon, 262 U. S. 447 (1923); Fairchild v. Hughes, 258 U. S. 126 (1922); Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339 (1892). The “many subtle pressures” 15 which cause policy considerations to blend into the constitutional limitations of Article III make the justiciability doctrine one of uncertain and shifting contours.

*98It is in this context that the standing question presented by this case must be viewed and that the Government's argument on that question must be evaluated. As we understand it, the Government’s position is that the constitutional scheme of separation of powers, and the deference owed by the federal judiciary to the other two branches of government within that scheme, present an absolute bar to taxpayer suits challenging the validity of federal spending programs. The Government views such suits as involving no more than the mere disagreement by the taxpayer “with the uses to which tax money is put.”16 According to the Government, the resolution of such disagreements is committed to other branches of the Federal Government and not to the judiciary. Consequently, the Government contends that, under no circumstances, should standing be conferred on federal taxpayers to challenge a federal taxing or spending program.17 An analysis of the function served by standing limitations compels a rejection of the Government’s position.

Standing is an aspect of justiciability and, as such, the problem of standing is surrounded by the same complexities and vagaries that inhere in justiciability. *99Standing has been called one of “the most amorphous [concepts] in the entire domain of public law.” 18 Some of the complexities peculiar to standing problems result because standing “serves, on occasion, as a shorthand expression for all the various elements of justicia-bility.” 19 In addition, there are at work in the standing doctrine the many subtle pressures which tend to cause policy considerations to blend into constitutional-limitations.20

Despite the complexities and uncertainties, some meaningful form can be given to the jurisdictional limitations placed on federal court power by the concept of standing. The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The “gist of the question of standing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U. S. 186, 204 (1962). In other words, when standing is placed in issue in a case, the question is whether the person whose standing is *100challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.21 Thus, a party may have standing in a particular case, but the federal court may nevertheless decline to pass on the merits of the case because, for example, it presents a political question.22 A proper party is demanded so that federal courts will not be asked to decide “ill-defined controversies over constitutional issues,” United Public Workers v. Mitchell, 330 U. S. 75, 90 (1947), or a case which is of “a hypothetical or abstract character,” Aetna Life Insurance Co. v. Haworth, 300 U. S. 227, 240 (1937). So stated, the standing requirement is closely related to, although more general than, the rule that federal courts will not entertain friendly suits, Chicago & Grand Trunk R. Co. v. Wellman, supra, or those which are feigned or collusive in nature, United States v. Johnson, 319 U. S. 302 (1943); Lord v. Veazie, 8 How. 251 (1850).

When the emphasis in the standing problem is placed on whether the person invoking a federal court’s jurisdiction is a proper party to maintain the action, the weakness of the Government’s argument in this case becomes apparent. The question whether a particular person is a proper party to maintain the action does not, by its own force, raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Such prob*101lems arise, if at all, only from the substantive issues the individual seeks to have adjudicated. Thus, in terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution. It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has “a personal stake in the outcome of the controversy,” Baker v. Carr, supra, at 204, and whether the dispute touches upon “the legal relations of parties having adverse legal interests.” Aetna Life Insurance Co. v. Haworth, supra, at 240-241. A taxpayer may or may not have the requisite personal stake in the outcome, depending upon the circumstances of the particular case. Therefore, we find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs. There remains, however, the problem of determining the circumstances under which a federal taxpayer will be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.

IV.

The various rules of standing applied by federal courts have not been developed in the abstract. Rather, they have been fashioned with specific reference to the status asserted by the party whose standing is challenged and to the type of question he wishes to have adjudicated. We have noted that, in deciding the question of standing, it is not relevant that the substantive issues in the litigation might be non justiciable. However, our decisions *102establish that, in ruling on standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated. For example, standing requirements will vary in First Amendment religion cases depending upon whether the party raises an Establishment Clause claim or a claim under the Free Exercise Clause. See McGowan v. Maryland, 366 U. S. 420, 429-430 (1961). Such inquiries into the nexus between the status asserted by the litigant and the claim he presents are essential to assure that he is a proper and appropriate party to invoke federal judicial power. Thus, our point of reference in this case is the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program. Whether such individuals have standing to maintain that form of action turns on whether they can demonstrate the necessary stake as taxpayers in the outcome of the litigation to satisfy Article III requirements.

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U. S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds *103specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.

The taxpayer-appellants in this case have satisfied both nexuses to support their claim of standing under the test we announce today. Their constitutional challenge is made to an exercise by Congress of its power under Art. I, § 8, to spend for the general welfare, and the challenged program involves a substantial expenditure of federal tax funds.23 In addition, appellants have alleged that the challenged expenditures violate the Establishment and Free Exercise Clauses of the First Amendment. Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general. James Madison, who is generally recognized as the leading architect of the religion clauses of the First Amendment, observed in his famous Memorial and Remonstrance Against Religious Assessments that “the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.” 2 Writings of James Madison 183, 186 (Hunt ed. 1901). The concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if *104government could employ its taxing and spending powers to aid one religion over another or to aid religion in general.24 The Establishment Clause was designed as a specific bulwark against such potential abuses of governmental power, and that clause of the First Amendment25 operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. I, § 8.

The allegations of the taxpayer in Frothingham v. Mellon, supra, were quite different from those made in this case, and the result in Frothingham is consistent with the test of taxpayer standing announced today. The taxpayer in Frothingham attacked a federal spending program and she, therefore, established the first nexus *105required. However, she lacked standing because her constitutional attack was not based on an allegation that Congress, in enacting the Maternity Act of 1921, had breached a specific limitation upon its taxing and spending power. The taxpayer in Frothingham alleged essentially that Congress, by enacting the challenged statute, had exceeded the general powers delegated to it by Art. I, § 8, and that Congress had thereby invaded the legislative province reserved to the States by the Tenth Amendment. To be sure, Mrs. Frothingham made the additional allegation that her tax liability would be increased as a result of the allegedly unconstitutional enactment, and she framed that allegation in terms of a deprivation of property without due process of law. However, the Due Process Clause of the Fifth Amendment does not protect taxpayers against increases in tax liability, and the taxpayer in Frothingham failed to make any additional claim that the harm she alleged resulted from a breach by Congress of the specific constitutional limitations imposed upon an exercise of the taxing and spending power. In essence, Mrs. Frothing-ham was attempting to assert the States’ interest in their legislative prerogatives and not a federal taxpayer’s interest in being free of taxing and spending in contravention of specific constitutional limitations imposed upon Congress’ taxing and spending power.

We have noted that the Establishment Clause of the First Amendment does specifically limit the taxing and spending power conferred by Art. I, § 8. Whether the Constitution contains other specific limitations can be determined only in the context of future cases. However, whenever such specific limitations are found, we believe a taxpayer will have a clear stake as a taxpayer in assuring that they are not breached by Congress. Consequently, we hold that a taxpayer will have stand*106ing consistent with Article III to invoke federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power. The taxpayer’s allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative. power. Such an injury is appropriate for judicial redress, and the taxpayer has established the necessary nexus between his status and the nature of the allegedly unconstitutional action to support his claim of standing to secure judicial review. Under such circumstances, we feel confident that the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the constitutional challenge will be made in a form traditionally thought to be capable of judicial resolution. We lack that confidence in cases such as Frothingham where a taxpayer seeks to employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.

While we express no view at all on the merits of appellants’ claims in this case,26 their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court’s jurisdiction for an adjudication on the merits.

Reversed.

The logic of the Government’s argument would compel it to concede that a taxpayer would lack standing even if Congress engaged in such palpably unconstitutional conduct as providing funds for the construction of churches for particular sects. See Flast v. Gardner, 271 F. Supp. 1, 5 (1967) (dissenting opinion of Frankel, J.). The Government professes not to be bothered by such a result because it contends there might be individuals in society other than taxpayers who could invoke federal judicial power to challenge such unconstitutional appropriations. However, if as we conclude there are circumstances under which a taxpayer will be a proper and appropriate party to seek judicial review of federal statutes, the taxpayer’s access to federal courts should not be barred because there might be at large in society a hypothetical plaintiff who might possibly bring such a suit.

Appellants have also alleged that the Elementary and Secondary Education Act of 1965 violates the Free Exercise Clause of the First Amendment. This Court has recognized that the taxing power can be used to infringe the free exercise of religion. Murdock v. Pennsylvania, 319 U. S. 105 (1943). Since we hold that appellants’ Establishment Clause claim is sufficient to establish the nexus between their status and the precise nature of the constitutional infringement alleged, we need not decide whether the Free Exercise claim, standing alone, would be adequate to confer standing in this case. We do note, however, that the challenged tax in Murdock operated upon a particular class of taxpayers. When such exercises of the taxing power are challenged, the proper party emphasis in the federal standing doctrine would require that standing be limited to the taxpayers within the affected class.

*107Mr. Justice Douglas,

concurring.

While I have joined the opinion of the Court, I do not think that the test it lays down is a durable one for the reasons stated by my Brother Harlan. I think, therefore, that it will suffer erosion and in time result in the demise of Frothingham v. Mellon, 262 U. S. 447. It would therefore be the part of wisdom, as I see the problem, to be rid of Frothingham here and now.

I do not view with alarm, as does my Brother Harlan, the consequences of that course. Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved “important hazards for the continued effectiveness of the féderal judiciary,” to borrow a phrase from my Brother Harlan. A contrary result in Frothingham in that setting might well have accentuated an ominous trend to judicial supremacy.

But we no longer undertake to exercise that kind of power. Today’s problem is in a different setting.

Most laws passed by Congress do not contain even a ghost of a constitutional question. The “political” decisions, as distinguished from the “justiciable” ones, occupy most of the spectrum of congressional action. The case or controversy requirement comes into play only when the Federal Government does something that affects a person’s life, his liberty, or his property. The wrong may be slight or it may be grievous. Madison in denouncing *108state support of churches said the principle was violated when even “three pence” was appropriated to that cause by the Government.1 It therefore does not do to talk about taxpayers’ interest as “infinitesimal.” The restraint on “liberty” may be fleeting and passing and still violate a fundamental constitutional guarantee. The “three pence” mentioned by Madison may signal a monstrous invasion by the Government into church affairs, and so on.

The States have experimented with taxpayers’ suits and with only two exceptions 2 now allow them. A few state decisions are frankly based on the theory that a taxpayer is a private attorney general seeking to vindicate the public interest.3 Some of them require that the taxpayer have more than an infinitesimal financial stake in the problem.4 At the federal level, Congress can of *109course define broad categories of “aggrieved” persons who have standing to litigate cases or controversies. But, contrary to what my Brother Harlan suggests, the failure of Congress to act has not barred this Court from allowing standing to sue and from providing remedies. The multitude of cases under the Fourth, as well as the Fourteenth Amendment, are witness enough.5

The constitutional guide is “cases” or “controversies” within the meaning of § 2 of Art. Ill of the Constitution. As respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of § 2, Art. III. See Ex parte McCardle, 7 Wall. 506. But where there is judicial power to act, there is judicial power to deal with all the facets of the old issue of standing.

Taxpayers can be vigilant private attorneys general. Their stake in the outcome of litigation may be de mini-mis by financial standards, yet very great when measured by a particular constitutional mandate. My Brother Harlan’s opinion reflects the British, not the American, tradition of constitutionalism. We have a written Constitution; and it is full of “thou shalt nots” directed at Congress and the President as well as at the courts. *110And the role of the federal courts is not only to serve as referee between the States and the center but also to protect the individual against prohibited conduct by the other two branches of the Federal Government.

There has long been a school of thought here that the less the judiciary does, the better. It is often said that judicial intrusion should be infrequent, since it is “always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors”; that the effect of a participation by the judiciary in these processes is “to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.” J. Thayer, John Marshall 106, 107 (1901).

The late Edmond Cahn, who opposed that view, stated my philosophy. He emphasized the importance of the role that the federal judiciary was designed to play in guarding basic rights against majoritarian control. He chided the view expressed by my Brother Harlan: “we are entitled to reproach the majoritarian justices of the Supreme Court . . . with straining to be reasonable when they ought to be adamant.” Can the Supreme Court Defend Civil Liberties? in Samuel, ed., Toward a Better America 132, 144 (1968). His description of our constitutional tradition was in these words:

“Be not reasonable with inquisitions, anonymous informers, and secret files that mock American justice. Be not reasonable with punitive denationali-zations, ex post facto deportations, labels of disloyalty, and all the other stratagems for outlawing human beings from the community of mankind. These devices have put us to shame. Exercise the full judicial power of the United States; nullify *111them, forbid them; and make us proud again.” Id., 144-145.

The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for courts to close their doors.

Marshall wrote in Marbury v. Madison, 1 Cranch 137, 178, that if the judiciary stayed its hand in deference to the legislature, it would give the legislature “a practical and real omnipotence.” My Brother Harlan’s view would do just that, for unless Congress created a procedure through which its legislative creation could be challenged quickly and with ease, the momentum of what it had done would grind the dissenter under.

We have a Constitution designed to keep government out of private domains. But the fences have often been broken down; and Frothingham denied effective machinery to restore them. The Constitution even with the judicial gloss it has acquired plainly is not adequate to protect the individual against the growing bureaucracy in the Legislative and Executive Branches. He faces a formidable opponent in government, even when he is endowed with funds and with courage. The individual is almost certain to be plowed under, unless he has a well-organized active political group to speak for him. The church is one. The press is another. The union is a third. But if a powerful sponsor is lacking, individual liberty withers — in spite of glowing opinions and resounding constitutional phrases.

I would not be niggardly therefore in giving private attorneys general standing to sue. I would certainly not *112wait for Congress to give its blessing to our deciding cases clearly within our Article III jurisdiction. To wait for a sign from Congress is to allow important constitutional questions to go undecided and personal liberty unprotected.

There need be no inundation of the federal courts if taxpayers’ suits are allowed. There is a wise judicial discretion that usually can distinguish between the frivolous question and the substantial question, between cases ripe for decision and cases that need prior administrative processing, and the like.6 When the judiciary is no longer “a great rock” 7 in the storm, as Lord Sankey once put it, when the courts are niggardly in the use of their power and reach great issues only timidly and reluctantly, the force of the Constitution in the life of the Nation is greatly weakened.

Gideon Hausner, after reviewing the severe security measures sometimes needed for Israel’s survival and the vigilance of her courts in maintaining the rights of individuals, recently stated, “When all is said and done, one is inclined to think that a rigid constitutional frame is on the whole preferable even if it serves no better purpose than obstructing and embarrassing an over-active Executive.” Individuals’ Rights in the Courts of Israel, International Lawyers Convention In Israel, 1958, pp. 201, 228 (1959).

That observation is apt here, whatever the transgression and whatever branch of government may be implicated. We have recently reviewed the host of devices *113used by the States to avoid opening to Negroes public facilities enjoyed by whites. Green v. School Board of New Kent County, 391 U. S. 430; Raney v. Board of Education, 391 U. S. 443; Monroe v. Board of Commissioners, 391 U. S. 450. There is a like process at work at the federal level in respect to aid to religion. The efforts made to insert in the law an express provision which would allow federal aid to sectarian schools to be reviewable in the courts was defeated.8 The mounting federal aid to sectarian schools is notorious and the subterfuges numerous.9

*114I would be as liberal in allowing taxpayers standing to object to these violations of the First Amendment as I would in granting standing to people to complain of any invasion of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.

See, e. g., Crews v. Beattie, 197 S. C. 32, 14 S. E. 2d 351 (1941); Goodland v. Zimmerman, 243 Wis. 459, 10 N. W. 2d 180 (1943) (taxpayer may not enjoin state expenditure of $1.49); contra, Richardson v. Blackburn, 41 Del. Ch. 54, 187 A. 2d 823 (1963); Woodard v. Reily, 244 La. 337, 152 So. 2d 41 (1963).

The estimates of commentators as to how many jurisdictions have specifically upheld taxpayers’ suits range from 32 to 40. See *109generally 3 K. Davis, Administrative Law Treatise §22.09 (1958), §§22.09-22.10 (1965 Supp.); Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1276-1281 (1961); Comment, Taxpayers’ Suits: A Survey and Summary, 69 Yale L. J. 895 (1960); St. Clair v. Yonkers Raceway, 13 N. Y. 2d 72, 77-81, 242 N. Y. S. 2d 43, 45-49, 192 N. E. 2d 15, 16-19 (1963) (dissenting opinion of Fuld, J.).

“Tuition grants to parents of students in church schools is considered by the clerics and their helpers to have possibilities. The idea here is that the parent receives the money, carries it down to the school, and gives it to the priest. Since the money pauses a moment with the parent before going to the priest, it is argued that this evades the constitutional prohibition against government money for religion! This is a diaphanous trick which seeks to do indirectly what may not be done directly.

“Another one is the 'authority.’ The state may not grant aid directly to church schools. But how about setting up an authority— like the Turnpike Authority? The state could give the money to the authority which, under one pretext or another, could channel it into the church schools.

“Yet another favorite of those who covet sectarian subsidies is ‘child benefit.’ Government may not aid church schools, but it may aid the children in the schools. The trouble with this argument is that it proves too much. Anything that is done for a school would presumably be of some benefit to the children in it. Government could even build church school classrooms, under this theory, because it would benefit the children to have nice rooms to study in.” 21 Church & State (June 1968), p. 5 (editorial).

Mr. Justice Stewart,

concurring.

I join the judgment and opinion of the Court, which I understand to hold only that a federal taxpayer has standing to assert that a specific expenditure of federal funds violates the Establishment Clause of the First Amendment. Because that clause plainly prohibits taxing and spending in aid of religion, every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution. The present case is thus readily distinguishable from Frothingham v. Mellon, 262 U. S. 447, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution.

As the Court notes, “one of the specific evils feared by those who drafted the Establishment Clause and fought for its adoption was that the taxing and spending power would be used to favor one religion over another or to support religion in general.” Ante, at 103. Today’s decision no more than recognizes that the appellants have a clear stake as taxpayers in assuring that they not be compelled to contribute even “three pence ... of [their] property for the support of any one establishment.” Ihid. In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed today, that a taxpayer may not “employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.” Ante, at 106.

*115Mr. Justice Fortas,

concurring.

I would confine the ruling in this case to the proposition that a taxpayer may maintain a suit to challenge the validity of a federal expenditure on the ground that the expenditure violates the Establishment Clause. As the Court’s opinion recites, there is enough in the constitutional history of the Establishment Clause to support the thesis that this Clause includes a specific prohibition upon the use of the power to tax to support an establishment of religion.* There is no reason to suggest, and no basis in the logic of this decision for implying, that there may be other types of congressional expenditures which may be attacked by a litigant solely on the basis of his status as a taxpayer.

I agree that Frothingham does not foreclose today’s result. I agree that the congressional powers to tax and spend are limited by the prohibition upon Congress to enact laws “respecting an establishment of religion.” This thesis, slender as its basis is, provides a direct “nexus,” as the Court puts it, between the use and collection of taxes and the congressional action here. Because of this unique “nexus,” in my judgment, it is not far-fetched to recognize that a taxpayer has a special claim to status as a litigant in a case raising the “establishment” issue. This special claim is enough, I think, to permit us to allow the suit, coupled, as it is, with the interest which the taxpayer and all other citizens have in the church-state issue. In terms of the structure and basic philosophy of our constitutional government, it would be difficult to point to any issue that has a more intimate, pervasive, and fundamental impact upon the life of the taxpayer — and upon the life of all citizens.

Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer’s status, *116would be acceptable as a basis for this challenge. We need not decide this. But certainly, I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented — the separation of state and church — which the Founding Fathers regarded as fundamental to our constitutional system— should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided.

On the other hand, the urgent necessities of this case and the precarious opening through which we find our way to confront it, do not demand that we open the door to a general assault upon exercises of the spending power. The status of taxpayer should not be accepted as a launching pad for an attack upon any target other than legislation affecting the Establishment Clause. See concurring opinion of Stewart, J., ante, p. 114.

Mr. Justice Harlan,

dissenting.

The problems presented by this case are narrow and relatively abstract, but the principles by which they must be resolved involve nothing less than the proper functioning of the federal courts, and so run to the roots of our constitutional system. The nub of my view is that the end result of Frothingham v. Mellon, 262 U. S. 447, was correct, even though, like others,11 do not subscribe to all of its reasoning and premises. Although I therefore agree with certain of the conclusions reached today by the Court,2 I cannot accept the standing doctrine *117that it substitutes for Frothingham, for it seems to me that this new doctrine rests on premises that do not withstand analysis. Accordingly, I respectfully dissent.

It is desirable first to restate the basic issues in this case. The question here is not, as it was not in Froth-ingham, whether “a federal taxpayer is without standing to challenge the constitutionality of a federal statute.” Ante, at 85. It could hardly be disputed that federal taxpayers may, as taxpayers, contest the constitutionality of tax obligations imposed severally upon them by federal statute. Such a challenge may be made by way of defense to an action by the United States to recover the amount of a challenged tax debt, see, e. g., Hylton v. United States, 3 Dall. 171; McCray v. United States, 195 U. S. 27; United States v. Butler, 297 U. S. 1; or to a prosecution for willful failure to pay or to report the tax. See, e. g., Marchetti v. United States, 390 U. S. 39. Moreover, such a challenge may provide the basis of an action by a taxpayer to obtain the refund of a previous tax payment. See, e. g., Bailey v. Drexel Furniture Co., 259 U. S. 20.

The lawsuits here and in Frothingham are fundamentally different. They present the question whether federal taxpayers qua taxpayers may, in suits in which they do not contest the validity of their previous or existing tax obligations, challenge the constitutionality of the uses for which Congress has authorized the expenditure of public funds. These differences in the purposes of the cases are reflected in differences in the litigants’ interests. An action brought to contest the validity of tax liabilities assessed to the plaintiff is designed to vindicate interests that are personal and proprietary. The wrongs alleged and the relief sought by such a plaintiff are unmistakably private; only secondarily are his interests representative of those of the general population. I take *118it that the Court, although it does not pause to examine the question, believes that the interests of those who as taxpayers challenge the constitutionality of public expenditures may, at least in certain circumstances, be similar. Yet this assumption is surely mistaken.3

The complaint in this case, unlike that in Frothingham, contains no allegation that the contested expenditures will in any fashion affect the amount of these taxpayers’ own existing or foreseeable tax obligations. Even in cases in which such an allegation is made, the suit cannot result in an adjudication either of the plaintiff’s tax liabilities or of the propriety of any particular level of taxation. The relief available to such a plaintiff consists entirely of the vindication of rights held in common by all citizens. It is thus scarcely surprising that few of the state courts that permit such suits require proof either that the challenged expenditure is consequential in amount or that it is likely to affect significantly the plaintiff’s own tax bill; these courts have at least impliedly recognized that such allegations are surplusage, useful only to preserve the form of an obvious fiction.4

Nor are taxpayers’ interests in the expenditure of public funds differentiated from those of the general public by any special rights retained by them in their tax payments. The simple fact is that no such rights can sensibly be said to exist. Taxes are ordinarily levied by the United States without limitations of purpose; absent such a limitation, payments received by the Treasury in satisfaction of tax obligations lawfully created become part of the Government’s general funds. The national legislature is required by the Constitution to *119exercise its spending powers to “provide for the common Defence and general Welfare.” Art. I, § 8, cl. 1. Whatever other implications there may be to that sweeping phrase, it surely means that the United States holds its general funds, not as stakeholder or trustee for those who have paid its imposts, but as surrogate for the population at large. Any rights of a taxpayer with respect to the purposes for which those funds are expended are thus subsumed in, and extinguished by, the common rights of all citizens. To characterize taxpayers’ interests in such expenditures as proprietary or even personal either deprives those terms of all meaning or postulates for taxpayers a scintilla juris in funds that no longer are theirs.

Surely it is plain that the rights and interests of taxpayers who contest the constitutionality of public expenditures are markedly different from those of “Hohfel-dian” plaintiffs,5 including those taxpayer-plaintiffs who challenge the validity of their own tax liabilities. We must recognize that these non-Hohfeldian plaintiffs complain, just as the petitioner in Frothingham sought to complain, not as taxpayers, but as “private attorneys-general.” 6 The interests they represent, and the rights they espouse, are bereft of any personal or proprietary coloration. They are, as litigants, indistinguishable from any group selected at random from among the general *120population, taxpayers and nontaxpayers alike. These are and must be, to adopt Professor Jaffe’s useful phrase, “public actions” brought to vindicate public rights.7

It does not, however, follow that suits brought by non-Hohfeldian plaintiffs are excluded by the “case or controversy” clause of Article III of the Constitution from the jurisdiction of the federal courts. This and other federal courts have repeatedly held that individual litigants, acting as private attorneys-general, may have standing as “representatives of the public interest.” Scripps-Howard Radio v. Comm’n, 316 U. S. 4, 14. See also Commission v. Sanders Radio Station, 309 U. S. 470, 477; Associated Industries v. Ickes, 134 F. 2d 694; Reade v. Ewing, 205 F. 2d 630; Scenic Hudson Preservation Conf. v. FPC, 354 F. 2d 608; Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994. Compare Oklahoma v. Civil Service Comm’n, 330 U. S. 127, 137-139. And see, on actions qui tam, Marvin v. Trout, 199 U. S. 212, 225; United States ex rel. Marcus v. Hess, 317 U. S. 537, 546. The various lines of authority are by no means free of difficulty, and certain of the cases may be explicable as involving a personal, if remote, economic interest, but I think that it is, nonetheless, clear that non-Hohfeldian plaintiffs as such are not constitutionally excluded from the federal courts. The problem ultimately presented by this case is, in my view, therefore to determine in what circumstances, consonant with the character and proper functioning of the federal courts, such suits should be permitted.8 With this preface, I shall examine the position adopted by the Court.

*121II.

As I understand it, the Court’s position is that it is unnecessary to decide in what circumstances public actions should be permitted, for it is possible to identify situations in which taxpayers who contest the constitutionality of federal expenditures assert “personal” rights and interests, identical in principle to those asserted by Hohfeldian plaintiffs. This position, if supportable, would of course avoid many of the difficulties of this case; indeed, if the Court is correct, its extended exploration of the subtleties of Article III is entirely unnecessary. But, for reasons that follow, I believe that the Court’s position is untenable.

The Court’s analysis consists principally of the observation that the requirements of standing are met if a taxpayer has the “requisite personal stake in the outcome” of his suit. Ante, at 101. This does not, of course, resolve the standing problem; it merely restates it. The Court implements this standard with the declaration that taxpayers will be “deemed” to have the necessary personal interest if their suits satisfy two criteria: first, the challenged expenditure must form part of a federal spending program, and not merely be “incidental” to a regulatory program; and second, the constitutional provision under which the plaintiff claims must be a “specific limitation” upon Congress’ spending powers. The difficulties with these criteria are many and severe, but it is enough for the moment to emphasize that they are not in any sense a measurement of any plaintiff’s interest in the outcome of any suit. As even a cursory examination of *122the criteria will show, the Court’s standard for the determination of standing and its criteria for the satisfaction of that standard are entirely unrelated.

It is surely clear that a plaintiff’s interest in the outcome of a suit in which he challenges the constitutionality of a federal expenditure is not made greater or smaller by the unconnected fact that the expenditure is, or is not, “incidental” to an “essentially regulatory” program.9 An example will illustrate the point. Assume that two independent federal programs are authorized by Congress, that the first is designed to encourage a specified religious group by the provision to it of direct grants-in-aid, and that the second is designed to discourage all other religious groups by the imposition of various forms of discriminatory regulation. Equal amounts are appropriated by Congress for the two programs. If a taxpayer challenges their constitutionality in separate suits,10 are we to suppose, as evidently does the Court, that his *123“personal stake” in the suit involving the second is necessarily smaller than it is in the suit involving the first, and that he should therefore have standing in one but not the other?

Presumably the Court does not believe that regulatory programs are necessarily less destructive of First Amendment fights, or that regulatory programs are necessarily less prodigal of public funds than are grants-in-aid, for both these general propositions are demonstrably false. The Court’s disregard of regulatory expenditures is not even a logical consequence of its apparent assumption that taxpayer-plaintiffs assert essentially monetary interests, for it surely cannot matter to a taxpayer qua taxpayer whether an unconstitutional expenditure is used to hire the services of regulatory personnel or is distributed among private and local governmental agencies as grants-in-aid. His interest as taxpayer arises, if at all, from the fact of an unlawful expenditure, and not as a consequence of the expenditure’s form. Apparently the Court has repudiated the emphasis in Frothingham upon the amount of the plaintiff’s tax bill, only to substitute an equally irrelevant emphasis upon the form of the challenged expenditure.

The Court’s second criterion is similarly unrelated to its standard for the determination of standing. The intensity of a plaintiff’s interest in a suit is not measured, even obliquely, by the fact that the constitutional provision under which he claims is, or is not, a “specific limitation” upon Congress’ spending powers. Thus, among the claims in Frothingham was the assertion that the Maternity Act, 42 Stat. 224, deprived the petitioner of property without due process of law. The Court has evidently concluded that this claim did not confer standing because the Due Process Clause of the Fifth Amendment is not a specific limitation upon the spending *124powers.11 Disregarding for the moment the formidable obscurity of the Court’s categories, how can it be said that Mrs. Frothingham’s interests in her suit were, as a consequence of her choice of a constitutional claim, necessarily less intense than those, for example, of the present appellants? I am quite unable to understand how, if a taxpayer believes that a given public expenditure is unconstitutional, and.if he seeks to vindicate that belief in a federal court, his interest in the suit can be said necessarily to vary according to the constitutional provision under which he states his claim.

The absence of any connection between the Court’s standard for the determination of standing and its criteria for the satisfaction of that standard is not merely a logical ellipsis. Instead, it follows quite relentlessly from the fact that, despite the Court’s apparent belief, the plaintiffs in this and similar suits are non-Hohfeldian, and it is very nearly impossible to measure sensibly any differences in the intensity of their personal interests in their suits. The Court has thus been compelled simply to postulate situations in which such taxpayer-plaintiffs will be “deemed” to have the requisite “personal stake and interest.” Ante, at 101. The logical inadequacies of the Court’s criteria are thus a reflection of the deficiencies of its entire position. These deficiencies will, however, appear more plainly from an examination of the Court’s treatment of the Establishment Clause.

*125Although the Court does not altogether explain its position, the essence of its reasoning is evidently that a taxpayer’s claim under the Establishment Clause is “not merely one of ultra vires,” but one which instead asserts “an abridgment of individual religious liberty” and a “governmental infringement of individual rights protected by the Constitution.” Choper, The Establishment Clause and Aid to Parochial Schools, 56 Calif. L. Rev. 260, 276. It must first be emphasized that this is apparently not founded upon any “preferred” position for the First Amendment, or upon any asserted unavailability of other plaintiffs.12 The Court’s position is instead that, because of the Establishment Clause’s historical purposes, taxpayers retain rights under it quite different from those held by them under other constitutional provisions.

The difficulties with this position are several. First, we have recently been reminded that the historical purposes of the religious clauses of the First Amendment are significantly more obscure and complex than this Court has heretofore acknowledged.13 Careful students *126of the history of the Establishment Clause have found that “it is impossible to give a dogmatic interpretation of the First Amendment, and to state with any accuracy the intention of the men who framed it . . . .”14 Above all, the evidence seems clear that the First Amendment was not intended simply to enact the terms of Madison’s Memorial and Remonstrance against Religious Assessments.15 I do not suggest that history is without relevance to these questions, or that the use of federal funds for religious purposes was not a form of establishment that many in the 18th century would have found objectionable. I say simply that, given the ultimate obscurity of the Establishment Clause’s historical purposes, it is inappropriate for this Court to draw fundamental distinctions among the several constitutional commands upon the supposed authority of isolated dicta extracted from the clause’s complex history. In particular, I have not found, and the opinion of the Court has not adduced, historical evidence that properly permits the Court to distinguish, as it has here, among the Establishment Clause, the Tenth Amendment, and the Due Process Clause of the Fifth Amendment as limitations upon Congress’ taxing and spending powers.16

*127The Court’s position is equally precarious if it is assumed that its premise is that the Establishment Clause is in some uncertain fashion a more “specific” limitation upon Congress’ powers than are the various other constitutional commands. It is obvious, first, that only in some Pickwickian sense are any of the provisions with which the Court is concerned “specific[ally]” limitations upon spending, for they contain nothing that is expressly directed at the expenditure of public funds. The specificity to which the Court repeatedly refers must therefore arise, not from the provisions’ language, but from something implicit in their purposes. But this Court has often emphasized that Congress’ powers to spend are coterminous with the purposes for which, and methods by which, it may act, and that the various constitutional commands applicable to the central government, including those implicit both in the Tenth Amendment and in the General Welfare Clause, thus operate as limitations upon spending. See United States v. Butler, 297 U. S. 1. And see, e. g., Veazie Bank v. Fenno, 8 Wall. 533, 541; Loan Association v. Topeka, 20 Wall. 655, 664; Thompson v. Consolidated Gas Co., 300 U. S. 55, 80; Carmichael v. Southern Coal Co., 301 U. S. 495; Everson v. Board of Education, 330 U. S. 1, 6. Compare Steward Machine Co. v. Davis, 301 U. S. 548; Helvering v. Davis, 301 U. S. 619. I can attach no constitutional significance to the various degrees of specificity with which these limitations appear in the terms or history of the Constitution. If the Court accepts the proposition, as I do, *128that the number and scope of public actions should be restricted, there are, as I shall show, methods more appropriate, and more nearly permanent, than the creation of an amorphous category of constitutional provisions that the Court has deemed, without adequate foundation, “specific limitations” upon Congress’ spending powers.

Even if it is assumed that such distinctions may properly be drawn, it does not follow that federal taxpayers hold any “personal constitutional right” such that they may each contest the validity under the Establishment Clause of all federal expenditures. The difficulty, with which the Court never comes to grips, is that taxpayers’ suits under the Establishment Clause are not in these circumstances meaningfully different from other public actions. If this case involved a tax specifically designed for the support of religion, as was the Virginia tax opposed by Madison in his Memorial and Remonstrance,17 I would agree that taxpayers have rights under the religious clauses of the First Amendment that would permit them standing to challenge the tax’s validity in the federal courts. But this is not such a case, and appellants challenge an expenditure, not a tax. Where no such tax is involved, a taxpayer’s complaint can consist only of an allegation that public funds have been, or shortly will be, expended for purposes inconsistent with the Constitution. The taxpayer cannot ask the return of any portion of his previous tax payments, cannot prevent the collection of any existing tax debt, and cannot demand an adjudication of the propriety of any particular level of taxation. His tax payments are received for the general purposes of the United States, and are, upon proper receipt, lost in the general revenues. Compare Steward Machine Co. v. Davis, supra, at 585. The interests he *129represents, and the rights he espouses, are, as they are in all public actions, those held in common by all citizens. To describe those* rights and interests as personal, and to intimate that they are in some unspecified fashion to be differentiated from those of the general public, reduces constitutional standing to a word game played by secret rules.18

*130Apparently the Court, having successfully circumnavigated the issue, has merely returned to the proposition from which it began. A litigant, it seems, will have standing if he is “deemed” to have the requisite interest, and “if you . . . have standing, then you can be confident you are” suitably interested. Brown, Quis Custodiet Ipsos Custodes? — The School-Prayer Cases, 1963 Sup. Ct. Rev. 1, 22.

III.

It seems to me clear that public actions, whatever the constitutional provisions on which they are premised, may involve important hazards for the continued effectiveness of the federal judiciary. Although I believe such actions to be within the jurisdiction conferred upon the federal courts by Article III of the Constitution, there surely can be little doubt that they strain the judicial function and press to the limit judicial authority. There is every reason to fear that unrestricted public actions might well alter the allocation of authority among the three branches of the Federal Government. It is not, I submit, enough to say that the present members of the Court would not seize these opportunities for abuse, for such actions would, even without conscious abuse, go far toward the final transformation of this Court into the Council of Revision which, despite Madison’s support, was rejected by the Constitutional Convention.19 I do not doubt that there must be “some effectual power in the government to restrain or correct the infractions” 20 of *131the Constitution’s several commands, but neither can I suppose that such power resides only in the federal courts. We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government “are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.” Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267, 270. The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government.

Presumably the Court recognizes at least certain of these hazards, else it would not have troubled to impose limitations upon the situations in which, and purposes for which, such suits may be brought. Nonetheless, the limitations adopted by the Court are, as I have endeavored to indicate, wholly untenable. This is the more unfortunate because there is available a resolution of this problem that entirely satisfies the demands of the principle of separation of powers. This Court has previously held that individual litigants have standing to represent the public interest, despite their lack of economic or other personal interests, if Congress has appropriately authorized such suits. See especially Oklahoma v. Civil Service Comm’n, 330 U. S. 127, 137-139. Compare Perkins v. Lukem Steel Co., 310 U. S. 113, 125-127. I would adhere to that principle.21 Any hazards to the *132proper allocation of authority among the three branches of the Government would be substantially diminished if public actions had been pertinently authorized by Congress and the President. I appreciate that this Court does not ordinarily await the mandate of other branches of the Government, but it seems to me that the extraordinary character of public actions, and of the mischievous, if not dangerous, consequences they involve for the proper functioning of our constitutional system, and in particular of the federal courts, makes such judicial forbearance the part of wisdom.22 It must be emphasized *133that the implications of these questions of judicial policy are of fundamental significance for the other branches of the Federal Government.

Such a rule could readily be applied to this case. Although various efforts have been made in Congress to authorize public actions to contest the validity of federal expenditures in aid of religiously affiliated schools and other institutions, no such authorization has yet been given.23

This- does not mean that we would, under such a rule, be enabled to avoid our constitutional responsibilities, or that we would confine to limbo the First Amendment or any other constitutional command. The question here is not, despite the Court’s unarticulated premise, whether the religious clauses of the First Amendment are hereafter to be enforced by the federal courts; the issue is simply whether plaintiffs of an additional category, heretofore excluded from those courts, are to be permitted to maintain suits. The recent history of this Court is replete with illustrations, including even one announced today (supra, at n. 12), that questions involving the religious clauses will not, if federal taxpayers are prevented from contesting federal expenditures, be left “unacknowledged, unresolved, and undecided.”

Accordingly, for the reasons contained in this opinion, I would affirm the judgment, of the District Court.

I must note at the outset that I cannot determine with any certainty the Court’s intentions with regard to this first criterion. Its use of Doremus v. Board of Education, 342 U. S. 429, as an analogue perhaps suggests that it intends to exclude only those cases in which there are virtually no public expenditures. See, e. g., Howard v. City of Boulder, 132 Colo. 401, 290 P. 2d 237. On the other hand, the Court also emphasizes that the contested programs may not be “essentially regulatory” programs, and that the statute challenged here “involves a substantial expenditure of federal tax funds.” Ante, at 102, 103 (emphasis added). Presumably this means that the Court’s standing doctrine also excludes any program in which the expenditures are “insubstantial” or which cannot be characterized as a "spending” program.

I will of course grant that claims under, for example, the Tenth Amendment may present “generalized grievances about the conduct of government or the allocation of power in the Federal System.” Ante, at 106. I will also grant that it would be well if *127such questions could be avoided by the federal courts. Unfortunately, I cannot see how these considerations are relevant under the Court’s principal criterion, which I understand to be merely whether any given constitutional provision is, or is not, a limitation upon Congress’ spending powers. It is difficult to see what there is in the fact that a constitutional provision is held to be such a limitation that could sensibly give the Court “confidence” about the fashion in which a given plaintiff will present a given issue.

1 have equal difficulty with the argument that the religious clauses of the First Amendment creaté a “personal constitutional right,” held by all citizens, such that any citizen may, under those clauses, contest the constitutionality of federal expenditures. The essence of the argument would presumably be that freedom from establishment is a right that inheres in every citizen, thus any citizen should be permitted to challenge any measure that conceivably involves establishment. Certain provisions of the Constitution, so the argument would run, create the basic structure of our society and of its government, and accordingly should be enforceable at the demand of every individual. Unlike the position taken today by the Court, such a doctrine of standing would at least be internally consistent, but it would also threaten the proper functioning both of the federal courts and of the principle of separation of powers. The Establishment Clause is, after all, only one of many provisions of the Constitution that might be characterized in this fashion. Certain of these provisions, e. g., the Ninth and Tenth Amendments, would _ provide the basis for cases that, absent a standing question, could not readily be excluded from the federal courts as involving political questions, or as otherwise unsuitable for adjudication under the principles formulated for these purposes by the Court. Compare United Public Workers v. Mitchell, 330 U. S. 75, 94-96; Griswold v. Connecticut, 381 U. S. 479. Indeed, it might even be urged that the Ninth and Tenth Amendments, since they are largely confirmatory of rights created elsewhere in the Constitution, were intended to declare the standing of individual citizens to contest the validity of governmental activities. It may, of course, also be argued that these amendments are merely “tub[s] for the whale,” 1 W. Crosskey, Politics and the Constitution 688 (1953); but lacking such an argument, any doctrine of standing premised upon the generality or relative importance of a constitutional command would, I think, very substantially increase the number of sitúa-*130tions in which individual citizens could present for adjudication “generalized grievances about the conduct of government.” I take it that the Court, apart from my Brother Douglas, and I are agreed that any such consequence would be exceedingly undesirable.

My premise is, as I have suggested, that non-Hohfeldian plaintiffs as such are not excluded by Article III from the jurisdiction of the federal courts. The problem is therefore to determine in what situations their suits should be permitted, and not whether a “statute constitutionally could authorize a person who shows no ease or controversy to call on the courts ...” Scripps-Howard Radio v. Comm’n, 316 U. S. 4, 21 (dissenting opinion). I do not, of course, suggest that Congress’ power to authorize suits by *132specified classes of litigants is without constitutional limitation. This Court has recognized a panoply of restrictions upon the actions that may properly be brought in federal courts, or reviewed by this Court after decision in state courts. It is enough now to emphasize that I would not abrogate these restrictions in situations in which Congress has authorized a suit. The difficult case of Muskrat v. United States, 219 U. S. 346, does not require more. Whatever the other implications of that case, it is enough to note that there the United States, as statutory defendant, evidently had “no interest adverse to the claimants.” Id., at 361.

1 am aware that there is a second category of cases in which the Court has entertained claims by non-Hohfeldian plaintiffs: suits brought by state or local taxpayers in state courts to vindicate federal constitutional claims. A certain anomaly may be thought to have resulted from the Court’s consideration of such cases while it has refused similar suits brought by federal taxpayers in the federal courts. This anomaly, if such it is, will presumably continue even under the standing doctrine announced today, since we are not told that the standing rules will hereafter be identical for the two classes of taxpayers. Although these questions are not now before the Court, I think it appropriate to note that one possible solution would be to hold that standing to raise federal questions is itself a federal question. See Freund, in E. Cahn, Supreme Court and Supreme Law 35 (1954). This would demand partial reconsideration of, for example, Doremus v. Board of Education, 342 U. S. 429. Cf. United States v. Raines, 362 U. S. 17, 23, n. 3; Cramp v. Board of Public Instruction, 368 U. S. 278, 282; Baker v. Carr, 369 U. S. 186, 204.

3.5.2.16 United States v. Richardson 3.5.2.16 United States v. Richardson

Summary of United States v. Richardson, 418 U.S. 166 (1974)

418 U.S. 166
Supreme Court of the United States

United States v. RichardsonJune 25, 1974

Summary of United States v. Richardson, 418 U.S. 166 (1974)

United States v. Richardson was an effort by a taxpayer to challenge the Central Intelligence Agency Act of 1949, which provides that Central Intelligence Agency expenditures may not be made public. According to the plaintiff, the act violated article I, section 9, clause 7 of the Constitution, which provides that “a regular statement of Account of the Receipts and Expenditures of all public Money shall be published from time to time.” The Court responded that the plaintiff’s claim was only “A general grievance” that was “Common to all members of the public. While we can hardly dispute that this respondent has a genuine interest in the use of funds and that his interest may be prompted by his status as a taxpayer, he has not alleged that, as a taxpayer, he is in danger of suffering any particular concrete injury as a result of the operation of this statute.” The Court added:

It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the ‘ground rules' established by the Congress for reporting expenditures of the Executive Branch. Lack of standing within the narrow confines of Art. III jurisdiction does not impair the right to assert his views in the political forum or at the polls. Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them.

In an influential concurrent opinion, Justice Powell added:

The power recognized in [Marbury] is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing. Were we to utilize this power as indiscriminately as is now being urged, we may witness efforts by the representative branches drastically to curb its use. Due to what many have regarded as the unresponsiveness of the Federal Government to recognized needs or serious inequities in our society, recourse to the federal courts has attained an unprecedented popularity in recent decades. Those courts have often acted as a major instrument of social reform. But this has not always been the case, as experiences under the New Deal illustrate. The public reaction to the substantive due process holdings of the federal courts during that period requires no elaboration, and it is not unusual for history to repeat itself.

Quite apart from this possibility, we risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous, general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the counter majoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.

The problem of widely diffused injuries is associated with that of taxpayer standing.

Source: Mark V. Tushnet, Louis M. Seidman, Cass R. Sunstein, Geoffrey R. Stone: Constitutional Law, 7th ed. Wolters Kluwer (2017).

Supreme Court of the United States

418 U.S. 166, 41 L. Ed. 2d 678, 94 S. Ct. 2940, 1974 U.S. LEXIS 3, SCDB 1973-157

No. 72-885

1974-06-25

UNITED STATES et al. v. RICHARDSON

No. 72-885.

Argued October 10, 1973

Decided June 25, 1974

*167 Solicitor General Bork argued the cause for the United States et al. On the brief were former Solicitor General Griswold, Assistant Attorney General Wood, De-puty Solicitor General Lacovara, Harriet S. Shapiro, Walter H. Fleischer, and William D. Appier.

Osmond K. Fraenkel argued the cause for respondent. With him on the brief were Melvin L. Wulf, Burt Neu-borne, and James R. Kelley.

Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari in this case to determine whether the respondent has standing to bring an action as a federal taxpayer1 alleging that certain provisions concerning public reporting of expenditures under the Central Intelligence Agency Act of 1949, 63 Stat. 208, 50 *168U. S. C. § 403a et seq., violate Art. I, § 0, cl. 7, of the Constitution which provides:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

Respondent brought this suit in the United States District Court on a complaint in which he recites attempts to obtain from the Government information concerning detailed expenditures of the Central Intelligence Agency. According to the complaint, respondent wrote to the Government Printing Office in 1967 and requested that he be provided with the documents “published by the Government in compliance with Article I, section 9, clause (7) of the United States Constitution.” The Fiscal Service of the Bureau of Accounts of the Department of the Treasury replied, explaining that it published the document known as the Combined Statement of Receipts, Expenditures, and Balances of the United States Government. Several copies of the monthly and daily reports of the office were sent with the letter. Respondent then wrote to the same office and, quoting part of the CIA Act, asked whether this statute did not “cast reflection upon the authenticity of the Treasury’s Statement.” He also inquired as to how he could receive further information on the expenditures of the CIA. The Bureau of Accounts replied stating that it had no other available information.

In another letter, respondent asserted that the CIA Act was repugnant to the Constitution and requested that the Treasury Department seek an opinion of the Attorney General. The Department answered declining to seek such an opinion and this suit followed. Respondent’s complaint asked the court to “issue a perma*169nent injunction enjoining the defendants from publishing their 'Combined Statement of Receipts, Expenditures and Balances of the United States Government’ and representing it as the fulfillment of the mandates of Article I Section 9 Clause 7 until same fully complies with those mandates.” 2 In essence, the respondent asked the federal court to declare unconstitutional that provision of the Central Intelligence Agency Act which permits the Agency to account for its expenditures "solely on the certificate of the Director . . . 50 U. S. C. § 403j (b). The only injury alleged by respondent was that he “cannot obtain a document that sets out the expenditures and receipts” of the CIA but on the contrary was “asked to accept a fraudulent document.” The District Court granted a motion for dismissal on the ground respondent lacked standing under Flast v. Cohen, 392 U. S. 83 (1968), and that the subject matter raised political questions not suited for judicial disposition.

The Court of Appeals sitting en banc, with three judges dissenting, reversed, 465 F. 2d 844 (CA3 1972), holding that the respondent had standing to bring this action.3 The majority relied chiefly on Flast v. Cohen, *170 supra, and its two-tier test that taxpayer standing rests on a showing of (a) a “logical link” between the status as a taxpayer and the challenged legislative enactment, i. e., an attack on an enactment under the Taxing and Spending Clause of Art. I, § 8, of the Constitution; and (b) a “nexus” between the plaintiff’s status and a specific constitutional limitation imposed on the taxing and spending power. 392 U. S., at 102-103. While noting that the respondent did not directly attack an appropriations act, as did the plaintiff in Flast, the Court of Appeals concluded that the CIA statute challenged by the respondent was “integrally related,” 465 F. 2d, at 853, to his ability to challenge the appropriations since he could not question an appropriation about which he had no knowledge. The Court of Appeals seemed to rest its holding on an assumption that this case was a prelude to a later case challenging, on the basis of information obtained in this suit, some particular appropriation for or expenditure of the CIA; respondent stated no such an intention in his complaint. The dissenters took a different approach urging denial of standing principally because, in their view, respondent alleged no specific injury but only a general interest common to all members of the public.

We conclude that respondent lacks standing to maintain a suit for the relief sought and we reverse.

*171I

As far back as Marbury v. Madison, 1 Cranch 137 (1803), this Court held that judicial power may be exercised only in a case properly before it — a “case or controversy” not suffering any of the limitations of the political-question doctrine, not then moot or calling for an advisory opinion. In Baker v. Can, 369 U. S. 186, 204 (1962), this limitation was described in terms that a federal court cannot

“ ‘pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ Liverpool Steamship Co. v. Commissioners of Emigration, 113 U. S. 33, 39.”

Recently in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), the Court, while noting that “ [generalizations about standing to sue are largely worthless as such,” id., at 151, emphasized that “[o]ne generalization is, however, necessary and that is that the question of standing in the federal courts is to be considered in the framework of Article III which restricts judicial power to ‘cases’ and ‘controversies.’ ”4

Although the recent holding of the Court in Flast v. Cohen, supra, is a starting point in an examination of respondent’s claim to prosecute this suit as a taxpayer, that case must be read with reference to its principal predecessor, Frothingham v. Mellon, 262 U. S. 447 (1923). In Frothingham, the injury alleged was that the congressional enactment challenged as unconstitutional would, if implemented, increase the com plain - *172ant's future federal income taxes.5 Denying standing, the Frothingham Court rested on the “comparatively minute[,] remote, fluctuating and uncertain,” id., at 487, impact on the taxpayer, and the failure to allege the kind of direct injury required for standing.

“The party who invokes the [judicial] power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” Id., at 488.

When the Court addressed the question of standing in Flast, Mr. Chief Justice Warren traced what he described as the “confusion” following Frothingham as to whether the Court had announced a constitutional doctrine barring suits by taxpayers challenging federal expenditures as unconstitutional or simply a policy rule of judicial self-restraint. In an effort to clarify the confusion and to take into account intervening developments, of which class actions and joinder under the Federal Rules of Civil Procedure were given as examples, the Court embarked on “a fresh examination of the limitations upon standing to sue in a federal court and the application of those limitations to taxpayer suits.” 392 U. S., at 94. That re-examination led, however, to the holding that a “taxpayer will have standing consistent with Article III to invoke federal *173judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.” Id., at 105-106. (Emphasis supplied.) In so holding, the Court emphasized that Art. Ill requirements are the threshold inquiry:

“The ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness . . . upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Id., at 99, citing Baker v. Carr, 369 U. S., at 204.

The Court then announced a two-pronged standing test which requires allegations: (a) challenging an enactment under the Taxing and Spending Clause of Art. I, §8, of the Constitution; and (b) claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power. 392 U. S., at 102-103. While the “impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers,” id., at 85, had been slightly lowered, the Court made clear it was reaffirming the principle of Frothingham, precluding a taxpayer’s use of “a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.” Id., at 106. The narrowness of that holding is emphasized by the concurring opinion of Mr. Justice Stewart in Flast:

“In concluding that the appellants therefore have standing to sue, we do not undermine the salutary principle, established by Frothingham and reaffirmed *174today, that a taxpayer may not 'employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.' ” Id., at 114.

Although the Court made it very explicit in Flast that a “fundamental aspect of standing” is that it focuses primarily on the party seeking to get his complaint before the federal court rather than “on the issues he wishes to have adjudicated,” id., at 99, it made equally clear that

“in ruling on [taxpayer] standing, it is both appropriate and necessary to look to the substantive issues for another purpose, namely, to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.” Id., at 102.6

We therefore turn to an examination of the issues sought to be raised by respondent’s complaint to determine whether he is “a proper and appropriate party to invoke federal judicial power,” ibid., with respect to those issues.

We need not and do not reach the merits of the constitutional attack on the statute; our inquiry into the “substantive issues” is for the limited purpose indicated above. The mere recital of the respondent’s claims and an examination of the statute under attack demonstrate how far he falls short of the standing criteria of Flast and how neatly he falls within the Frothingham *175holding left undisturbed. Although the status he rests on is that he is a taxpayer, his challenge is not addressed to the taxing or spending power, but to the statutes regulating the CIA, specifically 50 U. S. C. §403j(b). That section provides different accounting and reporting requirements and procedures for the CIA, as is also done with respect to other governmental agencies dealing in confidential areas.7

Respondent makes no claim that appropriated funds are being spent in violation of a “specific constitutional .limitation upon the . . . taxing and spending power . . . .” 392 U. S., at 104. Rather, he asks the courts to compel the Government to give him information on precisely how the CIA spends its funds. Thus there is no “logical nexus” between the asserted status of taxpayer and the claimed failure of the Congress to require the Executive to supply a more detailed report of the expenditures of that agency.8

The question presented thus is simply and narrowly whether these claims meet the standards for taxpayer standing set forth in Flast; we hold they do not. Respondent is seeking “to employ a federal court as a forum in which to air his generalized grievances about the conduct of government.” 392 U. S., at 106. Both Frothingham and Flast, supra, reject that basis for standing.

*176 Ill

The Court of Appeals held that the basis of taxpayer standing

“need not always be the appropriation and the spending of [taxpayer’s] money for an invalid purpose. The personal stake may come from an injury in fact even if it is not directly economic in nature. Association of Data Processing Organizations, Inc. v. Camp, [397 U. S. 150,] 154 (1970).” 465 F. 2d, at 853.9

The respondent’s claim is that without detailed information on CIA expenditures — and hence its activities— he cannot intelligently follow the actions of Congress or the Executive, nor can he properly fulfill his obligations as a member of the electorate in voting for candidates seeking national office.

This is surely the kind of a generalized grievance described in both Frothingham and Flast since the im*177pact on him is plainly undifferentiated and “common to all members of the public." Ex parte Levitt, 302 U. S. 633, 634 (1937); Laird v. Tatum, 408 U. S. 1, 13 (1972). While we can hardly dispute that this respondent has a genuine interest in the use of funds and that his interest may be prompted by his status as a taxpayer, he has not alleged that, as a taxpayer, he is in danger of suffering any particular concrete injury as a result of the operation of this statute. As the Court noted in Sierra Club v. Morton, 405 U. S. 727 (1972):

“[A] mere ‘interest in a problem,’ no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ‘adversely affected’ or ‘aggrieved’ within the meaning of the APA.” Id., at 739.

Ex parte Levitt, supra, is especially instructive. There Levitt sought to challenge the validity of the commission of a Supreme Court Justice who had been nominated and confirmed as such while he was a member of the Senate. Lévitt alleged that the appointee had voted for an increase in the emoluments provided by Congress for Justices of the Supreme Court during the term for which he was last elected to the United States Senate. The claim was that the appointment violated the explicit prohibition of Art. I, § 6, cl. 2, of the Constitution.10 The Court disposed of Lévitt’s claim, stating:

“It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immedi *178 ately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.” 302 U. S., at 634. (Emphasis supplied.)

Of course, if Levitt’s allegations were true, they made out an arguable violation of an explicit prohibition of the Constitution. Yet even this was held insufficient to support standing because, whatever Levitt’s injury, it was one he shared with “all members of the public.” Respondent here, like the petitioner in Lévitt, also fails to clear the threshold hurdle of Baker v. Carr, 369 U. S., at 204. See supra, at 171, and Flast, supra. 11

*179It can. be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of any particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process. Any other conclusion would mean that the Founding Fathers intended to set up something in the nature of an Athenian democracy or a New England town meeting to oversee the conduct of the National Government by means of lawsuits in federal courts. The Constitution created a representative Government with the representatives directly responsible to their constituents at stated periods of two, four, and six years; that the Constitution does not afford a judicial remedy does not, of course, completely disable the citizen who is not satisfied with the “ground rules” established by the Congress for reporting expenditures of the Executive Branch. Lack of standing within the narrow confines of Art. Ill jurisdiction does not impair the right to assert his views in the political forum or at the polls. Slow, cumbersome, and unresponsive though the traditional electoral process may be thought at times, our system provides for changing members of the political branches when dissatisfied citizens convince a sufficient number of their fellow electors that elected representatives are delinquent in performing duties committed to them.

As our society has become more complex, our numbers more vast, our lives more varied, and our resources more strained, citizens increasingly request the intervention of the courts on a greater variety of issues than at any period of our national development. The acceptance of new categories of judicially cognizable injury has not eliminated the basic principle that to invoke judicial power the claimant must have a “personal stake in the outcome,” *180 Baker v. Carr, supra, at 204, or a “particular, concrete injury,” Sierra Club, supra, at 740-741, n. 16, or “a direct injury,” Ex parte Levitt, supra, at 634; in short, something more than “generalized grievances,” Flast, supra, at 106. Respondent has failed to meet these fundamental tests; accordingly, the judgment of the Court of Appeals 1S

Reversed.

[For dissenting opinion of Mr. Justice Brennan, see post, p. 235.]

The majority found that the respondent had standing to bring this suit as a taxpayer. One judge held that he had standing as a citizen. This case was originally argued before a panel consisting of two Circuit Judges and one District Judge sitting by designa*170tion. After a second round of briefs, the Court of Appeals determined sita sponte to hear the case en banc without further argument. The District Judge sat with the Court of Appeals en banc. This point was not raised in the question presented in the petition for certiorari but the Solicitor General, in a footnote, called attention to the District Judge’s participation. He expressed the view that, although 28 U. S. C. § 4G (c) limits en banc hearings to circuit judges in active service (and any retired circuit judge who participated in the initial hearing), the error was harmless. Brief for United States 5-6, n. 4. In these circumstances we need not reach the question.

The Court of Appeals thus appeared to rely on Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970). Abstracting some general language of that opinion from the setting and controlling facts of that case, the Court of Appeals overlooked the crucial factor that standing in that case arose under a specific statute, Bank Service Corporation Act of 1962, 76 Stat. 1132, 12 U. S. C. § 1861. The petitioners in Data Processing alleged competitive economic injury to private business enterprise due to a ruling by the Comptroller of the Currency permitting national banks to sell their data processing services to other banks and to bank customers whose patronage the data processing companies sought. We recognized standing for those private business proprietors who were engaged in selling the same kind of services the Comptroller- allowed banks to sell; we held only that the claims of impermissible competition were “arguably . . . within the zone of interests protected” by § 4 of the Bank Service Corporation Act. 397 U. S., at 156. In short, Congress had provided competitor standing. The Court saw no indication that Congress had sought to preclude judicial review of administrative ridings of the Comptroller of the Currency as to the limitations Congress placed on national banks.

Although we need not reach or decide precisely what is meant by “a regular Statement and Account,” it is clear that Congress has plenary power to exact any reporting and accounting it considers appropriate in the public interest. It is therefore open to serious question whether the Framers of the Constitution ever imagined that general directives to the Congress or the Executive would be subject to enforcement by an individual citizen. While the available evidence is neither qualitatively nor quantitatively conclusive, historical analysis of the genesis of cl. 7 suggests that it was intended to permit some degree of secrecy of governmental operations. The ultimate weapon of enforcement available to the Congress would, of course, be the “power of the purse.” Independent of the statute here challenged by respondent, Congress could grant standing to taxpayers or citizens, or both, limited, of course, by the “cases” and “controversies” provisions of Art. III.

Not controlling, but surely not unimportant, are nearly two centimes of acceptance of a reading of cl. 7 as vesting in Congress plenary power to spell out the details of precisely when and with what specificity Executive agencies must report the expenditure of appropriated funds and to exempt certain secret activities from comprehensive public reporting. See 2 M. Farrand, The Records of the Federal Convention of 1787, pp. 618-619 (1911); 3 id., at 326-327; 3 J. Elliot, Debates on the Federal Constitution 462 (1836); D. Miller, Secret Statutes of the United States 10 (1918).

Mr. Justice Powell,

concurring.

I join the opinion of the Court because I am in accord with most of its analysis, particularly insofar as it relies on traditional barriers against federal taxpayer or citizen standing. And I agree that Flast v. Cohen, 392 U. S. 83 (1968), which set the boundaries for the arguments of the parties before us, is the most directly relevant precedent and quite correctly absorbs a major portion of the Court’s attention. I write solely to indicate that I would go further than the Court and would lay to rest the approach undertaken in Flast. I would not overrule Flast on its facts, because it is now settled that federal taxpayer standing exists in Establishment Clause cases. I would not, however, perpetuate the doctrinal confusion inherent in the Flast two-part “nexus” test. That test is not a reliable indicator of when a federal taxpayer has standing, and it has no sound relationship to the question whether such a plaintiff, with no other interest at stake, should be allowed to bring suit against one of the branches of the Federal Government. In my opinion, it should be abandoned.

My difficulties with Flast are several. The opinion purports to separate the question of standing from the merits, id., at 99-101, yet it abruptly returns to *181the substantive issues raised by a plaintiff for the purpose of determining “whether there is a logical nexus between the status asserted and the claim sought to be adjudicated.” Id., at 102. Similarly, the opinion distinguishes between constitutional and prudential limits on standing. Id., at 92-94, 97. I find it impossible, however, to determine whether the two-part “nexus” test created in Flast amounts to a constitutional or a prudential limitation, because it has no meaningful connection with the Court’s statement of the bare-minimum constitutional requirements for standing.

Drawing upon Baker v. Carr, 369 U. S. 186, 204 (1962), the Court in Flast stated the “ ‘gist of the question of standing’ ” as “whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” 392 U. S., at 99. As the Court today notes, ante, at 173, this is now the controlling definition of the irreducible Art. Ill case-or-controversy requirements for standing.1 But, as Mr. Justice Harlan pointed out *182in his dissent in Flast, 392 U. S., at 116 et seq., it is impossible to see how an inquiry about the existence of “concrete adverseness” is furthered by an application of the Flast test.

Flast announced the following two-part “nexus” test:

“The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. . . . Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8. When both nexuses are established, the litigant will have shown a taxpayer’s stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court’s jurisdiction.” Id., at 102-103.

Relying on history, the Court identified the Establishment Clause as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power *183conferred by Art. I, § 8. 392 U. S., at 103-105. On the other hand, the Tenth Amendment, and apparently the Due Process Clause of the Fifth Amendment, were determined not to be such “specific” limitations. The bases for these determinations are not wholly clear, but it appears that the Court found the Tenth Amendment addressed to the interests of the States, rather than of taxpayers, and the Due Process Clause no protection against increases in tax liability. Id., at 105.

In my opinion, Mr. Justice Harlan’s critique of the Flast “nexus” test is unanswerable. As he pointed out, “the Court’s standard for the determination of standing [i. e., sufficiently concrete adverseness] and its criteria for the satisfaction of that standard are entirely unrelated.” Id., at 122. Assuming that the relevant constitutional inquiry is the intensity of the plaintiff’s concern, as the Court initially posited, id., at 99, the Flast criteria “are not in any sense a measurement of any plaintiff’s interest in the outcome of any suit.” Id., at 121 (Harlan, J., dissenting) . A plaintiff’s incentive to challenge an expenditure does not turn on the “unconnected fact” that it relates to a regulatory rather than a spending program, id., at 122, or on whether the constitutional provision on which he relies is a “specific limitation” upon Congress’ spending powers. Id., at 123.2

*184The ambiguities inherent in the Flast “nexus” limitations on federal taxpayer standing are illustrated by this case. There can be little doubt about respondent’s fervor in pursuing his case, both within administrative channels and at every level of the federal courts. The intensity of his interest appears to bear no relationship to the fact that, literally speaking, he is not challenging directly a congressional exercise of the taxing and spending power. On the other hand, if the involvement of the taxing and spending power has some relevance, it requires no great leap in reasoning to conclude that the Statement and Account Clause, Art. I, § 9, cl. 7, on which respondent relies, is inextricably linked to that power. And that Clause might well be seen as a “specific” limitation on congressional spending. Indeed, it could be viewed as the most democratic of limitations. Thus, although the Court’s application of Flast to the instant case is probably literally correct, adherence to the Flast test in this instance suggests, as does Flast itself, that the test is not a sound or logical limitation on standing.

■ The lack of real meaning and of principled content in the Flast “nexus” test renders it likely that it will in time collapse of its own weight, as Mr. Justice Douglas predicted in his concurring opinion in that case. 392 U. S., at 107. This will present several options for the Court. It may either reaffirm pre-Flast prudential limitations on federal and citizen taxpayer standing; attempt new doctrinal departures in this area, as would Mr. Justice Stewart, post, at 203-204; or simply drop standing barriers altogether, as, judging by his concurring opinion in Flast, supra, and his dissenting opinion today, would Mr. Justice Douglas.3 I believe the first option to be the *185appropriate course, for reasons which may be emphasized by noting the difficulties I see with the other two. And, while I do not disagree at this late date with the Baker v. Carr statement of the constitutional indicia of standing, I further believe that constitutional limitations are not the only pertinent considerations.

Mr. Justice Stewart^ joined by Mr. Justice Marshall, would grant citizen or taxpayer standing under those clauses of the Constitution that impose on the Federal Government “an affirmative duty” to do something on behalf of its citizens and taxpayers. Post, at 203-204. Although he distinguishes between an affirmative constitutional duty and a “constitutional prohibition” for purposes of this case, post, at 202, it does not follow that Mr. Justice Stewart would deny federal taxpayer standing in all cases involving a constitutional prohibition, as his concurring opinion in Flast makes clear.4 Rather, he would find federal taxpayer standing, *186and perhaps citizen standing, in all cases based on constitutional clauses setting forth an affirmative duty and in unspecified cases where the constitutional clause at issue may be seen as a plain or explicit prohibition.

For purposes of determining whether a taxpayer or citizen has standing to challenge the actions of the Federal Government, I fail to perceive a meaningful distinction between constitutional clauses that set forth duties and those that set forth prohibitions.5 In either instance, the relevant inquiry is the same — may a plaintiff, relying on nothing other than citizen or taxpayer status, bring suit to adjudicate whether an entity of the Federal Government is carrying out its responsibilities in conformance with the requirements of the Constitution? A taxpayer’s or citizen’s interest in and willingness to pursue with vigor such a suit would not turn on whether the constitutional clause at issue imposed a duty on the Government to do something for him or prohibited the Government from doing something to him. Prohibitions and duties in this context are opposite sides of the same coin. Thus, I do not believe that the inquiry whether federal courts should entertain public actions is *187advanced by line drawing between affirmative duties and prohibitions.6

In short, in my opinion my Brother Stewart’s view fails to provide a meaningful stopping point between an all-or-nothing position with regard to federal taxpayer or citizen standing. In this respect, it shares certain of the deficiencies of Flast. I suspect that this may also be true of any intermediate position in this area. Mr. Justice Douglas correctly discerns, I think, that the alternatives here as a matter of doctrine are essentially bipolar. His preference is clear: “I would be as liberal in allowing taxpayers standing to object to . . . violations of the First Amendment as I would in granting standing to people to complain of any invasion *188of their rights under the Fourth Amendment or the Fourteenth or under any other guarantee in the Constitution itself or in the Bill of Rights.” Flast v. Cohen, 392 U. S., at 114 (concurring opinion). My view is to the contrary.

Ill

Relaxation of standing requirements is directly related to the expansion of judicial power.7 It seems to me inescapable that allowing unrestricted taxpayer or citizen standing would significantly alter the allocation of power at the national level, with a shift away from a democratic form of government. I also believe that repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.8 Moreover, the *189argument that the Court should allow unrestricted taxpayer or citizen standing underestimates the ability of the representative branches of the Federal Government to respond to the citizen pressure that has been responsible in large measure for the current drift toward expanded standing. Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type of leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government. “We must as judges recall that, as Mr. Justice Holmes wisely observed, the other branches of the Government ‘are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.’ Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267, 270.” Flast v. Cohen, 392 U. S., at 131 (Harlan, J., dissenting).

Unrestrained standing in federal taxpayer or citizen suits would create a remarkably illogical system of judicial supervision of the coordinate branches of the Federal Government. Randolph’s proposed Council of Revision, which was repeatedly rejected by the Framers, at least had the virtue of being systematic; every law passed by the legislature automatically would have been previewed by the Judiciary before the law could take effect.9 On the other hand, since the Judiciary cannot *190select the taxpayers or citizens who bring suit or the nature of the suits, the allowance of public actions would produce uneven and sporadic review, the quality of which *191would be influenced by the resources and skill of the particular plaintiff. And issues would be presented in abstract form, contrary to the Court’s recognition that "judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury.” Sierra Club v. Morton, 405 U. S. 727, 740-741, n. 16 (1972).10

The power recognized in Marbury v. Madison, 1 Cranch 137 (1803), is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing. Were we to utilize this power as indiscriminately as is now being urged, we may witness efforts by the representative branches drastically to curb its use. Due to what many have regarded as the unresponsiveness of the Federal Government to recognized needs or serious inequities in our society, recourse to the federal courts has attained an unprecedented popularity in recent decades. Those courts have often acted as a major instrument of social reform. But this has not always been the case, as experiences under the New Deal illustrate. The public reaction to the substantive due process holdings of the federal courts during that period requires no elaboration, and it is not unusual for history to repeat itself.

*192Quite apart from this possibility, we risk a progressive impairment of the effectiveness of the federal courts if their limited resources are diverted increasingly from their historic role to the resolution of public-interest suits brought by litigants who cannot distinguish themselves from all taxpayers or all citizens. The irreplaceable value of the power articulated by Mr. Chief Justice Marshall lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajori-tarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.

The considerations outlined above underlie, I believe, the traditional hostility of the Court to federal taxpayer or citizen standing where the plaintiff has nothing at stake other than his interest as a taxpayer or citizen. It merits noting how often and how unequivocally the Court has expressed its antipathy to efforts to convert the Judiciary into an open forum for the resolution of political or ideological disputes about the performance of government. See, e. g., Ex parte Levitt, 302 U. S. 633, 634 (1937);11 Frothingham v. Mellon, 262 U. S. 447, 488 (1923);12 Fairchild v. Hughes, 258 U. S. 126, 129 *193(1922);13 Tyler v. Judges of Court of Registration, 179 U. S. 405, 406 (1900).14 These holdings and declarations reflect a wise view of the need for judicial restraint if we are to preserve the Judiciary as the branch “least dangerous to the political rights of the Constitution . . . Federalist No. 78, p. 483 (Lodge ed. 1908).

To be sure standing barriers have been substantially lowered in the last three decades. The Court has confirmed the power of Congress to open the federal courts to representatives of the public interest through specific statutory grants of standing. E. g., FCC v. Sanders Bros. Radio Station, 309 U. S. 470 (1940) ; Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4 (1942) ; Flast v. Cohen, 392 U. S., at 130-133 (Harlan, J., dissenting) ; Traficante v. Metropolitan Life Insurance Co., 409 U. S. 205, 212 (1972) (White, J., concurring). Even in the absence of specific statutory grants of standing, economic interests that at one time would not have conferred standing have been re-examined and found sufficient. Compare, e. g., Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150 (1970), and *194 Barlow v. Collins, 397 U. S. 159 (1970), with, e. g., Tennessee Electric Power Co. v. TVA, 306 U. S. 118 (1939), and Alabama Power Co. v. Ickes, 302 U. S. 464 (1938). See also Investment Co. Institute v. Camp, 401 U. S. 617 (1971); Arnold Tours, Inc. v. Camp, 400 U. S. 45 (1970). Noneconomic interests have been recognized. E. g., Baker v. Carr, 369 U. S. 186 (1962); Sierra Club v. Morton, 405 U. S. 727 (1972). A stringently limited exception for federal taxpayer standing has been created. Flast v. Cohen, supra. The concept of particularized injury has been dramatically diluted. E. g., United States v. SCRAP, 412 U. S. 669 (1973).

The revolution in standing doctrine that has occurred, particularly in the 12 years since Baker v. Carr, supra, has not meant, however, that standing barriers have disappeared altogether. As the Court noted in Sierra Club, “broadening the categories of injury that maybe alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.” 405 U. S., at 738. Accord, Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973).15 Indeed, despite the diminution of standing requirements in the last decade, the Court has not broken with the traditional requirement that, in the absence of a specific statutory grant of the right of review, a plaintiff must allege some particularized injury that sets him apart from the man on the street.16

*195I recognize that the Court’s allegiance to a requirement of particularized injury has on occasion required a reading of the concept that threatens to transform it beyond recognition. E. g., Baker v. Carr, supra; Flast v. Cohen, supra,17 But despite such occasional digressions, the requirement remains, and I think it does so for the reasons outlined above. In recognition of those considerations, we should refuse to go the last mile toward abolition of standing requirements that is implicit in broadening the “precarious opening” for federal taxpayers created by Flast, see 392 U. S., at 116 (Fortas, J., concurring), or in allowing a citizen qua citizen to invoke the power of the federal courts to negative unconstitutional acts of the Federal Government.

*196In sum, I believe we should limit the expansion of federal taxpayer and citizen standing in the absence of specific statutory authorization to an outer boundary drawn by the remits in Flast and Baker v. Carr. I think we should face up to the fact that all such suits are an effort “to employ a federal court as a forum in which to air . . . generalized grievances about the conduct of government or the allocation of power in the Federal System.” Flast v. Cohen, 392 U. S., at 106. The Court should explicitly reaffirm traditional prudential barriers against such public actions.18 My reasons for this view are rooted in respect for democratic processes and in the conviction that “[t]he powers of the federal judiciary *197will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of representative government.” Id., at 131 (Harlan, J., dissenting).

See also, e. g., Barlow v. Collins, 397 U. S. 159, 170-171 (1970) (Brennan, J., dissenting); Scott, Standing in the Supreme Court — A Functional Analysis, 86 Harv. L. Rev. 645, 658 (1973). The test announced in Baker and reiterated in Flast reflects how far the Court has moved in recent years in relaxing standing restraints. In Frothingham v. Mellon, 262 U.S. 447 (1923),for example, the Court declared that to permit a federal taxpayer suit “would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.” Id., at 489. And in denying standing to citizens and taxpayers seeking to bring suit to invalidate the Nineteenth Amendment in Fairchild v. Hughes, 258 U. S. 126 (1922), the Court stated:

“It is frankly a proceeding to have the Nineteenth Amendment declared void. In form it is a bill in equity; but it is not a case *182within the meaning of § 2 of Article III of the Constitution . . . .” Id., at 129.

But see Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 18, 20-21 (1942) (Douglas, J., dissenting). MR. Justice Brennan’s *185view, see post, at 237-238, that federal taxpayers are able to meet the “injury-in-fact” test that he articulated in Barlow v. Collins, 397 U. S., at 167-173, renders his position, for me at least, indistinguishable from that of Mr. Justice Douglas. Furthermore, I think that MR. Justice BkeNNAN has modified the standard he identified in Barlow by finding it satisfied in this case. It is a considerable step from the “distinctive and discriminating” economic injury alleged in Barlow, see id., at 172 n. 5, to the generalized interest of a taxpayer or citizen, as Mr. Justice Bebnnan appears to have acknowledged in his opinion in that case. Ibid.

Such an approach might well lead to problems of classification that would divert attention from the fundamental question of whether public actions are an appropriate matter for the federal courts. And, if distinctions between constitutional prohibitions and duties are to make a difference, there are certain to be some incongruous rules as to when such a public action maybe brought. This is apparent when one attempts to categorize the provisions of the Constitution primarily addressed at limiting the powers of the National Government — Art. I, § 9, and the Bill of Rights. All of the clauses of Art. I, § 9, except the seventh, which is at issue here, are stated as prohibitions. In fact the seventh clause is in part a prohibition against expenditures of public money in the absence of appropriations and in part an affirmative duty to publish periodically an account of such expenditures. The rationale for according special treatment solely to one-half of Art. I, § 9, cl. 7, and not to the other and not to the remaining clauses of Art. I, § 9, is not immediately apparent.

The same observation may be made of the Bill of Rights. The First Amendment through the Fifth, the Eighth, and possibly the Tenth are stated in terms of prohibitions. The Sixth Amendment and portions of the Seventh can be classified as duties. The Ninth defies classification. Rational rules for standing in public actions are, it seems to me, unlikely to emerge from an effort to make the format of a particular Amendment determinative.

Randolph's Resolutions, also referred to as the Virginia Plan, served as the “matrix'' for the document ultimately developed by the Constitutional Convention. See 1 J. Goebel, History of the Supreme Court of the United States 204 (1971). The eighth of Mr. Randolph’s 15 proposals was as follows:

“8. Resd. that the Executive and a convenient number of the National Judiciary, ought to compose a council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said *190Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by [an unspecified number] of the members of each branch.” 1 M. Farrand, The Records of the Federal Convention of 1787, p. 21 (1911) (hereafter Farrand).

See 1 J. Elliot, Debates on the Federal Constitution 144 (1836). Madison ably supported the proposal, but it was defeated on three separate votes. 1 Farrand 140, 2 Farrand 71-72, 298.

The analogy between the proposed Council of Revision and unrestricted taxpayer or citizen standing is not complete. For example, Randolph proposed to link the Judiciary directly to the Executive, in large measure to enhance the Executive and to protect it from legislative encroachments. See, e. g., 1 Farrand 108, 138; 2 Farrand 74, 79. Thus, reliance on the Framers’ rejection of the Council must be approached with caution. Nevertheless, the arguments advanced at the Convention in support of and in opposition to the Council provide an interesting parallel to present contentions regarding unrestrained public actions. For example, Madison spoke of the “ good” that would “proceed from the perspicuity, the conciseness, and the systematic character wch. the Code of laws wd. receive from the Judiciary talents.” 1 Farrand 139. He declared that the proposal would be useful “to restrain the Legislature from encroaching on the other co-ordinate Departments, or on the rights of the people at large; or from passing laws unwise in their principle, or incorrect in their form . . . ,” ibid., and that such a system would be “useful to the Community at large as an additional check” against unwise legislative measures. 2 Farrand 74. Those opposed to the proposal, including Gerry, Martin, and Rutledge, preferred to rely “on the Representatives of the people as the guardians of their Rights & interests.” Id., at 75. Judges were not presumed “to possess any peculiar knowledge of the mere policy of public measures . .. ,” id., at 73, or any “higher . . . degree” of knowledge of mankind and of “Legislative affairs . . . .” Id., at 76. It was "necessary that the Supreme Judiciary should have the confidence of the people . . . ,” id., at 76-77, and this would “soon be lost, if they are employed in the task of remonstrating *191agst. popular measures of the Legislature.” Id., at 77. Moreover, the "Judges ought never to give their opinion on a law till it comes before them.” Id., at 80.

The arguments adduced at the Convention in opposition to the Council of Revision ultimately prevailed. I believe that analogous arguments should guide us in refusing as a general matter to entertain public actions.

For example, as the Court noted in Sierra Club v. Morton, 405 *195 U. S. 727 (1972), “if any group with a bona fide ‘special interest’ could initiate . . . litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.” Id., at 739-740. The clear implication is that allowing “any individual citizen with [a] . . . bona fide special interest” to trigger federal court litigation is h result to be avoided. All standing cases, even the most recent ones, include references to the need for particularized injury or similar language. None of them as yet has equated the interest of a taxpayer or citizen, suing in that status alone, with the particularized interest that standing doctrine has traditionally demanded. To take that step, it appears to me, wpuld render the requirement of direct or immediate injury meaningless and would reduce the Court's consistent insistence on such an injury to mere talk.

The doctrine of standing has always reflected prudential as well as constitutional limitations. Indeed, it might be said that the correct reading of the Flast nexus test is as a prudential limit, given the Baker v. Carr definition of the constitutional bare minima. The same is undoubtedly true of, for example, the second test created in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 160, 153 (1970) — "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” See also Barrows v. Jackson, 346 U. S. 249, 255 (1953): “Apart from the [constitutional] requirement, this Court has developed a complementary rule of self-restraint for its own governance . . . which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others.” See Flast v. Cohen, 392 U. S., at 120, 130-133 (Harlan, J., dissenting). Whatever may have been the Court's initial perception of the intent of the Framers, see n. 1, supra, it is now settled that such rules of self-restraint are not required by Art. Ill but are “judicially created overlays that Congress may strip away. . . .” G. Gunther & N. Dowling, Cases and Materials on Constitutional Law 106 (8th ed. 1970). But where Congress does so, my objections to public actions are ameliorated by the congressional mandate. Specific statutory grants of standing in such cases alleviate the conditions that make “judicial forbearance the part of wisdom.” Flast, supra, at 132 (Harlan, J., dissenting) (footnote omitted).

Mr. Justice Douglas,

dissenting.

I would affirm the judgment of the Court of Appeals on the “standing” issue. My views are expressed in my dissent to the Schlesinger case, post, p. 229, decided this day. There a citizen and taxpayer raised a question concerning the Incompatibility Clause of the Constitution which bars a person from “holding any Office under the United States” if he is a Member of Congress, Art. I, § 6, cl. 2. That action was designed to bring the Pentagon into line with that constitutional requirement by requiring it to drop “reservists” who were Members of Congress.

The present action involves Art. I, § 9, cl. 7, of the Constitution which provides:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

We held in Flast v. Cohen, 392 U. S. 83, that a taxpayer had “standing” to challenge the constitutionality of taxes raised to finance the establishment of a religion contrary to the command of the First and Fourteenth Amendments. A taxpayer making such outlays, we held, had sufficient “personal stake” in the controversy, Baker v. Carr, 369 U. S. 186, 204, to give the case the “concrete adverseness” necessary for the resolution of constitutional issues. Ibid.

Respondent in the present case claims that he has *198a right to “a regular statement and account” of receipts and expenditures of public moneys for the Central Intelligence Agency. As the Court of Appeals noted, Flast recognizes “standing” of a taxpayer to challenge appropriations made in the face of a constitutional prohibition, and it logically asks, “how can a taxpayer make that challenge unless he knows how the money is being spent?” 465 F. 2d 844, 853.

History shows that the curse of government is not always venality; secrecy is one of the most tempting coverups to save regimes from criticism. As the Court of Appeals said:

“The Framers of the Constitution deemed fiscal information essential if the electorate was to exercise any control over its representatives and meet their new responsibilities as citizens of the Republic; and they mandated publication, although stated in general terms, of the Government’s receipts and expenditures. Whatever the ultimate scope and extent of that obligation, its elimination generates a sufficient, adverse interest in a taxpayer.” Ibid. (Footnote omitted.)

Whatever may be the merits of the underlying claim, it seems clear that the taxpayer in the present case is not making a generalized complaint about the operation of Government. He does not even challenge the constitutionality of the Central Intelligence Agency Act. He only wants to know the amount of tax money exacted from him that goes into CIA activities. Secrecy of the Government acquires new sanctity when his claim is denied. Secrecy has, of course, some constitutional sanction. Article I, § 5, cl. 3, provides that “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy . . . .”

*199But the difference was great when it came to an accounting of public money. Secrecy was the evil at which Art. I, § 9, cl. 7, was aimed. At the Convention, Mason took the initiative in moving for an annual account of public expenditures. 2 M. Farrand, The Records of the Federal Convention of 1787, p. 618 (1911). Madison suggested it be “from time to time,” id., at 618-619, because it was thought that requiring publication at fixed intervals might lead to no publication at all. Indeed under the Articles of Confederation “[a] punctual compliance being often impossible, the practice ha[d] ceased altogether.” Id., at 619.

During the Maryland debates on the Constitution, McHenry said: “[T]he People who give their Money ought to know in what manner it is expended,” 3 Far-rand, supra, at 150. In the Virginia debates Mason expressed his belief that while some matters might require secrecy (e. g., ongoing diplomatic negotiations and military operations) “he did not conceive that the receipts and expenditures of the public money ought ever to be concealed. The people, he affirmed, had a right to know the expenditures of their money.” 3 J. Elliot, Debates on the Federal Constitution 459 (1836). Lee said that the clause “must be supposed to mean, in the common acceptation of language, short, convenient periods” and that those “who would neglect this provision would disobey the most pointed directions.” Ibid. Madison added that an accounting from “time to time” insured that the accounts would be “more full and satisfactory to the public, and would be sufficiently frequent.” Id., at 460. Madison thought “this provision went farther than the constitution of any state in the Union, or perhaps in the world.” Ibid. In New York, Livingston said: “Will not the representatives . . . consider it as essential to their popularity, to gratify their con*200stituents with full and frequent statements of the public accounts? There can be no doubt of it,” 2 Elliot, swpra, at 347.*

From the history of the clause it is apparent that the Framers inserted it in the Constitution to give the public knowledge of the way public funds are expended. No one has a greater “personal stake” in policing this protective measure than a taxpayer. Indeed, if a taxpayer may not raise the question, who may do so? The Court states that discretion to release information is in the first instance “committed to the surveillance of Congress,” and that the right of the citizenry to information under Art. I, § 9, cl. 7, cannot be enforced directly, but only through the “ [s]low, cumbersome, and unresponsive” electoral process. One has only to read constitutional history to realize that statement would shock Mason and Madison. Congress of course has discretion; but to say that it has the power to read the clause out of the Consti*201tution when it comes to one or two or three agencies is astounding. That is the bare-bones issue in the present case. Does Art. I, § 9, cl. 7, of the Constitution permit Congress to withhold “a regular Statement and Account” respecting any agency it chooses? Respecting all federal agencies? What purpose, what function is the clause to perform under the Court’s construction? The electoral process already permits the removal of legislators for any reason. Allowing their removal at the polls for failure to comply with Art. I, § 9, cl. 7, effectively reduces that clause to a nullity, giving it no purpose at all.

The sovereign in this Nation is the people, not the bureaucracy. The statement of accounts of public expenditures goes to the heart of the problem of sovereignty. If taxpayers may not ask that rudimentary question, their sovereignty becomes an empty symbol and a secret bureaucracy is allowed to run our affairs.

The resolution of that issue has not been entrusted to one of the other coordinate branches of government— the test of the “political question” under Baker v. Carr, 369 U. S., at 217. The question is “political” if there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department,” ibid. The mandate runs to the Congress and to the agencies it creates to make “a regular Statement and Account of the Receipts and Expenditures of all public Money.” The beneficiary — as is abundantly clear from the constitutional history — is the public. The public cannot intelligently know how to exercise the franchise unless it has a basic knowledge concerning at least the generality of the accounts under every head of government. No greater crisis in confidence can be generated than today’s decision. Its consequences are grave because it relegates to secrecy vast operations of government and keeps the *202public from knowing what secret plans concerning this Nation or other nations are afoot. The fact that the result is serious does not, of course, make the issue “justiciable.” But resolutions of any doubts or ambiguities should be toward protecting an individual’s stake in the integrity of constitutional guarantees rather than turning him away without even a chance to be heard.

I would affirm the judgment below.

Livingston used the proposed Art. I, § 9, cl. 7, to combat the idea that the new Congress would be corrupt. He said in part: “You will give up to your state legislatures everything dear and valuable; but you will give no power to Congress, because it may be abused; you will give them no revenue, because the public treasures may be squandered. But do you not see here a capital check? Congress are to publish, from time to time, an account of their receipts and expenditures. These may be compared together; and if the former, year after year, exceed the latter, the corruption will be detected, and the people may use the constitutional mode of redress. The gentleman admits that corruption will not take place immediately: its operations can only be conducted by a long series and a steady system of measures. These measures will be easily defeated, even if the people are unapprized of them. They will be defeated by that continual change of members, which naturally takes place in free governments, arising from the disaffection and inconstancy of the people. A changeable assembly will be entirely incapable of conducting a system of mischief; they will meet with obstacles and embarrassments on every side.” 2 Elliot, supra, at 345-346.

Mr. Justice Stewart,

with whom Mr. Justice Marshall joins,

dissenting.

The Court’s decisions in Flast v. Cohen, 392 U. S. 83 (1968), and Frothingham v. Mellon, 262 U. S. 447 (1923), throw very little light on the question at issue in this case. For, unlike the plaintiffs in those cases, Richardson did not bring this action asking a court to invalidate a federal statute on the ground that it was beyond the delegated power of Congress to enact or that it contravened some constitutional prohibition. Richardson’s claim is of an entirely different order. It is that Art. I, § 9, cl. 7, of the Constitution, the Statement and Account Clause, gives him a right to receive, and imposes on the Government a corresponding affirmative duty to supply, a periodic report of the receipts and expenditures “of all public Money.” 1 In support of his standing to litigate this claim, he has asserted his status both as a taxpayer and as a citizen-voter. Whether the Statement and Account Clause imposes upon the Government an affirmative duty to supply the information requested and whether that duty runs to every taxpayer or citizen are questions that go to the substantive merits of this liti*203gation. Those questions are not now before us, but I think that the Court is quite wrong in holding that the respondent was without standing to raise them in the trial court.

Seeking a determination that the Government owes him a duty to supply the information he has requested, the respondent is in the position of a traditional Hohfeldian plaintiff.2 He contends that the Statement and Account Clause gives him a right to receive the information and burdens the Government with a correlative duty to supply it. Courts of law exist for the resolution of such right-duty disputes. When a party is seeking a judicial determination that a defendant owes him an affirmative duty, it seems clear to me that he has standing to litigate the issue of the existence vel non of this duty once he shows that the defendant has declined to honor his claim. If the duty in question involved the payment of a sum of money, I suppose that all would agree that a plaintiff asserting the duty would have standing to litigate the issue of his entitlement to the money upon a showing that he had not been paid. I see no reason for a different result when the defendant is a Government official and the asserted duty relates not to the payment of money, but to the disclosure of items of information.

When the duty relates to a very particularized and explicit performance by the asserted obligor, such as the payment of money or the rendition of specific items of information, there is no necessity to resort to any extended analysis, such as the Flast nexus tests, in order to find standing in the obligee. Under such circumstances, the duty itself, running as it does from the defendant to the *204plaintiff, provides fully adequate assurance that the plaintiff is not seeking to “employ a federal court as a forum in which to air his generalized grievances about the conduct of government or the allocation of power in the Federal System.” Flast, supra, at 106. If such a duty arose in the context of a contract between private parties, no one would suggest that the obligee should be barred from the courts. It seems to me that when the asserted duty is, as here, as particularized, palpable, and explicit as those which courts regularly recognize in private contexts, it should make no difference that the obligor is the Government and the duty is embodied in our organic law. Certainly after United States v. SCRAP, 412 U. S. 669 (1973), it does not matter that those to whom the duty is owed may be many. “ [S] tanding is not to be denied simply because many people suffer the same injury.” Id., at 687.

For example, the Freedom of Information Act creates a private cause of action for the benefit of persons who have requested certain records from a public agency and whose request has been denied. 5 U. S. C. § 552 (a) (3). The statute requires nothing more than a request and the denial of that request as a predicate to a suit in the district court. The provision purports to create a duty in the Government agency involved to make those records covered by the statute available to “any person.” Correspondingly, it confers a right on “any person” to receive those records, subject to published regulations regarding time, place, fees, and procedure. The analogy, of course, is clear. If the Court is correct in this case in holding that Richardson lacks standing under Art. Ill to litigate his claim that the Statement and Account Clause imposes an affirmative duty that runs in his favor, it would follow that a person whose request under 5 U. S. C. § 552 has been denied would similarly lack standing under Art. Ill de*205spite the clear intent of Congress to confer a right of action to compel production of the information.

The issue in Flast and its predecessor, Frothingham, supra, related solely to the standing of a federal taxpayer to challenge allegedly unconstitutional exercises of the taxing and spending power. The question in those cases was under what circumstances a federal taxpayer whose interest stemmed solely from the taxes he paid to the Treasury “[would] be deemed to have the personal stake and interest that impart the necessary concrete adverseness to such litigation so that standing can be conferred on the taxpayer qua taxpayer consistent with the constitutional limitations of Article III.” 392 U. S., at 101. But the “nexus” criteria developed in Flast were not intended as a litmus test to resolve all conceivable standing questions in the federal courts; they were no more than a response to the problem of taxpayer standing to challenge federal legislation enacted in the exercise of the taxing and spending power of Congress.

Richardson is not asserting that a taxing and spending program exceeds Congress’ delegated power or violates a constitutional limitation on such power. Indeed, the constitutional provision that underlies his claim does not purport to limit the power of the Federal Government in any respect, but, according to Richardson, simply imposes an affirmative duty on the Government with respect to all taxpayers or citizen-voters of the Republic. Thus, the nexus analysis of Flast is simply not relevant to the standing question raised in this case.

The Court also seems to say that this case is not justiciable because it involves a political question. Ante, at 179. This is an issue that is not before us. The “Question Presented” in the Government’s petition for certiorari was the respondent’s “standing to challenge the provisions of the Central Intelligence Agency *206Act which provide that appropriations to and expenditures by that Agency shall not be made public, on the ground that such secrecy contravenes Article I, section 9, clause 7 of the Constitution.” 3 The issue of the justi-ciability of the respondent’s claim was thus not presented in the petition for certiorari, and it was not argued in the briefs.4 At oral argument, in response to questions about whether the Government was asking this Court to rule on the justiciability of the respondent’s claim, the following colloquy occurred between the Court and the Solicitor General:

“MR. BORK: ... I think the Court of Appeals was correct that the political question issue could be resolved much more effectively if we were in the full merits of the case than we can at this stage. I think standing is all that really can be effectively discussed in the posture of the case now.

“Q: . . . [I] f we disagree with you on standing, the Government agrees then that the case should go back to the District Court?

“MR. BORK: I think that is correct.”

*207The Solicitor General’s answer was clearly right. “[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justi-ciable.” Flast, supra, at 99-100.

On the merits, I presume that the Government’s position would be that the Statement and Account Clause of the Constitution does not impose an affirmative duty upon it; that any such duty does not in any event run to Richardson; that any such duty is subject to legislative qualifications, one of which is applicable here; and that the question involved is political and thus not justiciable. Richardson might ultimately be thrown out of court on any one of these grounds, or some other. But to say that he might ultimately lose his lawsuit certainly does not mean that he had no standing to bring it.

For the reasons expressed, I believe that Richardson had standing to bring this action. Accordingly, I would affirm the judgment of the Court of Appeals.

3.5.2.17 Lexmark Int’l Inc. v. Static Ctrl. Components, Inc., 134 S. Ct. 1377 (2014) 3.5.2.17 Lexmark Int’l Inc. v. Static Ctrl. Components, Inc., 134 S. Ct. 1377 (2014)

[excerpt]

572 U.S. 118
Supreme Court of the United States

Lexmark Intern., Inc. v. Static Control Components, Inc.March 25, 2014

Syllabus

Petitioner Lexmark sells the only style of toner cartridges that work with the company's laser printers, but “remanufacturers” acquire and refurbish used Lexmark cartridges to sell in competition with Lexmark's own new and refurbished ones. Lexmark's “Prebate” program gives customers a discount on new cartridges if they agree to return empty cartridges to the company. Each Prebate cartridge has a microchip that disables the empty cartridge unless Lexmark replaces the chip. Respondent Static Control, a maker and seller of components for the remanufacture of Lexmark cartridges, developed a microchip that mimicked Lexmark's. Lexmark sued for copyright infringement, but Static Control counterclaimed, alleging that Lexmark engaged in false or misleading advertising in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and that its misrepresentations had caused Static Control lost sales and damage to its business reputation. The District Court held that Static Control lacked “prudential standing” to bring the Lanham Act claim, applying a multifactor balancing test the court attributed to Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723. In reversing, the Sixth Circuit relied on the Second Circuit's “reasonable interest” test.

Held : Static Control has adequately pleaded the elements of a Lanham Act cause of action for false advertising. Pp. 1385 – 1395.

(a) The question here is whether Static Control falls within the class of plaintiffs that Congress authorized to sue under § 1125(a). To decide that question, this Court must determine the provision's meaning, using traditional principles of statutory interpretation. It is misleading to label this a “prudential standing” question. Lexmark bases its “prudential **1382 standing” arguments on Associated General Contractors, but that case rested on statutory considerations: The Court sought to “ascertain,” as a statutory-interpretation matter, the “scope of the private remedy created by” Congress in § 4 of the Clayton Act, and the “class of persons who [could] maintain a private damages action under” that legislatively conferred cause of action, 459 U.S., at 529, 532, 103 S.Ct. 897. And while this Court may have placed the “zone of interests” test that Static Control relies on under the “prudential” rubric in the past, see, e.g., Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98, it does not belong there any more than Associated General Contractors does. Rather, whether a plaintiff comes within the zone of interests requires the Court to determine, using traditional statutory-interpretation tools, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210.

(b) The § 1125(a) cause of action extends to plaintiffs who fall within the zone of interests protected by that statute and whose injury was proximately caused by a violation of that statute. Pp. 1388 – 1393.

(1) A statutory cause of action is presumed to extend only to plaintiffs whose interests “fall within the zone of interests protected by the law invoked.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556. “[T]he breadth of [that] zone ... varies according to the provisions of law at issue.” Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281. The Lanham Act includes a detailed statement of its purposes, including, as relevant here, “protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition,” 15 U.S.C. § 1127; and “unfair competition” was understood at common law to be concerned with injuries to business reputation and present and future sales. Thus, to come within the zone of interests in a § 1125(a) false-advertising suit, a plaintiff must allege an injury to a commercial interest in reputation or sales.

(2) A statutory cause of action is also presumed to be limited to plaintiffs whose injuries are proximately caused by violations of the statute. See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268–270, 112 S.Ct. 1311, 117 L.Ed.2d 532. This requirement generally bars suits for alleged harm that is “too remote” from the defendant's unlawful conduct, such as when the harm is purely derivative of “misfortunes visited upon a third person by the defendant's acts.” Id., at 268–269, 112 S.Ct. 1311. In a sense, all commercial injuries from false advertising are derivative of those suffered by consumers deceived by the advertising. But since the Lanham Act authorizes suit only for commercial injuries, the intervening consumer-deception step is not fatal to the proximate-cause showing the statute requires. Cf. Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 656, 128 S.Ct. 2131, 170 L.Ed.2d 1012. Thus, a plaintiff suing under § 1125(a) ordinarily must show that its economic or reputational injury flows directly from the deception wrought by the defendant's advertising; and that occurs when deception of consumers causes them to withhold trade from the plaintiff.

(3) Direct application of the zone-of-interests test and the proximate-cause requirement supplies the relevant limits on who may sue under § 1125(a). These principles provide better guidance than the multifactor balancing test urged by Lexmark, the direct-competitor test, or the **1383 reasonable-interest test applied by the Sixth Circuit. Pp. 1391 – 1393.

(c) Under these principles, Static Control comes within the class of plaintiffs authorized to sue under § 1125(a). Its alleged injuries—lost sales and damage to its business reputation—fall within the zone of interests protected by the Act, and Static Control sufficiently alleged that its injuries were proximately caused by Lexmark's misrepresentations.

***

[1] “Prudential Standing”

[2] The parties' briefs treat the question on which we granted certiorari as one of “prudential standing.” Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.

[3] From Article III's limitation of the judicial power to resolving “Cases” and “Controversies,” and the separation-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the “irreducible constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The plaintiff must have suffered or be imminently threatened with a concrete and particularized “injury in fact” that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision. Lexmark does not deny that Static Control's allegations of lost sales and damage to its business reputation give it standing under Article III to press its false-advertising claim, and we are satisfied that they do.

[4] Although Static Control's claim thus presents a case or controversy that is properly within federal courts' Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control's claim on grounds that are “prudential,” rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that “a federal court's ‘obligation’ to hear and decide” cases within its jurisdiction “is ‘virtually unflagging.’ ” Sprint Communications, Inc. v. Jacobs, 571 U.S. ––––, ––––, 134 S.Ct. 584, 591 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). In recent decades, however, we have adverted to a “prudential” branch of standing, a doctrine not derived from Article III and “not exhaustively defined” but encompassing (we have said) at least three broad principles: “ ‘the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.’ ” Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).

[5] Lexmark bases its “prudential standing” arguments chiefly on Associated General Contractors, but we did not describe our analysis in that case in those terms. Rather, we sought to “ascertain,” as a matter of statutory interpretation, the “scope of the private remedy created by” Congress in § 4 of the Clayton Act, and the “class of persons who [could] maintain a private damages action under” that legislatively conferred cause of action. 459 U.S., at 529, 532. We held that the statute limited the class to plaintiffs whose injuries were proximately caused by a defendant's antitrust violations. Id., at 532–533. Later decisions confirm that Associated General Contractors rested on statutory, not “prudential,” considerations. See, e.g., Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265–268 (1992) (relying on Associated General Contractors in finding a proximate-cause requirement in the cause of action created by the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c)); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 456 (2006) (affirming that Holmes “relied on a careful interpretation of § 1964(c)”). Lexmark's arguments thus do not deserve the “prudential” label.

[6] Static Control, on the other hand, argues that we should measure its “prudential standing” by using the zone-of-interests test. Although we admittedly have placed that test under the “prudential” rubric in the past, see, e.g., Elk Grove, supra, at 12, 124 S.Ct. 2301, it does not belong there any more than Associated General Contractors does. Whether a plaintiff comes within “the ‘zone of interests' ” is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2 (1998); Clarke v. Securities Industry Assn., 479 U.S. 388, 394–395 (1987); Holmes, supra, at 288 (SCALIA, J., concurring in judgment). As Judge Silberman of the D.C. Circuit recently observed, “ ‘prudential standing’ is a misnomer” as applied to the zone-of-interests analysis, which asks whether “this particular class of persons ha[s] a right to sue under this substantive statute.” Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675–676 (2013) (concurring opinion).[FN^3]

[7] In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under § 1125(a). In other words, we ask whether Static Control has a cause of action under the statute. That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control's suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “ prudence” dictates.

Footnote 3

The zone-of-interests test is not the only concept that we have previously classified as an aspect of “prudential standing” but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances—i.e., suits “claiming only harm to [the plaintiff's] and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–574 (1992). While we have at times grounded our reluctance to entertain such suits in the “counsels of prudence” (albeit counsels “close [ly] relat[ed] to the policies reflected in” Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475 (1982), we have since held that such suits do not present constitutional “cases” or “controversies.” See, e.g., Lance v. Coffman, 549 U.S. 437, 439 (2007) (per curiam ); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344–346 (2006); Defenders of Wildlife,supra, at 573–574. They are barred for constitutional reasons, not “prudential” ones. The limitations on third-party standing are harder to classify; we have observed that third-party standing is “ ‘closely related to the question whether a person in the litigant's position will have a right of action on the claim,’ ” Department of Labor v. Triplett, 494 U.S. 715, 721, n. * *, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (quoting Warth v. Seldin, 422 U.S. 490, 500, n. 12, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)), but most of our cases have not framed the inquiry in that way. See, e.g., Kowalski v. Tesmer, 543 U.S. 125, 128–129 (2004) (suggesting it is an element of “prudential standing”). This case does not present any issue of third-party standing, and consideration of that doctrine's proper place in the standing firmament can await another day.

3.5.2.18 Arizona State Legislature v. Arizona Redistricting Comm’n, 135 S.Ct. 46 (2014) 3.5.2.18 Arizona State Legislature v. Arizona Redistricting Comm’n, 135 S.Ct. 46 (2014)

135 S.Ct. 2652
Supreme Court of the United States

Arizona State Legislature v. Arizona Redistricting Comm’nJune 29, 2015

GINSBURG, J., delivered the opinion of the Court, in which KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion, in which THOMAS, J., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

[1] This case concerns an endeavor by Arizona voters to address the problem of partisan gerrymandering—the drawing of legislative district lines to subordinate adherents of one political party and entrench a rival party in power. “[P]artisan gerrymanders,” this Court has recognized, “[are incompatible] with democratic principles.” Vieth v. Jubelirer, 541 U. S. 267, 292 (2004) (plurality opinion). Even so, the Court in Vieth did not grant relief on the plaintiffs’ partisan gerrymander claim. The plurality held the matter nonjusticiable. JUSTICE KENNEDY found no standard workable in that case, but left open the possibility that a suitable standard might be identified in later litigation.

[2] In 2000, Arizona voters adopted an initiative, Proposition 106, aimed at “ending the practice of gerrymandering and improving voter and candidate participation in elections.” Proposition 106 amended Arizona’s Constitution to remove redistricting authority from the Arizona Legislature and vest that authority in an independent commission, the Arizona Independent Redistricting Commission(AIRC or Commission). After the 2010 census, as after the 2000 census, the AIRC adopted redistricting maps for congressional as well as state legislative districts.

[3] The Arizona Legislature challenged the map the Commission adopted in January 2012 for congressional districts. Recognizing that the voters could control redistricting for state legislators, the Arizona Legislature sued the AIRC in federal court seeking a declaration that the Commission and its map for congressional districts violated the “Elections Clause” of the U. S. Constitution. That Clause, critical to the resolution of this case, provides:

[4] “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations. . . .” Art. I, §4, cl. 1.

[5] The Arizona Legislature’s complaint alleged that “[t]he word `Legislature’ in the Elections Clause means [specifically and only] the representative body which makes the laws of the people,”; so read, the Legislature urges, the Clause precludes resort to an independent commission, created by initiative, to accomplish redistricting. The AIRC responded that, for Elections Clause purposes, “the Legislature” is not confined to the elected representatives; rather, the term encompasses all legislative authority conferred by the State Constitution, including initiatives adopted by the people themselves.

[6] A three-judge District Court held, unanimously, that the Arizona Legislature had standing to sue; dividing two to one, the Court rejected the Legislature’s complaint on the merits. We postponed jurisdiction and instructed the parties to address two questions: (1) Does the Arizona Legislature have standing to bring this suit? (2) Do the Elections Clause of the United States Constitution and 2 U. S. C. §2a(c) permit Arizona’s use of a commission to adopt congressional districts?

[7] We now affirm the District Court’s judgment. We hold, first, that the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of Proposition 106. Next, we hold that lawmaking power in Arizona includes the initiative process, and that both §2a(c) and the Elections Clause permit use of the AIRC in congressional districting in the same way the Commission is used in districting for Arizona’s own Legislature.

* * *

[8] We turn first to the threshold question: Does the Arizona Legislature have standing to bring this suit? Trained on “whether the plaintiff is [a] proper party to bring [a particular lawsuit,]” standing is “[o]ne element” of the Constitution’s case-or-controversy limitation on federal judicial authority, expressed in Article III of the Constitution. Raines v. Byrd, 521 U. S. 811, 818 (1997). “To qualify as a party with standing to litigate,” the Arizona Legislature “must show, first and foremost,” injury in the form of “`invasion of a legally protected interest’ that is `concrete and particularized’ and `actual or imminent.'” Arizonans for Official English v. Arizona,520 U. S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992)). The Legislature’s injury also must be “fairly traceable to the challenged action” and “redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA (2013).

[9] The Arizona Legislature maintains that the Elections Clause vests in it “primary responsibility” for redistricting. To exercise that responsibility, the Legislature urges, it must have at least the opportunity to engage (or decline to engage) in redistricting before the State may involve other actors in the redistricting process. Proposition 106, which gives the AIRC binding authority over redistricting, regardless of the Legislature’s action or inaction, strips the Legislature of its alleged prerogative to initiate redistricting. That asserted deprivation would be remedied by a court order enjoining the enforcement of Proposition 106. Although we conclude that the Arizona Legislature does not have the exclusive, constitutionally guarded role it asserts, one must not “confus[e] weakness on the merits with absence of Article III standing.”

[10] The AIRC argues that the Legislature’s alleged injury is insufficiently concrete to meet the standing requirement absent some “specific legislative act that would have taken effect but for Proposition 106.” The United States, as amicus curiae, urges that even more is needed: the Legislature’s injury will remain speculative, the United States contends, unless and until the Arizona Secretary of State refuses to implement a competing redistricting plan passed by the Legislature. In our view, the Arizona Legislature’s suit is not premature, nor is its alleged injury too “conjectural” or “hypothetical” to establish standing. Defenders of Wildlife, 504 U. S., at 560.

[11] Two prescriptions of Arizona’s Constitution would render the Legislature’s passage of a competing plan and submission of that plan to the Secretary of State unavailing. Indeed, those actions would directly and immediately conflict with the regime Arizona’s Constitution establishes. First, the Arizona Constitution instructs that the Legislature” shall not have the power to adopt any measure that supersedes [an initiative], in whole or in part, . . . unless the superseding measure furthers the purposes” of the initiative. Art. IV, pt. 1, §1(14). Any redistricting map passed by the Legislature in an effort to supersede the AIRC’s map surely would not “furthe[r] the purposes” of Proposition 106. Second, once the AIRC certifies its redistricting plan to the Secretary of State, Arizona’s Constitution requires the Secretary to implement that plan and no other. See Art. IV, pt. 2, §1(17). To establish standing, the Legislature need not violate the Arizona Constitution and show that the Secretary of State would similarly disregard the State’s fundamental instrument of government.

[12] Raines v. Byrd, 521 U. S. 811 (1997), does not aid AIRC’s argument that there is no standing here. In Raines, this Court held that six individual Members of Congress lacked standing to challenge the Line Item Veto Act. (holding specifically and only that “individual members of Congress [lack] Article III standing”). The Act, which gave the President authority to cancel certain spending and tax benefit measures after signing them into law, allegedly diluted the efficacy of the Congressmembers’ votes. The “institutional injury” at issue, we reasoned, scarcely zeroed in on any individual Member. “[W]idely dispersed,” the alleged injury “necessarily [impacted] all Members of Congress and both Houses . . . equally.” None of the plaintiffs, therefore, could tenably claim a “personal stake” in the suit.

[13] In concluding that the individual Members lacked standing, the Court “attach[ed] some importance to the fact that [the Raines plaintiffs had] not been authorized to represent their respective Houses of Congress.” “[I]ndeed,” the Court observed, “both houses actively oppose[d] their suit.” Having failed to prevail in their own Houses, the suitors could not repair to the Judiciary to complain. The Arizona Legislature, in contrast, is an institutional plaintiff asserting an institutional injury, and it commenced this action after authorizing votes in both of its chambers.

* * *

[14] Closer to the mark is this Court’s decision in Coleman v. Miller, 307 U. S. 433 (1939). There, plaintiffs were 20 (of 40) Kansas State Senators, whose votes “would have been sufficient to defeat [a] resolution ratifying [a] proposed [federal] constitutional amendment.” We held they had standing to challenge, as impermissible under Article V of the Federal Constitution, the State Lieutenant Governor’s tie-breaking vote for the amendment. Ibid. Coleman, as we later explained in Raines, stood “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Our conclusion that the Arizona Legislature has standing fits that bill. Proposition 106, together with the Arizona Constitution’s ban on efforts to undermine the purposes of an initiative, see supra, at 11, would “completely nullif[y]” any vote by the Legislature, now or “in the future,” purporting to adopt a redistricting plan. Raines, 521 U. S., at 823-824.

[15] This dispute, in short, “will be resolved . . . in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 472 (1982). Accordingly, we proceed to the merits.

III

* * *

[16] In sum, our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.

* * *

[17] In accord with the District Court, we hold that the Elections Clause permits the people of Arizona to provide for redistricting by independent commission. To restate the key question in this case, the issue centrally debated by the parties: Absent congressional authorization, does the Elections Clause preclude the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts? The history and purpose of the Clause weigh heavily against such preclusion, as does the animating principle of our Constitution that the people themselves are the originating source of all the powers of government.

* * *

CHIEF JUSTICE ROBERTS, with whom JUSTICE SCALIA, JUSTICE THOMAS, and JUSTICE ALITO join, dissenting. [On the Merits – can skip]

[1] Just over a century ago, Arizona became the second State in the Union to ratify the Seventeenth Amendment. That Amendment transferred power to choose United States Senators from “the Legislature” of each State, Art. I, §3, to “the people thereof.” The Amendment resulted from an arduous, decades-long campaign in which reformers across the country worked hard to garner approval from Congress and three-quarters of the States.

[2] What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”

[3] The Court’s position has no basis in the text, structure, or history of the Constitution, and it contradicts precedents from both Congress and this Court.

* * *

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.

[1] I do not believe that the question the Court answers is properly before us. Disputes between governmental branches or departments regarding the allocation of political power do not in my view constitute “cases” or “controversies” committed to our resolution by Art. III, §2, of the Constitution.

[2] What those who framed and ratified the Constitution had in mind when they entrusted the “judicial Power” to a separate and coequal branch of the Federal Government was the judicial power they were familiar with—that traditionally exercised by English and American courts. The “cases” and “controversies” that those courts entertained did not include suits between units of government regarding their legitimate powers. The job of the courts was, in Chief Justice Marshall’s words, “solely, to decide on the rights of individuals,” Marbury v. Madison, 1 Cranch 137, 170 (1803). Tocqueville considered this one reason the new democracy could safely confer upon courts the immense power to hold legislation unconstitutional:

[3] “[B]y leaving it to private interest to censure the law, and by intimately uniting the trial of the law with the trial of an individual, legislation is protected from wanton assaults and from the daily aggressions of party spirit. . . .

[4] “I am inclined to believe this practice of the American courts to be at once most favorable to liberty and to public order. If the judge could only attack the legislator only openly and directly, he would sometimes be afraid to oppose him; and at other times party spirit might encourage him to brave it at every turn. . . . But the American judge is brought into the political arena independently of his own will. He judges the law only because he is obliged to judge a case. The political question that he is called upon to resolve is connected with the interests of the parties, and he cannot refuse to decide it without a denial of justice.” A. de Tocqueville, Democracy in America 102-03 (P. Bradley ed. 1948).

[5] That doctrine of standing, that jurisdictional limitation upon our powers, does not have as its purpose (as the majority assumes) merely to assure that we will decide disputes in concrete factual contexts that enable “realistic appreciation of the consequences of judicial action.” To the contrary. “[T]he law of Art. III standing is built on a single basic idea—the idea of separation of powers.” Allen v.Wright, 468 U. S. 737, 752 (1984). It keeps us minding our own business.

[6] We consult history and judicial tradition to determine whether a given “`disput[e is] appropriately resolved through the judicial process.'” Lujan v. Defenders of Wildlife,504 U. S. 555, 560 (1992). What history and judicial tradition show is that courts do not resolve direct disputes between two political branches of the same government regarding their respective powers. Nearly every separation-of-powers case presents questions like the ones in this case. But we have never passed on a separation-of-powers question raised directly by a governmental subunit’s complaint. We have always resolved those questions in the context of a private lawsuit in which the claim or defense depends on the constitutional validity of action by one of the governmental subunits that has caused a private party concrete harm. That is why, for example, it took this Court over 50 years to rule upon the constitutionality of the Tenure of Office Act, passed in 1867. If the law of standing had been otherwise, “presumably President Wilson, or Presidents Grant and Cleveland before him, would . . . have had standing, and could have challenged the law preventing the removal of a Presidential appointee without the consent of Congress.” Raines v. Byrd, 521 U. S. 811, 828 (1997).

[8] We do not have to look far back in the United States Reports to find other separation-of-powers cases which, if the Arizona Legislature’s theory of standing is correct, took an awfully circuitous route to get here. In Zivotofsky v. Kerry, the President could have sued for an injunction against Congress’s attempted “direct usurpation” of his constitutionally-conferred authority to pronounce on foreign relations. Or in Wellness Int’l Network, Ltd. v. Sharif (2015), a Federal District Judge could have sought a declaratory judgment that a bankruptcy court’s adjudicating a Stern claim improperly usurped his constitutionally conferred authority to decide cases and controversies. Or in NLRB v. Noel Canning (2014), the Senate could have sued the President, claiming a direct usurpation of its prerogative to advise on and consent to Presidential appointments. Each of these cases involved the allocation of power to one or more branches of a government; and we surely would have dismissed suits arising in the hypothesized fashions.

[9] We have affirmatively rejected arguments for jurisdiction in cases like this one. For example, in Raines, 521 U. S., at 829-830, we refused to allow Members of Congress to challenge the Line Item Veto Act, which they claimed “`unconstitutionally expand[ed] the President’s power'” and “`alter[ed] the constitutional balance of powers between the Legislative and Executive Branches.'”

* * *

[10] The sole precedent the Court relies upon is Coleman v. Miller, 307 U. S. 433 (1939). Coleman can be distinguished from the present case as readily as it was distinguished in Raines. In Raines, the accurate-in-fact (but inconsequential-in-principle) distinction was that the Senators in Coleman had their votes nullified, whereas the Members of Congress claimed that their votes could merely be rendered ineffective by a Presidential line-item veto. Raines, supra, at 823-824. In the present case we could make the accurate-in-fact distinction that in Coleman individual legislators were found to have standing, whereas here it is the governmental body, the Arizona Legislature, that seeks to bring suit. But the reality is that the supposed holding of Coleman stands out like a sore thumb from the rest of our jurisprudence, which denies standing for intragovernmental disputes.

[11] Coleman was a peculiar case that may well stand for nothing. The opinion discussing and finding standing, and going on to affirm the Kansas Supreme Court, was written by Chief Justice Hughes and announced by Justice Stone. Justice Frankfurter, joined by three other Justices, held there was no standing, and would have dismissed the petition (leaving the judgment of the Kansas Supreme Court in place). Justice Butler, joined by Justice McReynolds, dissented (neither joining Hughes’s opinion nor separately discussing standing) and would have reversed the Kansas Supreme Court.

[12] That adds up to two votes to affirm on the merits, two to reverse on the merits (without discussing standing) and four to dismiss for lack of standing. Justice Stanley Reed, who was on the Court and apparently participated in the case, is not mentioned in any of the opinions recorded in the United States Reports. So, in order to find Coleman a binding precedent on standing, rather than a 4-to-4 standoff, one must assume that Justice Reed voted with Hughes. There is some reason to make that assumption: The four Justices rejecting standing went on to discuss the merits, because “the ruling of the Court just announced removes from the case the question of petitioners’ standing to sue.” . But then again, if nine Justices participated, how could it be that on one of the two issues in the case the Court was “equally divided and therefore . . . expresse[d] no opinion”?

[13] A pretty shaky foundation for a significant precedential ruling. Besides that, the two dissenters’ mere assumption of standing—neither saying anything about the subject nor joining Hughes’s opinion on the point—produces (if you assume Reed joined Hughes) a majority for standing but no majority opinion explaining why. And even under the most generous assumptions, since the Court’s judgment on the issue it resolved rested on the ground that that issue presented a political question—which is itself a rejection of jurisdiction, Zivotofsky v. Clinton (2012). Coleman‘s discussion of the additional jurisdictional issue of standing was quite superfluous and arguably nothing but dictum. The peculiar decision in Coleman should be charitably ignored.

* * *

[14] It seems to me utterly implausible that the Framers wanted federal courts limited to traditional judicial cases only when they were pronouncing upon the rights of Congress and the President, and not when they were treading upon the powers of state legislatures and executives. Quite to the contrary, I think they would be all the more averse to unprecedented judicial meddling by federal courts with the branches of their state governments.

[15] I would dismiss this case for want of jurisdiction.

3.5.2.19 Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1345 (2019) 3.5.2.19 Virginia House of Delegates v. Bethune-Hill, 139 S.Ct. 1345 (2019)

139 S.Ct. 1945
Supreme Court of the United States

Virginia House of Delegates v. Bethune-HillJune 17, 2019

Justice GINSBURG delivered the opinion of the Court.

[1] The Court resolves in this opinion a question of standing to appeal. In 2011, after the 2010 census, Virginia redrew legislative districts for the State's Senate and House of Delegates. Voters in 12 of the impacted House districts sued two Virginia state agencies and four election officials (collectively, State Defendants) charging that the redrawn districts were racially gerrymandered in violation of the Fourteenth Amendment's Equal Protection Clause. The Virginia House of Delegates and its Speaker (collectively, the House) intervened as defendants and carried the laboring oar in urging the constitutionality of the challenged districts at a bench trial, see Bethune-Hill v. Virginia State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015), on appeal to this Court, see Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. ––––, 137 S.Ct. 788, 197 L.Ed.2d 85 (2017), and at a second bench trial. In June 2018, after the second bench trial, a three-judge District Court in the Eastern District of Virginia, dividing 2 to 1, held that in 11 of the districts “the [S]tate ha[d] [unconstitutionally] sorted voters ... based on the color of their skin.” Bethune-Hill v. Virginia State Bd. of Elections, 326 F. Supp. 3d 128, 180 (2018). The court therefore enjoined Virginia “from conducting any elections ... for the office of Delegate ... in the Challenged Districts until a new redistricting plan is adopted.” Id., at 227. Recognizing the General Assembly's “primary jurisdiction” over redistricting, the District Court gave the General Assembly approximately four months to “adop[t] a new redistricting plan that eliminate[d] the constitutional infirmity.” Ibid.

[2] A few weeks after the three-judge District Court's ruling, Virginia's Attorney General announced, both publicly and in a filing with the District Court, that the State would not pursue an appeal to this Court. Continuing the litigation, the Attorney General concluded, “would not be in the best interest of the Commonwealth or its citizens.” Defendants' Opposition to Intervenor-Defendants' Motion to Stay Injunction Pending Appeal Under 28 U.S. C. § 1253 in No. 3:14–cv–852 (ED Va.), Doc. 246, p. 1. The House, however, filed an appeal to this Court, App. to Juris. Statement 357–358, which the State Defendants moved to dismiss for want of standing. We postponed probable jurisdiction, 586 U.S. ––––, 139 S.Ct. 481, 202 L.Ed.2d 374 (2018), and now grant the State Defendants' motion. The House, we hold, lacks authority to displace Virginia's Attorney General as representative of the State. We further hold that the House, as a single chamber of a bicameral legislature, has no standing to appeal the invalidation of the redistricting plan separately from the State of which it is a part.[FN1]

[3] To reach the merits of a case, an Article III court must have jurisdiction. “One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so.” Hollingsworth v. Perry, 570 U.S. 693, 704, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013). The three elements of standing, this Court has reiterated, are (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. Ibid. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Although rulings on standing often turn on a plaintiff's stake in initially filing suit, “Article III demands that an ‘actual controversy’ persist throughout all stages of litigation.” Hollingsworth, 570 U.S. at 705, 133 S.Ct. 2652 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013)). The standing requirement therefore “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). As a jurisdictional requirement, standing to litigate cannot be waived or forfeited. And when standing is questioned by a court or an opposing party, the litigant invoking the court's jurisdiction must do more than simply allege a nonobvious harm. See Wittman v. Personhuballah, 578 U.S. ––––, –––– – ––––, 136 S.Ct. 1732, 1736–1737, 195 L.Ed.2d 37 (2016). To cross the standing threshold, the litigant must explain how the elements essential to standing are met.

[4] Before the District Court, the House participated in both bench trials as an intervenor in support of the State Defendants. And in the prior appeal to this Court, the House participated as an appellee. Because neither role entailed invoking a court's jurisdiction, it was not previously incumbent on the House to demonstrate its standing. That situation changed when the House alone endeavored to appeal from the District Court's order holding 11 districts unconstitutional, thereby seeking to invoke this Court's jurisdiction. As the Court has repeatedly recognized, to appeal a decision that the primary party does not challenge, an intervenor must independently demonstrate standing. Wittman, 578 U.S. ––––, 136 S.Ct. 1732, 195 L.Ed.2d 37; Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). We find unconvincing the House's arguments that it has standing, either to represent the State's interests or in its own right.

[5] The House urges first that it has standing to represent the State's interests. Of course, “a State has standing to defend the constitutionality of its statute.” Id., at 62, 106 S.Ct. 1697. No doubt, then, the State itself could press this appeal. And, as this Court has held, “a State must be able to designate agents to represent it in federal court.” Hollingsworth, 570 U.S. at 710, 133 S.Ct. 2652. So if the State had designated the House to represent its interests, and if the House had in fact carried out that mission, we would agree that the House could stand in for the State. Neither precondition, however, is met here.

[6] To begin with, the House has not identified any legal basis for its claimed authority to litigate on the State's behalf. Authority and responsibility for representing the State's interests in civil litigation, Virginia law prescribes, rest exclusively with the State's Attorney General:

[7] “All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge ... shall be rendered and performed by the Attorney General, except as provided in this chapter and except for [certain judicial misconduct proceedings].” Va. Code Ann. § 2.2–507(A) (2017).[FN2]

[8] Virginia has thus chosen to speak as a sovereign entity with a single voice. In this regard, the State has adopted an approach resembling that of the Federal Government, which “centraliz[es]” the decision whether to seek certiorari by “reserving litigation in this Court to the Attorney General and the Solicitor General.” United States v. Providence Journal Co., 485 U.S. 693, 706, 108 S.Ct. 1502, 99 L.Ed.2d 785 (1988) (dismissing a writ of certiorari sought by a special prosecutor without authorization from the Solicitor General); see 28 U.S. C. § 518(a); 28 CFR § 0.20(a) (2018). Virginia, had it so chosen, could have authorized the House to litigate on the State's behalf, either generally or in a defined class of cases. Hollingsworth, 570 U.S. at 710, 133 S.Ct. 2652. Some States have done just that. Indiana, for example, empowers “[t]he House of Representatives and Senate of the Indiana General Assembly ... to employ attorneys other than the Attorney General to defend any law enacted creating legislative or congressional districts for the State of Indiana.” Ind. Code § 2–3–8–1 (2011). But the choice belongs to Virginia, and the House's argument that it has authority to represent the State's interests is foreclosed by the State's contrary decision.

[9] The House observes that Virginia state courts have permitted it to intervene to defend legislation. But the sole case the House cites on this point—Vesilind v. Virginia State Bd. of Elections, 295 Va. 427, 813 S. E. 2d 739 (2018)—does not bear the weight the House would place upon it. In Vesilind, the House intervened in support of defendants in the trial court, and continued to defend the trial court's favorable judgment on appeal. Id., at 433–434, 813 S. E. 2d at 742. The House's participation in Vesilind thus occurred in the same defensive posture as did the House's participation in earlier phases of this case, when the House did not need to establish standing. Moreover, the House has pointed to nothing in the Virginia courts' decisions in the Vesilind litigation suggesting that the courts understood the House to be representing the interests of the State itself.

[10] Nonetheless, the House insists, this Court's decision in Karcher v. May, 484 U.S. 72, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987), dictates that we treat Vesilind as establishing conclusively the House's authority to litigate on the State's behalf. True, in Karcher, the Court noted a record, similar to that in Vesilind, of litigation by state legislative bodies in state court, and concluded without extensive explanation that “the New Jersey Legislature had authority under state law to represent the State's interests ....” 484 U.S. at 82, 108 S.Ct. 388. Of crucial significance, however, the Court in Karcher noted no New Jersey statutory provision akin to Virginia's law vesting the Attorney General with exclusive authority to speak for the Commonwealth in civil litigation. Karcher therefore scarcely impels the conclusion that, despite Virginia's clear enactment making the Attorney General the State's sole representative in civil litigation, Virginia has designated the House as its agent to assert the State's interests in this Court.

[11] Moreover, even if, contrary to the governing statute, we indulged the assumption that Virginia had authorized the House to represent the State's interests, as a factual matter the House never indicated in the District Court that it was appearing in that capacity. Throughout this litigation, the House has purported to represent its own interests. Thus, in its motion to intervene, the House observed that it was “the legislative body that actually drew the redistricting plan at issue,” and argued that the existing parties—including the State Defendants—could not adequately protect its interests. Nowhere in its motion did the House suggest it was intervening as agent of the State. That silence undermines the House's attempt to proceed before us on behalf of the State. As another portion of the Court's Karcher decision clarifies, a party may not wear on appeal a hat different from the one it wore at trial. 484 U.S. at 78, 108 S.Ct. 388 (parties may not appeal in particular capacities “unless the record shows that they participated in those capacities below”).[FN3]

[12] The House also maintains that, even if it lacks standing to pursue this appeal as the State's agent, it has standing in its own right. To support standing, an injury must be “legally and judicially cognizable.” Raines v. Byrd, 521 U.S. 811, 819 (1997). This Court has never held that a judicial decision invalidating a state law as unconstitutional inflicts a discrete, cognizable injury on each organ of government that participated in the law's passage. The Court's precedent thus lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.

[13] Seeking to demonstrate its asserted injury, the House emphasizes its role in enacting redistricting legislation in particular. The House observes that, under Virginia law, “members of the Senate and of the House of Delegates of the General Assembly shall be elected from electoral districts established by the General Assembly.” Va. Const., Art. 2, § 6. The House has standing, it contends, because it is “the legislative body that actually drew the redistricting plan,” and because, the House asserts, any remedial order will transfer redistricting authority from it to the District Court. Brief for Appellants 23, 26–28 (internal quotation marks omitted). But the Virginia constitutional provision the House cites allocates redistricting authority to the “General Assembly,” of which the House constitutes only a part.

[14] That fact distinguishes this case from Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. ––––, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015), in which the Court recognized the standing of the Arizona House and Senate—acting together—to challenge a referendum that gave redistricting authority exclusively to an independent commission, thereby allegedly usurping the legislature's authority under the Federal Constitution over congressional redistricting. In contrast to this case, in Arizona State Legislature there was no mismatch between the body seeking to litigate and the body to which the relevant constitutional provision allegedly assigned exclusive redistricting authority. See 576 U.S., at –––– – ––––, 135 S.Ct., at 2663–2664. Just as individual members lack standing to assert the institutional interests of a legislature, see Raines, 521 U.S. at 829, 117 S.Ct. 2312,⁴ a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.

[15] Moreover, in Arizona State Legislature, the challenged referendum was assailed on the ground that it permanently deprived the legislative plaintiffs of their role in the redistricting process. Here, by contrast, the challenged order does not alter the General Assembly's dominant initiating and ongoing role in redistricting. Compare Arizona State Legislature, 576 U.S., at ––––, 135 S.Ct., at 2665 (allegation of nullification of “any vote by the Legislature, now or in the future, purporting to adopt a redistricting plan” (internal quotation marks omitted)), with 326 F. Supp. 3d at 227 (recognizing the General Assembly's “primary jurisdiction” over redistricting and giving the General Assembly first crack at enacting a revised redistricting plan).⁵

[16] Nor does Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), aid the House. There, the Court recognized the standing of 20 state legislators who voted against a resolution ratifying the proposed Child Labor Amendment to the Federal Constitution. Id., at 446, 59 S.Ct. 972. The resolution passed, the opposing legislators stated, only because the Lieutenant Governor cast a tie-breaking vote—a procedure the legislators argued was impermissible under Article V of the Federal Constitution. See Arizona State Legislature, 576 U.S., at –––– – ––––, 135 S.Ct., at 2664–2666 (citing Coleman, 307 U.S. at 446, 59 S.Ct. 972). As the Court has since observed, Coleman stands “at most” “for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Raines, 521 U.S. at 823, 117 S.Ct. 2312. Nothing of that sort happened here. Unlike Coleman, this case does not concern the results of a legislative chamber's poll or the validity of any counted or uncounted vote. At issue here, instead, is the constitutionality of a concededly enacted redistricting plan. As we have already explained, a single House of a bicameral legislature generally lacks standing to appeal in cases of this order.

[17] Aside from its role in enacting the invalidated redistricting plan, the House, echoed by the dissent, see post, at 1956 – 1958, asserts that the House has standing because altered district boundaries may affect its composition. For support, the House and the dissent rely on Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972) (per curiam), in which this Court allowed the Minnesota Senate to challenge a District Court malapportionment litigation order that reduced the Senate's size from 67 to 35 members. The Court said in Beens: “[C]ertainly the [Minnesota Senate] is directly affected by the District Court's orders,” rendering the Senate “an appropriate legal entity for purpose of intervention and, as a consequence, of an appeal in a case of this kind.” Id., at 194, 92 S.Ct. 1477.

[18] Beens predated this Court's decisions in Diamond v. Charles and other cases holding that intervenor status alone is insufficient to establish standing to appeal. Whether Beens established law on the question of standing, as distinct from intervention, is thus less than pellucid. But even assuming, arguendo, that Beens was, and remains, binding precedent on standing, the order there at issue injured the Minnesota Senate in a way the order challenged here does not injure the Virginia House. Cutting the size of a legislative chamber in half would necessarily alter its day-to-day operations. Among other things, leadership selection, committee structures, and voting rules would likely require alteration. By contrast, although redrawing district lines indeed may affect the membership of the chamber, the House as an institution has no cognizable interest in the identity of its members.[FN6] Although the House urges that changes to district lines will “profoundly disrupt its day-to-day operations,” Reply Brief 3, it is scarcely obvious how or why that is so. As the party invoking this Court's jurisdiction, the House bears the burden of doing more than “simply alleg[ing] a nonobvious harm.” Wittman, 578 U.S., at ––––, 136 S.Ct., at 1737.

[19] Analogizing to “group[s] other than a legislative body,” the dissent insists that the House has suffered an “obvious” injury. Post, at 1957. But groups like the string quartet and basketball team posited by the dissent select their own members. Similarly, the political parties involved in the cases the dissent cites, see post, at 1957, n. 1 (citing New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008), and Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 229–230, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)), select their own leadership and candidates. In stark contrast, the House does not select its own members. Instead, it is a representative body composed of members chosen by the people. Changes to its membership brought about by the voting public thus inflict no cognizable injury on the House.[FN7]

[20] The House additionally asserts injury from the creation of what it calls “divided constituencies,” suggesting that a court order causing legislators to seek reelection in districts different from those they currently represent affects the House's representational nature. But legislative districts change frequently—indeed, after every decennial census—and the Virginia Constitution resolves any confusion over which district is being represented. It provides that delegates continue to represent the districts that elected them, even if their reelection campaigns will be waged in different districts. Va. Const., Art. 2, § 6 (“A member in office at the time that a decennial redistricting law is enacted shall complete his term of office and shall continue to represent the district from which he was elected for the duration of such term of office ....”). We see little reason why the same would not hold true after districting changes caused by judicial decisions, and we thus foresee no representational confusion. And if harms centered on costlier or more difficult election campaigns are cognizable—a question that, as in Wittman, 578 U.S., at –––– – ––––, 136 S.Ct., at 1736–1737, we need not decide today—those harms would be suffered by individual legislators or candidates, not by the House as a body.

[21] In short, Virginia would rather stop than fight on. One House of its bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.

...

[22] For the reasons stated, we dismiss the House's appeal for lack of jurisdiction.

[23] It is so ordered.

Dissent

Justice ALITO, with whom THE CHIEF JUSTICE, Justice BREYER, and Justice KAVANAUGH join, dissenting.

[1] I would hold that the Virginia House of Delegates has standing to take this appeal. The Court disagrees for two reasons: first, because Virginia law does not authorize the House to defend the invalidated redistricting plan on behalf of the Commonwealth, see ante, at 1951 – 1953, and, second, because the imposition of the District Court's districting plan would not cause the House the kind of harm required by Article III of the Constitution, see ante, at 1952 – 1956. I am convinced that the second holding is wrong and therefore will not address the first.

[2] Our decision in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), identified the three elements that constitute the “irreducible constitutional minimum of standing” demanded by Article III. A party invoking the jurisdiction of a federal court must have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. ––––, ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The Virginia House of Delegates satisfies all those requirements in this case.

[3] I begin with “injury in fact.” It is clear, in my judgment, that the new districting plan ordered by the lower court will harm the House in a very fundamental way. A legislative districting plan powerfully affects a legislative body's output of work. Each legislator represents a particular district, and each district contains a particular set of constituents with particular interests and views. Cf., e.g., App. 165 (noting the “varied factors that can create or contribute to communities of interest” in districts (House Committee on Privileges and Elections resolution)). The interests and views of these constituents generally have an important effect on everything that a legislator does—meeting with the representatives of organizations and groups seeking the legislator's help in one way or another, drafting and sponsoring bills, pushing for and participating in hearings, writing or approving reports, and of course, voting. When the boundaries of a district are changed, the constituents and communities of interest present within the district are altered, and this is likely to change the way in which the district's representative does his or her work. And while every individual voter will end up being represented by a legislator no matter which districting plan is ultimately used, it matters a lot how voters with shared interests and views are concentrated or split up. The cumulative effects of all the decisions that go into a districting plan have an important impact on the overall work of the body.

[4] All of this should really go without saying. After all, it is precisely because of the connections between the way districts are drawn, the composition of a legislature, and the things that a legislature does that so much effort is invested in drawing, contesting, and defending districting plans. Districting matters because it has institutional and legislative consequences. To suggest otherwise, to argue that substituting one plan for another has no effect on the work or output of the legislative body whose districts are changed, would really be quite astounding. If the selection of a districting plan did not alter what the legislative body does, why would there be such pitched battles over redistricting efforts?

[5] What the Court says on this point is striking. According to the Court, “the House as an institution has no cognizable interest in the identity of its members,” and thus suffers no injury from the imposition of a districting plan that “may affect the membership of the chamber” or the “content of legislation its future members may elect to enact.” Ante, at 1955, and n. 6 (emphasis deleted). Really? It seems obvious that any group consisting of members who must work together to achieve the group's aims has a keen interest in the identity of its members, and it follows that the group also has a strong interest in how its members are selected. And what is more important to such a group than the content of its work?

[6] Apply what the Court says to a group other than a legislative body and it is immediately obvious that the Court is wrong. Does a string quartet have an interest in the identity of its cellist? Does a basketball team have an interest in the identity of its point guard? Does a board of directors have an interest in the identity of its chairperson? Does it matter to these groups how their members are selected? Do these groups care if the selection method affects their performance? Of course.

[7] The Virginia House of Delegates exists for a purpose: to represent and serve the interests of the people of the Commonwealth. The way in which its members are selected has a powerful effect on how it goes about this purpose^[1]—a proposition reflected by the Commonwealth's choice to mandate certain districting criteria in its constitution. See Va. Const., Art. II, § 6. As far as the House's standing, we must assume that the districting plan enacted by the legislature embodies the House's judgment regarding the method of selecting members that best enables it to serve the people of the Commonwealth. (Whether this is a permissible judgment is a merits question, not a question of standing. Cf. Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). It therefore follows that discarding that plan and substituting another inflicts injury in fact.

[8] Our most pertinent precedent supports the standing of the House on this ground. In Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972) (per curiam), we held that the Minnesota Senate had standing to appeal a district court order reapportioning the Senate's seats. In reaching that conclusion, we noted that “certainly” such an order “directly affected” the Senate. Id., at 194, 92 S.Ct. 1477. The same is true here. There can be no doubt that the new districting plan “directly affect[s]” the House whose districts it redefines and *1958 whose legislatively drawn districts have been replaced with a court-ordered map. That the Beens Court drew its “directly affect[s]” language from a case involving a standard reapportionment challenge, see Silver v. Jordan, 241 F. Supp. 576, 579 (S.D. Cal. 1964) (per curiam), aff'd, 381 U.S. 415, 85 S.Ct. 1572, 14 L.Ed.2d 689 (1965) (per curiam), only serves to confirm that the House's injury is sufficient to demonstrate standing under Beens.

[9] In an effort to distinguish Beens, it is argued that the District Court decision at issue there, which slashed the number of senators in half, “ha[d] a distinct and more direct effect on the body itself than a mere shift in district lines.” Brief for United States as Amicus Curiae 17; see Brief for State Appellees 38. But even if the effect of the court order was greater in Beens than it is here, it is the existence—not the extent—of an injury that matters for purposes of Article III standing.

[10] The Court suggests that the effects of the court-ordered districting plan in Beens were different from the effects of the plan now before us because the former concerned the legislature's internal operations. See ante, at 1954 – 1955. But even if the imposition of the court-ordered plan in this case would not affect the internal operations of the House (and that is by no means clear), it is very strange to think that changes to such things as “committee structures” and “voting rules,” see ante, at 1954 – 1955, are more important than changes in legislative output.

[11] In short, the invalidation of the House's redistricting plan and its replacement with a court-ordered map would cause the House to suffer a “concrete” injury. And as Article III demands, see Spokeo, 578 U.S., at –––– – ––––, 136 S.Ct., at 1547–1548, that injury would also be “particularized” (because it would target the House); “imminent” (because it would certainly occur if this appeal is dismissed); “traceable” to the imposition of the new, court-ordered plan; and “redress[able]” by the relief the House seeks here. Ibid.

[12] Although the opinion of the Court begins by citing the three fundamental Article III standing requirements just discussed, see ante, at 1950 – 1951, it is revealing that the Court never asserts that the effect of the court-ordered plan at issue would not cause the House “concrete” harm. Instead, the Court claims only that any harm would not be “ ‘judicially cognizable,’ ” ante, at 1952 – 1953; see also ante, at 1955. The Court lifts this term from Raines v. Byrd, 521 U.S. 811, 819, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), where the Court held that individual Members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act. But the decision in Raines rested heavily on federal separation-of-powers concerns, which are notably absent here. See id., at 819–820, 826–829, 117 S.Ct. 2312; id., at 832–835, 117 S.Ct. 2312 (Souter, J., concurring in judgment). And although the Court does not say so expressly, what I take from its use of the term “judicially cognizable” injury rather than “concrete” injury is that the decision here is not really based on the Lujan factors, which set out the “irreducible” minimum demanded by Article III. 504 U.S. at 560, 112 S.Ct. 2130. Instead, the argument seems to be that the House's injury is insufficient for some other, only-hinted-at reason.

[13] Both the United States, appearing as an amicus, and the Commonwealth of Virginia are more explicit. The Solicitor General's brief argues as follows:

[14] “In the federal system, the Constitution gives Congress only ‘legislative Powers,’ U.S. Const. Art. 1, § 1, and the ‘power to seek judicial relief ... cannot possibly *1959 be regarded as merely in aid of the legislative function.’ Buckley v. Valeo, 424 U.S. 1, 138 [96 S.Ct. 612, 46 L.Ed.2d 659] (1976) (per curiam). As a result, ‘once Congress makes its choice in enacting legislation, its participation ends.’ Bowsher v. Synar, 478 U.S. 714, 733 [106 S.Ct. 3181, 92 L.Ed.2d 583] (1986).... The same is true here. A branch of a state government that makes rather than enforces the law does not itself have a cognizable Article III interest in the defense of its laws.” Brief for United States as Amicus Curiae 14–15 (emphasis added).

[15] The Virginia Solicitor General makes a similar argument.

[16] These arguments are seriously flawed because the States are under no obligation to follow the Federal Constitution's model when it comes to the separation of powers. See Whalen v. United States, 445 U.S. 684, 689, n. 4, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); cf. Raines, supra, at 824, n. 8, 117 S.Ct. 2312; Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. ––––, ––––, n. 12, 135 S.Ct. 2652, 2665, n. 12, 192 L.Ed.2d 704 (2015). If one House of Congress or one or more Members of Congress attempt to invoke the power of a federal court, the court must consider whether this attempt is consistent with the structure created by the Federal Constitution. An interest asserted by a Member of Congress or by one or both Houses of Congress that is inconsistent with that structure may not be judicially cognizable. But I do not see how we can say anything similar about the standing of state legislators or state legislative bodies.[FN2] Cf. Karcher v. May, 484 U.S. 72, 81–82, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987). The separation of powers (or the lack thereof) under a state constitution is purely a matter of state law, and neither the Court nor the Virginia Solicitor General has provided any support for the proposition that Virginia law bars the House from defending, in its own right, the constitutionality of a districting plan.

...

[17] For these reasons, I would hold that the House of Delegates has standing, and I therefore respectfully dissent.

Majority Footnotes:

After the General Assembly failed to enact a new redistricting plan within the four months allowed by the District Court, that court entered a remedial order delineating districts for the 2019 election. The House has noticed an appeal to this Court from that order as well, and the State Defendants have moved to dismiss the follow-on appeal for lack of standing. See Virginia House of Delegates v. Bethune-Hill, No. 18–1134. In the appeal from the remedial order, the House and the State Defendants largely repeat the arguments on standing earlier advanced in this appeal. The House's claim to standing to pursue an appeal from the remedial order fares no better than its assertion of standing here.

The exceptions referenced in the statute's text are inapposite here. They include circumstances where, “in the opinion of the Attorney General, it is impracticable or uneconomical for [the] legal service to be rendered by him or one of his assistants,” or where the Virginia Supreme Court or any of its justices are litigating matters “arising out of [that court's] official duties.” § 2.2–507(C).

Nor can we give ear to the House's assertion that forfeiture or acquiescence bar the State Defendants from contesting the House's authority to represent the State's interests. See Brief for Appellants 29–30. As earlier observed, standing to sue (or appeal) is a nonwaivable jurisdictional requirement. See supra, at 1950 – 1951. Moreover, even if forfeiture were not beyond the pale, the State Defendants here could hardly be held to have relinquished an objection to the House's participation in a capacity—on behalf of the State itself—in which the House was not participating in the District Court.

Raines held that individual Members of Congress lacked standing to challenge the Line Item Veto Act.

Misplaced for similar reasons is the House's reliance on this Court's statements in INS v. Chadha, 462 U.S. 919, 929–931, and nn. 5–6, 939–940, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), that the United States House and Senate were “proper parties” or “adverse parties.” First, it is far from clear that the Court meant those terms to refer to standing, as opposed to the simple fact that both Houses of Congress had intervened. In any event, the statute at issue in Chadha granted each Chamber of Congress an ongoing power—to veto certain Executive Branch decisions—that each House could exercise independent of any other body.

The dissent urges that changes to district lines will alter the House's future legislative output. See post, at 1956 – 1958. A legislative chamber as an institution, however, suffers no legally cognizable injury from changes to the content of legislation its future members may elect to enact. By contrast, the House has an obvious institutional interest in the manner in which it goes about its business.

The dissent further suggests that “we must assume that the districting plan enacted by the legislature embodies the House's judgment” regarding the best way to select its members. Post, at 1957 – 1958. For the reasons explained supra, at 1952 – 1955, however, the House's role in the legislative process does not give it standing to pursue this appeal.

Dissent Footnotes:

The Court has not hesitated to recognize this link in other contexts. See, e.g., New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 229–230, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989).

The Court's observation that the Virginia Constitution gives legislative districting authority to the General Assembly as a whole—in other words, to the House of Delegates and the Senate in combination—does not answer the question. To start, a similar argument against standing was pressed and rejected in Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1 (1972) (per curiam), see Motion of Appellees to Dismiss Appeal in O. T. 1971, No. 71–1024, p. 9, and the Court does not explain why a different outcome is warranted here. Nor am I persuaded by the Court's citation of Arizona State Legislature v. Arizona Independent Redistricting Comm'n, 576 U.S. ––––, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015). There, the Court held that the Arizona Legislature had standing to bring a suit aimed at protecting its redistricting authority. But from the fact that a whole legislature may have standing to defend its redistricting authority, it does not follow that the House necessarily lacks standing to challenge a redistricting decision based on concrete injuries to its institutional interests. Cf. Spokeo, Inc. v. Robins, 578 U.S. ––––, ––––, n. 7, 136 S.Ct. 1540, 1548, n. 7, 194 L.Ed.2d 635 (2016)

3.5.2.20 Ripeness: Introduction 3.5.2.20 Ripeness: Introduction

3.5.2.21 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) 3.5.2.21 Abbott Labs. v. Gardner, 387 U.S. 136 (1967)

Abbott Labs. v. Gardner, 387 U.S. 136 (1967)

[excerpt]

JUSTICE HARLAN delivered the opinion of the Court.

[1] In 1962 Congress amended the Federal Food, Drug, and Cosmetic Act, to require manufacturers of prescription drugs to print the “established name” of the drug “prominently and in type at least half as large as that used thereon for any proprietary name or designation for such drug,” on labels and other printed material. The “established name” is one designated by the Secretary of Health, Education, and Welfare pursuant to § 502 (e) (2) of the Act; the “proprietary name” is usually a trade name under which a particular drug is marketed. The underlying purpose of the 1962 amendment was to bring to the attention of doctors and patients the fact that many of the drugs sold under familiar trade names are actually identical to drugs sold under their “established” or less familiar trade names at significantly lower prices. The Commissioner of Food and Drugs, exercising authority delegated to him by the Secretary, published proposed regulations designed to implement the statute. After inviting and considering comments submitted by interested parties the Commissioner promulgated the following regulation for the “efficient enforcement” of the Act,:

[2] “If the label or labeling of a prescription drug bears a proprietary name or designation for the drug or any ingredient thereof, the established name, if such there be, corresponding to such proprietary name or designation, shall accompany each appearance of such proprietary name or designation.”

[3] A similar rule was made applicable to advertisements for prescription drugs.

[4] The present action was brought by a group of 37 individual drug manufacturers and by the Pharmaceutical Manufacturers Association, of which all the petitioner companies are members, and which includes manufacturers of more than 90% of the Nation’s supply of prescription drugs. They challenged the regulations on the ground that the Commissioner exceeded his authority under the statute by promulgating an order requiring labels, advertisements, and other printed matter relating to prescription drugs to designate the established name of the particular drug involved every time its trade name is used anywhere in such material.

[5] The injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy “ripe” for judicial resolution. Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.

[6] As to the former factor, we believe the issues presented are appropriate for judicial resolution at this time. First, all parties agree that the issue tendered is a purely legal one: whether the statute was properly construed by the Commissioner to require the established name of the drug to be used every time the proprietary name is employed

[7] Second, the regulations in issue we find to be “final agency action” within the meaning of § 10 of the Administrative Procedure Act, 5 U. S. C. § 704, as construed in judicial decisions.

[8] The regulation challenged here, promulgated in a formal manner after announcement in the Federal Register and consideration of comments by interested parties is quite clearly definitive. There is no hint that this regulation is informal, or only the ruling of a subordinate official, or tentative. It was made effective upon publication, and the Assistant General Counsel for Food and Drugs stated in the District Court that compliance was expected.

[9] This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage. These regulations purport to give an authoritative interpretation of a statutory provision that has a direct effect on the day-to-day business of all prescription drug companies; its promulgation puts petitioners in a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate. As the District Court found on the basis of uncontested allegations. “Either they must comply with the every time requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution.” 228 F. Supp. 855. 861. The regulations are clear-cut, and were made effective immediately upon publication; as noted earlier the agency’s counsel represented to the District Court that immediate compliance with their terms was expected. If petitioners wish to comply they must change all their labels, advertisements, and promotional materials; they must destroy stocks of printed matter; and they must invest heavily in new printing type and new supplies. The alternative to compliance—continued use of material which they believe in good faith meets the statutory requirements, but which clearly does not meet the regulation of the Commissioner—may be even more costly. That course would risk serious criminal and civil penalties for the unlawful distribution of “misbranded” drugs.

[10] It is relevant at this juncture to recognize that petitioners deal in a sensitive industry, in which public confidence in their drug products is especially important. To require them to challenge these regulations only as a defense to an action brought by the Government might harm them severely and unnecessarily. Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs’ conduct of their affairs with serious penalties attached to noncompliance, access to the courts under the Administrative Procedure Act and the Declaratory Judgment Act must be permitted, absent a statutory bar or some other unusual circumstance, neither of which appears here.

[11] The Government does not dispute the very real dilemma in which petitioners are placed by the regulation, but contends that “mere financial expense” is not a justification for pre-enforcement judicial review. It is of course true that cases in this Court dealing with the standing of particular parties to bring an action have held that a possible financial loss is not by itself a sufficient interest to sustain a judicial challenge to governmental action. But there is no question in the present case that petitioners have sufficient standing as plaintiffs: the regulation is directed at them in particular; it requires them to make significant changes in their everyday business practices; if they fail to observe the Commissioner’s rule they are quite clearly exposed to the imposition of strong sanctions.

[12] The Government further contends that the threat of criminal sanctions for noncompliance with a judicially untested regulation is unrealistic; the Solicitor General has represented that if court enforcement becomes necessary, “the Department of Justice will proceed only civilly for an injunction . . . or by condemnation.” We cannot accept this argument as a sufficient answer to petitioners’ petition. This action at its inception was properly brought and this subsequent representation of the Department of Justice should not suffice to defeat it.

3.5.2.22 Poe v. Ullman, 367 U.S. 497 (1961) 3.5.2.22 Poe v. Ullman, 367 U.S. 497 (1961)

Poe v. Ullman, 367 U.S. 497 (1961)

[excerpt]

JUSTICE FRANKFURTER announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE CLARK and MR. JUSTICE WHITTAKER join.

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

[2] No. 60 combines two actions brought in a Connecticut Superior Court for declaratory relief. The complaint in the first alleges that the plaintiffs, Paul and Pauline Poe, are a husband and wife, thirty and twenty-six years old respectively, who live together and have no children. Mrs. Poe has had three consecutive pregnancies terminating in infants with multiple congenital abnormalities from which each died shortly after birth. Plaintiffs have consulted Dr. Buxton, an obstetrician and gynecologist of eminence, and it is Dr. Buxton’s opinion that the cause of the infants’ abnormalities is genetic, although the underlying “mechanism” is unclear. In view of the great emotional stress already suffered by plaintiffs, the probable consequence of another pregnancy is psychological strain extremely disturbing to the physical and mental health of both husband and wife. Plaintiffs know that it is Dr. Buxton’s opinion that the best and safest medical treatment which could be prescribed for their situation is advice in methods of preventing conception. Dr. Buxton knows of drugs, medicinal articles and instruments which can be safely used to effect contraception. Medically, the use of these devices is indicated as the best and safest preventive measure necessary for the protection of plaintiffs’ health. Plaintiffs, however, have been unable to obtain this information for the sole reason that its delivery and use may or will be claimed by the defendant State’s Attorney (appellee in this Court) to constitute offenses against Connecticut law. The State’s Attorney intends to prosecute offenses against the State’s laws, and claims that the giving of contraceptive advice and the use of contraceptive devices would be offenses forbidden by Conn. Gen. Stat. Rev., 1958, §§ 53-32 and 54-196. Alleging irreparable injury and a substantial uncertainty of legal relations (a local procedural requisite for a declaration), plaintiffs ask a declaratory judgment that §§ 53-32 and 54-196 are unconstitutional, in that they deprive the plaintiffs of life and liberty without due process of law.

[3] The second action in No. 60 is brought by Jane Doe, a twenty-five-year-old housewife. Mrs. Doe, it is alleged, lives with her husband, they have no children; Mrs. Doe recently underwent a pregnancy which induced in her a critical physical illness—two weeks’ unconsciousness and a total of nine weeks’ acute sickness which left her with partial paralysis, marked impairment of speech, and emotional instability. Another pregnancy would be exceedingly perilous to her life. She, too, has consulted Dr. Buxton, who believes that the best and safest treatment for her is contraceptive advice. The remaining allegations of Mrs. Doe’s complaint, and the relief sought, are similar to those in the case of Mr. and Mrs. Poe.

[4] In No. 61, also a declaratory judgment action, Dr. Buxton is the plaintiff. Setting forth facts identical to those alleged by Jane Doe, he asks that the Connecticut statutes prohibiting his giving of contraceptive advice to Mrs. Doe be adjudged unconstitutional, as depriving him of liberty and property without due process.

[5] The Connecticut law prohibiting the use of contraceptives has been on the State’s books since 1879. Conn. Acts 1879, c. 78. During the more than three-quarters of a century since its enactment, a prosecution for its violation seems never to have been initiated, save in State v. Nelson, 126 Conn. 412, 11 A. 2d 856. The circumstances of that case, decided in 1940, only prove the abstract character of what is before us. There, a test case was brought to determine the constitutionality of the Act as applied against two doctors and a nurse who had allegedly disseminated contraceptive information. After the Supreme Court of Errors sustained the legislation on appeal from a demurrer to the information, the State moved to dismiss the information. Neither counsel nor our own researches have discovered any other attempt to enforce the prohibition of distribution or use of contraceptive devices by criminal process. The unreality of these law suits is illumined by another circumstance. We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage— the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contraceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis.

[6] “The best teaching of this Court’s experience admonishes us not to entertain constitutional questions in advance of the strictest necessity

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

JUSTICE DOUGLAS, dissenting.

[1] If there is a case where the need for this remedy in the shadow of a criminal prosecution is shown, it is this one, as MR. JUSTICE HARLAN demonstrates. Plaintiffs in No. 60 are two sets of husband and wife. One wife is pathetically ill, having delivered a stillborn fetus. If she becomes pregnant again, her life will be gravely jeopardized. This couple have been unable to get medical advice concerning the “best and safest” means to avoid pregnancy from their physician, plaintiff in No. 61, because if he gave it he would commit a crime. The use of contraceptive devices would also constitute a crime. And it is alleged—and admitted by the State—that the State’s Attorney intends to enforce the law by prosecuting offenses under the laws.

[2] A public clinic dispensing birth-control information has indeed been closed by the State. Doctors and a nurse working in that clinic were arrested by the police and charged with advising married women on the use of contraceptives. That litigation produced State v. Nelson, 126 Conn. 412, 11 A. 2d 856, which upheld these statutes. That same police raid on the clinic resulted in the seizure of a quantity of the clinic’s contraception literature and medical equipment and supplies. The legality of that seizure was in question in State v. Certain Contraceptive Materials, 126 Conn. 428, 11 A. 2d 863.

[3] These, then, are the circumstances in which the Court feels that it can, contrary to every principle of American or English common law, go outside the record to conclude that there exists a “tacit agreement” that these statutes will not be enforced. No lawyer, I think, would advise his clients to rely on that “tacit agreement.” No police official, I think, would feel himself bound by that “tacit agreement.”

[4] What are these people—doctor and patients—to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today’s decision we leave them no other alternatives. It is not the choice they need have under the regime of the declaratory judgment and our constitutional system. It is not the choice worthy of a civilized society. A sick wife, a concerned husband, a conscientious doctor seek a dignified, discrete, orderly answer to the critical problem confronting them. We should not turn them away and make them flout the law and get arrested to have their constitutional rights determined. They are entitled to an answer to their predicament here and now.

3.5.2.23 Mootness: Introduction 3.5.2.23 Mootness: Introduction

3.5.2.24 DeFunis v. Odegaard, 416 U.S. 312 (1974) 3.5.2.24 DeFunis v. Odegaard, 416 U.S. 312 (1974)

DeFunis v. Odegaard, 416 U.S. 312 (1974)

[excerpt]

PER CURIAM.

[1] In 1971 the petitioner Marco DeFunis, Jr., applied for admission as a first-year student at the University of Washington Law School, a state-operated institution. . . DeFunis was eventually notified that he had been denied admission. He thereupon commenced this suit in a Washington trial court, contending that the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

[2] [DeFunis] asked the trial court to issue a mandatory injunction commanding the respondents to admit him as a member of the first-year class . . . The trial court agreed with his claim and . . . DeFunis was, accordingly, admitted to the Law School. . . On appeal, the Washington Supreme Court reversed the judgment of the trial court and held that the Law School admissions policy did not violate the Constitution. By this time DeFunis was in his second year at the Law School. [He then was granted a stay thus allowing him to remain in law school, until his case was heard by the United States Supreme Court.]

[3] DeFunis has now registered “for his final quarter in law school.” Counsel for the respondents have made clear that the Law School will not in any way seek to abrogate this registration. In light ofDeFunis’ recent registration for the last quarter of his final law school year, and the Law School’s assurance that his registration is fully effective, the insistent question again arises whether this case is not moot, and to that question we now turn.

[4] The starting point for analysis is the familiar proposition that “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” The inability of the federal judiciary “to review moot cases derives from the requirement of Art. III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” Although as a matter of Washington state law it appears that this case would be saved from mootness by “the great public interest in the continuing issues raised by this appeal,” 82 Wash. 2d 11, 23 n. 6, 507 P. 2d 1169, 1177 n. 6 (1973), the fact remains that under Art. III “[e]ven in cases arising in the state courts, the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction.”

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

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

[7] There is a line of decisions in this Court standing for the proposition that the “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i. e., does not make the case moot.” These decisions and the doctrine they reflect would be quite relevant if the question of mootness here had arisen by reason of a unilateral change in the admissions procedures of the Law School. For it was the admissions procedures that were the target of this litigation, and a voluntary cessation of the admissions practices complained of could make this case moot only if it could be said with assurance “that `there is no reasonable expectation that the wrong will be repeated.’ ” United Statesv. W. T. Grant Co., supra, at 633. Otherwise, “[t]he defendant is free to return to his old ways,” id., at 632, and this fact would be enough to prevent mootness because of the “public interest in having the legality of the practices settled.” Ibid. But mootness in the present case depends not at all upon a “voluntary cessation” of the admissions practices that were the subject of this litigation. It depends, instead, upon the simple fact that DeFunis is now in the final quarter of the final year of his course of study, and the settled and unchallenged policy of the Law School to permit him to complete the term for which he is now enrolled.

[8] It might also be suggested that this case presents a question that is “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911); Roe v. Wade, 410 U. S. 113, 125 (1973), and is thus amenable to federal adjudication even though it might otherwise be considered moot. But DeFuniswill never again be required to run the gantlet of the Law School’s admission process, and so the question is certainly not “capable of repetition” so far as he is concerned.

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

JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL concur, dissenting.

[1] I respectfully dissent. Many weeks of the school term remain, and petitioner may not receive his degree despite respondents’ assurances that petitioner will be allowed to complete this term’s schooling regardless of our decision. Any number of unexpected events—illness, economic necessity, even academic failure—might prevent his graduation at the end of the term. Were that misfortune to befall, and were petitioner required to register for yet another term, the prospect that he would again face the hurdle of the admissions policy is real, not fanciful; for respondents warn that “Mr. DeFunis would have to take some appropriate action to request continued admission for the remainder of his law school education, and some discretionary action by the University on such request would have to be taken.” Thus, respondents’ assurances have not dissipated the possibility that petitioner might once again have to run the gantlet of the University’s allegedly unlawful admissions policy. The Court therefore proceeds on an erroneous premise in resting its mootness holding on a supposed inability to render any judgment that may affect one way or the other petitioner’s completion of his law studies. For surely if we were to reverse the Washington Supreme Court, we could insure that, if for some reason petitioner did not graduate this spring, he would be entitled to re-enrollment at a later time on the same basis as others who have not faced the hurdle of the University’s allegedly unlawful admissions policy.

[2] In these circumstances, and because the University’s position implies no concession that its admissions policy is unlawful, this controversy falls squarely within the Court’s long line of decisions holding that the “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case.” Since respondents’ voluntary representation to this Court is only that they will permit petitioner to complete this term’s studies, respondents have not borne the “heavy burden,” of demonstrating that there was not even a “mere possibility” that petitioner would once again be subject to the challenged admissions policy. On the contrary, respondents have positioned themselves so as to be “free to return to [their] old ways.”

[3] Moreover, in endeavoring to dispose of this case as moot, the Court clearly disserves the public interest. The constitutional issues which are avoided today concern vast numbers of people, organizations, and colleges and universities, as evidenced by the filing of twenty-six amicus curiae briefs. Few constitutional questions in recent history have stirred as much debate, and they will not disappear. They must inevitably return to the federal courts and ultimately again to this Court. Because avoidance of repetitious litigation serves the public interest, that inevitability counsels against mootness determinations, as here, not compelled by the record. Although the Court should, of course, avoid unnecessary decisions of constitutional questions, we should not transform principles of avoidance of constitutional decisions into devices for sidestepping resolution of difficult cases.

[4] On what appears in this case, I would find that there is an extant controversy and decide the merits of the very important constitutional questions presented.

3.5.2.25 Summaries Azar v. Garza & U.S. v. Sanchez-Gomez 3.5.2.25 Summaries Azar v. Garza & U.S. v. Sanchez-Gomez

Summaries of Azar v. Garza and U.S. v. Sanchez-Gomez

AZAR v. GARZA, 138 S.Ct. 1790 (2018)

PER CURIAM.

[1] Jane Doe, a minor, was eight weeks pregnant when she unlawfully crossed the border into the United States. She was detained and placed into the custody of the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services. ORR placed her in a federally funded shelter in Texas. After an initial medical examination, Doe requested an abortion. But ORR did not allow Doe to go to an abortion clinic. Absent "emergency medical situations," ORR policy prohibits shelter personnel from "taking any action that facilitates an abortion without direction and approval from the Director of ORR." According to the Government, a minor may "le[ave] government custody by seeking voluntary departure, or by working with the government to identify a suitable sponsor who could take custody of her in the United States."

[2] Respondent Rochelle Garza, Doe's guardian ad litem, filed a putative class action on behalf of Doe and "all other pregnant unaccompanied minors in ORR custody" challenging the constitutionality of ORR's policy. On October 18, 2017, the District Court issued a temporary restraining order allowing Doe to obtain an abortion immediately. On October 19, Doe attended pre-abortion counseling, required by Texas law to occur at least 24 hours in advance with the same doctor who performs the abortion. The clinic she visited typically rotated physicians on a weekly basis.

[3] The next day, a panel of the Court of Appeals for the District of Columbia Circuit vacated the relevant portions of the temporary restraining order. Noting that the Government had assumed for purposes of this case that Doe had a constitutional right to an abortion, the panel concluded that ORR's policy was not an "undue burden," Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 876, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion).

[4] Four days later, on October 24, the Court of Appeals, sitting en banc, vacated the panel order and remanded the case to the District Court. Garza v. Hargan, 874 F.3d 735, 735-736 (C.A.D.C.2017). The same day, Garza sought an amended restraining order. Garza's lawyers asked the District Court to order the Government to make Doe available "in order to obtain the counseling required by state law and to obtain the abortion procedure." The District Court agreed and ordered the Government to act accordingly. Doe's representatives scheduled an appointment for the next morning and arranged for Doe to be transported to the clinic on October 25 at 7:30 a.m.

[5] The Government planned to ask this Court for emergency review of the en banc order. Believing the abortion would not take place until October 26 after Doe had repeated the state-required counseling with a new doctor, the Government informed opposing counsel and this Court that it would file a stay application early on the morning of October 25. The details are disputed, but sometime over the course of the night both the time and nature of the appointment were changed. The doctor who had performed Doe's earlier counseling was available to perform the abortion after all and the 7:30 a.m. appointment was moved to 4:15 a.m. At 10 a.m., Garza's lawyers informed the Government that Doe "had the abortion this morning." The abortion rendered the relevant claim moot, so the Government did not file its emergency stay application. Instead, the Government filed this petition for certiorari.

[6] When "a civil case from a court in the federal system ... has become moot while on its way here," this Court's "established practice" is "to reverse or vacate the judgment below and remand with a direction to dismiss." Because this practice is rooted in equity, the decision whether to vacate turns on "the conditions and circumstances of the particular case." One clear example where "[v]acatur is in order" is "when mootness occurs through ... the `unilateral action of the party who prevailed in the lower court.'" Arizonans for Official English v. Arizona, 520 U.S. 43, 71-72 (1997) (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 23, (1994)). "`It would certainly be a strange doctrine that would permit a plaintiff to obtain a favorable judgment, take voluntary action that moots the dispute, and then retain the benefit of the judgment.'" 520 U.S., at 75, (alterations omitted).

[7] The litigation over Doe's temporary restraining order falls squarely within the Court's established practice. Doe's individual claim for injunctive relief — the only claim addressed by the D.C. Circuit — became moot after the abortion. It is undisputed that Garza and her lawyers prevailed in the D.C. Circuit, took voluntary, unilateral action to have Doe undergo an abortion sooner than initially expected, and thus retained the benefit of that favorable judgment. And although not every moot case will warrant vacatur, the fact that the relevant claim here became moot before certiorari does not limit this Court's discretion. See, e.g., LG Electronics, Inc. v. InterDigitalCommunications, LLC, 572 U.S. ___ (2014) (after the certiorari petition was filed, respondents withdrew the complaint they filed with the International Trade Commission); United States v. Samish Indian Nation, 568 U.S. 936 (2012) (after the certiorari petition was filed, respondent voluntarily dismissed its claim in the Court of Federal Claims); Eisai Co. v. Teva Pharmaceuticals USA, Inc., 564 U.S. 1001 (2011) (before the certiorari petition was filed, respondent's competitor began selling the drug at issue, which was the relief that respondent had sought); Indiana State Police Pension Trust v. Chrysler LLC, 558 U.S. 1087 (2009) (before the certiorari petition was filed, respondent completed a court-approved sale of assets, which mooted the appeal). The unique circumstances of this case and the balance of equities weigh in favor of vacatur.

[8] The Government also suggests that opposing counsel made "what appear to be material misrepresentations and omissions" that were "designed to thwart this Court's review." Respondent says this suggestion is "baseless." The Court takes allegations like those the Government makes here seriously, for ethical rules are necessary to the maintenance of a culture of civility and mutual trust within the legal profession. On the one hand, all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another's representations. On the other hand, lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct. The Court need not delve into the factual disputes raised by the parties in order to answer the Munsingwear question here.

[9] The petition for a writ of certiorari is granted. The Court vacates the en banc order and remands the case to the United States Court of Appeals for the District of Columbia Circuit with instructions to direct the District Court to dismiss the relevant individual claim for injunctive relief as moot. See Munsingwear, supra.

[10] It is so ordered.

United States v. Sanchez-Gomez, 138 S.Ct. 1532 (2018)

ROBERTS, C.J., delivered the opinion for a unanimous Court.

[1] Four criminal defendants objected to being bound by full restraints during pretrial proceedings in their cases, but the District Court denied relief. On appeal, the Court of Appeals for the Ninth Circuit held that the use of such restraints was unconstitutional, even though each of the four criminal cases had ended prior to its decision. The question presented is whether the appeals were saved from mootness either because the defendants sought "class-like relief" in a "functional class action," or because the challenged practice was "capable of repetition, yet evading review."

[2] It is the responsibility of the United States Marshals Service to "provide for the security ... of the United States District Courts." 28 U.S.C. § 566(a). To fulfill that duty, the United States Marshal for the Southern District of California requested that the judges of that district permit the use of full restraints on all in-custody defendants during nonjury proceedings. When "full restraints" are applied, "a defendant's hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant's waist, and the defendant's feet are shackled and chained together." In support of his proposal, the Marshal cited safety concerns arising from understaffing, past incidents of violence, and the high volume of in-custody defendants produced in the Southern District. The judges agreed to the Marshal's request, with modifications providing that a district or magistrate judge may require a defendant to be produced without restraints, and that a defendant can request that this be done.

[3] Respondents Jasmin Morales, Rene Sanchez-Gomez, Moises Patricio-Guzman, and Mark Ring were among the defendants produced by the Marshals Service for pretrial proceedings in full restraints. They raised constitutional objections to the use of such restraints in their respective cases, and to the restraint policy as a whole. They noted that the policy had resulted in the imposition of full restraints on, for example, a woman with a fractured wrist, a man with a severe leg injury, a blind man, and a wheelchair-bound woman. The District Court denied their challenges.

[4] Respondents appealed to the Court of Appeals for the Ninth Circuit, but before the court could issue a decision, their underlying criminal cases came to an end. Morales, Sanchez-Gomez, and Patricio-Guzman each pled guilty to the offense for which they were charged: Morales, to felony importation of a controlled substance, in violation of 21 U.S.C. §§ 952 and 960; Sanchez-Gomez, to felony misuse of a passport, in violation of 18 U.S.C. § 1544; and Patricio-Guzman, to misdemeanor illegal entry into the United States, in violation of 8 U.S.C. § 1325. The charges against Ring — for making an interstate threat in violation of 18 U.S.C. § 875(c) — were dismissed pursuant to a deferred-prosecution agreement.

[5] A panel of the Court of Appeals nonetheless concluded that respondents' claims were not moot, and went on to strike down the restraint policy as violating the Due Process Clause of the Fifth Amendment. Those rulingswere reaffirmed on rehearing en banc. The en banc court understood the "main dispute" before it to be a challenge to the policy itself, not just to the application of that policy to respondents. The court then construed respondents' notices of appeal as petitions for mandamus, which invoked the court's supervisory authority over the Southern District. The case was, in the court's view, a "functional class action" involving "class-like claims" seeking "class-like relief." In light of that understanding, the Court of Appeals held that this Court's civil class action precedents kept the case alive, even though respondents were no longer subject to the restraint policy. On the merits, the Court of Appeals concluded that the restraint policy violated the Constitution.

[6] Judge Ikuta, writing in dissent for herself and four colleagues, rejected the majority's application of class action precedents to the individual criminal cases before the court and would have held the case moot. She also disagreed with the majority on the merits, concluding that the restraint policy did not violate the Constitution.

[7] We granted certiorari.

[8] To invoke federal jurisdiction, a plaintiff must show a "personal stake" in the outcome of the action. "This requirement ensures that the Federal Judiciary confines itself to its constitutionally limited role of adjudicating actual and concrete disputes, the resolutions of which have direct consequences on the parties involved." Such a dispute "must be extant at all stages of review, not merely at the time the complaint is filed." A case that becomes moot at any point during the proceedings is "no longer a `Case' or `Controversy' for purposes of Article III," and is outside the jurisdiction of the federal courts.

[9] In concluding that this case was not moot, the Court of Appeals relied upon our class action precedents, most prominently Gerstein v. Pugh. That reliance was misplaced.[*] Gerstein, a class action brought under Federal Rule of Civil Procedure 23, involved a certified class of detainees raising claims concerning their pretrial detention. By the time this Court heard the case, the named representatives' claims were moot, and the record suggested that their interest might have lapsed even before the District Court certified the class. Normally a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification. The Court nevertheless held that the case remained live. As we explained, pretrial custody was inherently temporary and of uncertain length, such that we could not determine "that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class." Gerstein, 420 U.S., at 110-111, n. 11. At the same time, it was certain that there would always be some group of detainees subject to the challenged practice. Given these circumstances, the Court determined that the class action could proceed.

[10] The Court of Appeals interpreted Gerstein to cover all "cases sufficiently similar to class actions" in which, "because of the inherently transitory nature of the claims," the claimant's "interests would expire before litigation could be completed." Gerstein was an action brought under Federal Rule of Civil Procedure 23, but the Court of Appeals decided that such "a procedural mechanism to aggregate the claims" was not a "necessary prerequisite" for application of the Gerstein rule. Respondents, the court noted, sought "relief [from the restraint policy] not merely for themselves, but for all in-custody defendants in the district." Those "class-like claims" seeking "class-like relief" were sufficient to trigger the application of Gerstein and save the case from mootness, despite the termination of respondents' criminal cases.

[11] We reject the notion that Gerstein supports a freestanding exception to mootness outside the class action context. The class action is a creature of the Federal Rules of Civil Procedure. It is an "exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only," and "provides a procedure by which the court may exercise ... jurisdiction over the various individual claims in a single proceeding." "The certification of a suit as a class action has important consequences for the unnamed members of the class." Sosna v. Iowa, 419 U.S., at 393, 399, n. 8 (1975). Those class members may be "bound by the judgment" and are considered parties to the litigation in many important respects. A certified class thus "acquires a legal status separate from the interest asserted by the named plaintiff."

[12] Gerstein belongs to a line of cases that we have described as turning on the particular traits of civil class actions. The first case in this line, Sosna v. Iowa, held that when the claim of the named plaintiff becomes moot after class certification, a "live controversy may continue to exist" based on the ongoing interests of the remaining unnamed class members. Genesis HealthCare, 569 U.S., at 74, 133 S.Ct. 1523 (citing Sosna, 419 U.S., at 399-402). The "fact that a putative class acquires an independent legal status once it is certified" was, we later explained, "essential to our decision[ ] in Sosna." Genesis HealthCare, 569 U.S., at 75; see Kremens v. Bartley, 431 U.S. 119, (1977) (explaining that, under Sosna's rule, "only a `properly certified' class ... may succeed to the adversary position of a named representative whose claim becomes moot"); Alvarez v. Smith, 558 U.S. 87, 92-93, 130 S.Ct. 576, 175 L.Ed.2d 447 (2009) (same).

[13] Gerstein, announced one month after Sosna, provides a limited exception to Sosna's requirement that a named plaintiff with a live claim exist at the time of class certification. The exception applies when the pace of litigation and the inherently transitory nature of the claims at issue conspire to make that requirement difficult to fulfill. We have repeatedly tied Gerstein's rule to the class action setting from which it emerged.

[14] In concluding that Gerstein reaches further, the Court of Appeals looked to our recent decision in Genesis HealthCare Corp. v. Symczyk. But in that case the Court refused to extend Gerstein beyond the class action context, even with respect to a procedural device bearing many features similar to a class action. Genesis HealthCare addressed whether a "collective action" brought under the Fair Labor Standards Act (FLSA) by a plaintiff on behalf of herself "and other `similarly situated' employees" remained "justiciable when the lone plaintiff's individual claim bec[ame] moot." 569 U.S., at 69. In an effort to continue her case on behalf of others, the plaintiff turned to Sosna and its progeny, including Gerstein. But those cases, we explained, were "inapposite," not least because "Rule 23 actions are fundamentally different from collective actions under the FLSA." Such collective actions, we stressed, do not "produce a class with an independent legal status, or join additional parties to the action."

[15] This case, which does not involve any formal mechanism for aggregating claims, is even further removed from Rule 23 and Gerstein. The Federal Rules of Criminal Procedure establish for criminal cases no vehicle comparable to the FLSA collective action, much less the class action. And we have never permitted criminal defendants to band together to seek prospective relief in their individual criminal cases on behalf of a class. As we said when declining to apply nonparty preclusion outside the formal class action context, courts may not "recognize ... a common-law kind of class action" or "create de facto class actions at will."

[16] The court below designated respondents' case a "functional class action" because respondents were pursuing relief "not merely for themselves, but for all in-custody defendants in the district." But as explained in Genesis HealthCare, the "mere presence of ... allegations" that might, if resolved in respondents' favor, benefit other similarly situated individuals cannot "save [respondents'] suit from mootness once the[ir] individual claim[s]" have dissipated.

[17] Our conclusion is unaffected by the decision of the court below to recast respondents' appeals as petitions for "supervisory mandamus." Supervisory mandamus refers to the authority of the Courts of Appeals to exercise "supervisory control of the District Courts" through their "discretionary power to issue writs of mandamus." There is no sign in our scant supervisory mandamus precedents that such cases are exempt from the normal mootness rules.

[18] Respondents do not defend the reasoning of the Court of Appeals. In respondents' view, functional class actions and Gerstein's rule are beside the point because two respondents — Sanchez-Gomez and Patricio-Guzman — retain a personal stake in the out-come of their appeals.

[19] Sanchez-Gomez and Patricio-Guzman are no longer in pretrial custody. Their criminal cases, arising from their illegal entry into the United States, ended in guilty pleas well before the Court of Appeals issued its decision. Respondents contend, however, that the claims brought by Sanchez-Gomez and Patricio-Guzman fall within the "exception to the mootness doctrine for a controversy that is capable of repetition, yet evading review." A dispute qualifies for that exception only "if (1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again." The parties do not contest that the claims at issue satisfy the first prong of that test, but they sharply disagree as to the second.

[20] Respondents argue that Sanchez-Gomez and Patricio-Guzman meet the second prong because they will again violate the law, be apprehended, and be returned to pretrial custody. But we have consistently refused to "conclude that the case-or-controversy requirement is satisfied by" the possibility that a party "will be prosecuted for violating valid criminal laws." We have instead "assume[d] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct." See, e.g., Honig v. Doe, 484 U.S. 305, 320, (1988) ("[W]e generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury.").

[21] Respondents argue that this usual refusal to assume future criminal conduct is unwarranted here given the particular circumstances of Sanchez-Gomez's and Patricio-Guzman's offenses. They cite two civil cases — Honig v. Doe and Turner v. Rogers — in which this Court concluded that the expectation that a litigant would repeat the misconduct that gave rise to his claims rendered those claims capable of repetition. Neither case, however, supports a departure from the settled rule.

[22] Honig involved a disabled student's challenge to his suspension from school for disruptive behavior. We found that given his "inability to conform his conduct to socially acceptable norms" or "govern his aggressive, impulsive behavior," it was "reasonable to expect that [the student would] again engage in the type of misconduct that precipitated this suit" and "be subjected to the same unilateral school action for which he initially sought relief." In Turner, we determined that an indigent person repeatedly held in civil contempt for failing to make child support payments, who was at the time over $13,000 in arrears, and whose next hearing was only five months away, was destined to find himself in civil contempt proceedings again. The challenged denial of appointed counsel at his contempt hearing was thus capable of repetition.

[23] Respondents contend that Sanchez-Gomez and Patricio-Guzman, like the challengers in Honig and Turner, are likely to find themselves right back where they started if we dismiss their case as moot. Respondents cite a Sentencing Commission report finding that in 2013 thirty-eight percent of those convicted and sentenced for an illegal entry or illegal reentry offense "were deported and subsequently illegally reentered at least one time. Respondents emphasize the economic and familial pressures that often compel individuals such as Sanchez-Gomez and Patricio-Guzman to repeatedly attempt to enter the United States. And respondents note that both men, after their release, actually did cross the border into the United States, were apprehended again, and were charged with new illegal entry offenses. All this, respondents say, adds up to a sufficient showing that Sanchez-Gomez and Patricio-Guzman satisfy the "capable of repetition" requirement. Because the Court of Appeals was not aware that Sanchez-Gomez and Patricio-Guzman had subsequently reentered the United States illegally, respondents invite us to remand this case for further proceedings.

[24] We decline to do so because Honig and Turner are inapposite. Our decisions in those civil cases rested on the litigants' inability, for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct. In Honig, such incapacity was the very reason the school sought to expel the student. And in Turner, the indigent individual's large outstanding debt made him effectively incapable of satisfying his imminent support obligations. Sanchez-Gomez and Patricio-Guzman, in contrast, are "able — and indeed required by law" — to refrain from further criminal conduct. Their personal incentives to return to the United States, plus the elevated rate of recidivism associated with illegal entry offenses, do not amount to an inability to obey the law. We have consistently refused to find the case or controversy requirement satisfied where, as here, the litigants simply "anticipate violating lawful criminal statutes."

III

[25] None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. Because we hold this case moot, we take no position on the question.

* * *

[26] We vacate the judgment of the Court of Appeals for the Ninth Circuit and remand the case to that court with instructions to dismiss as moot.

[27] It is so ordered.

[*] Shortly after the panel decision in this case, the Southern District altered its policy to eliminate the routine use of full restraints in pretrial proceedings. The Government represents, however, that the Southern District intends to reinstate its policy once it is no longer bound by the decision of the Court of Appeals. Tr. of Oral Arg. 29. We agree with the Court of Appeals that the rescission of the policy does not render this case moot. A party "cannot automatically moot a case simply by ending its unlawful conduct once sued," else it "could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where [it] left off, repeating this cycle until [it] achieves all [its] unlawful ends." Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013).

3.5.2.26 Political Question: Introduction 3.5.2.26 Political Question: Introduction

3.5.2.27 Nixon v. United States, 506 U.S. 224 (1993) 3.5.2.27 Nixon v. United States, 506 U.S. 224 (1993)

Nixon v. United States, 506 U.S. 224 (1993)

[excerpt]

REHNQUIST, C. J., delivered the opinion of the Court, in which STEVENS, O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a concurring opinion. WHITE, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined. SOUTER, J., filed an opinion concurring in the judgment.

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

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

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

[4] After the House presented the articles to the Senate, the Senate voted to invoke its own Impeachment Rule XI, under which the presiding officer appoints a committee of Senators to “receive evidence and take testimony.” The Senate committee held four days of hearings, during which 10 witnesses, including Nixon, testified. Pursuant to Rule XI, the committee presented the full Senate with a complete transcript of the proceeding and a Report stating the uncontested facts and summarizing the evidence on the contested facts. Nixon and the House impeachment managers submitted extensive final briefs to the full Senate and delivered arguments from the Senate floor during the three hours set aside for oral argument in front of that body. Nixon himself gave a personal appeal, and several Senators posed questions directly to both parties. The Senate voted by more than the constitutionally required two-thirds majority to convict Nixon on the first two articles. The presiding officer then entered judgment removing Nixon from his office as United States District Judge.

[5] Nixon thereafter commenced the present suit, arguing that Senate Rule XI violates the constitutional grant of authority to the Senate to “try” all impeachments because it prohibits the whole Senate from taking part in the evidentiary hearings. Nixon sought a declaratory judgment that his impeachment conviction was void and that his judicial salary and privileges should be reinstated. The District Court held that his claim was nonjusticiable, and the Court of Appeals for the District of Columbia Circuit agreed. We granted certiorari.

[6] A controversy is nonjusticiable—i. e., involves a political question—where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it . . . .” Baker v. Carr, 369 U. S. 186, 217 (1962). But the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed. As the discussion that follows makes clear, the concept of a textual commitment to a coordinate political department is not completely separate from the concept of a lack of judicially discoverable and manageable standards for resolving it; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.

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

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

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

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

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

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

[13] Petitioner devotes only two pages in his brief to negating the significance of the word “sole” in the first sentence of Clause 6. As noted above, that sentence provides that “[t]he Senate shall have the sole Power to try all Impeachments.” We think that the word “sole” is of considerable significance. Indeed, the word “sole” appears only one other time in the Constitution—with respect to the House of Representatives’ “sole Power of Impeachment.” Art. I, § 2, cl. 5. The commonsense meaning of the word “sole” is that the Senate alone shall have authority to determine whether an individual should be acquitted or convicted.

[14] Nixon asserts that the word “sole” has no substantive meaning. To support this contention, he argues that the word is nothing more than a mere “cosmetic edit” added by the Committee of Style after the delegates had approved the substance of the Impeachment Trial Clause.

[15] We agree with the Government that “the word `sole’ is entitled to no less weight than any other word of the text, because the Committee revision perfected what `had been agreed to.’ ” Second, carrying Nixon’s argument to its logical conclusion would constrain us to say that the second to last draft would govern in every instance where the Committee of Style added an arguably substantive word. Such a result is at odds with the fact that the Convention passed the Committee’s version, and with the well-established rule that the plain language of the enacted text is the best indicator of intent.

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

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

[18] The Framers labored over the question of where the impeachment power should lie. Despite . . . proposals [for putting the power in the courts], the Convention ultimately decided that the Senate would have “the sole Power to try all Impeachments.” According to Alexander Hamilton, the Senate was the “most fit depositary of this important trust” because its Members are representatives of the people. The Supreme Court was not the proper body because the Framers “doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task” or whether the Court “would possess the degree of credit and authority” to carry out its judgment if it conflicted with the accusation brought by the Legislature—the people’s representative.

[19] [J]udicial review would be inconsistent with the Framers’ insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. On the topic of judicial accountability, Hamilton wrote:

[20] “The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges.”

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

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

[23] In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would “expose the political life of the country to months, or perhaps years, of chaos.” This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated.

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

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

[26] In the case before us, there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word “try” in the Impeachment Trial Clause.

Justice STEVENS, concurring.

[1] For me, the debate about the strength of the inferences to be drawn from the use of the words “sole” and “try” is far less significant than the central fact that the Framers decided to assign the impeachment power to the Legislative Branch. The disposition of the impeachment of Samuel Chase in 1805 demonstrated that the Senate is fully conscious of the profound importance of that assignment, and nothing in the subsequent history of the Senate’s exercise of this extraordinary power suggests otherwise. Respect for a coordinate branch of the Government forecloses any assumption that improbable hypotheticals like those mentioned by Justice White and Justice Souter will ever occur. Accordingly, the wise policy of judicial restraint, coupled with the potential anomalies associated with a contrary view, see ante, provide a sufficient justification for my agreement with the views of The Chief Justice.

Justice WHITE, with whom Justice BLACKMUN joins, concurring in the judgment.

[1] The majority states that the question raised in this case meets two of the criteria for political questions set out in Baker v. Carr, 369 U. S. 186 (1962). It concludes first that there is “`a textually demonstrable constitutional commitment of the issue to a coordinate political department.’ ” It also finds that the question cannot be resolved for “`a lack of judicially discoverable and manageable standards.’ ”

[2] Of course the issue in the political question doctrine is not whether the constitutional text commits exclusive responsibility for a particular governmental function to one of the political branches. There are numerous instances of this sort of textual commitment, e. g., Art. I, § 8, and it is not thought that disputes implicating these provisions are nonjusticiable. Rather, the issue is whether the Constitution has given one of the political branches final responsibility for interpreting the scope and nature of such a power.

[3] The majority finds a clear textual commitment in the Constitution’s use of the word “sole” in the phrase “[t]he Senate shall have the sole Power to try all Impeachments.” Art. I, § 3, cl. 6. It attributes “considerable significance” to the fact that this term appears in only one other passage in the Constitution. Ante, at 230. See Art. I, § 2, cl. 5 (the House of Representatives “shall have the sole Power of Impeachment”). The Framers’ sparing use of “sole” is thought to indicate that its employment in the Impeachment Trial Clause demonstrates a concern to give the Senate exclusive interpretive authority over the Clause.

[4] That the word “sole” is found only in the House and Senate Impeachment Clauses demonstrates that its purpose is to emphasize the distinct role of each in the impeachment process. . . Giving each House “sole” power with respect to its role in impeachments effected this division of labor. While the majority is thus right to interpret the term “sole” to indicate that the Senate ought to “`functio[n] independently and without assistance or interference,’ it wrongly identifies the Judiciary, rather than the House, as the source of potential interference with which the Framers were concerned when they employed the term “sole.”

[5] [T]he majority suggests that the Framers’ conferred upon Congress a potential tool of legislative dominance yet at the same time rendered Congress’ exercise of that power one of the very few areas of legislative authority immune from any judicial review. While the majority rejects petitioner’s justiciability argument as espousing a view “inconsistent with the Framers’ insistence that our system be one of checks and balances,” it is the Court’s finding of nonjusticiability that truly upsets the Framers’ careful design. In a truly balanced system, impeachments tried by the Senate would serve as a means of controlling the largely unaccountable Judiciary, even as judicial review would ensure that the Senate adhered to a minimal set of procedural standards in conducting impeachment trials.

[6] The majority also contends that the term “try” does not present a judicially manageable standard.

[7] The majority concludes that the term provides no “identifiable textual limit.” Yet, as the Government itself conceded at oral argument, the term “try” is hardly so elusive as the majority would have it. Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House, it is quite clear that the Senate will have failed to “try” impeachments. Indeed in this respect, “try” presents no greater, and perhaps fewer, interpretive difficulties than some other constitutional standards that have been found amenable to familiar techniques of judicial construction, including, for example, “Commerce . . . among the several States,” Art. I, § 8, cl. 3, and “due process of law,” Amdt. 5.

[8] The majority’s conclusion that “try” is incapable of meaningful judicial construction is not without irony. One might think that if any class of concepts would fall within the definitional abilities of the Judiciary, it would be that class having to do with procedural justice.

[9] In short, textual and historical evidence reveals that the Impeachment Trial Clause was not meant to bind the hands of the Senate beyond establishing a set of minimal procedures. Without identifying the exact contours of these procedures, it is sufficient to say that the Senate’s use of a factfinding committee under Rule XI is entirely compatible with the Constitution’s command that the Senate “try all impeachments.” Petitioner’s challenge to his conviction must therefore fail.

Justice Souter, concurring in the judgment.

[1] I agree with the Court that this case presents a nonjusticiable political question. Because my analysis differs somewhat from the Court’s, however, I concur in its judgment by this separate opinion.

[2] Whatever considerations feature most prominently in a particular case, the political question doctrine is “essentially a function of the separation of powers,” ibid., existing to restrain courts “from inappropriate interference in the business of the other branches of Government,” and deriving in large part from prudential concerns about the respect we owe the political departments. Not all interference is inappropriate or disrespectful, however, and application of the doctrine ultimately turns, as Learned Hand put it, on “how importunately the occasion demands an answer.” L. Hand, The Bill of Rights 15 (1958).

[3] This occasion does not demand an answer. The Impeachment Trial Clause commits to the Senate “the sole Power to try all Impeachments,” subject to three procedural requirements: the Senate shall be on oath or affirmation; the Chief Justice shall preside when the President is tried; and conviction shall be upon the concurrence of two-thirds of the Members present. U. S. Const., Art. I, § 3, cl. 6. It seems fair to conclude that the Clause contemplates that the Senate may determine, within broad boundaries, such subsidiary issues as the procedures for receipt and consideration of evidence necessary to satisfy its duty to “try” impeachments. Other significant considerations confirm a conclusion that this case presents a nonjusticiable political question: the “unusual need for unquestioning adherence to a political decision already made,” as well as “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker, supra, at 217. As the Court observes, judicial review of an impeachment trial would under the best of circumstances entail significant disruption of government.

[4] One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply “`a bad guy,’ ” (WHITE, J., concurring in judgment), judicial interference might well be appropriate. In such circumstances, the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence. “The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.” Baker, supra, at 215.

3.5.2.28 Baker v. Carr, 369 U.S. 186 (1962) 3.5.2.28 Baker v. Carr, 369 U.S. 186 (1962)

Baker v. Carr, 369 U.S. 186 (1962)

[excerpt]

JUSTICE BRENNAN delivered the opinion of the Court.

[1] [In 1901 the Tennessee legislature redrew its voting districts to reflect the state’s population. From 1901 to the time of the law suit in question the population of the state, like many states, shifted from rural areas to urban areas. The result was that by the time of the law suit, the population within the different districts were severely skewed such that a minority of the population was able to elect a majority of the representatives.Effectively the votes of people in rural areas counted more because they obtained more representatives per person than those in urban areas. Most states reapportion their districts after each census to roughly ensure one person one vote.]

[2] The complaint, alleg[ed] that by means of [the]1901 statute of Tennessee apportioning the members of the General Assembly among the State’s 95 counties,”these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes.”

[3] We hold that this challenge to an apportionment presents no nonjusticiable “political question.” The cited cases do not hold the contrary.

[4] Of course the mere fact that the suit seeks protection of a political right does not mean it presents a political question. Such an objection “is little more than a play upon words.” Nixon v. Herndon, 273 U. S. 536, 540. Rather, it is argued that apportionment cases, whatever the actual wording of the complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government,and that complaints based on that clause have been held to present political questions which are nonjusticiable.

[5] We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause.

[6] But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the “political question” doctrine.

[7] Our discussion, even at the price of extending this opinion, requires review of a number of political question cases, in order to expose the attributes of the doctrine— attributes which, in various settings, diverge, combine, appear, and disappear in seeming disorderliness. Since that review is undertaken solely to demonstrate that neither singly nor collectively do these cases support a conclusion that this apportionment case is nonjusticiable, we of course do not explore their implications in other contexts. That review reveals that in the Guaranty Clause cases and in the other “political question” cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.”

[8] We have said that “In determining whether a question falls within [the political question] category, the approriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Coleman v. Miller, 307 U. S. 433, 454-455. The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine. We shall then show that none of those threads catches this case.

[9] Foreign relations: There are sweeping statements to the effect that all questions touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government’s views. Yet it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. Our cases in this field seem invariably to show a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. For example, though a court will not ordinarily inquire whether a treaty has been terminated, since on that question “governmental action . . . must be regarded as of controlling importance,” if there has been no conclusive “governmental action” then a court can construe a treaty and may find it provides the answer. Though a court will not undertake to construe a treaty in a manner inconsistent with a subsequent federal statute, no similar hesitancy obtains if the asserted clash is with state law.

[10] While recognition of foreign governments so strongly defies judicial treatment that without executive recognition a foreign state has been called “a republic of whose existence we know nothing,”^[and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area. Similarly, recognition of belligerency abroad is an executive responsibility, but if the executive proclamations fall short of an explicit answer, a court may construe them seeking, for example, to determine whether the situation is such that statutes designed to assure American neutrality have become operative.

[11] Dates of duration of hostilities: Though it has been stated broadly that “the power which declared the necessity is the power to declare its cessation, and what the cessation requires,” Commercial Trust Co. v. Miller, 262 U. S. 51, 57, here too analysis reveals isolable reasons for the presence of political questions, underlying this Court’s refusal to review the political departments’ determination of when or whether a war has ended. Dominant is the need for finality in the political determination, for emergency’s nature demands “A prompt and unhesitating obedience,” Martin v. Mott, 12 Wheat. 19, 30 (calling up of militia). Moreover, “the cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U. S. 146, 161, that the war power includes the power `to remedy the evils which have arisen from its rise and progress’ and continues during that emergency. But deference rests on reason, not habit. The question in a particular case may not seriously implicate considerations of finality—e. g., a public program of importance (rent control) yet not central to the emergency effort. Further, clearly definable criteria for decision may be available. In such case the political question barrier falls away: “[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . [It can] inquire whether the exigency still existed upon which the continued operation of the law depended.” Chastleton Corp. v. Sinclair, 264 U. S. 543, 547-548. On the other hand, even in private litigation which directly implicates no feature of separation of powers, lack of judicially discoverable standards and the drive for even-handed application may impel reference to the political departments’ determination of dates of hostilities’ beginning and ending. The Protector, 12 Wall. 700.

[12] Validity of enactments: In Coleman v. Miller, supra, this Court held that the questions of how long a proposed amendment to the Federal Constitution remained open to ratification, and what effect a prior rejection had on a subsequent ratification, were committed to congressional resolution and involved criteria of decision that necessarily escaped the judicial grasp.^Similar considerations apply to the enacting process: “The respect due to coequal and independent departments,” and the need for finality and certainty about the status of a statute contribute to judicial reluctance to inquire whether, as passed, it complied with all requisite formalities. Field v. Clark, 143 U. S. 649, 672, 676-677. But it is not true that courts will never delve into a legislature’s records upon such a quest: If the enrolled statute lacks an effective date, a court will not hesitate to seek it in the legislative journals in order to preserve the enactment. Gardner v. The Collector, 6 Wall. 499. The political question doctrine, a tool for maintenance of governmental order, will not be so applied as to promote only disorder.

[13] It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

[14] The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.

[15] But it is argued that this case shares the characteristics of decisions that constitute a category not yet considered, cases concerning the Constitution’s guaranty, in Art. IV, § 4, of a republican form of government. A conclusion as to whether the case at bar does present a political question cannot be confidently reached until we have considered those cases with special care. We shall discover that Guaranty Clause claims involve those elements which define a “political question,” and for that reason and no other, they are nonjusticiable. In particular, we shall discover that the nonjusticiability of such claims has nothing to do with their touching upon matters of state governmental organization.

[16] We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided, by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action.

[17] This case does, in one sense, involve the allocation of political power within a State, and the appellants might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here.

[18] We conclude then that the nonjusticiability of claims resting on the Guaranty Clause which arises from their embodiment of questions that were thought “political,” can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define “political questions,” and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this.

[19] Since, as has been established, the equal protection claim tendered in this case does not require decision of any political question, and since the presence of a matter affecting state government does not render the case nonjusticiable, it seems appropriate to examine again the reasoning by which the District Court reached its conclusion that the case was nonjusticiable.

[20] We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.

[21] The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion.

JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, dissenting.

[1] The Court today reverses a uniform course of decision established by a dozen cases, including one by which the very claim now sustained was unanimously rejected only five years ago. The impressive body of rulings thus cast aside reflected the equally uniform course of our political history regarding the relationship between population and legislative representation—a wholly different matter from denial of the franchise to individuals because of race, color, religion or sex. Such a massive repudiation of the experience of our whole past in asserting destructively novel judicial power demands a detailed analysis of the role of this Court in our constitutional scheme. Disregard of inherent limits in the effective exercise of the Court’s “judicial Power” not only presages the futility of judicial intervention in the essentially political conflict of forces by which the relation between population and representation has time out of mind been and now is determined. It may well impair the Court’s position as the ultimate organ of “the supreme Law of the Land” in that vast range of legal problems, often strongly entangled in popular feeling, on which this Court must pronounce. The Court’s authority—possessed of neither the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.

[2] For this Court to direct the District Court to enforce a claim to which the Court has over the years consistently found itself required to deny legal enforcement and at the same time to find it necessary to withhold any guidance to the lower court how to enforce this turnabout, new legal claim, manifests an odd— indeed an esoteric—conception of judicial propriety.

[3] Even assuming the indispensable intellectual disinterestedness on the part of judges in such matters, they do not have accepted legal standards or criteria or even reliable analogies to draw upon for making judicial judgments. To charge courts with the task of accommodating the incommensurable factors of policy that underlie these mathematical puzzles is to attribute, however flatteringly, omnicompetence to judges.

[4] In effect, today’s decision empowers the courts of the country to devise what should constitute the proper composition of the legislatures of the fifty States. If state courts should for one reason or another find themselves unable to discharge this task, the duty of doing so is put on the federal courts or on this Court, if State views do not satisfy this Court’s notion of what is proper districting.

[5] In this situation, as in others of like nature, appeal for relief does not belong here. Appeal must be to an informed, civically militant electorate. In a democratic society like ours, relief must come through an aroused popular conscience that sears the conscience of the people’s representatives. In any event there is nothing judicially more unseemly nor more self-defeating than for this Court to make in terrorem pronouncements, to indulge in merely empty rhetoric, sounding a word of promise to the ear, sure to be disappointing to the hope.

[6] This is the latest in the series of cases in which the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been invoked in federal courts as restrictions upon the power of the States to allocate electoral weight among the voting populations of their various geographical subdivisions.

III

[7] The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, § 4, where, in fact, the gist of their complaint is the same—unless it can be found that the Fourteenth Amendment speaks with greater particularity to their situation.

[8] Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful—in short, that Tennessee has adopted a basis of representation with which they are dissatisfied. Talk of “debasement” or “dilution” is circular talk. One cannot speak of “debasement” or “dilution” of the value of a vote until there is first defined a standard of reference as to what a vote should be worth. What is actually asked of the Court in this case is to choose among competing bases of representation—ultimately, really, among competing theories of political philosophy—in order to establish an appropriate frame of government for the State of Tennessee and thereby for all the States of the Union.

[9] To find such a political conception legally enforceable in the broad and unspecific guarantee of equal protection is to rewrite the Constitution. See Luther v. Borden, supra. Certainly, “equal protection” is no more secure a foundation for judicial judgment of the permissibility of varying forms of representative government than is “Republican Form.”

[10] Apportionment, by its character, is a subject of extraordinary complexity, involving—even after the fundamental theoretical issues concerning what is to be represented in a representative legislature have been fought out or compromised —considerations of geography, demography, electoral convenience, economic and social cohesions or divergencies among particular local groups, communications, the practical effects of political institutions like the lobby and the city machine, ancient traditions and ties of settled usage, respect for proven incumbents of long experience and senior status, mathematical mechanics, censuses compiling relevant data, and a host of others. Legislative responses throughout the country to the reapportionment demands of the 1960 Census have glaringly confirmed that these are not factors that lend themselves to evaluations of a nature that are the staple of judicial determinations or for which judges are equipped to adjudicate by legal training or experience or native wit. And this is the more so true because in every strand of this complicated, intricate web of values meet the contending forces of partisan politics.The practical significance of apportionment is that the next election results may differ because of it. Apportionment battles are overwhelmingly party or intra-party contests. It will add a virulent source of friction and tension in federal-state relations to embroil the federal judiciary in them.

3.5.2.29 Zivotofsky v. Clinton, 566 U.S. 189 (2012) 3.5.2.29 Zivotofsky v. Clinton, 566 U.S. 189 (2012)

Zivotofsky v. Clinton, 566 U.S. 189 (2012)

[excerpt]

Chief Justice ROBERTS delivered the opinion of the Court.

[1] Congress enacted a statute providing that Americans born in Jerusalem may elect to have “Israel” listed as the place of birth on their passports. The State Department declined to follow that law, citing its longstanding policy of not taking a position on the political status of Jerusalem. When sued by an American who invoked the statute, the Secretary of State argued that the courts lacked authority to decide the case because it presented a political question. The Court of Appeals so held.

[2] We disagree. The courts are fully capable of determining whether this statute may be given effect, or instead must be struck down in light of authority conferred on the Executive by the Constitution.

[3] In 2002, Congress enacted the Foreign Relations Authorization Act, Fiscal Year 2003. Section 214 of the Act is entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.”

[4] The fourth and final provision, § 214(d), is the only one at stake in this case. Entitled “Record of Place of Birth as Israel for Passport Purposes,” it provides that “[f]or purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” Ibid.

[5] The State Department’s Foreign Affairs Manual states that “[w]here the birthplace of the applicant is located in territory disputed by another country, the city or area of birth may be written in the passport.” The manual specifically directs that passport officials should enter “JERUSALEM” and should “not write Israel or Jordan” when recording the birthplace of a person born in Jerusalem on a passport.

[6] Section 214(d) sought to override this instruction by allowing citizens born in Jerusalem to have “Israel” recorded on their passports if they wish. In signing the Foreign Relations Authorization Act into law, President George W. Bush stated his belief that § 214 “impermissibly interferes with the President’s constitutional authority to conduct the Nation’s foreign affairs and to supervise the unitary executive branch.” He added that if the section is “construed as mandatory,” then it would “interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

[7] Petitioner Menachem Binyamin Zivotofsky was born in Jerusalem on October 17, 2002, shortly after § 214(d) was enacted. Zivotofsky’s parents were American citizens and he accordingly was as well, by virtue of congressional enactment. Zivotofsky’s mother filed an application for a consular report of birth abroad and a United States passport. She requested that his place of birth be listed as “Jerusalem, Israel” on both documents. U.S. officials informed Zivotofsky’s mother that State Department policy prohibits recording “Israel” as Zivotofsky’s place of birth. Pursuant to that policy, Zivotofsky was issued a passport and consular report of birth abroad listing only “Jerusalem.”

[8] Zivotofsky’s parents filed a complaint on his behalf against the Secretary of State. Zivotofsky sought a declaratory judgment and a permanent injunction ordering the Secretary to identify his place of birth as “Jerusalem, Israel” in the official documents.

[9] The lower courts concluded that Zivotofsky’s claim presents a political question and therefore cannot be adjudicated. We disagree.

[10] In general, the Judiciary has a responsibility to decide cases properly before it, even those it “would gladly avoid.” Our precedents have identified a narrow exception to that rule, known as the “political question” doctrine. We have explained that a controversy “involves a political question . . . where there is `a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.'” Nixon v. United States, 506 U.S. 224, 228, (1993). In such a case, we have held that a court lacks the authority to decide the dispute before it.

[11] The lower courts ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone. The District Court understood Zivotofsky to ask the courts to “decide the political status of Jerusalem.” This misunderstands the issue presented. Zivotofsky does not ask the courts to determine whether Jerusalem is the capital of Israel. He instead seeks to determine whether he may vindicate his statutory right, under § 214(d), to choose to have Israel recorded on his passport as his place of birth.

[12] For its part, the D.C. Circuit treated the two questions as one and the same. That court concluded that “[o]nly the Executive—not Congress and not the courts— has the power to define U.S. policy regarding Israel’s sovereignty over Jerusalem,” and also to “decide how best to implement that policy.” Because the Department’s passport rule was adopted to implement the President’s “exclusive and unreviewable constitutional power to keep the United States out of the debate over the status of Jerusalem,” the validity of that rule was itself a “nonjusticiable political question” that “the Constitution leaves to the Executive alone.” Indeed, the D.C. Circuit’s opinion does not even mention § 214(d) until the fifth of its six paragraphs of analysis, and then only to dismiss it as irrelevant: “That Congress took a position on the status of Jerusalem and gave Zivotofsky a statutory cause of action . . . is of no moment to whether the judiciary has [the] authority to resolve this dispute. . . .”

[13] The existence of a statutory right, however, is certainly relevant to the Judiciary’s power to decide Zivotofsky’s claim. The federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be. Instead, Zivotofsky requests that the courts enforce a specific statutory right. To resolve his claim, the Judiciary must decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.

[14] Moreover, because the parties do not dispute the interpretation of § 214(d), the only real question for the courts is whether the statute is constitutional. At least since Marbury v. Madison, 1 Cranch 137 (1803), we have recognized that when an Act of Congress is alleged to conflict with the Constitution, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” That duty will sometimes involve the “[r]esolution of litigation challenging the constitutional authority of one of the three branches,” but courts cannot avoid their responsibility merely “because the issues have political implications.”

[15] In this case, determining the constitutionality of § 214(d) involves deciding whether the statute impermissibly intrudes upon Presidential powers under the Constitution. If so, the law must be invalidated and Zivotofsky’s case should be dismissed for failure to state a claim. If, on the other hand, the statute does not trench on the President’s powers, then the Secretary must be ordered to issue Zivotofsky a passport that complies with § 214(d). Either way, the political question doctrine is not implicated. “No policy underlying the political question doctrine suggests that Congress or the Executive . . . can decide the constitutionality of a statute; that is a decision for the courts.”

[16] The Secretary contends that “there is `a textually demonstrable constitutional commitment'” to the President of the sole power to recognize foreign sovereigns and, as a corollary, to determine whether an American born in Jerusalem may choose to have Israel listed as his place of birth on his passport. Perhaps. But there is, of course, no exclusive commitment to the Executive of the power to determine the constitutionality of a statute. The Judicial Branch appropriately exercises that authority, including in a case such as this, where the question is whether Congress or the Executive is “aggrandizing its power at the expense of another branch.” Freytag v. Commissioner, 501 U.S. 868, 878 (1991).

[17] Our precedents have also found the political question doctrine implicated when there is “`a lack of judicially discoverable and manageable standards for resolving'” the question before the court. Nixon, supra, at 228 (quoting Baker, supra,at 217). Framing the issue as the lower courts did, in terms of whether the Judiciary may decide the political status of Jerusalem, certainly raises those concerns. They dissipate, however, when the issue is recognized to be the more focused one of the constitutionality of § 214(d). Indeed, both sides offer detailed legal arguments regarding whether § 214(d) is constitutional in light of powers committed to the Executive, and whether Congress’s own powers with respect to passports must be weighed in analyzing this question.

[18] Recitation of these arguments—which sound in familiar principles of constitutional interpretation—is enough to establish that this case does not “turn on standards that defy judicial application.” Baker, 369 U.S., at 211, 82 S.Ct. 691. Resolution of Zivotofsky’s claim demands careful examination of the textual, structural, and historical evidence put forward by the parties regarding the nature of the statute and of the passport and recognition powers. This is what courts do. The political question doctrine poses no bar to judicial review of this case.

III

[19] To say that Zivotofsky’s claim presents issues the Judiciary is competent to resolve is not to say that reaching a decision in this case is simple. Because the District Court and the D.C. Circuit believed that review was barred by the political question doctrine, we are without the benefit of thorough lower court opinions to guide our analysis of the merits. Ours is “a court of final review and not first view.” We see no reason to depart from this approach in this case. Having determined that this case is justiciable, we leave it to the lower courts to consider the merits in the first instance.

[20] The judgment of the Court of Appeals for the D.C. Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.

[21] It is so ordered.

Justice SOTOMAYOR, with whom Justice BREYER joins as to Part I, concurring in part and concurring in the judgment.

[1] As this case illustrates, the proper application of Baker‘s six factors has generated substantial confusion in the lower courts. I concur in the Court’s conclusion that this case does not present a political question. I write separately, however, because I understand the inquiry required by the political question doctrine to be more demanding than that suggested by the Court.

[2] The political question doctrine speaks to an amalgam of circumstances in which courts properly examine whether a particular suit is justiciable—that is, whether the dispute is appropriate for resolution by courts. The doctrine is “essentially a function of the separation of powers,” Baker v. Carr, 369 U.S. 186 (1962), which recognizes the limits that Article III imposes upon courts and accords appropriate respect to the other branches’ exercise of their own constitutional powers.

[3] In Baker, this Court identified six circumstances in which an issue might present a political question: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion”; (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; (5) “an unusual need for unquestioning adherence to a political decision already made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker established that “[u]nless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability.” Ibid. But Baker left unanswered when the presence of one or more factors warrants dismissal, as well as the interrelationship of the six factors and the relative importance of each in determining whether a case is suitable for adjudication.

[4] In my view, the Baker factors reflect three distinct justifications for withholding judgment on the merits of a dispute. When a case would require a court to decide an issue whose resolution is textually committed to a coordinate political department, as envisioned by Baker‘s first factor, abstention is warranted because the court lacks authority to resolve that issue. In such cases, the Constitution itself requires that another branch resolve the question presented.

[5] The second and third Baker factors reflect circumstances in which a dispute calls for decisionmaking beyond courts’ competence. “`The judicial Power’ created by Article III, § 1, of the Constitution is not whatever judges choose to do,” but rather the power “to act in the manner traditional for English and American courts.” Vieth v. Jubelirer, 541 U.S. 267 (2004) (plurality opinion). That traditional role involves the application of some manageable and cognizable standard within the competence of the Judiciary to ascertain and employ to the facts of a concrete case. When a court is given no standard by which to adjudicate a dispute, or cannot resolve a dispute in the absence of a yet-unmade policy determination charged to a political branch, resolution of the suit is beyond the judicial role envisioned by Article III. This is not to say, of course, that courts are incapable of interpreting or applying somewhat ambiguous standards using familiar tools of statutory or constitutional interpretation. But where an issue leaves courts truly rudderless, there can be “no doubt of [the] validity” of a court’s decision to abstain from judgment. Ibid.

[6] The final three Baker factors address circumstances in which prudence may counsel against a court’s resolution of an issue presented. Courts should be particularly cautious before forgoing adjudication of a dispute on the basis that judicial intervention risks “embarrassment from multifarious pronouncements by various departments on one question,” would express a “lack of the respect due coordinate branches of government,” or because there exists an “unusual need for unquestioning adherence to a political decision already made.” We have repeatedly rejected the view that these thresholds are met whenever a court is called upon to resolve the constitutionality or propriety of the act of another branch of Government. A court may not refuse to adjudicate a dispute merely because a decision “may have significant political overtones” or affect “the conduct of this Nation’s foreign relations,” Nor may courts decline to resolve a controversy within their traditional competence and proper jurisdiction simply because the question is difficult, the consequences weighty, or the potential real for conflict with the policy preferences of the political branches. The exercise of such authority is among the “gravest and most delicate dut[ies] that this Court is called on to perform,” but it is the role assigned to courts by the Constitution. “Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.”

[7] Rare occasions implicating Baker‘s final factors, however, may present an “`unusual case'” unfit for judicial disposition. Because of the respect due to a coequal and independent department, for instance, courts properly resist calls to question the good faith with which another branch attests to the authenticity of its internal acts. Likewise, we have long acknowledged that courts are particularly ill suited to intervening in exigent disputes necessitating unusual need for “attributing finality to the action of the political departments,” or creating acute “risk [of] embarrassment of our government abroad, or grave disturbance at home,” Baker, 369 U.S., at 226, 82 S.Ct. 691. See, e.g., Luther, 7 How., at 43 (“After the President has acted and called out the militia, is a Circuit Court of the United States authorized to inquire whether his decision was right? . . . If the judicial power extends so far, the guarantee contained in the Constitution of the United States is a guarantee of anarchy, and not of order”). Finally, it may be appropriate for courts to stay their hand in cases implicating delicate questions concerning the distribution of political authority between coordinate branches until a dispute is ripe, intractable, and incapable of resolution by the political process. Abstention merely reflects that judicial intervention in such cases is “legitimate only in the last resort,” and is disfavored relative to the prospect of accommodation between the political branches.

[8] When such unusual cases arise, abstention accommodates considerations inherent in the separation of powers and the limitations envisioned by Article III, which conferred authority to federal courts against a common-law backdrop that recognized the propriety of abstention in exceptional cases. The political questions envisioned by Baker‘s final categories find common ground, therefore, with many longstanding doctrines under which considerations of justiciability or comity lead courts to abstain from deciding questions whose initial resolution is better suited to another time, or another forum. To be sure, it will be the rare case in which Baker‘s final factors alone render a case nonjusticiable. But our long historical tradition recognizes that such exceptional cases arise, and due regard for the separation of powers and the judicial role envisioned by Article III confirms that abstention may be an appropriate response.

[9] The court below held that this case presented a political question because it thought petitioner’s suit asked the court to decide an issue “textually committed” to a coordinate branch—namely, “to review a policy of the State Department implementing the President’s decision” to keep the United States out of the debate over the status of Jerusalem. Largely for the reasons set out by the Court, I agree that the Court of Appeals misapprehended the nature of its task. In two respects, however, my understanding of the political question doctrine might require a court to engage in further analysis beyond that relied upon by the Court.

[10] First, the Court appropriately recognizes that petitioner’s claim to a statutory right is “relevant” to the justiciability inquiry required in this case. In order to evaluate whether a case presents a political question, a court must first identify with precision the issue it is being asked to decide. Here, petitioner’s suit claims that a federal statute provides him with a right to have “Israel” listed as his place of birth on his passport and other related documents. To decide that question, a court must determine whether the statute is constitutional, and therefore mandates the Secretary of State to issue petitioner’s desired passport, or unconstitutional, in which case his suit is at an end. Resolution of that issue is not one “textually committed” to another branch; to the contrary, it is committed to this one. In no fashion does the question require a court to review the wisdom of the President’s policy toward Jerusalem or any other decision committed to the discretion of a coordinate department. For that reason, I agree that the decision below should be reversed.

[11] That is not to say, however, that no statute could give rise to a political question. It is not impossible to imagine a case involving the application or even the constitutionality of an enactment that would present a nonjusticiable issue. Indeed, this Court refused to determine whether an Ohio state constitutional provision offended the Republican Guarantee Clause, Art. IV, § 4, holding that “the question of whether that guarantee of the Constitution has been disregarded presents no justiciable controversy.” Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). A similar result would follow if Congress passed a statute, for instance, purporting to award financial relief to those improperly “tried” of impeachment offenses. To adjudicate claims under such a statute would require a court to resolve the very same issue we found nonjusticiable in Nixon. Such examples are atypical, but they suffice to show that the foreclosure altogether of political question analysis in statutory cases is unwarranted.

[12] Second, the Court suggests that this case does not implicate the political question doctrine’s concern with issues exhibiting “`a lack of judicially discoverable and manageable standards,'” because the parties’ arguments rely on textual, structural, and historical evidence of the kind that courts routinely consider. But that was equally true in Nixon, a case in which we found that “the use of the word `try’ in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions.” We reached that conclusion even though the parties’ briefs focused upon the text of the Impeachment Trial Clause, “the Constitution’s drafting history,” “contemporaneous commentary,” “the unbroken practice of the Senate for 150 years,” contemporary dictionary meanings, “Hamilton’s Federalist essays,” and the practice in the House of Lords prior to ratification. Such evidence was no more or less unfamiliar to courts than that on which the parties rely here.

[13] In my view, it is not whether the evidence upon which litigants rely is common to judicial consideration that determines whether a case lacks judicially discoverable and manageable standards. Rather, it is whether that evidence in fact provides a court a basis to adjudicate meaningfully the issue with which it is presented. The answer will almost always be yes, but if the parties’ textual, structural, and historical evidence is inapposite or wholly unilluminating, rendering judicial decision no more than guesswork, a case relying on the ordinary kinds of arguments offered to courts might well still present justiciability concerns.

[14] In this case, however, the Court of Appeals majority found a political question solely on the basis that this case required resolution of an issue “textually committed” to the Executive Branch. Because there was no such textual commitment, I respectfully concur in the Court’s decision to reverse the Court of Appeals.

[Justice ALITO’s concurrence is omitted]

Justice BREYER, dissenting.

[1] I join Part I of Justice SOTOMAYOR’s opinion. As she points out, Baker v. Carr, 369 U.S. 186 (1962), set forth several categories of legal questions that the Court had previously held to be “political questions” inappropriate for judicial determination.

[2] As Justice SOTOMAYOR also points out, these categories (and in my view particularly the last four) embody “circumstances in which prudence may counsel against a court’s resolution of an issue presented.” Justice SOTOMAYOR adds that the circumstances in which these prudential considerations lead the Court not to decide a case otherwise properly before it are rare. I agree. But in my view we nonetheless have before us such a case. Four sets of prudential considerations, taken together, lead me to that conclusion.

[3] First, the issue before us arises in the field of foreign affairs. (Indeed, the statutory provision before us is a subsection of a section that concerns the relation between Jerusalem and the State of Israel. The Constitution primarily delegates the foreign affairs powers “to the political departments of the government, Executive and Legislative,” not to the Judiciary. And that fact is not surprising. Decisionmaking in this area typically is highly political. It is “delicate” and “complex.” It often rests upon information readily available to the Executive Branch and to the intelligence committees of Congress, but not readily available to the courts. It frequently is highly dependent upon what Justice Jackson called “prophecy.” And the creation of wise foreign policy typically lies well beyond the experience or professional capacity of a judge. At the same time, where foreign affairs is at issue, the practical need for the United States to speak “with one voice and ac[t] as one,” is particularly important.

[4] The result is a judicial hesitancy to make decisions that have significant foreign policy implications, as reflected in the fact that many of the cases in which the Court has invoked the political-question doctrine have arisen in this area, e.g., cases in which the validity of a treaty depended upon the partner state’s constitutional authority, or upon its continuing existence; cases concerning the existence of foreign states, governments, belligerents, and insurgents; and cases concerning the territorial boundaries of foreign states.

[5] Second, if the courts must answer the constitutional question before us, they may well have to evaluate the foreign policy implications of foreign policy decisions. The constitutional question focuses upon a statutory provision, § 214(d), that says: The Secretary of State, upon the request of a U.S. citizen born in Jerusalem (or upon the request of the citizen’s legal guardian), shall “record” in the citizen’s passport or consular birth report “the place of birth as Israel.” And the question is whether this statute unconstitutionally seeks to limit the President’s inherent constitutional authority to make certain kinds of foreign policy decisions.

[6] The Secretary of State argues that the President’s constitutional authority to determine foreign policy includes the power to recognize foreign governments, that this Court has long recognized that the latter power belongs to the President exclusively, that the power includes the power to determine claims over disputed territory as well as the policy governing recognition decisions, and that the statute unconstitutionally limits the President’s exclusive authority to exercise these powers.

[7] Zivotofsky, supported by several Members of Congress, points out that the Constitution also grants Congress powers related to foreign affairs, such as the powers to declare war, to regulate foreign commerce, and to regulate naturalization. They add that Congress may share some of the recognition power and its attendant power of determining claims over disputed territory. And they add that Congress may enact laws concerning travel into this country and concerning the citizenship of children born abroad to U.S. citizens. They argue that these powers include the power to specify the content of a passport (or consular birth report). And when such a specification takes the form of statutory law, they say, the Constitution requires the President (through the Secretary of State) to execute that statute.

[8] Were the statutory provision undisputedly concerned only with purely administrative matters (or were its enforcement undisputedly to involve only major foreign policy matters), judicial efforts to answer the constitutional question might not involve judges in trying to answer questions of foreign policy. But in the Middle East, administrative matters can have implications that extend far beyond the purely administrative. Political reactions in that region can prove uncertain. And in that context it may well turn out that resolution of the constitutional argument will require a court to decide how far the statute, in practice, reaches beyond the purely administrative, determining not only whether but also the extent to which enforcement will interfere with the President’s ability to make significant recognition-related foreign policy decisions.

[9] Certainly the parties argue as if that were so. Zivotofsky, for example, argues that replacing “Jerusalem” on his passport with “Israel” will have no serious foreign policy significance.

[10] At the same time, the Secretary argues that listing Israel on the passports (and consular birth reports) of Americans born in Jerusalem will have significantly adverse foreign policy effects. She says that doing so would represent “`an official decision by the United States to begin to treat Jerusalem as a city located within Israel,'” that it “would be interpreted as an official act of recognizing Jerusalem as being under Israeli sovereignty,” and that our “national security interests” consequently “would be significantly harmed.” Such an action, she says, “`would signal, symbolically or concretely, that'” the United States “`recognizes that Jerusalem is a city that is located within the sovereign territory of Israel,'” and doing so, “`would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.'” She adds that the very enactment of this statutory provision in 2002 produced headlines in the Middle East stating the “the U.S. now recognizes Jerusalem as Israel’s capital.”

[11] A judge’s ability to evaluate opposing claims of this kind is minimal. At the same time, a judicial effort to do so risks inadvertently jeopardizing sound foreign policy decisionmaking by the other branches of Government. How, for example, is this Court to determine whether, or the extent to which, the continuation of the adjudication that it now orders will itself have a foreign policy effect?

[12] Third, the countervailing interests in obtaining judicial resolution of the constitutional determination are not particularly strong ones. Zivotofsky does not assert the kind of interest, e.g., an interest in property or bodily integrity, which courts have traditionally sought to protect. Nor, importantly, does he assert an interest in vindicating a basic right of the kind that the Constitution grants to individuals and that courts traditionally have protected from invasion by the other branches of Government. And I emphasize this fact because the need for judicial action in such cases can trump the foreign policy concerns that I have mentioned.

[13] Fourth, insofar as the controversy reflects different foreign policy views among the political branches of Government, those branches have nonjudicial methods of working out their differences. The Executive and Legislative Branches frequently work out disagreements through ongoing contacts and relationships, involving, for example, budget authorizations, confirmation of personnel, committee hearings, and a host of more informal contacts, which, taken together, ensure that, in practice, Members of Congress as well as the President play an important role in the shaping of foreign policy.

[14] The upshot is that this case is unusual both in its minimal need for judicial intervention and in its more serious risk that intervention will bring about “embarrassment,” show lack of “respect” for the other branches, and potentially disrupt sound foreign policy decisionmaking. For these prudential reasons, I would hold that the political-question doctrine bars further judicial consideration of this case. And I would affirm the Court of Appeals’ similar conclusion.

[15] With respect, I dissent.

3.5.2.30 Rucho v. Common Cause, 139 S.Ct. 2484 (2019) 3.5.2.30 Rucho v. Common Cause, 139 S.Ct. 2484 (2019)

Rucho v. Common Cause, 139 S.Ct. 2484 (2019)

[excerpt]

Chief Justice ROBERTS delivered the opinion of the Court.

[1] Voters and other plaintiffs in North Carolina and Maryland challenged their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs complained that the State’s districting plan discriminated against Democrats; the Maryland plaintiffs complained that their State’s plan discriminated against Republicans. The plaintiffs alleged that the gerrymandering violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, § 2, of the Constitution. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court.

[2] These cases require us to consider whether claims of excessive partisanship in districting are “justiciable”—that is, properly suited for resolution by the federal courts. This Court has not previously struck down a districting plan as an unconstitutional partisan gerrymander, and has struggled without success over the past several decades to discern judicially manageable standards for deciding such claims. The districting plans at issue here are highly partisan, by any measure. The question is whether the courts below appropriately exercised judicial power when they found them unconstitutional as well.

[3] The first case involves a challenge to the congressional redistricting plan enacted by the Republican-controlled North Carolina General Assembly in 2016. The Republican legislators leading the redistricting effort instructed their mapmaker to use political data to draw a map that would produce a congressional delegation of ten Republicans and three Democrats. As one of the two Republicans chairing the redistricting committee stated, “I think electing Republicans is better than electing Democrats. So I drew this map to help foster what I think is better for the country.” He further explained that the map was drawn with the aim of electing ten Republicans and three Democrats because he did “not believe it [would be] possible to draw a map with 11 Republicans and 2 Democrats.” One Democratic state senator objected that entrenching the 10–3 advantage for Republicans was not “fair, reasonable, [or] balanced” because, as recently as 2012, “Democratic congressional candidates had received more votes on a statewide basis than Republican candidates.” The General Assembly was not swayed by that objection and approved the 2016 Plan by a party-line vote.

[4] In November 2016, North Carolina conducted congressional elections using the 2016 Plan, and Republican candidates won 10 of the 13 congressional districts. In the 2018 elections, Republican candidates won nine congressional districts, while Democratic candidates won three. The Republican candidate narrowly prevailed in the remaining district, but the State Board of Elections called a new election after allegations of fraud.

[5] This litigation began in August 2016, when the North Carolina Democratic Party, Common Cause (a nonprofit organization), and 14 individual North Carolina voters sued the two lawmakers who led the redistricting effort and other state defendants in Federal District Court. [Later], the League of Women Voters of North Carolina and 12 additional North Carolina voters filed a similar complaint. The two cases were consolidated.

[6] The plaintiffs challenged the 2016 Plan on multiple constitutional grounds. First, they alleged that the Plan violated the Equal Protection Clause of the Fourteenth Amendment by intentionally diluting the electoral strength of Democratic voters. Second, they claimed that the Plan violated their First Amendment rights by retaliating against supporters of Democratic candidates on the basis of their political beliefs. Third, they asserted that the Plan usurped the right of “the People” to elect their preferred candidates for Congress, in violation of the requirement in Article I, § 2, of the Constitution that Members of the House of Representatives be chosen “by the People of the several States.” Finally, they alleged that the Plan violated the Elections Clause by exceeding the State’s delegated authority to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress.

[7] [A] District Court unanimously concluded that the 2016 Plan violated the Equal Protection Clause[, the First Amendment,] and Article I of the Constitution. The defendants appealed directly to this Court.

[8] While that appeal was pending, we decided Gill v. Whitford, 138 S.Ct. 1916 (2018), a partisan gerrymandering case out of Wisconsin. In that case, we held that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must establish standing by showing he lives in an allegedly “cracked” or “packed” district. A “cracked” district is one in which a party’s supporters are divided among multiple districts, so that they fall short of a majority in each; a “packed” district is one in which a party’s supporters are highly concentrated, so they win that district by a large margin, “wasting” many votes that would improve their chances in others.

[9] After deciding Gill, we remanded the present case for further consideration by the District Court. On remand, the District Court again struck down the 2016 plan. It found standing and concluded that the case was appropriate for judicial resolution. On the merits, the court found that “the General Assembly’s predominant intent was to discriminate against voters who supported or were likely to support non-Republican candidates,” and to “entrench Republican candidates” through widespread cracking and packing of Democratic voters. The court rejected the defendants’ arguments that the distribution of Republican and Democratic voters throughout North Carolina and the interest in protecting incumbents neutrally explained the 2016 Plan’s discriminatory effects. In the end, the District Court held that 12 of the 13 districts constituted partisan gerrymanders that violated the Equal Protection Clause.

[10] The court also agreed with the plaintiffs that the 2016 Plan discriminated against them because of their political speech and association, in violation of the First Amendment. Finally, the District Court concluded that the 2016 Plan violated the Elections Clause and Article I, § 2, and the Court enjoined the State from using the 2016 Plan in any election after the November 2018 general election.

[11] The defendants again appealed to this Court, and we postponed jurisdiction.

[12] The second case before us is Lamone v. Benisek. In 2011, the Maryland Legislature—dominated by Democrats—undertook to redraw the lines of that State’s eight congressional districts. The Governor at the time, Democrat Martin O’Malley, led the process. He appointed a redistricting committee to help redraw the map, and asked Congressman Steny Hoyer, who has described himself as a “serial gerrymanderer,” to advise the committee. The Governor testified that his aim was to “use the redistricting process to change the overall composition of Maryland’s congressional delegation to 7 Democrats and 1 Republican by flipping” one district. “[A] decision was made to go for the Sixth,” which had been held by a Republican for nearly two decades. To achieve the required equal population among districts, only about 10,000 residents needed to be removed from that district. The 2011 Plan accomplished that by moving roughly 360,000 voters out of the Sixth District and moving 350,000 new voters in. Overall, the Plan reduced the number of registered Republicans in the Sixth District by about 66,000 and increased the number of registered Democrats by about 24,000. The map was adopted by a party-line vote. It was used in the 2012 election and succeeded in flipping the Sixth District. A Democrat has held the seat ever since.

[13] In November 2013, three Maryland voters filed this lawsuit. They alleged that the 2011 Plan violated the First Amendment, the Elections Clause, and Article I, § 2, of the Constitution. The District Court entered summary judgment for the plaintiffs. It concluded that the plaintiffs’ claims were justiciable, and that the Plan violated the First Amendment by diminishing their “ability to elect their candidate of choice” because of their party affiliation and voting history, and by burdening their associational rights. On the latter point, the court relied upon findings that Republicans in the Sixth District “were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting in an atmosphere of general confusion and apathy.”

[14] The District Court permanently enjoined the State from using the 2011 Plan and ordered it to promptly adopt a new plan for the 2020 election. The defendants appealed directly to this Court. We postponed jurisdiction.

[15] Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies.” We have understood that limitation to mean that federal courts can address only questions “historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 95 (1968). In these cases we are asked to decide an important question of constitutional law. “But before we do so, we must find that the question is presented in a ‘case’ or ‘controversy’ that is, ... ‘of a Judiciary Nature.’”

[16] [I]t is “the province and duty of the judicial department to say what the law is.” Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].”

[17] Last Term in Gill v. Whitford, we reviewed our partisan gerrymandering cases and concluded that those cases “leave unresolved whether such claims may be brought.” This Court’s authority to act, as we said in Gill, is “grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.” The question here is whether there is an “appropriate role for the Federal Judiciary” in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.

[18] Partisan gerrymandering is nothing new. Nor is frustration with it. The practice was known in the Colonies prior to Independence, and the Framers were familiar with it at the time of the drafting and ratification of the Constitution. During the very first congressional elections, George Washington and his Federalist allies accused Patrick Henry of trying to gerrymander Virginia’s districts ...

[19] In 1812, Governor of Massachusetts and future Vice President Elbridge Gerry notoriously approved congressional districts that the legislature had drawn to aid the Democratic-Republican Party. The moniker “gerrymander” was born when an outraged Federalist newspaper observed that one of the misshapen districts resembled a salamander. “By 1840, the gerrymander was a recognized force in party politics and was generally attempted in all legislation enacted for the formation of election districts. It was generally conceded that each party would attempt to gain power which was not proportionate to its numerical strength.”

[20] The Framers addressed the election of Representatives to Congress in the Elections Clause. Art. I, § 4, cl. 1. That provision assigns to state legislatures the power to prescribe the “Times, Places and Manner of holding Elections” for Members of Congress, while giving Congress the power to “make or alter” any such regulations. Whether to give that supervisory authority to the National Government was debated at the Constitutional Convention. When those opposed to such congressional oversight moved to strike the relevant language, Madison came to its defense:

[21] “[T]he State Legislatures will sometimes fail or refuse to consult the common interest at the expense of their local coveniency or prejudices…. Whenever the State Legislatures had a favorite measure to carry, they would take care so to mould their regulations as to favor the candidates they wished to succeed.”

[22] During the subsequent fight for ratification, the provision remained a subject of debate. Antifederalists predicted that Congress’s power under the Elections Clause would allow Congress to make itself “omnipotent,” setting the “time” of elections as never or the “place” in difficult to reach corners of the State. Federalists responded that ... the revisionary power was necessary to counter state legislatures set on undermining fair representation, including through malapportionment. ...

[23] Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single-member districts for the first time, specified that those districts be “composed of contiguous territory,” in “an attempt to forbid the practice of the gerrymander.” Later statutes added requirements of compactness and equality of population. Congress also used its Elections Clause power in 1870, enacting the first comprehensive federal statute dealing with elections as a way to enforce the Fifteenth Amendment. Starting in the 1950s, Congress enacted a series of laws to protect the right to vote through measures such as the suspension of literacy tests and the prohibition of English-only elections.

[24] Appellants suggest that, through the Elections Clause, the Framers set aside electoral issues such as the one before us as questions that only Congress can resolve. We do not agree. In two areas—one-person, one-vote and racial gerrymandering—our cases have held that there is a role for the courts with respect to at least some issues that could arise from a State’s drawing of congressional districts.

[25] But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress. As Alexander Hamilton explained, “it will … not be denied that a discretionary power over elections ought to exist somewhere. It will, I presume, be as readily conceded that there were only three ways in which this power could have been reasonably modified and disposed: that it must either have been lodged wholly in the national legislature, or wholly in the State legislatures, or primarily in the latter, and ultimately in the former.” At no point was there a suggestion that the federal courts had a role to play. Nor was there any indication that the Framers had ever heard of courts doing such a thing.

[26] Courts have nevertheless been called upon to resolve a variety of questions surrounding districting. Early on, doubts were raised about the competence of the federal courts to resolve those questions.

[27] In the leading case of Baker v. Carr, voters in Tennessee complained that the State’s districting plan for state representatives “debase[d]” their votes, because the plan was predicated on a 60-year-old census that no longer reflected the distribution of population in the State. The plaintiffs argued that votes of people in overpopulated districts held less value than those of people in less-populated districts, and that this inequality violated the Equal Protection Clause of the Fourteenth Amendment. [This Court] identified various considerations relevant to determining whether a claim is a nonjusticiable political question, including whether there is “a lack of judicially discoverable and manageable standards for resolving it.” The Court concluded that the claim of population inequality among districts did not fall into that category, because such a claim could be decided under basic equal protection principles. In Wesberry v. Sanders, the Court extended its ruling to malapportionment of congressional districts, holding that Article I, § 2, required that “one man’s vote in a congressional election is to be worth as much as another’s.”

[28] Another line of challenges to districting plans has focused on race. Laws that explicitly discriminate on the basis of race, as well as those that are race neutral on their face but are unexplainable on grounds other than race, are of course presumptively invalid. The Court applied those principles to electoral boundaries in Gomillion v. Lightfoot, concluding that a challenge to an “uncouth twenty-eight sided” municipal boundary line that excluded black voters from city elections stated a constitutional claim. [Later, we] extended the reasoning of Gomillion to congressional districting.

[29] Partisan gerrymandering claims have proved far more difficult to adjudicate. The basic reason is that, while it is illegal for a jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, “a jurisdiction may engage in constitutional political gerrymandering.”

[30] To hold that legislators cannot take partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is “determining when political gerrymandering has gone too far.”

[31] We first considered a partisan gerrymandering claim in Gaffney v. Cummings in 1973. There we rejected an equal protection challenge to Connecticut’s redistricting plan, which “aimed at a rough scheme of proportional representation of the two major political parties” by “wiggl[ing] and joggl[ing] boundary lines” to create the appropriate number of safe seats for each party.

[32] Thirteen years later, in Davis v. Bandemer, we addressed a claim that Indiana Republicans had cracked and packed Democrats in violation of the Equal Protection Clause. A majority of the Court agreed that the case was justiciable, but the Court splintered over the proper standard to apply. Four Justices would have required proof of “intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” Two Justices would have focused on “whether the boundaries of the voting districts have been distorted deliberately and arbitrarily to achieve illegitimate ends.” Three Justices would have held that the Equal Protection Clause simply “does not supply judicially manageable standards for resolving purely political gerrymandering claims.” At the end of the day, there was “no ‘Court’ for a standard that properly should be applied in determining whether a challenged redistricting plan is an unconstitutional partisan political gerrymander.” In any event, the Court held that the plaintiffs had failed to show that the plan violated the Constitution. ...

[33] As we summed up last Term in Gill, our “considerable efforts ... leave unresolved whether … claims [of legal right] may be brought in cases involving allegations of partisan gerrymandering.” Two “threshold questions” remained: standing, which we addressed in Gill, and “whether [such] claims are justiciable.”

III

[34] In considering whether partisan gerrymandering claims are justiciable, we are mindful of Justice Kennedy’s counsel in Vieth: Any standard for resolving such claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” An important reason for those careful constraints is that ... “[t]he opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States.” An expansive standard requiring “the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.”

[35] As noted, the question is one of degree: How to “provid[e] a standard for deciding how much partisan dominance is too much.” And it is vital in such circumstances that the Court act only in accord with especially clear standards: “With uncertain limits, intervening courts—even when proceeding with best intentions—would risk assuming political, not legal, responsibility for a process that often produces ill will and distrust.” If federal courts are to “inject [themselves] into the most heated partisan issues” by adjudicating partisan gerrymandering claims, they must be armed with a standard that can reliably differentiate unconstitutional from “constitutional political gerrymandering.”

[36] Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Explicitly or implicitly, a districting map is alleged to be unconstitutional because it makes it too difficult for one party to translate statewide support into seats in the legislature. But such a claim is based on a “norm that does not exist” in our electoral system—“statewide elections for representatives along party lines.”

[37] Partisan gerrymandering claims invariably sound in a desire for proportional representation. As Justice O’Connor put it, such claims are based on “a conviction that the greater the departure from proportionality, the more suspect an apportionment plan becomes.” “Our cases, however, clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.”

[38] The Founders certainly did not think proportional representation was required. For more than 50 years after ratification of the Constitution, many States elected their congressional representatives through at-large or “general ticket” elections. Such States typically sent single-party delegations to Congress. That meant that a party could garner nearly half of the vote statewide and wind up without any seats in the congressional delegation...

[39] Unable to claim that the Constitution requires proportional representation outright, plaintiffs inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve—based on the votes of their supporters—and to rearrange the challenged districts to achieve that end. But federal courts are not equipped to apportion political power as a matter of fairness, nor is there any basis for concluding that they were authorized to do so. As Justice Scalia put it for the plurality in Vieth:

[40] “‘Fairness’ does not seem to us a judicially manageable standard…. Some criterion more solid and more demonstrably met than that seems to us necessary to enable the state legislatures to discern the limits of their districting discretion, to meaningfully constrain the discretion of the courts, and to win public acceptance for the courts’ intrusion into a process that is the very foundation of democratic decisionmaking.”

[41] The initial difficulty in settling on a “clear, manageable and politically neutral” test for fairness is that it is not even clear what fairness looks like in this context. There is a large measure of “unfairness” in any winner-take-all system. Fairness may mean a greater number of competitive districts. Such a claim seeks to undo packing and cracking so that supporters of the disadvantaged party have a better shot at electing their preferred candidates. But making as many districts as possible more competitive could be a recipe for disaster for the disadvantaged party. “If all or most of the districts are competitive … even a narrow statewide preference for either party would produce an overwhelming majority for the winning party in the state legislature.”

[42] On the other hand, perhaps the ultimate objective of a “fairer” share of seats in the congressional delegation is most readily achieved by yielding to the gravitational pull of proportionality and engaging in cracking and packing, to ensure each party its “appropriate” share of “safe” seats. Such an approach, however, comes at the expense of competitive districts and of individuals in districts allocated to the opposing party.

[43] Or perhaps fairness should be measured by adherence to “traditional” districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents. But protecting incumbents, for example, enshrines a particular partisan distribution. And the “natural political geography” of a State—such as the fact that urban electoral districts are often dominated by one political party—can itself lead to inherently packed districts. Traditional criteria such as compactness and contiguity “cannot promise political neutrality when used as the basis for relief. Instead, it seems, a decision under these standards would unavoidably have significant political effect, whether intended or not.”

[44] Deciding among just these different visions of fairness (you can imagine many others) poses basic questions that are political, not legal. There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral. Any judicial decision on what is “fair” in this context would be an “unmoored determination” of the sort characteristic of a political question beyond the competence of the federal courts.

[45] And it is only after determining how to define fairness that you can even begin to answer the determinative question: “How much is too much?” At what point does permissible partisanship become unconstitutional? If compliance with traditional districting criteria is the fairness touchstone, for example, how much deviation from those criteria is constitutionally acceptable and how should mapdrawers prioritize competing criteria? Should a court “reverse gerrymander” other parts of a State to counteract “natural” gerrymandering caused, for example, by the urban concentration of one party? If a districting plan protected half of the incumbents but redistricted the rest into head to head races, would that be constitutional? A court would have to rank the relative importance of those traditional criteria and weigh how much deviation from each to allow.

[46] If a court instead focused on the respective number of seats in the legislature, it would have to decide the ideal number of seats for each party and determine at what point deviation from that balance went too far. If a 5–3 allocation corresponds most closely to statewide vote totals, is a 6–2 allocation permissible, given that legislatures have the authority to engage in a certain degree of partisan gerrymandering? Which seats should be packed and which cracked? ... Even assuming the court knew which version of fairness to be looking for, there are no discernible and manageable standards for deciding whether there has been a violation. The questions are “unguided and ill suited to the development of judicial standards,” and “results from one gerrymandering case to the next would likely be disparate and inconsistent.”

[47] Appellees contend that if we can adjudicate one-person, one-vote claims, we can also assess partisan gerrymandering claims. But the one-person, one-vote rule is relatively easy to administer as a matter of math. The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. ...

[48] More fundamentally, “vote dilution” in the one-person, one-vote cases refers to the idea that each vote must carry equal weight. In other words, each representative must be accountable to (approximately) the same number of constituents. That requirement does not extend to political parties. It does not mean that each party must be influential in proportion to its number of supporters. As we stated in Gill, “this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

[49] Nor do our racial gerrymandering cases provide an appropriate standard for assessing partisan gerrymandering. “[N]othing in our case law compels the conclusion that racial and political gerrymanders are subject to precisely the same constitutional scrutiny. In fact, our country’s long and persistent history of racial discrimination in voting—as well as our Fourteenth Amendment jurisprudence, which always has reserved the strictest scrutiny for discrimination on the basis of race—would seem to compel the opposite conclusion.” Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails. It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.

[50] Appellees and the dissent propose a number of “tests” for evaluating partisan gerrymandering claims, but none meets the need for a limited and precise standard that is judicially discernible and manageable. And none provides a solid grounding for judges to take the extraordinary step of reallocating power and influence between political parties.

[51] The Common Cause District Court concluded that all but one of the districts in North Carolina’s 2016 Plan violated the Equal Protection Clause by intentionally diluting the voting strength of Democrats. In reaching that result the court first required the plaintiffs to prove “that a legislative mapdrawer’s predominant purpose in drawing the lines of a particular district was to ‘subordinate adherents of one political party and entrench a rival party in power. ” The District Court next required a showing “that the dilution of the votes of supporters of a disfavored party in a particular district—by virtue of cracking or packing—is likely to persist in subsequent elections such that an elected representative from the favored party in the district will not feel a need to be responsive to constituents who support the disfavored party.” Finally, after a prima facie showing of partisan vote dilution, the District Court shifted the burden to the defendants to prove that the discriminatory effects are “attributable to a legitimate state interest or other neutral explanation.”

[52] The District Court’s “predominant intent” prong is borrowed from the racial gerrymandering context. In racial gerrymandering cases, we rely on a “predominant intent” inquiry to determine whether race was, in fact, the reason particular district boundaries were drawn the way they were. If district lines were drawn for the purpose of separating racial groups, then they are subject to strict scrutiny because “race-based decisionmaking is inherently suspect.” But determining that lines were drawn on the basis of partisanship does not indicate that the districting was improper. A permissible intent—securing partisan advantage—does not become constitutionally impermissible, like racial discrimination, when that permissible intent “predominates.”

[53] The District Court tried to limit the reach of its test by requiring plaintiffs to show, in addition to predominant partisan intent, that vote dilution “is likely to persist” to such a degree that the elected representative will feel free to ignore the concerns of the supporters of the minority party. But “[t]o allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections … invites ‘findings’ on matters as to which neither judges nor anyone else can have any confidence.” And the test adopted by the Common Cause court requires a far more nuanced prediction than simply who would prevail in future political contests. ... Judges not only have to pick the winner—they have to beat the point spread.

[54] The appellees assure us that “the persistence of a party’s advantage may be shown through sensitivity testing: probing how a plan would perform under other plausible electoral conditions.” Experience proves that accurately predicting electoral outcomes is not so simple...

[55] Even the most sophisticated districting maps cannot reliably account for some of the reasons voters prefer one candidate over another, or why their preferences may change. Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations. Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes. For all of those reasons, asking judges to predict how a particular districting map will perform in future elections risks basing constitutional holdings on unstable ground outside judicial expertise.

[56] It is hard to see what the District Court’s third prong—providing the defendant an opportunity to show that the discriminatory effects were due to a “legitimate redistricting objective”—adds to the inquiry. The first prong already requires the plaintiff to prove that partisan advantage predominates.

[57] [Both] District Courts also found partisan gerrymandering claims justiciable under the First Amendment, coalescing around a basic three-part test: proof of intent to burden individuals based on their voting history or party affiliation; an actual burden on political speech or associational rights; and a causal link between the invidious intent and actual burden. Both District Courts concluded that the districting plans at issue violated the plaintiffs’ First Amendment right to association. The District Court in North Carolina relied on testimony that, after the 2016 Plan was put in place, the plaintiffs faced “difficulty raising money, attracting candidates, and mobilizing voters to support the political causes and issues such Plaintiffs sought to advance.” Similarly, the District Court in Maryland examined testimony that “revealed a lack of enthusiasm, indifference to voting, a sense of disenfranchisement, a sense of disconnection, and confusion,” and concluded that Republicans in the Sixth District “were burdened in fundraising, attracting volunteers, campaigning, and generating interest in voting.”

[58] To begin, there are no restrictions on speech, association, or any other First Amendment activities in the districting plans at issue. The plaintiffs are free to engage in those activities no matter what the effect of a plan may be on their district.

[59] The plaintiffs’ argument is that partisanship in districting should be regarded as simple discrimination against supporters of the opposing party on the basis of political viewpoint. Under that theory, any level of partisanship in districting would constitute an infringement of their First Amendment rights. ... The First Amendment test simply describes the act of districting for partisan advantage. It provides no standard for determining when partisan activity goes too far.

[60] As for actual burden, the slight anecdotal evidence found sufficient by the District Courts in these cases shows that this too is not a serious standard for separating constitutional from unconstitutional partisan gerrymandering. The District Courts relied on testimony about difficulty drumming up volunteers and enthusiasm. How much of a decline in voter engagement is enough to constitute a First Amendment burden? How many door knocks must go unanswered? How many petitions unsigned? ... The Common Cause District Court held that a partisan gerrymander places an unconstitutional burden on speech if it has more than a “de minimis” “chilling effect or adverse impact” on any First Amendment activity. The court went on to rule that there would be an adverse effect “even if the speech of [the plaintiffs] was not in fact chilled”; it was enough that the districting plan “makes it easier for supporters of Republican candidates to translate their votes into seats,” thereby “enhanc[ing] the[ir] relative voice.”

[61] These cases involve blatant examples of partisanship driving districting decisions. But the First Amendment analysis below offers no “clear” and “manageable” way of distinguishing permissible from impermissible partisan motivation. The Common Cause court embraced that conclusion, observing that “a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an ‘acceptable’ level of partisan gerrymandering from ‘excessive’ partisan gerrymandering” because “the Constitution does not authorize state redistricting bodies to engage in such partisan gerrymandering.” The decisions below prove the prediction of the Vieth plurality that “a First Amendment claim, if it were sustained, would render unlawful all consideration of political affiliation in districting,” contrary to our established precedent.

[62] The dissent proposes using a State’s own districting criteria as a neutral baseline from which to measure how extreme a partisan gerrymander is. The dissent would have us line up all the possible maps drawn using those criteria according to the partisan distribution they would produce. Distance from the “median” map would indicate whether a particular districting plan harms supporters of one party to an unconstitutional extent.

As an initial matter, it does not make sense to use criteria that will vary from State to State and year to year as the baseline for determining whether a gerrymander violates the Federal Constitution...

Even if we were to accept the dissent’s proposed baseline, it would return us to “the original unanswerable question (How much political motivation and effect is too much?).” ... The dissent’s answer says it all: “This much is too much.” That is not even trying to articulate a standard or rule.

The dissent argues that there are other instances in law where matters of degree are left to the courts. True enough. But those instances typically involve constitutional or statutory provisions or common law confining and guiding the exercise of judicial discretion. ... The only provision in the Constitution that specifically addresses the matter assigns it to the political branches. See Art. I, § 4, cl. 1 [Part D below].

The North Carolina District Court further concluded that the 2016 Plan violated the Elections Clause and Article I, § 2. We are unconvinced by that novel approach.

Article I, § 2, provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” The Elections Clause provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, § 4, cl. 1.

The District Court concluded that the 2016 Plan exceeded the North Carolina General Assembly’s Elections Clause authority because, among other reasons, “the Elections Clause did not empower State legislatures to disfavor the interests of supporters of a particular candidate or party in drawing congressional districts.” The court further held that partisan gerrymandering infringes the right of “the People” to select their representatives. Before the District Court’s decision, no court had reached a similar conclusion. In fact, the plurality in Vieth concluded—without objection from any other Justice—that neither § 2 nor § 4 of Article I “provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”

The District Court nevertheless asserted that partisan gerrymanders violate “the core principle of [our] republican government” preserved in Art. I, § 2, “namely, that the voters should choose their representatives, not the other way around.” That seems like an objection more properly grounded in the Guarantee Clause of Article IV, § 4, which “guarantee[s] to every State in [the] Union a Republican Form of Government.” This Court has several times concluded, however, that the Guarantee Clause does not provide the basis for a justiciable claim.

Excessive partisanship in districting leads to results that reasonably seem unjust. But the fact that such gerrymandering is “incompatible with democratic principles,” does not mean that the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions. “[J]udicial action must be governed by standard, by rule,” and must be “principled, rational, and based upon reasoned distinctions” found in the Constitution or laws. Judicial review of partisan gerrymandering does not meet those basic requirements.

Today the dissent essentially embraces the argument that the Court unanimously rejected in Gill: “this Court can address the problem of partisan gerrymandering because it must.” That is not the test of our authority under the Constitution; that document instead “confines the federal courts to a properly judicial role.”

What the appellees and dissent seek is an unprecedented expansion of judicial power. We have never struck down a partisan gerrymander as unconstitutional ... The expansion of judicial authority would not be into just any area of controversy, but into one of the most intensely partisan aspects of American political life. That intervention would be unlimited in scope and duration—it would recur over and over again around the country with each new round of districting, for state as well as federal representatives....

Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts. In 2015, the Supreme Court of Florida struck down that State’s congressional districting plan as a violation of the Fair Districts Amendment to the Florida Constitution. The dissent wonders why we can’t do the same. The answer is that there is no “Fair Districts Amendment” to the Federal Constitution. Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply.

Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines.

Other States have mandated at least some of the traditional districting criteria for their mapmakers. Some have outright prohibited partisan favoritism in redistricting.

As noted, the Framers gave Congress the power to do something about partisan gerrymandering in the Elections Clause. The first bill introduced in the 116th Congress would require States to create 15-member independent commissions to draw congressional districts and would establish certain redistricting criteria, including protection for communities of interest, and ban partisan gerrymandering.

Dozens of other bills have been introduced to limit reliance on political considerations in redistricting. In 2010, H. R. 6250 would have required States to follow standards of compactness, contiguity, and respect for political subdivisions in redistricting. It also would have prohibited the establishment of congressional districts “with the major purpose of diluting the voting strength of any person, or group, including any political party,” except when necessary to comply with the Voting Rights Act of 1965.

Another example is the Fairness and Independence in Redistricting Act, which was introduced in 2005 and has been reintroduced in every Congress since. That bill would require every State to establish an independent commission to adopt redistricting plans. The bill also set forth criteria for the independent commissions to use, such as compactness, contiguity, and population equality. It would prohibit consideration of voting history, political party affiliation, or incumbent Representative’s residence.

We express no view on any of these pending proposals. We simply note that the avenue for reform established by the Framers, and used by Congress in the past, remains open.

* * *

No one can accuse this Court of having a crabbed view of the reach of its competence. But we have no commission to allocate political power and influence in the absence of a constitutional directive or legal standards to guide us in the exercise of such authority. “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison. In this rare circumstance, that means our duty is to say “this is not law.”

The judgments of the United States District Court for the Middle District of North Carolina and the United States District Court for the District of Maryland are vacated, and the cases are remanded with instructions to dismiss for lack of jurisdiction.

It is so ordered.

Dissent

Justice KAGAN, with whom Justice GINSBURG, Justice BREYER, and Justice SOTOMAYOR join, dissenting.

For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.

And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives. In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

And checking them is not beyond the courts. The majority’s abdication comes just when courts across the country, including those below, have coalesced around manageable judicial standards to resolve partisan gerrymandering claims. Those standards satisfy the majority’s own benchmarks. They do not require—indeed, they do not permit—courts to rely on their own ideas of electoral fairness, whether proportional representation or any other. And they limit courts to correcting only egregious gerrymanders, so judges do not become omnipresent players in the political process. But yes, the standards used here do allow—as well they should—judicial intervention in the worst-of-the-worst cases of democratic subversion, causing blatant constitutional harms. In giving such gerrymanders a pass from judicial review, the majority goes tragically wrong.

Maybe the majority errs in these cases because it pays so little attention to the constitutional harms at their core. After dutifully reciting each case’s facts, the majority leaves them forever behind, instead immersing itself in everything that could conceivably go amiss if courts became involved. So it is necessary to ... recount exactly what politicians in North Carolina and Maryland did to entrench their parties in political office, whatever the electorate might think. And to elaborate on the constitutional injury those politicians wreaked, to our democratic system and to individuals’ rights. All that will help in considering whether courts confronting partisan gerrymandering claims are really so hamstrung—so unable to carry out their constitutional duties—as the majority thinks.

The plaintiffs here challenge two congressional districting plans ... as unconstitutional partisan gerrymanders. As I relate what happened in those two States, ask yourself: Is this how American democracy is supposed to work?

After the 2010 census, the North Carolina General Assembly, with Republican majorities in both its House and its Senate, enacted a new congressional districting plan. That plan governed the two next national elections. In 2012, Republican candidates won 9 of the State’s 13 seats in the U.S. House of Representatives, although they received only 49% of the statewide vote. In 2014, Republican candidates increased their total to 10 of the 13 seats, this time based on 55% of the vote. Soon afterward, a District Court struck down two districts in the plan as unconstitutional racial gerrymanders. The General Assembly, with both chambers still controlled by Republicans, went back to the drawing board to craft the needed remedial state map ...

The map has worked just as ... planned and predicted. In 2016, Republican congressional candidates won 10 of North Carolina’s 13 seats, with 53% of the statewide vote. Two years later, Republican candidates won 9 of 12 seats though they received only 50% of the vote. (The 13th seat has not yet been filled because fraud tainted the initial election.)

Events in Maryland make for a similarly grisly tale. For 50 years, Maryland’s 8-person congressional delegation typically consisted of 2 or 3 Republicans and 5 or 6 Democrats. ... But in the 2010 districting cycle, the State’s Democratic leaders, who controlled the governorship and both houses of the General Assembly, decided to press their advantage.

...

Maryland’s Democrats proved no less successful than North Carolina’s Republicans in devising a voter-proof map. In the four elections that followed (from 2012 through 2018), Democrats have never received more than 65% of the statewide congressional vote. Yet in each of those elections, Democrats have won (you guessed it) 7 of 8 House seats—including the once-reliably-Republican Sixth District.

Is that how American democracy is supposed to work? ... “Governments,” the Declaration of Independence states, “deriv[e] their just Powers from the Consent of the Governed.” The Constitution begins: “We the People of the United States.” The Gettysburg Address (almost) ends: “[G]overnment of the people, by the people, for the people.” If there is a single idea that made our Nation (and that our Nation commended to the world), it is this one: The people are sovereign. The “power ... is in the people over the Government, and not in the Government over the people.”

Free and fair and periodic elections are the key to that vision. The people get to choose their representatives. And then they get to decide, at regular intervals, whether to keep them. Madison again: “[R]epublican liberty” demands “not only, that all power should be derived from the people; but that those entrusted with it should be kept in dependence on the people.” ...To retain an “intimate sympathy with the people,” they must be “compelled to anticipate the moment” when their “exercise of [power] is to be reviewed.” Election day—next year, and two years later, and two years after that—is what links the people to their representatives, and gives the people their sovereign power. That day is the foundation of democratic governance.

And partisan gerrymandering can make it meaningless. At its most extreme—as in North Carolina and Maryland—the practice amounts to “rigging elections.” ...

The majority disputes none of ... what I have said (or will say) about how gerrymanders undermine democracy. Indeed, the majority concedes (really, how could it not?) that gerrymandering is “incompatible with democratic principles.” And therefore what? That recognition would seem to demand a response. The majority offers two ideas that might qualify as such. One is that the political process can deal with the problem—a proposition so dubious on its face that I feel secure in delaying my answer for some time. The other is that political gerrymanders have always been with us. To its credit, the majority does not frame that point as an originalist constitutional argument. After all (as the majority rightly notes), racial and residential gerrymanders were also once with us, but the Court has done something about that fact. The majority’s idea instead seems to be that if we have lived with partisan gerrymanders so long, we will survive.

That complacency has no cause. Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past. ... Mapmakers now have access to more granular data about party preference and voting behavior than ever before. County-level voting data has given way to precinct-level or city-block-level data; and increasingly, mapmakers avail themselves of data sets providing wide-ranging information about even individual voters. ... While bygone mapmakers may have drafted three or four alternative districting plans, today’s mapmakers can generate thousands of possibilities at the touch of a key—and then choose the one giving their party maximum advantage (usually while still meeting traditional districting requirements). The effect is to make gerrymanders far more effective and durable than before, insulating politicians against all but the most titanic shifts in the political tides. These are not your grandfather’s—let alone the Framers’—gerrymanders.

Partisan gerrymandering of the kind before us not only subverts democracy (as if that weren’t bad enough). It violates individuals’ constitutional rights as well. ... This Court has recognized extreme partisan gerrymandering as such a violation for many years.

Partisan gerrymandering operates through vote dilution—the devaluation of one citizen’s vote as compared to others. ... In short, the mapmaker has made some votes count for less, because they are likely to go for the other party.

That practice implicates the Fourteenth Amendment’s Equal Protection Clause. The Fourteenth Amendment, we long ago recognized, “guarantees the opportunity for equal participation by all voters in the election” of legislators. And that opportunity “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Based on that principle, this Court in its one-person-one-vote decisions prohibited creating districts with significantly different populations. A State could not, we explained, thus “dilut[e] the weight of votes because of place of residence.” The constitutional injury in a partisan gerrymandering case is much the same, except that the dilution is based on party affiliation. In such a case, too, the districters have set out to reduce the weight of certain citizens’ votes, and thereby deprive them of their capacity to “full[y] and effective[ly] participat[e] in the political process[ ].” If districters declared that they were drawing a map “so as most to burden [the votes of] Party X’s” supporters, it would violate the Equal Protection Clause[,because] it would infringe those voters’ rights to “equal [electoral] participation.”

And partisan gerrymandering implicates the First Amendment too. That Amendment gives its greatest protection to political beliefs, speech, and association. Yet partisan gerrymanders subject certain voters to “disfavored treatment”—again, counting their votes for less—precisely because of “their voting history [and] their expression of political views.” And added to that strictly personal harm is an associational one. Representative democracy is “unimaginable without the ability of citizens to band together in [support of] candidates who espouse their political views.” By diluting the votes of certain citizens, the State frustrates their efforts to translate those affiliations into political effectiveness. In both those ways, partisan gerrymanders of the kind we confront here undermine the protections of “democracy embodied in the First Amendment.”

Though different Justices have described the constitutional harm in diverse ways, nearly all have agreed on this much: *xtreme partisan gerrymandering (as happened in North Carolina and Maryland) violates the Constitution. Once again, the majority never disagrees; it appears to accept the “principle that each person must have an equal say in the election of representatives.” And indeed, without this settled and shared understanding that cases like these inflict constitutional injury, the question of whether there are judicially manageable standards for resolving them would never come up.

So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights—in the face of escalating partisan manipulation whose compatibility with this Nation’s values and law no one defends—the majority declines to provide any remedy. For the first time in this Nation’s history, the majority declares that it can do nothing about an acknowledged constitutional violation because it has searched high and low and cannot find a workable legal standard to apply.

The majority gives two reasons for thinking that the adjudication of partisan gerrymandering claims is beyond judicial capabilities. First and foremost, the majority says, it cannot find a neutral baseline—one not based on contestable notions of political fairness—from which to measure injury. ... And second, the majority argues that even after establishing a baseline, a court would have no way to answer “the determinative question: ‘How much is too much?’”

... [In] throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done. Over the past several years, federal courts across the country—including, but not exclusively, in the decisions below—have largely converged on a standard for adjudicating partisan gerrymandering claims (striking down both Democratic and Republican districting plans in the process). And that standard does what the majority says is impossible. The standard does not use any judge-made conception of electoral fairness—either proportional representation or any other; instead, it takes as its baseline a State’s own criteria of fairness, apart from partisan gain. And by requiring plaintiffs to make difficult showings relating to both purpose and effects, the standard invalidates the most extreme, but only the most extreme, partisan gerrymanders...

The majority’s broadest claim, as I’ve noted, is that this is a price we must pay because judicial oversight of partisan gerrymandering cannot be “politically neutral” or “manageable.” ... [O]versight is not only possible; it’s been done.

Consider neutrality first. Contrary to the majority’s suggestion, the District Courts did not have to—and in fact did not—choose among competing visions of electoral fairness. That is because they did not try to compare the State’s actual map to an “ideally fair” one (whether based on proportional representation or some other criterion). Instead, they looked at the difference between what the State did and what the State would have done if politicians hadn’t been intent on partisan gain ... Still more, the courts’ analyses used the State’s own criteria for electoral fairness—except for naked partisan gain. Under their approach, in other words, the State selected its own fairness baseline in the form of its other districting criteria. All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office. ...

The majority’s “how much is too much” critique fares no better than its neutrality argument. How about the following for a first-cut answer: This much is too much. By any measure, a map that produces a greater partisan skew than any of 3,000 randomly generated maps (all with the State’s political geography and districting criteria built in) reflects “too much” partisanship. Think about what I just said: The absolute worst of 3,001 possible maps. The only one that could produce a 10–3 partisan split even as Republicans got a bare majority of the statewide vote. And again: How much is too much? This much is too much: A map that without any evident non-partisan districting reason (to the contrary) shifted the composition of a district from 47% Republicans and 36% Democrats to 33% Republicans and 42% Democrats. A map that in 2011 was responsible for the largest partisan swing of a congressional district in the country.. Even the majority acknowledges that “[t]hese cases involve blatant examples of partisanship driving districting decisions.” If the majority had done nothing else, it could have set the line here. How much is too much? At the least, any gerrymanders as bad as these.

And if the majority thought that approach too case-specific, it could have used the lower courts’ general standard—focusing on “predominant” purpose and “substantial” effects—without fear of indeterminacy. I do not take even the majority to claim that courts are incapable of investigating whether legislators mainly intended to seek partisan advantage. That is for good reason. Although purpose inquiries carry certain hazards (which courts must attend to), they are a common form of analysis in constitutional cases.

Nor is there any reason to doubt, as the majority does, the competence of courts to determine whether a district map “substantially” dilutes the votes of a rival party’s supporters from the everything-but-partisanship baseline described above. (Most of the majority’s difficulties here really come from its idea that ideal visions set the baseline. But that is double-counting—and, as already shown, wrong to boot.) As this Court recently noted, “the law is full of instances” where a judge’s decision rests on “estimating rightly … some matter of degree”—including the “substantial[ity]” of risk or harm. ...

The majority, in the end, fails to understand both the plaintiffs’ claims and the decisions below.

Everything in today’s opinion assumes that these cases grew out of a “desire for proportional representation” or, more generally phrased, a “fair share of political power.” And everything in it assumes that the courts below had to (and did) decide what that fair share would be. But that is not so. The plaintiffs objected to one specific practice—the extreme manipulation of district lines for partisan gain. Elimination of that practice could have led to proportional representation. Or it could have led to nothing close. What was left after the practice’s removal could have been fair, or could have been unfair, by any number of measures. That was not the crux of this suit. The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. And the courts, using neutral and manageable—and eminently legal—standards, provided that (and only that) relief. This Court should have cheered, not overturned, that restoration of the people’s power to vote.

III

This Court has long understood that it has a special responsibility to remedy violations of constitutional rights resulting from politicians’ districting decisions. Over 50 years ago, we committed to providing judicial review in that sphere, recognizing as we established the one-person-one-vote rule that “our oath and our office require no less.” Of course, our oath and our office require us to vindicate all constitutional rights. But the need for judicial review is at its most urgent in cases like these. “For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.” Those harms arise because politicians want to stay in office. No one can look to them for effective relief.

The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders. “Dozens of [those] bills have been introduced,” the majority says. One was “introduced in 2005 and has been reintroduced in every Congress since.” And might be reintroduced until the end of time. Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other non-partisan actors. ... Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail. Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change. I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.

The majority’s most perplexing “solution” is to look to state courts. ... But what do those courts know that this Court does not? If they can develop and apply neutral and manageable standards to identify unconstitutional gerrymanders, why couldn’t we? ...

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections. With respect but deep sadness, I dissent.

3.6 State Sovereign Immunity Limitations on Federal Judicial Power: Const. Art. III, sec. 2; Amend. XI - Introduction 3.6 State Sovereign Immunity Limitations on Federal Judicial Power: Const. Art. III, sec. 2; Amend. XI - Introduction

3.6.1 Edelman v. Jordan, 415 U.S. 651 (1974) 3.6.1 Edelman v. Jordan, 415 U.S. 651 (1974)

Edelman v. Jordan, 415 U.S. 651 (1974

JUSTICE REHNQUIST delivered the opinion of the Court.

[1] Respondent John Jordan filed a complaint, individually and as a representative of a class, seeking declaratory and injunctive relief against two former directors of the Illinois Department of Public Aid, the director of the Cook County Department of Public Aid, and the comptroller of Cook County. Respondent alleged that these state officials were administering the federal-state programs of Aid to the Aged, Blind, or Disabled (AABD) in a manner inconsistent with various federal regulations and with the Fourteenth Amendment to the Constitution.

[2] AABD is one of the categorical aid programs administered by the Illinois Department of Public Aid pursuant to the Illinois Public Aid Code. Under the Social Security Act, the program is funded by the State and the Federal Governments. 42 U. S. C. §§ 1381-1385. The Department of Health, Education, and Welfare (HEW), which administers these payments for the Federal Government, issued regulations prescribing maximum permissible time standards within which States participating in the program had to process AABD applications. Those regulations, originally issued in 1968, required, at the time of the institution of this suit, that eligibility determinations must be made by the States within 30 days of receipt of applications for aid to the aged and blind, and within 45 days of receipt of applications for aid to the disabled. For those persons found eligible, the assistance check was required to be received by them within the applicable time period. 45 CFR § 206.10 (a) (3).

[3] During the period in which the federal regulations went into effect, Illinois public aid officials were administering the benefits pursuant to their own regulations. Respondent's complaint charged that the Illinois defendants, operating under those regulations, were improperly authorizing grants to commence only with the month in which an application was approved and not including prior eligibility months for which an applicant was entitled to aid under federal law. The complaint also alleged that the Illinois defendants were not processing the applications within the applicable time requirements of the federal regulations. Such actions of the Illinois officials were alleged to violate federal law and deny the equal protection of the laws. Respondent's prayer requested declaratory and injective relief, and specifically requested "a permanent injunction enjoining the defendants to award to the entire class of plaintiffs all AABD benefits wrongfully withheld."

[4] The District Court declared § 4004 of the Illinois Manual to be invalid insofar as it was inconsistent with the federal regulations, and granted a permanent injunction requiring compliance with the federal time limits for processing and paying AABD applicants. The District Court also ordered the state officials to "release and remit AABD benefits wrongfully withheld to all applicants for AABD in the State of Illinois” [for relevant time periods].

[5] On appeal to the Seventh Circuit, the Illinois officials contended, inter alia, that the Eleventh Amendment barred the award of retroactive benefits, that the judgment of inconsistency between the federal regulations and the provisions of the Illinois Categorical Assistance Manual could be given prospective effect only, and that the federal regulations in question were inconsistent with the Social Security Act itself. The [Seventh Circuit] rejected these contentions and affirmed the judgment of the District Court. Because of an apparent conflict on the Eleventh Amendment issue with the decision of the Second Circuit, we granted the petition for certiorari. Because we believe the [Seventh Circuit] erred in its disposition of the Eleventh Amendment claim, we reverse that portion of the Court of Appeals decision which affirmed the District Court's order that retroactive benefits be paid by the Illinois state officials. The historical basis of the Eleventh Amendment has been oft stated, and it represents one of the more dramatic examples of this Court's effort to derive meaning from the document given to the Nation by the Framers nearly 200 years ago. A leading historian of the Court tells us:

[6] "The right of the Federal Judiciary to summon a State as defendant and to adjudicate its rights and liabilities had been the subject of deep apprehension and of active debate at the time of the adoption of the Constitution; but the existence of any such right had been disclaimed by many of the most eminent advocates of the new Federal Government, and it was largely owing to their successful dissipation of the fear of the existence of such Federal power that the Constitution was finally adopted." 1 C. Warren, The Supreme Court in United States History 91 (rev. ed. 1937).

[7] Despite such disclaimers, the very first suit entered in this Court at its February Term in 1791 was brought against the State of Maryland by a firm of Dutch bankers as creditors.

[8] The subsequent year brought the institution of additional suits against other States, and caused considerable alarm and consternation in the country.

[9] The issue was squarely presented to the Court in a suit brought at the August 1792 Term by two citizens of South Carolina, executors of a British creditor, against the State of Georgia. After a year's postponement for preparation on the part of the State of Georgia, the Court, after argument, rendered in February 1793, its short-lived decision in Chisholm v. Georgia. The decision in that case, that a State was liable to suit by a citizen of another State or of a foreign country, literally shocked the Nation. Sentiment for passage of a constitutional amendment to override the decision rapidly gained momentum, and five years after Chisholm the Eleventh Amendment was officially announced by President John Adams. Unchanged since then, the Amendment provides:

[10] "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."

[11] While the Amendment by its terms does not bar suits against a State by its own citizens, this Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. Hans v. Louisiana, 134 U. S. 1 (1890); Duhne v. New Jersey, 251 U. S. 311 (1920); Great Northern Life Insurance Co. v. Read, 322 U. S. 47 (1944); Parden v. Terminal R. Co., 377 U. S. 184 (1964); Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973). It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U. S. 459 (1945), the Court said:

[12] "[W]hen the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants." Id., at 464.

[13] Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.

[14] The Court of Appeals in this case, while recognizing that the Hans line of cases permitted the State to raise the Eleventh Amendment as a defense to suit by its own citizens, nevertheless concluded that the Amendment did not bar the award of retroactive payments of the statutory benefits found to have been wrongfully withheld. The Court of Appeals held that the above-cited cases, when read in light of this Court's landmark decision in Ex parte Young, 209 U. S. 123 (1908), do not preclude the grant of such a monetary award in the nature of equitable restitution.

[15] Petitioner concedes that Ex parte Young is no bar to that part of the District Court's judgment that prospectively enjoined petitioner's predecessors from failing to process applications within the time limits established by the federal regulations. Petitioner argues, however, that Ex parte Young does not extend so far as to permit a suit which seeks the award of an accrued monetary liability which must be met from the general revenues of a State, absent consent or waiver by the State of its Eleventh Amendment immunity, and that therefore the award of retroactive benefits by the District Court was improper.

[16] Ex parte Young was a watershed case in which this Court held that the Eleventh Amendment did not bar an action in the federal courts seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the United States Constitution. This holding has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom they were designed to protect. But the relief awarded in Ex parte Young was prospective only; the Attorney General of Minnesota was enjoined to conform his future conduct of that office to the requirement of the Fourteenth Amendment. Such relief is analogous to that awarded by the District Court in the prospective portion of its order under review in this case.

[17] But the retroactive portion of the District Court's order here, which requires the payment of a very substantial amount of money which that court held should have been paid, but was not, stands on quite a different footing. These funds will obviously not be paid out of the pocket of petitioner Edelman. Addressing himself to a similar situation in Rothstein v. Wyman, Judge McGowan observed for the court:

[18] "It is not pretended that these payments are to come from the personal resources of these appellants. Appellees expressly contemplate that they will, rather, involve substantial expenditures from the public funds of the state. . . .

[19] "It is one thing to tell the Commissioner of Social Services that he must comply with the federal standards for the future if the state is to have the benefit of federal funds in the programs he administers. It is quite another thing to order the Commissioner to use state funds to make reparation for the past. The latter would appear to us to fall afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force."

[20] We agree with Judge McGowan's observations. The funds to satisfy the award in this case must inevitably come from the general revenues of the State of Illinois, and thus the award resembles far more closely the monetary award against the State itself, Ford Motor Co. v. Department of Treasury, than it does the prospective injunctive relief awarded in Ex Parte Young.

[21] The Court of Appeals, in upholding the award in this case, held that it was permissible because it was in the form of "equitable restitution" instead of damages, and therefore capable of being tailored in such a way as to minimize disruptions of the state program of categorical assistance. But we must judge the award actually made in this case, and not one which might have been differently tailored in a different case, and we must judge it in the context of the important constitutional principle embodied in the Eleventh Amendment.

[22] We do not read Ex parte Young or subsequent holdings of this Court to indicate that any form of relief may be awarded against a state officer, no matter how closely it may in practice resemble a money judgment payable out of the state treasury, so long as the relief may be labeled "equitable" in nature. The Court's opinion in Ex parte Young hewed to no such line. Its citation of Hagood v. Southern, 117 U. S. 52 (1886), and In re Ayers, 123 U. S. 443 (1887), which were both actions against state officers for specific performance of a contract to which the State was a party, demonstrate that equitable relief may be barred by the Eleventh Amendment.

[23] As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U. S. 365 (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U. S. 254 (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young.

[24] But that portion of the District Court's decree which petitioner challenges on Eleventh Amendment grounds goes much further than any of the cases cited. It requires payment of state funds, not as a necessary consequence of compliance in the future with a substantive federal-question determination, but as a form of compensation to those whose applications were processed on the slower time schedule at a time when petitioner was under no court-imposed obligation to conform to a different standard. While the Court of Appeals described this retroactive award of monetary relief as a form of "equitable restitution," it is in practical effect indistinguishable in many aspects from an award of damages against the State. It will to a virtual certainty be paid from state funds, and not from the pockets of the individual state officials who were the defendants in the action. It is measured in terms of a monetary loss resulting from a past breach of a legal duty on the part of the defendant state officials.

[25] Were we to uphold this portion of the District Court's decree, we would be obligated to overrule the Court's holding in Ford Motor Co. v. Department of Treasury, supra. There a taxpayer, who had, under protest, paid taxes to the State of Indiana, sought a refund of those taxes from the Indiana state officials who were charged with their collection. The taxpayer claimed that the tax had been imposed in violation of the United States Constitution. The term "equitable restitution" would seem even more applicable to the relief sought in that case, since the taxpayer had at one time had the money, and paid it over to the State pursuant to an allegedly unconstitutional tax exaction. Yet this Court had no hesitation in holding that the taxpayer's action was a suit against the State, and barred by the Eleventh Amendment. We reach a similar conclusion with respect to the retroactive portion of the relief awarded by the District Court in this case.

[26] The Court of Appeals expressed the view that its conclusion on the Eleventh Amendment issue was supported by this Court's holding in Department of Employment v. United States, 385 U. S. 355 (1966). There the United States was held entitled to sue the Colorado Department of Employment in the United States District Court for refund of unemployment compensation taxes paid under protest by the American National Red Cross, an instrumentality of the United States. The discussion of the State's Eleventh Amendment claim is confined to the following sentence in the opinion:

[27] "With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi, 292 U. S. 313 (1934), and Ex parte Young, 209 U. S. 123 (1908)." Id., at 358.

[28] Monaco v. Mississippi, 292 U. S. 313 (1934), reaffirmed the principle that the Eleventh Amendment was no bar to a suit by the United States against a State. In view of Mr. Chief Justice Hughes' vigorous reaffirmation in Monaco of the principles of the Eleventh Amendment and sovereign immunity, we think it unlikely that the Court in Department of Employment v. United States, in citing Ex parte Young as well as Monaco, intended to foreshadow a departure from the rule to which we adhere today.

[29] Three fairly recent District Court judgments requiring state directors of public aid to make the type of retroactive payment involved here have been summarily affirmed by this Court notwithstanding Eleventh Amendment contentions made by state officers who were appealing from the District Court judgment. Shapiro v. Thompson, 394 U. S. 618 (1969), is the only instance in which the Eleventh Amendment objection to such retroactive relief was actually presented to this Court in a case which was orally argued. The three-judge District Court in that case had ordered the retroactive payment of welfare benefits found by that court to have been unlawfully withheld because of residence requirements held violative of equal protection. This Court, while affirming the judgment, did not in its opinion refer to or substantively treat the Eleventh Amendment argument. Nor, of course, did the summary dispositions of the three District Court cases contain any substantive discussion of this or any other issues raised by the parties.

[30] This case, therefore, is the first opportunity the Court has taken to fully explore and treat the Eleventh Amendment aspects of such relief in a written opinion. Shapiro v. Thompson and these three summary affirmances obviously are of precedential value in support of the contention that the Eleventh Amendment does not bar the relief awarded by the District Court in this case. Equally obviously, they are not of the same precedential value as would be an opinion of this Court treating the question on the merits. Since we deal with a constitutional question, we are less constrained by the principle of stare decisis than we are in other areas of the law. Having now had an opportunity to more fully consider the Eleventh Amendment issue after briefing and argument, we disapprove the Eleventh Amendment holdings of those cases to the extent that they are inconsistent with our holding today.

[31] The Court of Appeals held in the alternative that even if the Eleventh Amendment be deemed a bar to the retroactive relief awarded respondent in this case, the State of Illinois had waived its Eleventh Amendment immunity and consented to the bringing of such a suit by participating in the federal AABD program. The Court of Appeals relied upon our holdings in Parden v. Terminal R. Co., 377 U. S. 184 (1964), and Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275 (1959), and on the dissenting opinion of Judge Bright in Employees v. Department of Public Health and Welfare, 452 F. 2d 820, 827 (CA8 1971). While the holding in the latter case was ultimately affirmed by this Court in 411 U. S. 279 (1973), we do not think that the answer to the waiver question turns on the distinction between Parden, and Employees. Both Parden and Employees involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities. Similarly, Petty v. Tennessee-Missouri Bridge Comm'n, involved congressional approval, pursuant to the Compact Clause, of a compact between Tennessee and Missouri, which provided that each compacting State would have the power "to contract, to sue, and be sued in its own name." The question of waiver or consent under the Eleventh Amendment was found in those cases to turn on whether Congress had intended to abrogate the immunity in question, and whether the State by its participation in the program authorized by Congress had in effect consented to the abrogation of that immunity.

[32] But in this case the threshold fact of congressional authorization to sue a class of defendants which literally includes States is wholly absent. Thus respondent is not only precluded from relying on this Court's holding in Employees, but on this Court's holdings in Parden and Petty as well. The Court of Appeals held that as a matter of federal law Illinois had "constructively consented" to this suit by participating in the federal AABD program and agreeing to administer federal and state funds in compliance with federal law. Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." Murray v. Wilson Distilling Co., 213 U. S. 151, 171 (1909). We see no reason to retreat from the Court's statement in Great Northern Life Insurance Co. v. Read, 322 U. S. at 54:

[33] "[W]hen we are dealing with the sovereign exemption from judicial interference in the vital field of financial administration a clear declaration of the state's intention to submit its fiscal problems to other courts than those of its own creation must be found."

[34] The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. And while this Court has authorized suits by one private party against another in order to effectuate a statutory purpose, it has never done so in the context of the Eleventh Amendment and a state defendant. Since Employees, where Congress had expressly authorized suits against a general class of defendants and the only thing left to implication was whether the described class of defendants included States, was decided adversely to the putative plaintiffs on the waiver question, surely this respondent must also fail on that issue. The only language in the Social Security Act which purported to provide a federal sanction against a State which did not comply with federal requirements for the distribution of federal monies was found in former 42 U. S. C. § 1384, which provided for termination of future allocations of federal funds when a participating State failed to conform with federal law. This provision by its terms did not authorize suit against anyone, and standing alone, fell far short of a waiver by a participating State of its Eleventh Amendment immunity.

[35] Our Brother MARSHALL argues in dissent, and the Court of Appeals held, that although the Social Security Act itself does not create a private cause of action, the cause of action created by 42 U. S. C. § 1983, coupled with the enactment of the AABD program, and the issuance by HEW of regulations which require the States to make corrective payments after successful "fair hearings" and provide for federal matching funds to satisfy federal court orders of retroactive payments, indicate that Congress intended a cause of action for public aid recipients such as respondent. It is, of course, true that Rosado v. Wyman, 397 U. S. 397 (1970), held that suits in federal court under § 1983 are proper to secure compliance with the provisions of the Social Security Act on the part of participating States. But it has not heretofore been suggested that § 1983 was intended to create a waiver of a State's Eleventh Amendment immunity merely because an action could be brought under that section against state officers, rather than against the State itself. Though a § 1983 action may be instituted by public aid recipients such as respondent, a federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, Ex parte Young, and may not include a retroactive award which requires the payment of funds from the state treasury.

***

[36] For the foregoing reasons we decide that the Court of Appeals was wrong in holding that the Eleventh Amendment did not constitute a bar to that portion of the District Court decree which ordered retroactive payment of benefits found to have been wrongfully withheld. The judgment of the Court of Appeals is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

[37] So ordered.

[Justice Douglas dissent omitted]

JUSTICE BRENNAN, dissenting.

[1] This suit is brought by Illinois citizens against Illinois officials. In that circumstance, Illinois may not invoke the Eleventh Amendment, since that Amendment bars only federal court suits against States by citizens of other States. Rather, the question is whether Illinois may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to respondent's claim for retroactive AABD payments. In my view Illinois may not assert sovereign immunity for th[is] reason: the States surrendered that immunity in Hamilton's words, "in the plan of the Convention," that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. Congressional authority to enact the Social Security Act, of which AABD is a part [. . . ], is to be found in Art. I, § 8, cl. 1, one of the enumerated powers granted Congress by the States in the Constitution. I remain of the opinion that "because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver," 411 U. S., at 300, and thus have no occasion to inquire whether or not Congress authorized an action for AABD retroactive benefits, or whether or not Illinois voluntarily waived the immunity by its continued participation in the program against the background of precedents which sustained judgments ordering retroactive payments.

[2] I would affirm the judgment of the Court of Appeals.

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

[1] The Social Security Act's categorical assistance programs, including the Aid to the Aged, Blind, or Disabled (AABD) program involved here, are fundamentally different from most federal legislation. Unlike the Fair Labor Standards Act involved in last Term's decision in Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973), or the Federal Employers' Liability Act at issue in Parden v. Terminal R. Co., 377 U. S. 184 (1964), the Social Security Act does not impose federal standards and liability upon all who engage in certain regulated activities, including often-unwilling state agencies. Instead, the Act seeks to induce state participation in the federal welfare programs by offering federal matching funds in exchange for the State's voluntary assumption of the Act's requirements. I find this basic distinction crucial: it leads me to conclude that by participation in the programs, the States waive whatever immunity they might otherwise have from federal court orders requiring retroactive payment of welfare benefits.

[FN1 In view of my conclusion on this issue, I find it unnecessary to consider whether the Court correctly treats this suit aone against the State, rather than as a suit against a state officer permissible under the rationale of Ex parte Young]

[2] In its contacts with the Social Security Act's assistance programs in recent years, the Court has frequently described the Act as a "scheme of cooperative federalism." See, e. g., King v. Smith, 392 U. S. 309, 316 (1968); Jefferson v. Hackney, 406 U. S. 535, 542 (1972). While this phrase captures a number of the unique characteristics of these programs, for present purposes it serves to emphasize that the States' decision to participate in the programs is a voluntary one. In deciding to participate, however, the States necessarily give up their freedom to operate assistance programs for the needy as they see fit, and bind themselves to conform their programs to the requirements of the federal statute and regulations. As the Court explained in King v. Smith, supra, at 316-317 (citations omitted):

[3] "States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available for distribution to needy children [or needy aged, blind or disabled] are required to submit an AFDC [or AABD] plan for the approval of the Secretary of Health, Education, and Welfare (HEW). The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by HEW."

[4] So here, Illinois elected to participate in the AABD program, and received and expended substantial federal funds in the years at issue. It thereby obligated itself to comply with federal law, including the requirement of former 42 U. S. C. § 1382 (a) (8) that "such aid or assistance shall be furnished with reasonable promptness to all eligible individuals." In Townsend v. Swank, 404 U. S. 282, 286 (1971), we held that participating States must strictly comply with the requirement that aid be furnished "to all eligible individuals," and that the States have no power to impose additional eligibility requirements which exclude persons eligible for assistance under federal standards. Today's decision, ante, at 659-660, n. 8. properly emphasizes that participating States must also comply strictly with the "reasonable promptness" requirement and the more detailed regulations adding content to it.

[5] In agreeing to comply with the requirements of the Social Security Act and HEW regulations, I believe that Illinois has also agreed to subject itself to suit in the federal courts to enforce these obligations. I recognize, of course, that the Social Security Act does not itself provide for a cause of action to enforce its obligations. As the Court points out, the only sanction expressly provided in the Act for a participating State's failure to comply with federal requirements is the cutoff of federal funding by the Secretary of HEW. Former 42 U. S. C. § 1384 (now 42 U. S. C. § 804 (1970 ed., Supp. II)).

[6] But a cause of action is clearly provided by 42 U. S. C. § 1983, which in terms authorizes suits to redress deprivations of rights secured by the "laws" of the United States. And we have already rejected the argument that Congress intended the funding cutoff to be the sole remedy for noncompliance with federal requirements. In Rosado v. Wyman, 397 U. S. 397, 420-423 (1970), we held that suits in federal court under § 1983 were proper to enforce the provisions of the Social Security Act against participating States. Mr. Justice Harlan, writing for the Court, examined the legislative history and found "not the slightest indication" that Congress intended to prohibit suits in federal court to enforce compliance with federal standards. Id., at 422.

[7] I believe that Congress also intended the full panoply of traditional judicial remedies to be available to the federal courts in these § 1983 suits. There is surely no indication of any congressional intent to restrict the courts' equitable jurisdiction. Yet the Court has held that "[u]nless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied." Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946). "When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes." Mitchell v. DeMario Jewelry, 361 U. S. 288, 291-292 (1960).

[8] In particular, I am firmly convinced that Congress intended the restitution of wrongfully withheld assistance payments to be a remedy available to the federal courts in these suits. Benefits under the categorical assistance programs "are a matter of statutory entitlement for persons qualified to receive them." Goldberg v. Kelly, 397 U. S. 254, 262 (1970). Retroactive payment of benefits secures for recipients this entitlement which was withheld in violation of federal law. Equally important, the courts' power to order retroactive payments is an essential remedy to insure future state compliance with federal requirements. See Porter v. Warner Holding Co., supra, at 400. No other remedy can effectively deter States from the strong temptation to cut welfare budgets by circumventing the stringent requirements of federal law. The funding cutoff is a drastic sanction, one which HEW has proved unwilling or unable to employ to compel strict compliance with the Act and regulations. See Rosado v. Wyman, supra, at 426 (DOUGLAS, J., concurring). Moreover, the cutoff operates only prospectively; it in no way deters the States from even a flagrant violation of the Act's requirements for as long as HEW does not discover the violation and threaten to take such action.

[9] Absent any remedy which may act with retroactive effect, state welfare officials have everything to gain and nothing to lose by failing to comply with the congressional mandate that assistance be paid with reasonable promptness to all eligible individuals. This is not idle speculation without basis in practical experience. In this very case, for example, Illinois officials have knowingly violated since 1968 federal regulations on the strength of an argument as to its invalidity which even the majority deems unworthy of discussion. Ante, at 659-660, n. 8. Without a retroactive-payment remedy, we are indeed faced with "the specter of a state, perhaps calculatingly, defying federal law and thereby depriving welfare recipients of the financial assistance Congress thought it was giving them." Jordan v. Weaver, 472 F. 2d 985, 995 (CA7 1972). Like the Court of Appeals, I cannot believe that Congress could possibly have intended any such result.

[10] Such indicia of congressional intent as can be gleaned from the statute confirm that Congress intended to authorize retroactive payment of assistance benefits unlawfully withheld. Availability of such payments is implicit in the "fair hearing" requirement, former 42 U. S. C. § 1382 (a) (4), which permitted welfare recipients to challenge the denial of assistance. The regulations which require States to make corrective payments retro-actively in the event of a successful fair hearing challenge, 45 CFR § 205.10 (a) (18), merely confirm the obvious statutory intent. HEW regulations also authorize federal matching funds for retroactive assistance payments made pursuant to court order, 45 CFR §§ 205.10 (b) (2), (b) (3). We should not lightly disregard this explicit recognition by the agency charged with administration of the statute that such a remedy was authorized by Congress. See Griggs v. Duke Power Co., 401 U. S. 424, 433-434 (1971).

[11] Illinois chose to participate in the AABD program with its eyes wide open. Drawn by the lure of federal funds, it voluntarily obligated itself to comply with the Social Security Act and HEW regulations, with full knowledge that Congress had authorized assistance recipients to go into federal court to enforce these obligations and to recover benefits wrongfully denied. Any doubts on this score must surely have been removed by our decisions in Rosado v. Wyman, supra, and Shapiro v. Thompson, 394 U. S. 618 (1969), where we affirmed a district court retroactive payment order. I cannot avoid the conclusion that, by virtue of its knowing and voluntary decision to nevertheless participate in the program, the State necessarily consented to subject itself to these suits. I have no quarrel with the Court's view that waiver of constitutional rights should not lightly be inferred. But I simply cannot believe that the State could have entered into this essentially contractual agreement with the Federal Government without recognizing that it was subjecting itself to the full scope of the § 1983 remedy provided by Congress to enforce the terms of the agreement.

[12] Of course, § 1983 suits are nominally brought against state officers, rather than the State itself, and do not ordinarily raise Eleventh Amendment problems in view of this Court's decision in Ex parte Young, 209 U. S. 123 (1908). But to the extent that the relief authorized by Congress in an action under § 1983 may be open to Eleventh Amendment objections,[2] these objections are waived when the State agrees to comply with federal requirements enforceable in such an action. I do not find persuasive the Court's reliance in this case on the fact that "congressional authorization to sue a class of defendants which literally includes States" is absent. Ante, at 672. While true, this fact is irrelevant here, for this is simply not a case "literally" against the State. While the Court successfully knocks down the strawman it has thus set up, it never comes to grips with the undeniable fact that Congress has "literally" authorized this suit within the terms of § 1983. Since there is every reason to believe that Congress intended the full panoply of judicial remedies to be available in § 1983 equitable actions to enforce the Social Security Act, I think the conclusion is inescapable that Congress authorized and the State consented to § 1983 actions in which the relief might otherwise be questioned on Eleventh Amendment grounds.

[FN 2] It should be noted that there has been no determination in this case that state action is unconstitutional under the Fourteenth Amendment. Thus, the Court necessarily does not decide whether the States' Eleventh Amendment sovereign immunity may have been limited by the later enactment of the Fourteenth Amendment to the extent that such a limitation is necessary to effectuate the purposes of that Amendment, an argument advanced by an amicus in this case. In view of my conclusion that any sovereign immunity which may exist has been waived, I also need not reach this issue.]

[13] My conclusion that the State has waived its Eleventh Amendment objections to court-ordered retroactive assistance payments is fully consistent with last Term's decision in Employees v. Department of Public Health and Welfare, 411 U. S. 279 (1973). As I emphasized in my concurring opinion, there was no voluntary action by the State in Employees which could reasonably be construed as evidencing its consent to suit in a federal forum.

[14] "[T]he State was fully engaged in the operation of the affected hospitals and schools at the time of the 1966 amendments. To suggest that the State had the choice of either ceasing operation of these vital public services or `consenting' to federal suit suffices, I believe, to demonstrate that the State had no true choice at all and thereby that the State did not voluntarily consent to the exercise of federal jurisdiction. . . ." Id., at 296.

[15] A finding of waiver here is also consistent with the reasoning of the majority in Employees, which relied on a distinction between "governmental" and "proprietary" functions of state government. Id., at 284-285. This distinction apparently recognizes that if sovereign immunity is to be at all meaningful, the Court must be reluctant to hold a State to have waived its immunity simply by acting in its sovereign capacity—i. e., by merely performing its "governmental" functions. On the other hand, in launching a profitmaking enterprise, "a State leaves the sphere that is exclusively its own," Parden v. Terminal R. Co., 377 U. S., at 196, and a voluntary waiver of sovereign immunity can more easily be found. While conducting an assistance program for the needy is surely a "governmental" function, the State here has done far more than operate its own program in its sovereign capacity. It has voluntarily subordinated its sovereignty in this matter to that of the Federal Government, and agreed to comply with the conditions imposed by Congress upon the expenditure of federal funds. In entering this federal-state cooperative program, the State again "leaves the sphere that is exclusively its own," and similarly may more readily be found to have voluntarily waived its immunity.

[16] Indeed, this is the lesson to be drawn from this Court's decision in Petty v. Tennessee-Missouri Bridge Comm'n, 359 U. S. 275 (1959), where the Court found that the States had waived the sovereign immunity of the Commission by joining in an interstate compact subject to the approval of Congress. The Court in Petty emphasized that it was "called on to interpret not unilateral state action but the terms of a consensual agreement" between the States and Congress, id., at 279, and held that the States who join such a consensual agreement, "by accepting it and acting under it assume the conditions that Congress under the Constitution attached." Id., at 281-282. Although the congressional intent regarding the sue-and-be-sued clause was by no means certain, the Court held that the surrounding conditions made it clear that the States accepting it waived their sovereign immunity, id., at 280, especially since this interpretation was necessary to keep the compact "a living interstate agreement which performs high functions in our federalism." Id., at 279.

[17] I find the approach in Petty controlling here. As even the dissent in that case recognized, id., at 285 (Frankfurter, J., dissenting), Congress undoubtedly has the power to insist upon a waiver of sovereign immunity as a condition of its consent to such a federal-state agreement. Since I am satisfied that Congress has in fact done so here, at least to the extent that the federal courts may do "complete rather than truncated justice," Porter v. Warner Holding Co., 328 U. S., at 398, in § 1983 actions authorized by Congress against state welfare authorities, I respectfully dissent.

3.6.2 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) 3.6.2 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)

Chief Justice Rehnquist delivered the opinion of the Court.

[1] The Indian Gaming Regulatory Act provides that an Indian tribe may conduct certain gaming activities only in conformance with a valid compact between the tribe and the State in which the gaming activities are located. 102 Stat. 2475, 25 U. S. C. § 2710(d)(1)(C). The Act, passed by Congress under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3,imposes upon the States a duty to negotiate in good faith with an Indian tribe toward the formation of a compact, § 2710(d)(3)(A), and authorizes a tribe to bring suit in federal court against a State in order to compel performance of that duty, § 2710(d)(7). We hold that notwithstanding Congress' clear intent to abrogate the States' sovereign immunity, the Indian Commerce Clause does not grant Congress that power, and therefore § 2710(d)(7) cannot grant jurisdiction over a State that does not consent to be sued.

[2] Congress passed the Indian Gaming Regulatory Act in 1988 in order to provide a statutory basis for the operation and regulation of gaming by Indian tribes. See 25 U. S. C. § 2702. [The act requires that states negotiate in “good faith” with Indian tribes to permit gambling on Native American reservations and authorizes suits against state governments to enforce the law.]

[3] In September 1991, the Seminole Tribe of Florida, petitioner, sued the State of Florida and its Governor, Lawton Chiles, respondents. Invoking jurisdiction under 25 U.S.C. § 2710(d)(7)(A), as well as 28 U.S.C. §§ 1331 and 1362, petitioner alleged that respondents had "refused to enter into any negotiation for inclusion of [certain gaming activities] in a tribal-state compact," thereby violating the "requirement of good faith negotiation" contained in § 2710(d)(3). Respondents moved to dismiss the complaint, arguing that the suit violated the State's sovereign immunity from suit in federal court.

[4] Petitioner argues that Congress through the Act abrogated the States' immunity from suit. In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has "unequivocally expresse[d] its intent to abrogate the immunity," and second, whether Congress has acted "pursuant to a valid exercise of power."

[5] Congress' intent to abrogate the States' immunity from suit must be obvious from "a clear legislative statement." This rule arises from a recognition of the important role played by the Eleventh Amendment and the broader principles that it reflects. Here, we agree with the parties, with the Eleventh Circuit in the decision below, and with virtually every other court that has confronted the question that Congress has in § 2710(d)(7) provided an "unmistakably clear" statement of its intent to abrogate. Section 2710(d)(7)(A)(i) vests jurisdiction in "[t]he United States district courts . . . over any cause of action . . . arising from the failure of a State to enter into negotiations . . . or to conduct such negotiations in good faith."

[6] Having concluded that Congress clearly intended to abrogate the States' sovereign immunity through § 2710(d)(7), we turn now to consider whether the Act was passed "pursuant to a valid exercise of power." [O]ur inquiry into whether Congress has the power to abrogate unilaterally the States' immunity from suit is narrowly focused on one question: Was the Act in question passed pursuant to a constitutional provision granting Congress the power to abrogate? See, e. g., Fitzpatrick v. Bitzer (1976). Previously, in conducting that inquiry, we have found authority to abrogate under only two provisions of the Constitution. In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding federal power at the expense of state autonomy, had fundamentally altered the balance of state and federal power struck by the Constitution. We noted that § 1 of the Fourteenth Amendment contained prohibitions expressly directed at the States and that § 5 of the Amendment expressly provided that "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that § 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment.

[7] In only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld. In Pennsylvania v. Union Gas Co. (1989), a plurality of the Court found that the Interstate Commerce Clause, Art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages." Justice White added the fifth vote necessary to the result in that case, but wrote separately in order to express that he "[did] not agree with much of [the plurality's] reasoning."

[8] The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court. We have already seen that Justice Brennan's opinion received the support of only three other Justices. Of the other five, Justice White, who provided the fifth vote for the result, wrote separately in order to indicate his disagreement with the plurality's rationale, and four Justices joined together in a dissent that rejected the plurality's rationale. Since it was issued, Union Gas has created confusion among the lower courts that have sought to understand and apply the deeply fractured decision.

[9] The plurality's rationale also deviated sharply from our established federalism jurisprudence and essentially eviscerated our decision in Hans v. Louisiana (1890). Never before the decision in Union Gas had we suggested that the bounds of Article III could be expanded by Congress operating pursuant to any constitutional provision other than the Fourteenth Amendment. Indeed, it had seemed fundamental that Congress could not expand the jurisdiction of the federal courts beyond the bounds of Article III. Marbury v. Madison (1803).

[10] In the five years since it was decided, Union Gas has proved to be a solitary departure from established law. Reconsidering the decision in Union Gas, we conclude that none of the policies underlying stare decisis require our continuing adherence to its holding. The decision has, since its issuance, been of questionable precedential value, largely because a majority of the Court expressly disagreed with the rationale of the plurality. The case involved the interpretation of the Constitution and therefore may be altered only by constitutional amendment or revision by this Court. Finally, both the result in Union Gas and the plurality's rationale depart from our established understanding of the Eleventh Amendment and undermine the accepted function of Article III. We feel bound to conclude that Union Gas was wrongly decided and that it should be, and now is, overruled.

[11] In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction. Petitioner's suit against the State of Florida must be dismissed for a lack of jurisdiction.

Justice Stevens, dissenting.

[1] This case is about power—the power of the Congress of the United States to create a private federal cause of action against a State, or its Governor, for the violation of a federal right. [I]n a sharp break with the past, today the Court holds that with the narrow and illogical exception of statutes enacted pursuant to the Enforcement Clause of the Fourteenth Amendment, Congress has no such power.

[2] The importance of the majority's decision to overrule the Court's holding in Pennsylvania v. Union Gas Co. cannot be overstated. The majority's opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a State's good-faith negotiations over gaming regulations. Rather, it prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.

[3] There may be room for debate over whether, in light of the Eleventh Amendment, Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued. Congress' authority in that regard is clear.

[4] The fundamental error that continues to lead the Court astray is its failure to acknowledge that its modern embodiment of the ancient doctrine of sovereign immunity "has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment." It rests rather on concerns of federalism and comity that merit respect but are nevertheless, in cases such as the one before us, subordinate to the plenary power of Congress.

Justice Souter, with whom Justice Ginsburg and Justice Breyer join, dissenting.

[1] In holding the State of Florida immune to suit under the Indian Gaming Regulatory Act, the Court today holds for the first time since the founding of the Republic that Congress has no authority to subject a State to the jurisdiction of a federal court at the behest of an individual asserting a federal right.

[2] It is useful to separate three questions: (1) whether the States enjoyed sovereign immunity if sued in their own courts in the period prior to ratification of the National Constitution; (2) if so, whether after ratification the States were entitled to claim some such immunity when sued in a federal court exercising jurisdiction either because the suit was between a State and a nonstate litigant who was not its citizen, or because the issue in the case raised a federal question; and (3) whether any state sovereign immunity recognized in federal court may be abrogated by Congress.

[3] The answer to the first question is not clear, although some of the Framers assumed that States did enjoy immunity in their own courts. The second question was not debated at the time of ratification, except as to citizen-state diversity jurisdiction; there was no unanimity, but in due course the Court in Chisholm v. Georgia (1793), answered that a state defendant enjoyed no such immunity. As to federal-question jurisdiction, state sovereign immunity seems not to have been debated prior to ratification, the silence probably showing a general understanding at the time that the States would have no immunity in such cases.

[4] The Court's answer today to the third question is likewise at odds with the Founders' view that common law, when it was received into the new American legal system, was always subject to legislative amendment. In ignoring the reasons for this pervasive understanding at the time of the ratification, and in holding that a nontextual common-law rule limits a clear grant of congressional power under Article I, the Court follows a course that has brought it to grief before in our history, and promises to do so again.

[5] The doctrine of sovereign immunity comprises two distinct rules, which are not always separately recognized. The one rule holds that the King or the Crown, as the font of law, is not bound by the law's provisions; the other provides that the King or Crown, as the font of justice, is not subject to suit in its own courts. The one rule limits the reach of substantive law; the other, the jurisdiction of the courts. We are concerned here only with the latter rule, which took its common-law form in the high Middle Ages.

[6] The significance of this doctrine in the nascent American law is less clear, however, than its early development and steady endurance in England might suggest. While some colonial governments may have enjoyed some such immunity, the scope (and even the existence) of this governmental immunity in pre-Revolutionary America remains disputed.

[7] Whatever the scope of sovereign immunity might have been in the Colonies, however, or during the period of Confederation, the proposal to establish a National Government under the Constitution drafted in 1787 presented a prospect unknown to the common law prior to the American experience: the States would become parts of a system in which sovereignty over even domestic matters would be divided or parcelled out between the States and the Nation, the latter to be invested with its own judicial power and the right to prevail against the States whenever their respective substantive laws might be in conflict.

[8] The history and structure of the Eleventh Amendment convincingly show that it reaches only to suits subject to federal jurisdiction exclusively under the Citizen-State Diversity Clauses. In precisely tracking the language in Article III providing for citizen-state diversity jurisdiction, the text of the Amendment does, after all, suggest to common sense that only the Diversity Clauses are being addressed. If the Framers had meant the Amendment to bar federalquestion suits as well, they could not only have made their intentions clearer very easily, but could simply have adopted the first post-Chisholm proposal, introduced in the House of Representatives by Theodore Sedgwick of Massachusetts on instructions from the Legislature of that Commonwealth. Its provisions would have had exactly that expansive effect:

[9] "[N]o state shall be liable to be made a party defendant, in any of the judicial courts, established, or which shall be established under the authority of the United States, at the suit of any person or persons, whether a citizen or citizens, or a foreigner or foreigners, or of any body politic or corporate, whether within or without the United States."

[10] Three critical errors in Hans weigh against constitutionalizing its holding as the majority does today. The first we have already seen: the Hans Court misread the Eleventh Amendment. It also misunderstood the conditions under which common-law doctrines were received or rejected at the time of the founding, and it fundamentally mistook the very nature of sovereignty in the young Republic that was supposed to entail a State's immunity to federal-question jurisdiction in a federal court.

[11] Neither text, precedent, nor history supports the majority's abdication of our responsibility to exercise the jurisdiction entrusted to us in Article III.

3.6.3 Alden v. Maine, 527 U.S. 706 (1999) 3.6.3 Alden v. Maine, 527 U.S. 706 (1999)

Alden v. Maine, 527 U.S. 706 (1999)

Justice Kennedy, delivered the opinion of the Court.

[1] In 1992, petitioners, a group of probation officers, filed suit against their employer, the State of Maine, in the United States District Court for the District of Maine. The officers alleged the State had violated the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), and sought compensation and liquidated damages. While the suit was pending, this Court decided Seminole Tribe of Fla. v. Florida, which made it clear that Congress lacks power under Article I to abrogate the States' sovereign immunity from suits commenced or prosecuted in the federal courts. Upon consideration of Seminole Tribe, the District Court dismissed petitioners' action, and the Court of Appeals affirmed. Petitioners then filed the same action in state court. The state trial court dismissed the suit on the basis of sovereign immunity, and the Maine Supreme Judicial Court affirmed.

[2] The Maine Supreme Judicial Court's decision conflicts with the decision of the Supreme Court of Arkansas, and calls into question the constitutionality of the provisions of the FLSA purporting to authorize private actions against States in their own courts without regard for consent. In light of the importance of the question presented and the conflict between the courts, we granted certiorari.

[3] We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA. On these premises we affirm the judgment sustaining dismissal of the suit.

[4] The Eleventh Amendment makes explicit reference to the States' immunity from suits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited by, the terms of the Eleventh Amendment. Rather, as the Constitution's structure, its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.

[5] Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document "specifically recognizes the States as sovereign entities." The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. . . .

[6] The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status. . . . Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation's rejection of "the concept of a central government that would act upon and through the States" in favor of "a system in which the State and Federal Governments would exercise concurrent authority over the people— who were, in Hamilton's words, `the only proper objects of government.'" . . .

[7] The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity. When the Constitution was ratified, it was well established in English law that the Crown could not be sued without consent in its own courts. . . . Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. . . .The ratification debates, furthermore, underscored the importance of the States' sovereign immunity to the American people. Grave concerns were raised by the provisions of Article III, which extended the federal judicial power to controversies between States and citizens of other States or foreign nations. . . . The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity. . . .

[8] It might be argued that the Chisholm decision was a correct interpretation of the constitutional design and that the Eleventh Amendment represented a deviation from the original understanding. This, however, seems unsupportable. . . .

[9] The text and history of the Eleventh Amendment also suggest that Congress acted not to change but to restore the original constitutional design. . . . By its terms, the Eleventh Amendment did not redefine the federal judicial power but instead overruled the Court[.]

[10] Congress chose not to enact language codifying the traditional understanding of sovereign immunity but rather to address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision.

[11] The . . . natural inference is that the Constitution was understood, in light of its history and structure, to preserve the States’ traditional immunity from private suits. As the Amendment clarified the only provisions of the Constitution that anyone had suggested might support a contrary understanding, there was no reason to draft with a broader brush . . .

[12] [Prior decisions upholding state assertions of sovereign immunity] reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution's ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. . . .

[13] In this case we must determine whether Congress has the power, under Article I, to subject nonconsenting States to private suits in their own courts. As the foregoing discussion makes clear, the fact that the Eleventh Amendment by its terms limits only "[t]he Judicial power of the United States" does not resolve the question. To rest on the words of the Amendment alone would be to engage in the type of ahistorical literalism we have rejected in interpreting the scope of the States' sovereign immunity since the discredited decision in Chisholm.

[14] While the constitutional principle of sovereign immunity does pose a bar to federal jurisdiction over suits against nonconsenting States, this is not the only structural basis of sovereign immunity implicit in the constitutional design. Rather, "[t]here is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.' " This separate and distinct structural principle is not directly related to the scope of the judicial power established by Article III, but inheres in the system of federalism established by the Constitution. In exercising its Article I powers Congress may subject the States to private suits in their own courts only if there is "compelling evidence" that the States were required to surrender this power to Congress pursuant to the constitutional design.

[15] Petitioners contend the text of the Constitution and our recent sovereign immunity decisions establish that the States were required to relinquish this portion of their sovereignty. . . .

[16] As is evident from its text, however, the Supremacy Clause enshrines as "the supreme Law of the Land" only those Federal Acts that accord with the constitutional design. . . .

[17] The Constitution, by delegating to Congress the power to establish the supreme law of the land when acting within its enumerated powers, does not foreclose a State from asserting immunity to claims arising under federal law merely because that law derives not from the State itself but from the national power. . . . When a State asserts its immunity to suit, the question is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the States. Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.

[18] [Prior cases] came . . . to the conclusion that neither the Supremacy Clause nor the enumerated powers of Congress confer authority to abrogate the States' immunity from suit in federal court. The logic of the decisions, however, does not turn on the forum in which the suits were prosecuted but extends to state-court suits as well.

[19] The dissenting opinion . . .contend[s] that state sovereign immunity must derive either from the common law (in which case the dissent contends it is defeasible by statute) or from natural law (in which case the dissent believes it cannot bar a federal claim). [This is a false dichotomy] The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land.

[20] Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design. The dissent has provided no persuasive evidence that the founding generation regarded the States' sovereign immunity as defeasible by federal statute. . . .

[21] Whether Congress has authority under Article I to abrogate a State's immunity from suit in its own courts is, then, a question of first impression. In determining whether there is "compelling evidence" that this derogation of the States' sovereignty is "inherent in the constitutional compact," Blatchford, 501 U. S., at 781, we continue our discussion of history, practice, precedent, and the structure of the Constitution.

[22] We look first to evidence of the original understanding of the Constitution. Petitioners contend that because the ratification debates and the events surrounding the adoption of the Eleventh Amendment focused on the States' immunity from suit in federal courts, the historical record gives no instruction as to the founding generation's intent to preserve the States' immunity from suit in their own courts.

[23] We believe, however, that the Founders' silence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip the States of the immunity. In light of the overriding concern regarding the States' war-time debts, together with the well-known creativity, foresight, and vivid imagination of the Constitution's opponents, the silence is most instructive. It suggests the sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution. . . .

[24] The language of the Eleventh Amendment, furthermore, was directed toward the only provisions of the constitutional text believed to call the States' immunity from private suits into question. Although Article III expressly contemplated jurisdiction over suits between States and individuals, nothing in the Article or in any other part of the Constitution suggested the States could not assert immunity from private suit in their own courts or that Congress had the power to abrogate sovereign immunity there. . . .

[25] Our historical analysis is supported by early congressional practice, which provides "contemporaneous and weighty evidence of the Constitution's meaning." Printz. [E]arly Congresses did not believe they had the power to authorize private suits against the States in their own courts. . . .

[26] The theory and reasoning of our earlier cases suggest the States do retain a constitutional immunity from suit in their own courts. We have often described the States' immunity in sweeping terms, without reference to whether the suit was prosecuted in state or federal court. [citations omitted] . . . .As it is settled doctrine that neither substantive federal law nor attempted congressional abrogation under Article I bars a State from raising a constitutional defense of sovereign immunity in federal court, our decisions suggesting that the States retain an analogous constitutional immunity from private suits in their own courts support the conclusion that Congress lacks the Article I power to subject the States to private suits in those fora.

[27] Our final consideration is whether a congressional power to subject nonconsenting States to private suits in their own courts is consistent with the structure of the Constitution. We look both to the essential principles of federalism and to the special role of the state courts in the constitutional design.

[28] Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. . . .

[29] Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf.

[30] In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. A power to press a State's own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. . . .

[31] It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege.

[32] Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States—especially suits for money damages—may threaten the financial integrity of the States. . . .

[33] A general federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of a State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. . . . When the Federal Government asserts authority over a State's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government. . . .

[34] The provisions of the Constitution upon which we have relied in finding the state courts peculiarly amenable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. The Supremacy Clause does impose specific obligations on state judges. There can be no serious contention, however, that the Supremacy Clause imposes greater obligations on state-court judges than on the Judiciary of the United States itself. The text of Article III, § 1, which extends federal judicial power to enumerated classes of suits but grants Congress discretion whether to establish inferior federal courts, does give strong support to the inference that state courts may be opened to suits falling within the federal judicial power. The Article in no way suggests, however, that state courts may be required to assume jurisdiction that could not be vested in the federal courts and forms no part of the judicial power of the United States. . . .

[35] In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation.

III

[36] The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land." U. S. Const., Art. VI.

[37] Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity. The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits. . . .

[38] The States have consented, moreover, to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments. In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government. Principality of Monaco, supra, at 328-329 (collecting cases). A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, § 3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against nonconsenting States was the central reason given by the Founders who chose to preserve the States' sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.

[39] We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its § 5 enforcement power. . . .

[40] The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. Nor does sovereign immunity bar all suits against state officers. Some suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State. The rule, however, does not bar certain actions against state officers for injunctive or declaratory relief. Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. . .

[41] The sole remaining question is whether Maine has waived its immunity. . . The State, we conclude, has not consented to suit.

[42] This case at one level concerns the formal structure of federalism, but in a Constitution as resilient as ours form mirrors substance. Congress has vast power but not all power. When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the States. . . .

[43] Affirmed.

Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

[1] . . .In . . . complementing [Seminole Tribe], the Court of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State's sovereign immunity from all individual suits is a "fundamental aspect" of state sovereignty "confirm[ed]" by the Tenth Amendment. As a consequence, Seminole Tribe`s contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court's current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State's war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia, had understood a State's inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law. . . .

[2] There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court's federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court's history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding.

[3] On each point the Court has raised it is mistaken, and I respectfully dissent from its judgment.

[4] The Court rests its decision principally on the claim that immunity from suit was "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution," an aspect which the Court understands to have survived the ratification of the Constitution in 1788 and to have been "confirm[ed]" and given constitutional status, ante, at 714, by the adoption of the Tenth Amendment in 1791. If the Court truly means by "sovereign immunity" what that term meant at common law, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. . . .

[5] The Court does not, however, offer today's holding as a mere corollary to its reasoning in Seminole Tribe, substituting the Tenth Amendment for the Eleventh as the occasion demands, and it is fair to read its references to a "fundamental aspect" of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton's reference in The Federalist No. 81, to the States' sovereign immunity from suit as an "inherent" right, a characterization that does not require, but is at least open to, a natural law reading.

[6] I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a "fundamental aspect" of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court's opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this "fundamental aspect" its constitutional status and protection against any legislative tampering by Congress. The Court's principal rationale for today's result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)?

[7] The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. . . . [Historical discussion omitted in which Justice Souter concludes that in 1787 “there existed among the states some diversity of practice with respect to sovereign immunity” no state declared that [sovereign immunity was an inalienable and natural right] and that sovereign immunity was conceived of as simply a common law right]

[ * * * ]

[8] In Chisholm two Justices (Jay and Wilson), one of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit Court, nor Justice Iredell seems even to have conceived the possibility that the new Tenth Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today's Court to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the Tenth Amendment. . . .

[9] The Court's rationale for today's holding based on a conception of sovereign immunity as somehow fundamental to sovereignty or inherent in statehood fails for the lack of any substantial support for such a conception in the thinking of the founding era. The Court cannot be counted out yet, however, for it has a second line of argument looking not to a clause-based reception of the natural law conception or even to its recognition as a "background principle," see Seminole Tribe, but to a structural basis in the Constitution's creation of a federal system. Immunity, the Court says, "inheres in the system of federalism established by the Constitution," its "contours [being] determined by the Founders' understanding, not by the principles or limitations derived from natural law." Again, "[w]e look both to the essential principles of federalism and to the special role of the state courts in the constitutional design." That is, the Court believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State's own courts, regardless of the federal source of the claim asserted against the State. If one were to read the Court's federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the Court's position on state sovereign immunity might have been rested entirely on federalism alone. If it had been, however, I would still be in dissent, for the Court's argument that state-court sovereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken.

[10] The National Constitution formally and finally repudiated the received political wisdom that a system of multiple sovereignties constituted the "great solecism of an imperium in imperio," Once "the atom of sovereignty" had been split, the general scheme of delegated sovereignty as between the two component governments of the federal system was clear, and was succinctly stated by Chief Justice Marshall: "In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland. . . .

[11] Hence the flaw in the Court's appeal to federalism. The State of Maine is not sovereign with respect to the national objectives of the FLSA. It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see Garcia v. San Antonio Metropolitan Transit Authority, and is not contested here.

[12] Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution, Art. VI, cl. 2, which requires state courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action. . . .

[13] It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on "`the dignity and respect afforded a State, which the immunity is designed to protect.'. . . . It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government's immunity from private suit, it is not dignity.

[14] It is equally puzzling to hear the Court say that "federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens." So long as the citizens' will, expressed through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States already trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended.

[15] Least of all does the Court persuade by observing that "other important needs" than that of the "judgment creditor" compete for public money. The "judgment creditor" in question is not a dunning bill collector, but a citizen whose federal rights have been violated, and a constitutional structure that stints on enforcing federal rights out of an abundance of delicacy toward the States has substituted politesse in place of respect for the rule of law.

III

[16] If neither theory nor structure can supply the basis for the Court's conceptions of sovereign immunity and federalism, then perhaps history might. The Court apparently believes that because state courts have not historically entertained Commerce Clause based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. . . . But even if the record were less unkempt, the problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way.

[17] It was at one time, though perhaps not from the framing, believed that "Congress' authority to regulate the States under the Commerce Clause" was limited by "certain underlying elements of political sovereignty . . . deemed essential to the States' `separate and independent existence.'" On this belief, the preordained balance between state and federal sovereignty was understood to trump the terms of Article I and preclude Congress from subjecting States to federal law on certain subjects. (From time to time, wage and hour regulation has been counted among those subjects, see infra, at 808.) As a consequence it was rare, if not unknown, for state courts to confront the situation in which federal law enacted under the Commerce Clause provided the authority for a private right of action against a State in state court. The question of state immunity from a Commerce Clause based federal-law suit in state court thus tended not to arise for the simple reason that Acts of Congress authorizing such suits did not exist.

[18] Today, however, in light of Garcia . . . the law is settled that federal legislation enacted under the Commerce Clause may bind the States without having to satisfy a test of undue incursion into state sovereignty. "[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the `States as States' is one of process rather than one of result." Garcia. Because the commerce power is no longer thought to be circumscribed, the dearth of prior private federal claims entertained against the States in state courts does not tell us anything, and reflects nothing but an earlier and less expansive application of the commerce power.

[19] Least of all is it to the point for the Court to suggest that because the Framers would be surprised to find States subjected to a federal-law suit in their own courts under the commerce power, the suit must be prohibited by the Constitution. See ante, at 741-743 (arguing on the basis of the "historical record" that the Constitution would not have been adopted if it had been understood to allow suit against States in state court under federal law). The Framers' intentions and expectations count so far as they point to the meaning of the Constitution's text or the fair implications of its structure, but they do not hover over the instrument to veto any application of its principles to a world that the Framers could not have anticipated.

[20] If the Framers would be surprised to see States subjected to suit in their own courts under the commerce power, they would be astonished by the reach of Congress under the Commerce Clause generally. The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes. But the Framers' surprise at, say, the FLSA, or the Federal Communications Commission, or the Federal Reserve Board is no threat to the constitutionality of any one of them, for a very fundamental reason:

[21] "[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Missouri v. Holland, (Holmes, J.).

[22] "`We must never forget,' said Mr. Chief Justice Marshall in McCulloch . . . `that it is a Constitution we are expounding. . . .

[23] If today's decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the Court has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, . . . . has not, however, fared as well in practice as it has in theory. The Court in Seminole Tribe created a significant impediment to the statute's practical application by rendering its damages provisions unenforceable against the States by private suit in federal court. Today's decision blocking private actions in state courts makes the barrier to individual enforcement a total one.

[24] [W]here Congress has created a private right to damages, it is implausible to claim that enforcement by a public authority without any incentive beyond its general enforcement power will ever afford the private right a traditionally adequate remedy. No one would think the remedy adequate if private tort claims against a State could only be brought by the National Government: the tradition of private enforcement, as old as the common law itself, is the benchmark. But wage claims have a lineage of private enforcement just as ancient, and a claim under the FLSA is a claim for wages due on work performed. Denying private enforcement of an FLSA claim is thus on par with closing the courthouse door to state tort victims unaccompanied by a lawyer from Washington.

[25] So there is much irony in the Court's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers . . And when Chief Justice Marshall asked about Marbury: "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?," Marbury v. Madison, 1 Cranch 137, 162 (1803), the question was rhetorical, and the answer clear[.]

[26] Yet today the Court has no qualms about saying frankly that the federal right to damages afforded by Congress under the FLSA cannot create a concomitant private remedy. . .

[27] The Court has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead. As it is, any such expectation would be naïve. The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.

* * *

3.6.4 Federal Maritime Comm’n v. South Carolina Port Authority 3.6.4 Federal Maritime Comm’n v. South Carolina Port Authority

[excerpt]

535 U.S. 743
Supreme Court of the United States

Federal Maritime Comm’n v. South Carolina Port AuthorityMay 28, 2002

Justice Thomas, delivered the opinion of the Court.

[1] This case presents the question whether state sovereign immunity precludes petitioner Federal Maritime Commission (FMC or Commission) from adjudicating a private party's complaint that a state-run port has violated the Shipping Act of 1984 . . . We hold that state sovereign immunity bars such an adjudicative proceeding.

[2] South Carolina Maritime Services, Inc. (Maritime Services), asked respondent South Carolina State Ports Authority (SCSPA) for permission to berth a cruise ship, the M/V Tropic Sea, at the SCSPA's port facilities in Charleston, South Carolina. . . .

[3] The SCSPA repeatedly denied Maritime Services' requests, contending that it had an established policy of denying berths in the Port of Charleston to vessels whose primary purpose was gambling. As a result, Maritime Services filed a complaint with the FMC, contending that the SCSPA's refusal to provide berthing space to the M/V Tropic Sea violated the Shipping Act. . . .

[4] To remedy its injuries, Maritime Services prayed that the FMC: (1) seek a temporary restraining order and preliminary injunction in the United States District Court for the District of South Carolina "enjoining [the SCSPA] from utilizing its discriminatory practice to refuse to provide berthing space and passenger services to Maritime Services;" (2) direct the SCSPA to pay reparations to Maritime Services as well as interest and reasonable attorneys' fees; (3) issue an order commanding, among other things, the SCSPA to cease and desist from violating the Shipping Act; and (4) award Maritime Services "such other and further relief as is just and proper."

[5] Consistent with the FMC's Rules of Practice and Procedure, Maritime Services' complaint was referred to an Administrative Law Judge (ALJ) [who dismissed the complaint].

[6] While Maritime Services did not appeal the ALJ's dismissal of its complaint, the FMC on its own motion decided to review the ALJ's ruling to consider whether state sovereign immunity from private suits extends to proceedings before the Commission. . . . The FMC held that sovereign immunity did not bar the Commission from adjudicating private complaints against state-run ports and reversed the ALJ's decision dismissing Maritime Services' complaint.

[7] The SCSPA filed a petition for review, and the United States Court of Appeals for the Fourth Circuit reversed. . . and remanded the case with instructions that it be dismissed.

[8] We . . . affirm

[9] Dual sovereignty is a defining feature of our Nation's constitutional blueprint. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union "with their sovereignty intact." . . .

[10] States, in ratifying the Constitution, did surrender a portion of their inherent immunity by consenting to suits brought by sister States or by the Federal Government. . . Nevertheless, the Convention did not disturb States' immunity from private suits, thus firmly enshrining this principle in our constitutional framework.

[11] . . . [T]he Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity.

III

[12] We now consider whether the sovereign immunity enjoyed by States as part of our constitutional framework applies to adjudications conducted by the FMC. Petitioner FMC and respondent United States initially maintain that the Court of Appeals erred because sovereign immunity only shields States from exercises of "judicial power" and FMC adjudications are not judicial proceedings.

[13] For purposes of this case, we will assume, arguendo, that in adjudicating complaints filed by private parties under the Shipping Act, the FMC does not exercise the judicial power of the United States. Such an assumption, however, does not end our inquiry as this Court has repeatedly held that the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment. . .

[14] "[L]ook[ing] first to evidence of the original understanding of the Constitution," . . . as well as early congressional practice . . . we find a relatively barren historical record, from which the parties draw radically different conclusions.

[15] In truth, the relevant history does not provide direct guidance for our inquiry. The Framers, who envisioned a limited Federal Government, could not have anticipated the vast growth of the administrative state. . . . Because formalized administrative adjudications were all but unheard of in the late 18th century and early 19th century, the dearth of specific evidence indicating whether the Framers believed that the States' sovereign immunity would apply in such proceedings is unsurprising.

[16] This Court, however, has applied a presumption—first explicitly stated in Hans v. Louisiana, supra —that the Constitution was not intended to "rais[e] up" any proceedings against the States that were "anomalous and unheard of when the Constitution was adopted." . . . We therefore attribute great significance to the fact that States were not subject to private suits in administrative adjudications at the time of the founding or for many years thereafter.

[17] To decide whether the Hans presumption applies here, however, we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union.

[18] . . . [N]either the Commission nor the United States disputes the Court of Appeals' characterization below that such a proceeding "walks, talks, and squawks very much like a lawsuit." . . .

[19] A review of the FMC's Rules of Practice and Procedure confirms that FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts. . .

[20] The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. . . .

[21] Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State. Simply put, if the Framers thought it an impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a State to do exactly the same thing before the administrative tribunal of an agency, such as the FMC. . . .The affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article III court. In both instances, a State is required to defend itself in an adversarial proceeding against a private party before an impartial federal officer. Moreover, it would be quite strange to prohibit Congress from exercising its Article I powers to abrogate state sovereign immunity in Article III judicial proceedings but permit the use of those same Article I powers to create court-like administrative tribunals where sovereign immunity does not apply.

[22] The United States suggests two reasons why we should distinguish FMC administrative adjudications from judicial proceedings for purposes of state sovereign immunity. Both of these arguments are unavailing.

[23] The United States first contends that sovereign immunity should not apply to FMC adjudications because the Commission's orders are not self-executing. Whereas a court may enforce a judgment through the exercise of its contempt power, the FMC cannot enforce its own orders. Rather, the Commission's orders can only be enforced by a federal district court.

[24] The United States presents a valid distinction between the authority possessed by the FMC and that of a court. For purposes of this case, however, it is a distinction without a meaningful difference. To the extent that the United States highlights this fact in order to suggest that a party alleged to have violated the Shipping Act is not coerced to participate in FMC proceedings, it is mistaken. The relevant statutory scheme makes it quite clear that, absent sovereign immunity, States would effectively be required to defend themselves against private parties in front of the FMC.

[25] A State seeking to contest the merits of a complaint filed against it by a private party must defend itself in front of the FMC or substantially compromise its ability to defend itself at all.

[26] The United States next suggests that sovereign immunity should not apply to FMC proceedings because they do not present the same threat to the financial integrity of States as do private judicial suits. . . .

[27] Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit. The statutory scheme, as interpreted by the United States, is thus no more permissible than if Congress had allowed private parties to sue States in federal court for violations of the Shipping Act but precluded a court from awarding them any relief.

* * *

[28] While some might complain that our system of dual sovereignty is not a model of administrative convenience, that is not its purpose. Rather, "[t]he `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.' "By guarding against encroachments by the Federal Government on fundamental aspects of state sovereignty, such as sovereign immunity, we strive to maintain the balance of power embodied in our Constitution and thus to "reduce the risk of tyranny and abuse from either front." Although the Framers likely did not envision the intrusion on state sovereignty at issue in today's case, we are nonetheless confident that it is contrary to their constitutional design, and therefore affirm the judgment of the Court of Appeals.

[29] It is so ordered.

Justice Stevens, dissenting.

[1] I join [Justice Breyer’s] opinion without reservation, but add these words . . .

[ * * * ]

[2] [T]he Eleventh Amendment is best understood as having overruled Chisholm `s subject-matter jurisdiction holding, thereby restricting the federal courts' diversity jurisdiction. However, the Amendment left intact Chisholm `s personal jurisdiction holding: that the Constitution does not immunize States from a federal court's process. . . .

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.

[1] The Court holds that a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an internal adjudicative process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law. Where does the Constitution contain the principle of law that the Court enunciates? I cannot find the answer to this question in any text, in any tradition, or in any relevant purpose. . . .

[2] At the outset one must understand the constitutional nature of the legal proceeding before us. . . .

[3] The Court long ago laid to rest any constitutional doubts about whether the Constitution permitted Congress to delegate rulemaking and adjudicative powers to agencies. . . . [I]n exercising those powers, the agency is engaging in an Article II, Executive Branch activity. And the powers it is exercising are powers that the Executive Branch of Government must possess if it is to enforce modern law through administration.

[4] [T]his case involves a typical Executive Branch agency exercising typical Executive Branch powers seeking to determine whether a particular person has violated federal law. The particular person in this instance is a state entity, the South Carolina State Ports Authority, and the agency is acting in response to the request of a private individual. But at first blush it is difficult to see why these special circumstances matter. After all, the Constitution created a Federal Government empowered to enact laws that would bind the States and it empowered that Federal Government to enforce those laws against the States. It also left private individuals perfectly free to complain to the Federal Government about unlawful state activity, and it left the Federal Government free to take subsequent legal action. Where then can the Court find its constitutional principle—the principle that the Constitution forbids an Executive Branch agency to determine through ordinary adjudicative processes whether such a private complaint is justified? As I have said, I cannot find that principle anywhere in the Constitution.

[5] The Court's principle lacks any firm anchor in the Constitution's text. The Eleventh Amendment cannot help. It says:

[6] "The Judicial power of the United States shall not . . . extend to any suit . . . commenced or prosecuted against one of the . . . States by Citizens of another State." (Emphasis added.)

[7] Federal administrative agencies do not exercise the "[j]udicial power of the United States." Compare Crowell v. Benson, 285 U. S. 22 (1932) (explaining why ordinary agency adjudication, with safeguards, is not an exercise of Article III power), with Freytag v. Commissioner, 501 U. S., at 890-891 (Tax Court, a special Article I court, exercises Article III power), and Williams v. United States, 289 U. S. 553, 565-566 (1933) (same as to Court of Claims). Of course, this Court has read the words "Citizens of another State" as if they also said "citizen of the same State." Hans v. Louisiana, 134 U. S. 1 (1890). But it has never said that the words "[j]udicial power of the United States" mean "the executive power of the United States." Nor should it.

[8] The Tenth Amendment cannot help. . . .

[9] Considered purely as constitutional text, these words— "constitutional design," "system of federalism," and "plan of the convention"—suffer several defects. Their language is highly abstract, making them difficult to apply. They invite differing interpretations at least as much as do the Constitution's own broad liberty-protecting phrases, such as "due process of law" or the word "liberty" itself. And compared to these latter phrases, they suffer the additional disadvantage that they do not actually appear anywhere in the Constitution.

III

[10] Conceding that its conception of sovereign immunity is ungrounded in the Constitution's text, the Court attempts to support its holding with history. But this effort is similarly destined to fail . . .

[11] [T]otal 18th-century silence about state immunity in Article I proceedings would argue against, not in favor of, immunity.

[12] In any event, the 18th century was not totally silent. The Framers enunciated in the "plan of the convention" the principle that the Federal Government may sue a State without its consent. They also described in the First Amendment the right of a citizen to petition the Federal Government for a redress of grievances. The first principle applies here because only the Federal Government, not the private party, can—in light of this Court's recent sovereign immunity jurisprudence—bring the ultimate court action necessary legally to force a State to comply with the relevant federal law. The second principle applies here because a private citizen has asked the Federal Government to determine whether the State has complied with federal law and, if not, to take appropriate legal action in court. Of course these two principles apply only through analogy. . . .

[13] This is not to say that the analogy (with a citizen petitioning for federal intervention) is, historically speaking, a perfect one. As the Court points out, the Framers may not have "anticipated the vast growth of the administrative state," and the history of their debates "does not provide direct guidance." But the Court is wrong to ignore the relevance and importance of what the Framers did say. And it is doubly wrong to attach "great" legal "significance" to the absence of 18th- and 19th-century administrative agency experience. Even if those alive in the 18th century did not "anticipat[e] the vast growth of the administrative state," they did write a Constitution designed to provide a framework for Government across the centuries, a framework that is flexible enough to meet modern needs. And we cannot read their silence about particular means as if it were an instruction to forbid their use.

[14] The Court cannot justify today's decision in terms of its practical consequences. The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently, the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizen's complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement.

[15] These consequences are not purely theoretical. The Court's decision may undermine enforcement against state employers of many laws designed to protect worker health and safety. And it may inhibit the development of federal fair, rapid, and efficient informal nonjudicial responses to complaints, for example, of improper medical care (involving state hospitals).

* * *

[16] The Court's decision threatens to deny the Executive and Legislative Branches of Government the structural flexibility that the Constitution permits and which modern government demands. The Court derives from the abstract notion of state "dignity" a structural principle that limits the powers of both Congress and the President. Its reasoning rests almost exclusively upon the use of a formal analogy, which, as I have said, jumps ordinary separation-of-powers bounds. It places "great significance" upon the 18th-century absence of 20th-century administrative proceedings. And its conclusion draws little support from considerations of constitutional purpose or related consequence. In its readiness to rest a structural limitation on so little evidence and in its willingness to interpret that limitation so broadly, the majority ignores a historical lesson, reflected in a constitutional understanding that the Court adopted long ago: An overly restrictive judicial interpretation of the Constitution's structural constraints (unlike its protections of certain basic liberties) will undermine the Constitution's own efforts to achieve its far more basic structural aim, the creation of a representative form of government capable of translating the people's will into effective public action.

[17] This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution's demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions. It reflects the comparative inability of the Judiciary to understand either those conditions or the need for new laws and new administrative forms they may create. It reflects the Framers' own aspiration to write a document that would "constitute" a democratic, liberty protecting form of government that would endure through centuries of change. This understanding led the New Deal Court to reject overly restrictive formalistic interpretations of the Constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand. And it led that Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies, with the legal authority flexibly to implement, i. e., to "execute," through adjudication, through rulemaking, and in other ways, the legislation that Congress subsequently enacted.

[18] . . . .These decisions set loose an interpretive principle that restricts far too severely the authority of the Federal Government to regulate innumerable relationships between State and citizen. Just as this principle has no logical starting place, I fear that neither does it have any logical stopping point.

[19] Today's decision reaffirms the need for continued dissent— unless the consequences of the Court's approach prove anodyne, as I hope, rather than randomly destructive, as I fear.

3.6.5 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 3.6.5 Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)

Mr. Justice REHNQUIST delivered the opinion of the Court.

In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under s 5 of the Fourteenth Amendment, authorized federal courts to award money damages in favor of a private individual against a state government found to have subjected that person to employment discrimination on the basis of “race, color, religion, sex, or national origin.”1 The principal question presented by these cases is whether, as against the shield of sovereign immunity afforded the State by the Eleventh Amendment, Edelman v. Jordan, 415 U.S. 651 (1974), Congress has the power to authorize Federal courts to enter such an award against the State as a means of enforcing the substantive guarantees of the Fourteenth Amendment. The Court of Appeals for the Second Circuit held that the effect of our decision in Edelman was to foreclose Congress’ power. We granted certiorari to resolve this important constitutional question. 423 U.S. 1031(1975). We reverse.

Petitioners in No. 75-251 sued in the United States District Court for the District of Connecticut on behalf of all present and retired male employees of the State of Connecticut. Their amended complaint asserted, Inter alia, that certain provisions in the State’s statutory retirement benefit plan discriminated against them because of their sex, and therefore contravened Title VII of the 1964 Act of, 78 Stat. 253, as amended, 42 U.S.C. s 2000e Et seq. (1970 ed. and Supp. IV). Title VII, which originally did not include state and local governments, had in the interim been amended to bring the States within its purview.

The District Court held that the Connecticut State Employees Retirement Act violated Title VII’s prohibition against sex-based employment discrimination. 390 F.Supp. 278, 285-288 (D.C.1974). It entered prospective injunctive relief in petitioners’ favor against respondent state officials. Petitioners also sought an award of retroactive retirement benefits as compensation for losses caused by the State’s discrimination,5 as well as “a reasonable attorney’s fee as part of the6 costs.” But the District Court held that both would constitute recovery of money damages from the State’s treasury, and were therefore precluded by the Eleventh Amendment and by this Court’s decision in Edelman v. Jordan, supra.

On petitioners’ appeal, the Court of Appeals affirmed in part and reversed in part. It agreed with the District Court that the action, “insofar as it seeks damages, is in essence against the state and as such is subject to the Eleventh Amendment.” 519 F.2d 559, 565 (2 Cir. 1975). The Court of Appeals also found that under the 1972 Amendments to Title VII, “Congress intended to authorize a private suit for backpay by state employees against the state.” Id., at 568. Notwithstanding this statutory authority, the Court of Appeals affirmed the District Court and held that under Edelman a “private federal action for retroactive damages” is not a “constitutionally permissible method of enforcing Fourteenth Amendment rights.” 9 F.2d, at 569. It reversed the District Court and remanded as to attorneys’ fees, however, reasoning that such an award would have only an “ancillary effect” on the state treasury of the kind permitted under Edelman, supra, 415 U.S., at 667-668, 519 F.2d, at 571. The petition filed here by the state employees in No. 75-251 contends that Congress does possess the constitutional power under s 5 of the Fourteenth Amendment to authorize their Title VII damage action against the State. The state officials’ cross-petition, No. 75-283, argues that under Edelman the Eleventh Amendment bars any award of attorneys’ fees here because it would be paid out of the state treasury.

In Edelman this Court held that monetary relief awarded by the District Court to welfare plaintiffs, by reason of wrongful denial of benefits which had occurred previous to the entry of the District Court’s determination of their wrongfulness, violated the Eleventh Amendment. Such an award was found to be indistinguishable from a monetary award against the State itself which had been prohibited in Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464 (1945). It was therefore controlled by that case rather than by Ex parte Young, 209 U.S. 123 (1908), which permitted suits against state officials to obtain prospective relief against violations of the Fourteenth Amendment.

Edelman went on to hold that the plaintiffs in that case could not avail themselves of the doctrine of waiver expounded in cases such as Parden v. Terminal R. Co., 377 U.S. 184 (1964), and Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), because the necessary predicate for that doctrine was congressional intent to abrogate the immunity conferred by the Eleventh Amendment. We concluded that none of the statutes relied upon by plaintiffs in Edelman contained any authorization by Congress to join a State as defendant. The Civil Rights Act of 1871, 42 U.S.C. s 1983, had been held in Monroe v. Pape, 365 U.S. 167, 187-191 (1961), to exclude cities and other municipal corporations from its ambit; that being the case, it could not have been intended to include States as parties defendant. The provisions of the Social Security Act relied upon by plaintiffs were held by their terms not to “authorize suit against anyone,” 415 U.S., at 674, and they, too, were incapable of supplying the predicate for a claim of waiver on the part of the State.

All parties in the instant litigation agree with the Court of Appeals that the suit for retroactive benefits by the petitioners is in fact indistinguishable from that sought to be maintained in Edelman, since what is sought here is a damages award payable to a private party from the state treasury.

Our analysis begins where Edelman ended, for in this Title VII case the “threshold fact of congressional authorization,” Id., at 672, to sue the State as employer is clearly present. This is, of course, the prerequisite found present in Parden and wanting in Employees. We are aware of the factual differences between the type of state activity involved in Parden and that involved in the present case, but we do not think that difference is material for our purposes. The congressional authorization involved in Parden was based on the power of Congress under the Commerce Clause; here, however, the Eleventh Amendment defense is asserted in the context of legislation passed pursuant to Congress’ authority under s 5 of the Fourteenth Amendment.9

As ratified by the States after the Civil War, that Amendment quite clearly contemplates limitations on their authority. In relevant part, it provides:

“Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

“Section 5. The Congress shall have power to enforce by appropriate legislation, the provisions of this article.”

The substantive provisions are by express terms directed at the States. Impressed upon them by those provisions are duties with respect to their treatment of private individuals. Standing behind the imperatives is Congress’ power to “enforce” them “by appropriate legislation.”

The impact of the Fourteenth Amendment upon the relationship between the Federal Government and the States, and the reach of congressional power under s 5, were examined at length by this Court in Ex parte State of Virginia, 100 U.S. 339 (1880). A state judge had been arrested and indicted under a federal criminal statute prohibiting the exclusion on the basis of race of any citizen from service as a juror in a state court. The judge claimed that the statute was beyond Congress’ power to enact under either the Thirteenth or the Fourteenth Amendment. The Court first observed that these Amendments “were intended to be, what they really are, limitations of the power of the States and enlargements of the power of Congress.” Id., at 345. It then addressed the relationship between the language of s 5 and the substantive provisions of the Fourteenth Amendment:

“The prohibitions of the Fourteenth Amendment are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. . . . It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. This is true in the general. But in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them.

“The argument in support of the petition for a Habeas corpus ignores entirely the power conferred upon Congress by the Fourteenth Amendment. Were it not for the fifth section of that amendment, there might be room for argument that the first section is only declaratory of the moral duty of the State . . .. But the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete.” Id., at 346-348.

Ex parte State of Virginia’s early recognition of this shift in the federal-state balance has been carried forward by more recent decisions of this Court. See, E. g., South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966); Mitchum v. Foster, 407 U.S. 225, 238-239 (1972).

There can be no doubt that this line of cases has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States. The legislation considered in each case was grounded on the expansion of Congress’ powers with the corresponding diminution of state sovereignty found to be intended by the Framers and made part of the Constitution upon the States’ ratification of those Amendments, a phenomenon aptly described as a “carv(ing) out” in Ex parte State of Virginia, supra, 100 U.S., at 346.

It is true that none of these previous cases presented the question of the relationship between the Eleventh Amendment and the enforcement power granted to Congress under s 5 of the Fourteenth Amendment. But we think that the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, 134 U.S. 1 (1890), are necessarily limited by the enforcement provisions of s 5 of the Fourteenth Amendment. In that section Congress is expressly granted authority to enforce “by appropriate legislation” the substantive provisions of the Fourteenth Amendment, which themselves embody significant limitations on state authority. When Congress acts pursuant to s 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. We think that Congress may, in determining what is “appropriate legislation” for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.11 See Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945).

III

In No. 75-283, the state officials contest the Court of Appeals’ conclusion that an award of attorneys’ fees in this case would under Edelman have only an “ancillary effect” on the state treasury and could therefore be permitted as falling outside the Eleventh Amendment under the doctrine of Ex parte Young, 209 U.S. 123 (1908). 415 U.S., at 667-668. We need not address this question, since, given the express congressional authority for such an award in a case brought under Title VII, it follows necessarily from our holding in No. 75-251 that Congress’ exercise of power in this respect is also not barred by the Eleventh Amendment. We therefore affirm the Court of Appeals’ judgment in No. 75-283 on this basis.

Mr. Justice BRENNAN, concurring in the judgment.

This suit was brought by present and retired employees of the State of Connecticut against the State Treasurer, the State Comptroller, and the Chairman of the State Employees’ Retirement Commission. In that circumstance, Connecticut may not invoke the Eleventh Amendment, since that Amendment bars only federal-court suits against States by citizens of other States. Rather, the question is whether Connecticut may avail itself of the nonconstitutional but ancient doctrine of sovereign immunity as a bar to a claim for damages under Title VII. In my view Connecticut may not assert sovereign immunity for the reason I expressed in dissent in Employees v. Missouri Public Health Dept., 411 U.S. 279, 298, 93 S.Ct. 1614, 1624, 36 L.Ed.2d 251 (1973): The States surrendered that immunity, in Hamilton’s words, “in the plan of the Convention” that formed the Union, at least insofar as the States granted Congress specifically enumerated powers. See id., at 319 n.7, 93 S.Ct., at 1635; Edelman v. Jordan, 415 U.S. 651, 687, 94 S.Ct. 1347, 1367, 39 L.Ed.2d 662 (1974) (Brennan, J., dissenting); Parden v. Terminal R. Co., 377 U. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). Congressional authority to enact the provisions of Title VII at issue in this case is found in the Commerce Clause, Art. I, s 8, cl. 3, and in s 5 of the Fourteenth Amendment, two of the enumerated powers granted Congress in the Constitution. Cf. Oregon v. Mitchell, 400 U.S. 112, 131-134, 91 S.Ct. 260, 268, 27 L.Ed.2d 272 (1970) (Black, J.); Id., at 135-150, 91 S.Ct., at 270 (Douglas, J.); Id., at 216-217, 91 S.Ct., at 310 (Harlan, J.); Id., at 236-281, 91 S.Ct., at 320 (Brennan, White, and Marshall, JJ.); Id., at 282-284, 91 S.Ct., at 343 (Stewart, J.); Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723, 16 L.Ed.2d 828 (1966). I remain of the opinion that “because of its surrender, no immunity exists that can be the subject of a congressional declaration or a voluntary waiver.” Employees v. Missouri Public Health Dept., supra, 411 U.S., at 300, 93 S.Ct., at 1626.

I therefore concur in the judgment of the Court.

Mr. Justice STEVENS, concurring in the judgment.

In my opinion the commerce power is broad enough to support federal legislation regulating the terms and conditions of state employment and, therefore, provides the necessary support for the 1972 Amendments to Title VII, even though Congress expressly relied on s 5 of the Fourteenth Amendment. But I do not believe plaintiffs proved a violation of the Fourteenth Amendment, and because I am not sure that the 1972 Amendments were “needed to secure the guarantees of the Fourteenth Amendment,” see Katzenbach v. Morgan, 384 U.S. 641, 651, I question whether s 5 of that Amendment is an adequate reply to Connecticut’s Eleventh Amendment defense. I believe the defense should be rejected for a different reason.

Even if the Eleventh Amendment does cover a citizen’s suit against his own State,1 it does not bar an action against state officers enforcing an invalid statute. Ex parte Young, 209 U.S. 123, 159-160. Since the Connecticut pension law has been held to be invalid, at least in part, Ex parte Young makes it clear that the federal court properly acquired jurisdiction of the proceeding.

The Eleventh Amendment issue presented is whether the court has power to enter a judgment payable immediately out of trust assets which subsequently would be reimbursed from the general revenues of the State. Although I have great difficulty with a construction of the Eleventh Amendment which acknowledges the federal court’s jurisdiction of a case and merely restricts the kind of relief the federal court may grant, I must recognize that it has been so construed in Edelman v. Jordan, 415 U.S. 651, and that the language of that opinion would seem to cover this case. However, its actual holding appears to be limited to the situation in which the award is payable directly from state funds and “not as a necessary consequence of compliance in the future” with a substantive determination. Id., at 668.

The holding in Edelman does not necessarily require the same result in this case; this award will not be paid directly from the state treasury, but rather from two separate and independent pension funds. The fact that the State will have to increase its future payments into the funds as a consequence of is award does not, in my opinion, sufficiently distinguish this case from other cases in which a State may be required to conform its practices to the Federal Constitution and thereby to incur additional expense in the future. Since the rationale of Ex parte Young remains applicable to such cases, and since this case is not squarely covered by the holding in Edelman, I am persuaded that it is proper to reject the Eleventh Amendment defense.

With respect to the fee issue, even if the Eleventh Amendment were applicable, I would place fees in the same category as other litigation costs. Cf. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70.

3.6.6 Whole Woman's Health v. Jackson, 142 S. Ct. 522 (2021) 3.6.6 Whole Woman's Health v. Jackson, 142 S. Ct. 522 (2021)

Opinion

Justice GORSUCH announced the judgment of the Court, and delivered the opinion of the Court except as to Part II–C.

The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.

Earlier this year Texas passed the Texas Heartbeat Act, 87th Leg., Reg. Sess., also known as S. B. 8. The Act prohibits physicians from “knowingly perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child” unless a medical emergency prevents compliance. Tex. Health & Safety Code Ann. §§ 171.204(a), 171.205(a) But the law generally does not allow state officials to bring criminal prosecutions or civil enforcement actions. Instead, S. B. 8 directs enforcement “through ... private civil actions” culminating in injunctions and statutory damages awards against those who perform or assist prohibited abortions. §§ 171.207(a), 171.208(a)(2), (3). The law also provides a defense. Tracking language from Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the statute permits abortion providers to defeat any suit against them by showing, among other things, that holding them liable would place an “undue burden” on women seeking abortions. §§ 171.209(a)–(b).

After the law’s adoption, various abortion providers sought to test its constitutionality. Not wishing to wait for S. B. 8 actions in which they might raise their arguments in defense, they filed their own pre-enforcement lawsuits. In all, they brought 14 such challenges in state court seeking, among other things, a declaration that S. B. 8 is inconsistent with both the Federal and Texas Constitutions. A summary judgment ruling in these now-consolidated cases arrived last night, in which the abortion providers prevailed on certain of their claims […]

Another group of providers, including the petitioners before us, filed a pre-enforcement action in federal court. In their complaint, the petitioners alleged that S. B. 8 violates the Federal Constitution and sought an injunction barring the following defendants from taking any action to enforce the statute: a state-court judge, Austin Jackson; a state-court clerk, Penny Clarkston; Texas attorney general, Ken Paxton; executive director of the Texas Medical Board, Stephen Carlton; executive director of the Texas Board of Nursing, Katherine Thomas; executive director of the Texas Board of Pharmacy, Allison Benz; executive commissioner of the Texas Health and Human Services Commission, Cecile Young; and a single private party, Mark Lee Dickson.

Shortly after the petitioners filed their federal complaint, the individual defendants employed by Texas moved to dismiss, citing among other things the doctrine of sovereign immunity. The sole private defendant, Mr. Dickson, also moved to dismiss, claiming that the petitioners lacked standing to sue him.

[Procedural discussion omitted]

Because this Court granted certiorari before judgment, we effectively stand in the shoes of the Court of Appeals. See United States v. Nixon, (1974). In this case, that means we must review the defendants’ appeals challenging the District Court’s order denying their motions to dismiss. As with any interlocutory appeal, our review is limited to the particular orders under review and any other ruling “inextricably intertwined with” or “necessary to ensure meaningful review of ” them. [] In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.

Turning to the matters that are properly put to us, we begin with the sovereign immunity appeal involving the state-court judge, Austin Jackson, and the state-court clerk, Penny Clarkston. While this lawsuit names only one state-court judge and one state-court clerk as defendants, the petitioners explain that they hope eventually to win certification of a class including all Texas state-court judges and clerks as defendants. In the end, the petitioners say, they intend to seek an order enjoining all state-court clerks from docketing S. B. 8 cases and all state-court judges from hearing them.

Almost immediately, however, the petitioners’ theory confronts a difficulty. Generally, States are immune from suit under the terms of the Eleventh Amendment and the doctrine of sovereign immunity. See, e.g., Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). To be sure, in Ex parte Young, this Court recognized a narrow exception grounded in traditional equity practice—one that allows certain private parties to seek judicial orders in federal court preventing state executive officials from enforcing state laws that are contrary to federal law. But as Ex parte Young explained, this traditional exception does not normally permit federal courts to issue injunctions against state-court judges or clerks. Usually, those individuals do not enforce state laws as executive officials might; instead, they work to resolve disputes between parties. If a state court errs in its rulings, too, the traditional remedy has been some form of appeal, including to this Court, not the entry of an ex ante injunction preventing the state court from hearing cases. As Ex parte Young put it, “an injunction against a state court” or its “machinery” “would be a violation of the whole scheme of our Government.”

Nor is that the only problem confronting the petitioners’ court-and-clerk theory. Article III of the Constitution affords federal courts the power to resolve only “actual controversies arising between adverse litigants.” Muskrat v. United States. Private parties who seek to bring S. B. 8 suits in state court may be litigants adverse to the petitioners. But the state-court clerks who docket those disputes and the state-court judges who decide them generally are not. Clerks serve to file cases as they arrive, not to participate as adversaries in those disputes. Judges exist to resolve controversies about a law’s meaning or its conformance to the Federal and State Constitutions, not to wage battle as contestants in the parties’ litigation. As this Court has explained, “no case or controversy” exists “between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute.” Pulliam v. Allen, 466 U.S. 522, 538, n. 18, (1984).

Then there is the question of remedy. Texas Rule of Civil Procedure 24 directs state-court clerks to accept complaints and record case numbers. The petitioners have pointed to nothing in Texas law that permits clerks to pass on the substance of the filings they docket—let alone refuse a party’s complaint based on an assessment of its merits. Nor does Article III confer on federal judges some “amorphous” power to supervise “the operations of government” and reimagine from the ground up the job description of Texas state-court clerks. Raines v. Byrd, 521 U.S. 811, 829, (1997).

Troubling, too, the petitioners have not offered any meaningful limiting principles for their theory. If it caught on and federal judges could enjoin state courts and clerks from entertaining disputes between private parties under this state law, what would stop federal judges from prohibiting state courts and clerks from hearing and docketing disputes between private parties under other state laws? And if the state courts and clerks somehow qualify as “adverse litigants” for Article III purposes in the present case, when would they not? The petitioners offer no satisfactory answers.

Instead, only further questions follow. Under the petitioners’ theory, would clerks have to assemble a blacklist of banned claims subject to immediate dismissal? What kind of inquiry would a state court have to apply to satisfy due process before dismissing those suits? How notorious would the alleged constitutional defects of a claim have to be before a state-court clerk would risk legal jeopardy merely for filing it? Would States have to hire independent legal counsel for their clerks—and would those advisers be the next target of suits seeking injunctive relief ? When a party hales a state-court clerk into federal court for filing a complaint containing a purportedly unconstitutional claim, how would the clerk defend himself consistent with his ethical obligation of neutrality? See Tex. Code of Judicial Conduct Canon 3(B)(10) (2021) (instructing judges and court staff to abstain from taking public positions on pending or impending proceedings). Could federal courts enjoin those who perform other ministerial tasks potentially related to litigation, like the postal carrier who delivers complaints to the courthouse? Many more questions than answers would present themselves if the Court journeyed this way.

Our colleagues writing separately today supply no answers either. They agree that state-court judges are not proper defendants in this lawsuit because they are “in no sense adverse” to the parties whose cases they decide. (opinion of ROBERTS, C. J.). At the same time, our colleagues say they would allow this case to proceed against clerks like Ms. Clarkston. See ibid.; see also (opinion of SOTOMAYOR, J.). But in doing so they fail to address the many remedial questions their path invites. They neglect to explain how clerks who merely docket S. B. 8 lawsuits can be considered “adverse litigants” for Article III purposes while the judges they serve cannot. And they fail to reconcile their views with Ex parte Young. THE CHIEF JUSTICE acknowledges, for example, that clerks set in motion the “‘machinery’” of court proceedings. Yet he disregards Ex parte Young’s express teaching against enjoining the “machinery” of courts. 209 U.S. at 163, 28 S.Ct. 441.

Justice SOTOMAYOR seems to admit at least part of the problem. She concedes that older “wooden” authorities like Ex parte Young appear to prohibit suits against state-court clerks. Still, she insists, we should disregard those cases in favor of more “modern” case law. In places, THE CHIEF JUSTICE’s opinion seems to pursue much the same line of argument. But even overlooking all the other problems attending our colleagues’ “clerks-only” theory, the authorities they cite do not begin to do the work attributed to them.

[Material distinguishing cases cited by the dissent omitted]

Simply put, nothing in any of our colleagues’ cases supports their novel suggestion that we should allow a pre-enforcement action for injunctive relief against state-court clerks, all while simultaneously holding the judges they serve immune.

Perhaps recognizing the problems with their court-and-clerk theory, the petitioners briefly advance an alternative. They say they seek to enjoin the Texas attorney general from enforcing S. B. 8. Such an injunction, the petitioners submit, would also automatically bind any private party who might try to bring an S. B. 8 suit against them. But the petitioners barely develop this back-up theory in their briefing, and it too suffers from some obvious problems.

Start with perhaps the most straightforward. While Ex parte Young authorizes federal courts to enjoin certain state officials from enforcing state laws, the petitioners do not direct this Court to any enforcement authority the attorney general possesses in connection with S. B. 8 that a federal court might enjoin him from exercising. Maybe the closest the petitioners come is when they point to a state statute that says the attorney general “may institute an action for a civil penalty of $1,000” for violations of “this subtitle or a rule or order adopted by the [Texas Medical B]oard.” Tex. Occ. Code Ann. § 165.101 (West 2012). But the qualification “this subtitle” limits the attorney general’s enforcement authority to the Texas Occupational Code, specifically §§ 151.001 through 171.024. By contrast, S. B. 8 is codified in the Texas Health and Safety Code at §§ 171.201– 171.212. The Act thus does not fall within “this subtitle.” Nor have the petitioners identified for us any “rule or order adopted by the” Texas Medical Board related to S. B. 8 that the attorney general might enforce against them. To be sure, some of our colleagues suggest that the Board might in the future promulgate such a rule and the attorney general might then undertake an enforcement action. [] But this is a series of hypotheticals and an argument even the petitioners do not attempt to advance for themselves.

Even if we could overcome this problem, doing so would only expose another. Supposing the attorney general did have some enforcement authority under S. B. 8, the petitioners have identified nothing that might allow a federal court to parlay that authority, or any defendant’s enforcement authority, into an injunction against any and all unnamed private persons who might seek to bring their own S. B. 8 suits. The equitable powers of federal courts are limited by historical practice. Atlas Life Ins. Co. v. W. I. Southern, Inc., 306 U.S. 563 (1939). “A court of equity is as much so limited as a court of law.” Alemite Mfg. Corp. v. Staff, 42 F.2d 832 (CA2 1930) (L. Hand, J.). Consistent with historical practice, a federal court exercising its equitable authority may enjoin named defendants from taking specified unlawful actions. But under traditional equitable principles, no court may “lawfully enjoin the world at large,” ibid., or purport to enjoin challenged “laws themselves,” Whole Woman’s Health, 594 U. S., at ––––, 141 S.Ct., at 2495 (citing California v. Texas, 141 S.Ct. 2104, 2115-2116 (2021)).

Our colleagues offer no persuasive reply to this problem… [Justice SOTOMAYOR says] it is justified purely by the fact that the State of Texas in S. B. 8 has “delegat[ed] its enforcement authority to the world at large.” But somewhat analogous complaints could be levied against private attorneys general acts, statutes allowing for private rights of action, tort law, federal antitrust law, and even the Civil Rights Act of 1964. In some sense all of these laws “delegate” the enforcement of public policy to private parties and reward those who bring suits with “bount[ies]” like exemplary or statutory damages and attorney’s fees. Nor does Justice SOTOMAYOR explain where her novel plan to overthrow this Court’s precedents and expand the equitable powers of federal courts would stop—or on what theory it might plausibly happen to reach just this case or maybe those exactly like it.

While this Court’s precedents foreclose some of the petitioners’ claims for relief, others survive. The petitioners also name as defendants Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young. On the briefing and argument before us, it appears that these particular defendants fall within the scope of Ex parte Young’s historic exception to state sovereign immunity. Each of these individuals is an executive licensing official who may or must take enforcement actions against the petitioners if they violate the terms of Texas’s Health and Safety Code, including S. B. 8. [] Accordingly, we hold that sovereign immunity does not bar the petitioners’ suit against these named defendants at the motion to dismiss stage.

Justice THOMAS alone reaches a different conclusion. He emphasizes that suits seeking equitable relief against executive officials are permissible only when supported by tradition. […] He further emphasizes that the relevant tradition here, embodied in Ex parte Young, permits equitable relief against only those officials who possess authority to enforce a challenged state law. We agree with all of these principles; our disagreement is restricted to their application.

[Discussion of Justice Thomas’s analysis omitted]

While this interlocutory appeal focuses primarily on the Texas official defendants’ motion to dismiss on grounds of sovereign immunity and justiciability, before we granted certiorari the Fifth Circuit also agreed to take up an appeal by the sole private defendant, Mr. Dickson. In the briefing before us, no one contests this decision. In his appeal, Mr. Dickson argues that the petitioners lack standing to sue him because he possesses no intention to file an S. B. 8 suit against them. Mr. Dickson has supplied sworn declarations so attesting. [] The petitioners do not contest this testimony or ask us to disregard it. Accordingly, on the record before us the petitioners cannot establish “personal injury fairly traceable to [Mr. Dickson’s] allegedly unlawful conduct.” [] No Member of the Court disagrees with this resolution of the claims against Mr. Dickson.

III

While this should be enough to resolve the petitioners’ appeal, a detour is required before we close. Justice SOTOMAYOR charges this Court with “shrink[ing]” from the task of defending the supremacy of the Federal Constitution over state law. That rhetoric bears no relation to reality.

The truth is, many paths exist to vindicate the supremacy of federal law in this area. Even aside from the fact that eight Members of the Court agree sovereign immunity does not bar the petitioners from bringing this pre-enforcement challenge in federal court, everyone acknowledges that other pre-enforcement challenges may be possible in state court as well. In fact, 14 such state-court cases already seek to vindicate both federal and state constitutional claims against S. B. 8—and they have met with some success at the summary judgment stage. [] Separately, any individual sued under S. B. 8 may pursue state and federal constitutional arguments in his or her defense. [] Still further viable avenues to contest the law’s compliance with the Federal Constitution also may be possible; we do not prejudge the possibility. Given all this, Justice SOTOMAYOR’s suggestion that the Court’s ruling somehow “clears the way” for the “nullification” of federal law along the lines of what happened in the Jim Crow South not only wildly mischaracterizes the impact of today’s decision, it cheapens the gravity of past wrongs.

The truth is, too, that unlike the petitioners before us, those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments. This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. In fact, general federal question jurisdiction did not even exist for much of this Nation’s history. [] And pre-enforcement review under the statutory regime the petitioners invoke, 42 U.S.C. § 1983, was not prominent until the mid-20th century. [] To this day, many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre-enforcement cases like this one. []

Finally, Justice SOTOMAYOR contends that S. B. 8 “chills” the exercise of federal constitutional rights. If nothing else, she says, this fact warrants allowing further relief in this case. Here again, however, it turns out that the Court has already and often confronted—and rejected—this very line of thinking. As our cases explain, the “chilling effect” associated with a potentially unconstitutional law being “‘on the books’” is insufficient to “justify federal intervention” in a pre-enforcement suit. Younger v. Harris, 401 U. S. 37 (1971). Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. See Muskrat; Ex parte Young. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right. The petitioners are not entitled to a special exemption.

Maybe so, Justice SOTOMAYOR replies, but what if other States pass legislation similar to S. B. 8? Doesn’t that possibility justify throwing aside our traditional rules? It does not. If other States pass similar legislation, pre-enforcement challenges like the one the Court approves today may be available in federal court to test the constitutionality of those laws. Again, too, further pre-enforcement challenges may be permissible in state court and federal law may be asserted as a defense in any enforcement action. To the extent Justice SOTOMAYOR seems to wish even more tools existed to combat this type of law, Congress is free to provide them. In fact, the House of Representatives recently passed a statute that would purport to preempt state laws like S. B. 8. See H. R. 3755, 117th Cong., 1st Sess. (2021). But one thing this Court may never do is disregard the traditional limits on the jurisdiction of federal courts just to see a favored result win the day. At the end of that road is a world in which “[t]he division of power” among the branches of Government “could exist no longer, and the other departments would be swallowed up by the judiciary.” 4 Papers of John Marshall 95 (C. Cullen ed. 1984).6

The petitioners’ theories for relief face serious challenges but also present some *539 opportunities. To summarize: (1) The Court unanimously rejects the petitioners’ theory for relief against state-court judges and agrees Judge Jackson should be dismissed from this suit. (2) A majority reaches the same conclusion with respect to the petitioners’ parallel theory for relief against state-court clerks. (3) With respect to the back-up theory of relief the petitioners present against Attorney General Paxton, a majority concludes that he must be dismissed. (4) At the same time, eight Justices hold this case may proceed past the motion to dismiss stage against Mr. Carlton, Ms. Thomas, Ms. Benz, and Ms. Young, defendants with specific disciplinary authority over medical licensees, including the petitioners. (5) Every Member of the Court accepts that the only named private-individual defendant, Mr. Dickson, should be dismissed.

The order of the District Court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice THOMAS, concurring in part and dissenting in part.

I join all but Part II–C of the Court’s opinion. In my view, petitioners may not maintain suit against any of the governmental respondents under Ex parte Young. [] I would reverse in full the District Court’s denial of respondents’ motions to dismiss and remand with instructions to dismiss the case for lack of subject-matter jurisdiction.

[Remainder of Justice Thomas’s concurring/dissenting opinion omitted]

* * *

Chief Justice ROBERTS, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, concurring in the judgment in part and dissenting in part.

Texas has passed a law banning abortions after roughly six weeks of pregnancy. See S. B. 8, (2021). That law is contrary to this Court’s decisions in Roe v. Wade, 410 U.S. 113, (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). It has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.

Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review. To cite just a few, the law authorizes “[a]ny person,” other than a government official, to bring a lawsuit against anyone who “aids or abets,” or intends to aid or abet, an abortion performed after roughly six weeks; has special preclusion rules that allow multiple lawsuits concerning a single abortion; and contains broad venue provisions that allow lawsuits to be brought in any of Texas’s 254 far flung counties, no matter where the abortion took place. See Tex. Health & Safety Code Ann. §§ 171.208(a), (e)(5), 171.210. The law then provides for minimum liability of $10,000 plus costs and fees, while barring defendants from recovering their own costs and fees if they prevail. §§ 171.208(b), (i). It also purports to impose backward-looking liability should this Court’s precedents or an injunction preventing enforcement of the law be overturned. §§ 171.208(e)(2), (3). And it forbids many state officers from directly enforcing it. § 171.207.

These provisions, among others, effectively chill the provision of abortions in Texas. Texas says that the law also blocks any pre-enforcement judicial review in federal court. On that latter contention, Texas is wrong. As eight Members of the Court agree, petitioners may bring a pre-enforcement suit challenging the Texas law in federal court under Ex parte Young, 209 U.S. 123 (1908), because there exist state executive officials who retain authority to enforce it. See, e.g., Tex. Occ. Code Ann. § 164.055(a) (West 2021). Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay.

In my view, several other respondents are also proper defendants. First, under Texas law, the Attorney General maintains authority coextensive with the Texas Medical Board to address violations of S. B. 8. The Attorney General may “institute an action for a civil penalty” if a physician violates a rule or order of the Board. […] The Board’s rules—found in the Texas Administrative Code—prohibit licensed physicians from violating Texas’s Health and Safety Code, which includes S. B. 8. […] Under Texas law, then, the Attorney General maintains authority to “take enforcement actions” based on violations of S. B. 8. He accordingly also falls within the scope of Young’s exception to sovereign immunity.

The same goes for Penny Clarkston, a court clerk. Court clerks, of course, do not “usually” enforce a State’s laws. But by design, the mere threat of even unsuccessful suits brought under S. B. 8 chills constitutionally protected conduct, given the peculiar rules that the State has imposed. Under these circumstances, the court clerks who issue citations and docket S. B. 8 cases are unavoidably enlisted in the scheme to enforce S. B. 8’s unconstitutional provisions, and thus are sufficiently “connect[ed]” to such enforcement to be proper defendants. Young, 209 U.S. at 157. The role that clerks play with respect to S. B. 8 is distinct from that of the judges. Judges are in no sense adverse to the parties subject to the burdens of S. B. 8. But as a practical matter clerks are—to the extent they “set[ ] in motion the machinery” that imposes these burdens on those sued under S. B. 8. Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 338,(1969).

The majority contends that this conclusion cannot be reconciled with Young, pointing to language in Young that suggests it would be improper to enjoin courts from exercising jurisdiction over cases. Young, 209 U.S. at 163. Decisions after Young, however, recognize that suits to enjoin state court proceedings may be proper. [] And this conclusion is consistent with the entire thrust of Young itself. Just as in Young, those sued under S. B. 8 will be “harass[ed] ... with a multiplicity of suits or litigation generally in an endeavor to enforce penalties under an unconstitutional enactment.” 209 U.S. at 160. Under these circumstances, where the mere “commencement of a suit,” and in fact just the threat of it, is the “actionable injury to another,” the principles underlying Young authorize relief against the court officials who play an essential role in that scheme. Id., at 153. Any novelty in this remedy is a direct result of the novelty of Texas’s scheme.

* * *

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. 137 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 9 U.S. 115 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice SOTOMAYOR, with whom Justice BREYER and Justice KAGAN join, concurring in the judgment in part and dissenting in part.

For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. See Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). In open defiance of this Court’s precedents, Texas enacted Senate Bill 8 (S. B. 8), which bans abortion starting approximately six weeks after a woman’s last menstrual period, well before the point of fetal viability. Since S. B. 8 went into effect on September 1, 2021, the law has threatened abortion care providers with the prospect of essentially unlimited suits for damages, brought anywhere in Texas by private bounty hunters, for taking any action to assist women in exercising their constitutional right to choose. The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy. Some women have vindicated their rights by traveling out of State. For the many women who are unable to do so, their only alternatives are to carry unwanted pregnancies to term or attempt self-induced abortions outside of the medical system.

The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today. I concur in the Court’s judgment that the petitioners’ suit may proceed against certain executive licensing officials who retain enforcement authority under Texas law, and I trust the District Court will act expeditiously to enter much-needed relief. I dissent, however, from the Court’s dangerous departure from its precedents, which establish that federal courts can and should issue relief when a State enacts a law that chills the exercise of a constitutional right and aims to evade judicial review. By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.

[Remainder of concurring/dissenting opinion omitted]