[3] The case was submitted to the Court on printed arguments by Mr. Fessenden, for the plaintiff; and by Mr. Dana, for the defendant.

[14] Mr. Justice STORY delivered the opinion of the Court.

This cause comes before us from the Circuit Court of the southern district of New York, upon a certificate of division of the judges of that Court.

The action was brought by the plaintiff, Swift, as endorsee, against the defendant, Tyson, as acceptor, upon a bill of exchange dated at Portland, Maine, on the first day of May, 1836, for the sum of one thousand five hundred and forty dollars, thirty cents, payable six months after date and grace, drawn by one Nathaniel Norton and one Jairus S. Keith upon and accepted by Tyson, at the city of New York, in favour of the order of Nathaniel Norton, and by Norton endorsed to the plaintiff. The bill was dishonoured at maturity.

At the trial the acceptance and endorsement of the bill were admitted, and the plaintiff there rested his case. The defendant then introduced in evidence the answer of Swift to a bill of discovery, by which it appeared that Swift took the bill before it [15] became due, in payment of a promissory note due to him by Norton and Keith; that he understood that the bill was accepted in part payment of some lands sold by Norton to a company in New York; that Swift was a bonâ fide holder of the bill, not having any notice of any thing in the sale or title to the lands, or otherwise, impeaching the transaction, and with the full belief that the bill was justly due. The particular circumstances are fully set forth in the answer in the record; but it does not seem necessary farther to state them. The defendant then offered to prove, that the bill was accepted by the defendant as part consideration for the purchase of certain lands in the state of Maine, which Norton and Keith represented themselves to be the owners of, and also represented to be of great value, and contracted to convey a good title thereto; and that the representations were in every respect fraudulent and false, and Norton and Keith had no title to the lands, and that the same were of little or no value. The plaintiff objected to the admission of such testimony, or of any testimony, as against him, impeaching or showing a failure of the consideration, on which the bill was accepted, under the facts admitted by the defendant, and those proved by him, by reading the answer of the plaintiff to the bill of discovery. The judges of the Circuit Court thereupon divided in opinion upon the following point or question of law; Whether, under the facts last mentioned, the defendant was entitled to the same defence to the action as if the suit was between the original parties to the bill, that is to say, Norton, or Norton and Keith, and the defendant; and whether the evidence so offered was admissible as against the plaintiff in the action. And this is the question certified to us for our decision.

There is no doubt, that a bonâ fide holder of a negotiable instrument for a valuable consideration, without any notice of facts which impeach its validity as between the antecedent parties, if he takes it under an endorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although as between the antecedent parties the transaction may be without any legal validity. This is a doctrine so long and so well established, and so essential to the security of negotiable paper, that it is laid up among the fundamentals of the law, and requires no authority or reasoning to be now brought [16] in its support. As little doubt is there, that the holder of any negotiable paper, before it is due, is not bound to prove that he is a bonâ fide holder for a valuable consideration, without notice; for the law will presume that, in the absence of all rebutting proofs, and therefore it is incumbent upon the defendant to establish by way of defence satisfactory proofs of the contrary, and thus to overcome the primâ facie title of the plaintiff.

In the present case, the plaintiff is a bonâ fide holder without notice for what the law deems a good and valid consideration, that is, for a pre-existing debt; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circumstances of the present case, for the acceptance having been made in New York, the argument on behalf of the defendant is, that the contract is to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its Courts, as well upon general principles, as by the express provisions of the thirty-fourth section of the judiciary act of 1789, ch. 20. And then it is further contended, that by the law of New York, as thus expounded by its Courts, a pre-existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments.

In the first place, then, let us examine into the decisions of the Courts of New York upon this subject. In the earliest case, Warren v. Lynch, 5 Johns. R. 289, the Supreme Court of New York appear to have held, that a pre-existing debt was a sufficient consideration to entitle a bonâ fide holder without notice to recover the amount of a note endorsed to him, which might not, as between the original parties, be valid. The same doctrine was affirmed by Mr. Chancellor Kent in Bay v. Coddington, 5 Johns. Chan. Rep. 54. Upon that occasion he said, that negotiable paper can be assigned or transferred by an agent or factor or by any other person, fraudulently, so as to bind the true owner as against the holder, provided it be taken in the usual course of trade, and for a fair and valuable consideration without notice of the fraud. But he added, that the holders in that case were not entitled to the benefit of the rule, because it was not negotiated to [17] them in the usual course of business or trade, nor in payment of any antecedent and existing debt, nor for cash, or property advanced, debt created, or responsibility incurred, on the strength and credit of the notes; thus directly affirming, that a pre-existing debt was a fair and valuable consideration within the protection of the general rule. And he has since affirmed the same doctrine, upon a full review of it, in his Commentaries, 3 Kent. Comm. sect. 44, p. 81. The decision in the case of Bay v. Coddington was afterwards affirmed in the Court of Errors, 20 Johns. R. 637, and the general reasoning of the chancellor was fully sustained. There were indeed peculiar circumstances in that case, which the Court seem to have considered as entitling it to be treated as an exception to the general rule, upon the ground either because the receipt of the notes was under suspicious circumstances, the transfer having been made after the known insolvency of the endorser, or because the holder had received it as a mere security for contingent responsibilities, with which the holders had not then become charged. There was, however, a considerable diversity of opinion among the members of the Court upon that occasion, several of them holding that the decree ought to be reversed, others affirming that a pre-existing debt was a valuable consideration, sufficient to protect the holders, and others again insisting, that a pre-existent debt was not sufficient. From that period, however, for a series of years, it seems to have been held by the Supreme Court of the state, that a pre-existing debt was not a sufficient consideration to shut out the equities of the original parties in favour of the holders. But no case to that effect has ever been decided in the Court of Errors. The cases cited at the bar, and especially Roosa v. Brotherson, 10 Wend. R. 85; The Ontario Bank v. Worthington, 12 Wend. R. 593; and Payne v. Cutler, 13 Wend. R. 605, are directly in point. But the more recent cases, The Bank of Salina v. Babcock, 21 Wend. R. 490, and The Bank of Sandusky v. Scoville, 24 Wend. R. 115, have greatly shaken, if they have not entirely overthrown those decisions, and seem to have brought back the doctrine to that promulgated in the earliest cases. So that, to say the least of it, it admits of serious doubt, whether any doctrine upon this question can at the present time be treated as finally established; and it is certain, [18] that the Court of Errors have not pronounced any positive opinion upon it.

But, admitting the doctrine to be fully settled in New York, it remains to be considered, whether it is obligatory upon this Court, if it differs from the principles established in the general commercial law. It is observable that the Courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed, or ancient local usage: but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the thirty-fourth section of the judiciary act of 1789, ch. 20, furnishes a rule obligatory upon this Court to follow the decisions of the state tribunals in all cases to which they apply. That section provides "that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply." In order to maintain the argument, it is essential, therefore, to hold, that the word "laws," in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are; and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or [19] local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. R. 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romæ, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtenebit.

It becomes necessary for us, therefore, upon the present occasion to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to negotiable instruments. Assuming it to be true, (which, however, may well admit of some doubt from the generality of the language,) that the holder of a negotiable instrument is unaffected with the equities between the antecedent parties, of which he has no notice, only where he receives it in the usual course of trade and business for a valuable consideration, before it becomes due; we are prepared to say, that receiving it in payment of, or as security for a pre-existing debt, [20] is according to the known usual course of trade and business. And why upon principle should not a pre-existing debt be deemed such a valuable consideration? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for pre-existing debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in payment of or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases, where new notes are given by the same or by other parties, by way of renewal or security to banks, in lieu of old securities discounted by them, which have arrived at maturity? Probably more than one-half of all bank transactions in our country, as well as those of other countries, are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for pre-existing debts.

This question has been several times before this Court, and it has been uniformly held, that it makes no difference whatsoever as to the rights of the holder, whether the debt for which the negotiable instrument is transferred to him is a pre-existing debt, or is contracted at the time of the transfer. In each case he equally gives credit to the instrument. The cases of Coolidge v. Payson, 2 Wheaton, R. 66, 70, 73, and Townsley v. Sumrall, 2 Peters, R. 170, 182, are directly in point.

In England the same doctrine has been uniformly acted upon. As long ago as the case of Pillans and Rose v. Van Meirop and Hopkins, 3 Burr. 1664, the very point was made and the objection was overruled. That, indeed, was a case of far more stringency [21] than the one now before us; for the bill of exchange, there drawn in discharge of a pre-existing debt, was held to bind the party as acceptor, upon a mere promise made by him to accept before the bill was actually drawn. Upon that occasion Lord Mansfield, likening the case to that of a letter of credit, said, that a letter of credit may be given for money already advanced, as well as for money to be advanced in future: and the whole Court held the plaintiff entitled to recover. From that period downward there is not a single case to be found in England in which it has ever been held by the Court, that a pre-existing debt was not a valuable consideration, sufficient to protect the holder, within the meaning of the general rule, although incidental dicta have been sometimes relied on to establish the contrary, such as the dictum of Lord Chief Justice Abbott in Smith v. De Witt, 6 Dowl. & Ryland, 120, and De la Chaumette v. The Bank of England, 9 Barn. & Cres. 209, where, however, the decision turned upon very different considerations.

Mr. Justice Bayley, in his valuable work on bills of exchange and promissory notes, lays down the rule in the most general terms. "The want of consideration," says he, "in toto or in part, cannot be insisted on, if the plaintiff or any intermediate party between him and the defendant took the bill or note bonâ fide and upon a valid consideration." Bayley on Bills, p. 499, 500, 5th London edition, 1830. It is observable that he here uses the words "valid consideration," obviously intending to make the distinction, that it is not intended to apply solely to cases, where a present consideration for advances of money on goods or otherwise takes place at the time of the transfer and upon the credit thereof. And in this he is fully borne out by the authorities. They go farther, and establish, that a transfer as security for past, and even for future responsibilities, will, for this purpose, be a sufficient, valid, and valuable consideration. Thus, in the case of Bosanquet v. Dudman, 1 Starkie, R. 1, it was held by Lord Ellenborough, that if a banker be under acceptances to an amount beyond the cash balance in his hands, every bill he holds of that customer's, bonâ fide, he is to be considered as holding for value; and it makes no difference though he hold other collateral securities, more than sufficient to cover the excess of his acceptances. [22] The same doctrine was affirmed by Lord Eldon in Ex parte Bloxham, 8 Ves. 531, as equally applicable to past and to future acceptances. The subsequent cases of Heywood v. Watson, 4 Bing. R. 496, and Bramah v. Roberts, 1 Bing. New Ca. 469, and Percival v. Frampton, 2 Cromp. Mees. & Rose, 180, are to the same effect. They directly establish that a bonâ fide holder, taking a negotiable note in payment of or as security for a pre-existing debt, is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties. And these are the latest decisions, which our researches have enabled us to ascertain to have been made in the English Courts upon this subject.

In the American Courts, so far as we have been able to trace the decisions, the same doctrine seems generally but not universally to prevail. In Brush v. Scribner, 11 Conn. R. 388, the Supreme Court of Connecticut, after an elaborate review of the English and New York adjudications, held, upon general principles of commercial law, that a pre-existing debt was a valuable consideration, sufficient to convey a valid title to a bonâ fide holder against all the antecedent parties to a negotiable note. There is no reason to doubt, that the same rule has been adopted and constantly adhered to in Massachusetts; and certainly there is no trace to be found to the contrary. In truth, in the silence of any adjudications upon the subject, in a case of such frequent and almost daily occurrence in the commercial states, it may fairly be presumed, that whatever constitutes a valid and valuable consideration in other cases of contract to support titles of the most solemn nature, is held a fortiori to be sufficient in cases of negotiable instruments, as indispensable to the security of holders, and the facility and safety of their circulation. Be this as it may, we entertain no doubt, that a bonâ fide holder, for a pre-existing debt, of a negotiable instrument, is not affected by any equities between the antecedent parties, where he has received the same before it became due, without notice of any such equities. We are all, therefore, of opinion, that the question on this point, propounded by the Circuit Court for our consideration, ought to be answered in the negative; and we shall accordingly direct it so to be certified to the Circuit Court.

[23] Mr. Justice CATRON said:

Upon the point of difference between the judges below, I concur, that the extinguishment of a debt, and the giving a post consideration, such as the record presents, will protect the purchaser and assignee of a negotiable note from the infirmity affecting the instrument before it was negotiated. But I am unwilling to sanction the introduction into the opinion of this Court, a doctrine aside from the case made by the record, or argued by the counsel, assuming to maintain, that a negotiable note or bill pledged as collateral security for a previous debt, is taken by the creditor in the due course of trade; and that he stands on the foot of him who purchases in the market for money, or takes the instrument in extinguishment of a previous debt. State Courts of high authority on commercial questions have held otherwise; and that they will yield to a mere expression of opinion of this Court, or change their course of decision in conformity to the recent English cases referred to in the principal opinion, is improbable: whereas, if the question was permitted to rest until it fairly arose, the decision of it either way by this Court, probably, would, and I think ought to settle it. As such a result is not to be expected from the opinion in this cause, I am unwilling to embarrass myself with so much of it as treats of negotiable instruments taken as a pledge. I never heard this question spoken of as belonging to the case, until the principal opinion was presented last evening; and therefore I am not prepared to give any opinion, even was it called for by the record.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the southern district of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the defendant was not, under the facts stated, entitled to the same defence to the action as if the suit was between the original parties to the bill; that is to say, the said Norton, or the said Norton and Keith and the defendant: and that the evidence [24] offered in defence and objected to, was not admissible as against the plaintiff in this action. Whereupon it is now here ordered and adjudged by this Court, that an answer in the negative be certified to the said Circuit Court.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

[65] Mr. Theodore Kiendl, with whom Messrs. William C. Cannon and Harold W. Bissell were on the brief, for petitioner.

Mr. Fred H. Rees, with whom Messrs. Alexander L. Strouse and William Walsh were on the brief, for respondent.

[69] MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The question for decision is whether the oft-challenged doctrine of Swift v. Tyson^[1] shall now be disapproved.

Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks; and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability; and the case was tried by a jury.

[70] The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way — that is a longitudinal pathway as distinguished from a crossing — are to be deemed trespassers; and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence, unless it be wanton or wilful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts; and contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law.

The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000; and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F.2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law and that "upon questions of general law the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . . It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train."

[71] The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. § 725, which provides:

"The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."

Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari.

First. Swift v. Tyson, 16 Pet. 1, 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is — or should be; and that, as there stated by Mr. Justice Story:

"the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or [72] instrument, or what is the just rule furnished by the principles of commercial law to govern the case."

The Court in applying the rule of § 34 to equity cases, in Mason v. United States, 260 U.S. 545, 559, said: "The statute, however, is merely declarative of the rule which would exist in the absence of the statute."^[2] The federal courts assumed, in the broad field of "general law," the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given § 34,^[3] and as to the soundness of the rule which it introduced.^[4] But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling, [73] the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the State, unwritten as well as written.^[5]

Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518.^[6] There, Brown and Yellow, a Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also a Kentucky corporation, wished that the former should have the exclusive privilege of soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad station; and that the Black and White, a competing Kentucky corporation, should be prevented from interfering with that privilege. Knowing that such a contract would be void under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate under the law of Tennessee, and that the contract with the railroad should be executed there. The suit was then brought by the Tennessee corporation in the federal court for western Kentucky to enjoin competition by the Black and White; an injunction issued by the District Court [74] was sustained by the Court of Appeals; and this Court, citing many decisions in which the doctrine of Swift v. Tyson had been applied, affirmed the decree.

Second. Experience in applying the doctrine of Swift v. Tyson, had revealed its defects, political and social; and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity;^[7] and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties.^[8]

On the other hand, the mischievous results of the doctrine had become apparent. Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the State. Swift v. Tyson introduced grave discrimination by non-citizens against citizens. It made rights enjoyed under the unwritten "general law" vary according to whether enforcement was sought in the state [75] or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the non-citizen.^[9] Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the State.

The discrimination resulting became in practice far-reaching. This resulted in part from the broad province accorded to the so-called "general law" as to which federal courts exercised an independent judgment.^[10] In addition to questions of purely commercial law, "general law" was held to include the obligations under contracts entered into and to be performed within the State,^[11] the extent to which a carrier operating within a State may stipulate for exemption from liability for his own negligence or that of his employee;^[12] the liability for torts committed within the State upon persons resident or property located there, even where the question of liability [76] depended upon the scope of a property right conferred by the State;^[13] and the right to exemplary or punitive damages.^[14] Furthermore, state decisions construing local deeds,^[15] mineral conveyances,^[16] and even devises of real estate^[17] were disregarded.^[18]

In part the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction individual citizens willing to remove from their own State and become citizens of another might avail themselves of the federal rule.^[19] And, without even change of residence, a corporate citizen of [77] the State could avail itself of the federal rule by re-incorporating under the laws of another State, as was done in the Taxicab case.

The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction.^[20] Other legislative relief has been proposed.^[21] If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century.^[22] But the unconstitutionality [78] of the course pursued has now been made clear and compels us to do so.

Third. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. As stated by Mr. Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 401, against ignoring the Ohio common law of fellow servant liability:

"I am aware that what has been termed the general law of the country — which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject — has been often advanced in judicial opinions of this court to control a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a State in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine. But, notwithstanding the great names which may be cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of the United States, which recognizes and preserves the autonomy and independence of the States — independence in their legislative and independence [79] in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence."

The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes.^[23] The doctrine rests upon the assumption that there is "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute," that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts "the parties are entitled to an independent judgment on matters of general law":

"but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. . . . "the authority and only authority is the State, and if that be so, the voice adopted by the State as its own [whether it be of its Legislature or of its Supreme Court] should utter the last word."

Thus the doctrine of Swift v. Tyson, is, as Mr. Justice Holmes said, "an unconstitutional assumption of powers by courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct." In disapproving that doctrine we do not hold [80] unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several States.

Fourth. The defendant contended that by the common law of Pennsylvania as declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, the only duty owed to the plaintiff was to refrain from wilful or wanton injury. The plaintiff denied that such is the Pennsylvania law.^[24] In support of their respective contentions the parties discussed and cited many decisions of the Supreme Court of the State. The Circuit Court of Appeals ruled that the question of liability is one of general law; and on that ground declined to decide the issue of state law. As we hold this was error, the judgment is reversed and the case remanded to it for further proceedings in conformity with our opinion.

Reversed.

MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.

MR. JUSTICE BUTLER.

The case presented by the evidence is a simple one. Plaintiff was severely injured in Pennsylvania. While walking on defendant's right of way along a much-used path at the end of the cross ties of its main track, he came into collision with an open door swinging from the side of a car in a train going in the opposite direction. Having been warned by whistle and headlight, he saw the locomotive [81] approaching and had time and space enough to step aside and so avoid danger. To justify his failure to get out of the way, he says that upon many other occasions he had safely walked there while trains passed.

Invoking jurisdiction on the ground of diversity of citizenship, plaintiff, a citizen and resident of Pennsylvania, brought this suit to recover damages against defendant, a New York corporation, in the federal court for the southern district of that State. The issues were whether negligence of defendant was a proximate cause of his injuries and whether negligence of plaintiff contributed. He claimed that, by hauling the car with the open door, defendant violated a duty to him. The defendant insisted that it violated no duty and that plaintiff's injuries were caused by his own negligence. The jury gave him a verdict on which the trial court entered judgment; the circuit court of appeals affirmed. 90 F. (2d) 603.

Defendant maintained, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203; 160 A. 859, and Koontz v. B. & O.R. Co., 309 Pa. 122; 163 A. 212, that the only duty owed plaintiff was to refrain from willfully or wantonly injuring him; it argued that the courts of Pennsylvania had so ruled with respect to persons using a customary longitudinal path, as distinguished from one crossing the track. The plaintiff insisted that the Pennsylvania decisions did not establish the rule for which the defendant contended. Upon that issue the circuit court of appeals said (p. 604): "We need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law." [82] Upon that basis the court held the evidence sufficient to sustain a finding that plaintiff's injuries were caused by the negligence of defendant. It also held the question of contributory negligence one for the jury.

Defendant's petition for writ of certiorari presented two questions: Whether its duty toward plaintiff should have been determined in accordance with the law as found by the highest court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the issues of negligence and contributory negligence are to be determined by general law against which local decisions may not be held conclusive; that defendant relies on a solitary Pennsylvania case of doubtful applicability and that, even if the decisions of the courts of that State were deemed controlling, the same result would have to be reached.

No constitutional question was suggested or argued below or here. And as a general rule, this Court will not consider any question not raised below and presented by the petition. Olson v. United States, 292 U.S. 246, 262. Johnson v. Manhattan Ry. Co., 289 U.S. 479, 494. Gunning v. Cooley, 281 U.S. 90, 98. Here it does not decide either of the questions presented but, changing the rule of decision in force since the foundation of the Government, remands the case to be adjudged according to a standard never before deemed permissible.

The opinion just announced states that "the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16 Pet. 1] shall now be disapproved."

That case involved the construction of the Judiciary Act of 1789, § 34: "The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of [83] the United States in cases where they apply." Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18): "In the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are, and not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character [84] before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed." (Italics added.)

The doctrine of that case has been followed by this Court in an unbroken line of decisions. So far as appears, it was not questioned until more than 50 years later, and then by a single judge.^[25]Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 390. In that case, Mr. Justice Brewer, speaking for the Court, truly said (p. 373): "Whatever differences of opinion may have been expressed, have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law."

And since that decision, the division of opinion in this Court has been one of the same character as it was before. In 1910, Mr. Justice Holmes, speaking for himself and two other Justices, dissented from the holding that a [85] court of the United States was bound to exercise its own independent judgment in the construction of a conveyance made before the state courts had rendered an authoritative decision as to its meaning and effect. Kuhn v. Fairmont Coal Co., 215 U.S. 349. But that dissent accepted (p. 371) as "settled" the doctrine of Swift v. Tyson, and insisted (p. 372) merely that the case under consideration was by nature and necessity peculiarly local.

Thereafter, as before, the doctrine was constantly applied.^[26] In Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, three judges dissented. The writer of the dissent, Mr. Justice Holmes, said, however (p. 535): "I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields."

No more unqualified application of the doctrine can be found than in decisions of this Court speaking through Mr. Justice Holmes. United Zinc Co. v. Britt, 258 U.S. 268. Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, 70. Without in the slightest departing from that doctrine, but implicitly applying it, the strictness of the rule laid down in the Goodman case was somewhat ameliorated by Pokora v. Wabash Ry. Co., 292 U.S. 98.

Whenever possible, consistently with standards sustained by reason and authority constituting the general law, this Court has followed applicable decisions of state courts. Mutual Life Ins. Co. v. Johnson, 293 U.S. 335, 339. See Burgess v. Seligman, 107 U.S. 20, 34. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., supra, 530. Unquestionably the issues of negligence and contributory negligence upon which decision of this case [86] depends are questions of general law. Hough v. Railway Co., 100 U.S. 213, 226. Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101. Baltimore & Ohio R. Co. v. Baugh, supra. Gardner v. Michigan Central R. Co., 150 U.S. 349, 358. Central Vermont Ry. Co. v. White, 238 U.S. 507, 512. Baltimore & Ohio R. Co. v. Goodman, supra. Pokora v. Wabash Ry. Co., supra.

While amendments to § 34 have from time to time been suggested, the section stands as originally enacted. Evidently Congress has intended throughout the years that the rule of decision as construed should continue to govern federal courts in trials at common law. The opinion just announced suggests that Mr. Warren's research has established that from the beginning this Court has erroneously construed § 34. But that author's "New Light on the History of the Federal Judiciary Act of 1789" does not purport to be authoritative and was intended to be no more than suggestive. The weight to be given to his discovery has never been discussed at this bar. Nor does the opinion indicate the ground disclosed by the research. In his dissenting opinion in the Taxicab case, Mr. Justice Holmes referred to Mr. Warren's work but failed to persuade the Court that "laws" as used in § 34 included varying and possibly ill-considered rulings by the courts of a State on questions of common law. See, e.g., Swift v. Tyson, supra, 16-17. It well may be that, if the Court should now call for argument of counsel on the basis of Mr. Warren's research, it would adhere to the construction it has always put upon § 34. Indeed, the opinion in this case so indicates. For it declares: "If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so." This means that, so far as concerns the rule of decision now condemned, the Judiciary Act of 1789, passed to establish judicial [87] courts to exert the judicial power of the United States, and especially § 34 of that Act as construed, is unconstitutional; that federal courts are now bound to follow decisions of the courts of the State in which the controversies arise; and that Congress is powerless otherwise to ordain. It is hard to foresee the consequences of the radical change so made. Our opinion in the Taxicab case cites numerous decisions of this Court which serve in part to indicate the field from which it is now intended forever to bar the federal courts. It extends to all matters of contracts and torts not positively governed by state enactments. Counsel searching for precedent and reasoning to disclose common-law principles on which to guide clients and conduct litigation are by this decision told that as to all of these questions the decisions of this Court and other federal courts are no longer anywhere authoritative.

This Court has often emphasized its reluctance to consider constitutional questions, and that legislation will not be held invalid as repugnant to the fundamental law if the case may be decided upon any other ground. In view of grave consequences liable to result from erroneous exertion of its power to set aside legislation, the Court should move cautiously, seek assistance of counsel, act only after ample deliberation, show that the question is before the Court, that its decision cannot be avoided by construction of the statute assailed or otherwise, indicate precisely the principle or provision of the Constitution held to have been transgressed, and fully disclose the reasons and authorities found to warrant the conclusion of invalidity. These safeguards against the improvident use of the great power to invalidate legislation are so well-grounded and familiar that statement of reasons or citation of authority to support them is no longer necessary. But see e.g.: Charles River Bridge v. Warren Bridge, 11 Pet. 420, 553; Township of Pine Grove v. Talcott, 19 Wall. 666, 673; Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345; [88] Baker v. Grice, 169 U.S. 284, 292; Martin v. District of Columbia, 205 U.S. 135, 140.

So far as appears, no litigant has ever challenged the power of Congress to establish the rule as construed. It has so long endured that its destruction now without appropriate deliberation cannot be justified. There is nothing in the opinion to suggest that consideration of any constitutional question is necessary to a decision of the case. By way of reasoning, it contains nothing that requires the conclusion reached. Admittedly, there is no authority to support that conclusion. Against the protest of those joining in this opinion, the Court declines to assign the case for reargument. It may not justly be assumed that the labor and argument of counsel for the parties would not disclose the right conclusion and aid the Court in the statement of reasons to support it. Indeed, it would have been appropriate to give Congress opportunity to be heard before devesting it of power to prescribe rules of decision to be followed in the courts of the United States. See Myers v. United States, 272 U.S. 52, 176.

The course pursued by the Court in this case is repugnant to the Act of Congress of August 24, 1937, 50 Stat. 751. It declares: "That whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, or any agency thereof, or any officer or employee thereof, as such officer or employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case the court shall permit the United States to intervene and become a party for presentation of evidence (if evidence is otherwise receivable in such suit or proceeding) and argument upon the question of the constitutionality of such Act. In any such suit or proceeding the United States shall, subject to the applicable provisions of law, have all the rights of a [89] party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act." That provision extends to this Court. § 5. If defendant had applied for and obtained the writ of certiorari upon the claim that, as now held, Congress has no power to prescribe the rule of decision, § 34 as construed, it would have been the duty of this Court to issue the prescribed certificate to the Attorney General in order that the United States might intervene and be heard on the constitutional question. Within the purpose of the statute and its true intent and meaning, the constitutionality of that measure has been "drawn in question." Congress intended to give the United States the right to be heard in every case involving constitutionality of an Act affecting the public interest. In view of the rule that, in the absence of challenge of constitutionality, statutes will not here be invalidated on that ground, the Act of August 24, 1937 extends to cases where constitutionality is first "drawn in question" by the Court. No extraordinary or unusual action by the Court after submission of the cause should be permitted to frustrate the wholesome purpose of that Act. The duty it imposes ought here to be willingly assumed. If it were doubtful whether this case is within the scope of the Act, the Court should give the United States opportunity to intervene and, if so advised, to present argument on the constitutional question, for undoubtedly it is one of great public importance. That would be to construe the Act according to its meaning.

The Court's opinion in its first sentence defines the question to be whether the doctrine of Swift v. Tyson shall now be disapproved; it recites (p. 72) that Congress is without power to prescribe rules of decision that have been followed by federal courts as a result of the construction of § 34 in Swift v. Tyson and since; after discussion, it declares (pp. 77-78) that "the unconstitutionality of the course pursued [meaning the rule of decision [90] resulting from that construction] compels" abandonment of the doctrine so long applied; and then near the end of the last page the Court states that it does not hold § 34 unconstitutional, but merely that, in applying the doctrine of Swift v. Tyson construing it, this Court and the lower courts have invaded rights which are reserved by the Constitution to the several States. But, plainly through the form of words employed, the substance of the decision appears; it strikes down as unconstitutional § 34 as construed by our decisions; it divests the Congress of power to prescribe rules to be followed by federal courts when deciding questions of general law. In that broad field it compels this and the lower federal courts to follow decisions of the courts of a particular State.

I am of opinion that the constitutional validity of the rule need not be considered, because under the law, as found by the courts of Pennsylvania and generally throughout the country, it is plain that the evidence required a finding that plaintiff was guilty of negligence that contributed to cause his injuries and that the judgment below should be reversed upon that ground.

MR. JUSTICE McREYNOLDS concurs in this opinion.

MR. JUSTICE REED.

I concur in the conclusion reached in this case, in the disapproval of the doctrine of Swift v. Tyson, and in the reasoning of the majority opinion except in so far as it relies upon the unconstitutionality of the "course pursued" by the federal courts.

The "doctrine of Swift v. Tyson," as I understand it, is that the words "the laws," as used in § 34, line one, of the Federal Judiciary Act of September 24, 1789, do not include in their meaning "the decisions of the local tribunals." Mr. Justice Story, in deciding that point, said (16 Pet. 19): [91] "Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed."

To decide the case now before us and to "disapprove" the doctrine of Swift v. Tyson requires only that we say that the words "the laws" include in their meaning the decisions of the local tribunals. As the majority opinion shows, by its reference to Mr. Warren's researches and the first quotation from Mr. Justice Holmes, that this Court is now of the view that "laws" includes "decisions," it is unnecessary to go further and declare that the "course pursued" was "unconstitutional," instead of merely erroneous.

The "unconstitutional" course referred to in the majority opinion is apparently the ruling in Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions leaves federal courts free to interpret general law for themselves. I am not at all sure whether, in the absence of federal statutory direction, federal courts would be compelled to follow state decisions. There was sufficient doubt about the matter in 1789 to induce the first Congress to legislate. No former opinions of this Court have passed upon it. Mr. Justice Holmes evidently saw nothing "unconstitutional" which required the overruling of Swift v. Tyson, for he said in the very opinion quoted by the majority, "I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed dominion into new fields." Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 535. If the opinion commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, [92] that conclusion also seems questionable. The line between procedural and substantive law is hazy but no one doubts federal power over procedure. Wayman v. Southard, 10 Wheat. 1. The Judiciary Article and the "necessary and proper" clause of Article One may fully authorize legislation, such as this section of the Judiciary Act.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, dissent, p. 406, note 1. Compare Read v. Bishop of Lincoln, [1892] A.C. 644, 655; London Street Tramways Co. v. London County Council, [1898] A.C. 375, 379. It seems preferable to overturn an established construction of an Act of Congress, rather than, in the circumstances of this case, to interpret the Constitution. Cf. United States v. Delaware & Hudson Co., 213 U.S. 366.

There is no occasion to discuss further the range or soundness of these few phrases of the opinion. It is sufficient now to call attention to them and express my own non-acquiescence.

[1] 16 Pet. 1 (1842). Leading cases applying the doctrine are collected in Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 530, 531. Dissent from its application or extension was expressed as early as 1845 by Mr. Justice McKinley (and Mr. Chief Justice Taney) in Lane v. Vick, 3 How. 464, 477. Dissenting opinions were also written by Mr. Justice Daniel in Rowan v. Runnels, 5 How. 134, 140; by Mr. Justice Nelson in Williamson v. Berry, 8 How. 495, 550, 558; by Mr. Justice Campbell in Pease v. Peck, 18 How. 595, 599, 600; and by Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 207, and Butz v. City of Muscatine, 8 Wall. 575, 585. Vigorous attack upon the entire doctrine was made by Mr. Justice Field in Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368, 390, and by Mr. Justice Holmes in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370, and in the Taxicab case, 276 U.S. at 532.

[2] In Hawkins v. Barney's Lessee, 5 Pet. 457, 464, it was stated that § 34 "has been uniformly held to be no more than a declaration of what the law would have been without it: to wit, that the lex loci must be the governing rule of private right, under whatever jurisdiction private right comes to be examined." See also Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 525. Compare Jackson v. Chew, 12 Wheat. 153, 162, 168; Livingston v. Moore, 7 Pet. 469, 542.

[3] Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and Sources of Law (1909 ed.) §§ 533-34; Trickett, Non-Federal Law Administered in Federal Courts (1906) 40 Am. L. Rev. 819, 821-24.

[4] Street, Is There a General Commercial Law of the United States (1873) 21 Am. L. Reg. 473; Hornblower, Conflict between State and Federal Decisions (1880) 14 Am. L. Rev. 211; Meigs, Decisions of the Federal Courts on Questions of State Law (1882) 8 So. L. Rev. (n.s.) 452, (1911) 45 Am. L. Rev. 47; Heiskell, Conflict between Federal and State Decisions (1882) 16 Am. L. Rev. 743; Rand, Swift v. Tyson versus Gelpcke v. Dubuque (1895) 8 Harv. L. Rev. 328, 341-43; Mills, Should Federal Courts Ignore State Laws (1900) 34 Am. L. Rev. 51; Carpenter, Court Decisions and the Common Law (1917) 17 Col. L. Rev. 593, 602-03.

[5] Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 (1923) 37 Harv. L. Rev. 49, 51-52, 81-88, 108.

[6] Shelton, Concurrent Jurisdiction — Its Necessity and its Dangers (1928) 15 Va. L. Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn. L.Q. 499, 524-30; Johnson, State Law and the Federal Courts (1929) 17 Ky. L.J. 355; Fordham, The Federal Courts and the Construction of Uniform State Laws (1929) 7 N.C.L. Rev. 423; Dobie, Seven Implications of Swift v. Tyson (1930) 16 Va. L. Rev. 225; Dawson, Conflict of Decisions between State and Federal Courts in Kentucky, and the Remedy (1931) 20 Ky. L.J. 1; Campbell, Is Swift v. Tyson an Argument for or against Abolishing Diversity of Citizenship Jurisdiction (1932) 18 A.B.A.J. 809; Ball, Revision of Federal Diversity Jurisdiction (1933) 28 Ill. L. Rev. 356, 362-64; Fordham, Swift v. Tyson and the Construction of State Statutes (1935) 41 W. Va. L.Q. 131.

[7] Compare Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 209. The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See also Frankfurter, supra note 6, at 524-30; Dawson, supra note 6; Note, Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 Harv. L. Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa. L. Rev. 869, 881-86. Moreover, as pointed out by Judge Augustus N. Hand in Cole v. Pennsylvania R. Co., 43 F.2d 953, 956-57, decisions of this Court on common law questions are less likely than formerly to promote uniformity.

[8] Compare 2 Warren, The Supreme Court in United States History (rev. ed. 1935) 89: "Probably no decision of the Court has ever given rise to more uncertainty as to legal rights; and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. . . ." The Federal Digest, through the 1937 volume, lists nearly 1000 decisions involving the distinction between questions of general and of local law.

[9] It was even possible for a non-resident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R. Co., 150 U.S. 349; Harrison v. Foley, 206 Fed. 57 (C.C.A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C.C.A. 5); see Mills, supra note 4, at 52.

[10] For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 (1929) 4 Ind. L.J. 367.

[11] Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518; Rowan v. Runnels, 5 How. 134, 139; Boyce v. Tabb, 18 Wall. 546, 548; Johnson v. Chas. D. Norton Co., 159 Fed. 361 (C.C.A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C.C.A. 8).

[12] Railroad Co. v. Lockwood, 17 Wall. 357, 367-68; Liverpool & G.W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443; Eels v. St. Louis, K. & N.W. Ry. Co., 52 Fed. 903 (C.C.S.D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C.C.A. 2).

[13] Chicago v. Robbins, 2 Black 418, 428. Compare Yates v. Milwaukee, 10 Wall. 497, 506-07; Yeates v. Illinois Cent. R. Co., 137 Fed. 943 (C.C.N.D. Ill.); Curtis v. Cleveland, C.C. & St. L. Ry. Co., 140 Fed. 777 (C.C.E.D. Ill.). See also Hough v. Railway Co., 100 U.S. 213, 226; Baltimore & Ohio R. Co. v. Baugh, 149 U.S. 368; Gardner v. Michigan Cent. R. Co., 150 U.S. 349, 358; Beutler v. Grand Trunk Junction Ry. Co., 224 U.S. 85; Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66; Pokora v. Wabash Ry. Co., 292 U.S. 98; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C.C.A. 2).

[14] Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 106; Norfolk & P. Traction Co. v. Miller, 174 Fed. 607 (C.C.A. 4); Greene v. Keithley, 86 F. (2d) 239 (C.C.A. 8).

[15] Foxcroft v. Mallet, 4 How. 353, 379; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163 (C.C.A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C.C.A. 8).

[16] Kuhn v. Fairmont Coal Co., 215 U.S. 349; Mid-Continent Petroleum Corp. v. Sauder, 67 F. (2d) 9, 12 (C.C.A. 10), reversed on other grounds, 292 U.S. 272.

[17] Lane v. Vick, 3 How. 464, 476; Barber v. Pittsburgh, F.W. & C.R. Co., 166 U.S. 83, 99-100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C.C.A. 6), reversed on other grounds, 225 U.S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S.D. Ga.).

[18] Compare, also, Williamson v. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke v. City of Dubuque, 1 Wall. 175.

[19] See Cheever v. Wilson, 9 Wall. 108, 123; Robertson v. Carson, 19 Wall. 94, 106-07; Morris v. Gilmer, 129 U.S. 315, 328; Dickerman v. Northern Trust Co., 176 U.S. 181, 192; Williamson v. Osenton 232 U.S. 619, 625.

[20] See, e.g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. (1932) 6-8; Hearing Before the House Committee on the Judiciary on H.R. 10594, H.R. 4526, and H.R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97-104; Sen. Rep. No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent. L.J. 263, 264, 266; Frankfurter, supra note 6; Ball, supra note 6; Warren, Corporations and Diversity of Citizenship (1933) 19 Va. L. Rev. 661, 686.

[21] Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H.R. 8094, 72d Cong., 1st Sess. See also Mills, supra note 4, at 68-69; Dobie, supra note 6, at 241; Frankfurter, supra note 6, at 530; Campbell, supra note 6, at 811. State statutes on conflicting questions of "general law" have also been suggested. See Heiskell, supra note 4, at 760; Dawson, supra note 6; Dobie, supra note 6, at 241.

[22] The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am. L. Rev. 498, 523-25; A.B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L.J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill. L. Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa. L. Rev. 179, 189-91; J.J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A.B.A.J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A.B.A.J. 71, 74-75; Beutel, Common Law Judicial Technique and the Law of Negotiable Instruments — Two Unfortunate Decisions (1934) 9 Tulane L. Rev. 64.

[23] Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370-372; Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.S. 518, 532-36.

[24] Tompkins also contended that the alleged rule of the Falchetti case is not in any event applicable here because he was struck at the intersection of the longitudinal pathway and a transverse crossing. The court below found it unnecessary to consider this contention, and we leave the question open.

[25] Mr. Justice Field filed a dissenting opinion, several sentences of which are quoted in the decision just announced. The dissent failed to impress any of his associates. It assumes that adherence to § 34 as construed involves a supervision over legislative or judicial action of the states. There is no foundation for that suggestion. Clearly the dissent of the learned Justice rests upon misapprehension of the rule. He joined in applying the doctrine for more than a quarter of a century before his dissent. The reports do not disclose that he objected to it in any later case. Cf. Oakes v. Mase, 165 U.S. 363.

[26] In Salem Trust Co. v. Manufacturers' Finance Co., 264 U.S. 182, Mr. Justice Holmes and Mr. Justice Brandeis concurred (p. 200) in the judgment of the Court upon a question of general law on the ground that the rights of the parties were governed by state law.

The Drug Enforcement Administration (DEA) approved using petitioner Sosa and other Mexican nationals to abduct respondent Alvarez-Machain (Alvarez), also a Mexican national, from Mexico to stand trial in the United States for a DEA agent's torture and murder. As relevant here, after his acquittal, Alvarez sued the United States for false arrest under the Federal Tort Claims Act (FTCA), which waives sovereign immunity in suits "for . . . personal injury . . . caused by the negligent or wrongful act or omission of any [Government] employee while acting within the scope of his office or employment," 28 U.S.C. 1346(b)(1); and sued Sosa for violating the law of nations under the Alien Tort Statute (ATS), a 1789 law giving district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . .," 1350. The District Court dismissed the FTCA claim, but awarded Alvarez summary judgment and damages on the ATS claim. The Ninth Circuit affirmed the ATS judgment, but reversed the FTCA claim's dismissal.

Held:

1. The FTCA's exception to waiver of sovereign immunity for claims "arising in a foreign country," 28 U.S.C. 2680(k), bars claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. Pp. 699-712.

(a) The exception on its face seems plainly applicable to the facts of this action. Alvarez's arrest was said to be "false," and thus tortious, only because, and only to the extent that, it took place and endured in Mexico. Nonetheless, the Ninth Circuit allowed the action to proceed under what is known as the "headquarters doctrine," concluding that, because Alvarez's abduction was the direct result of wrongful planning and direction by DEA agents in California, his claim did not "aris[e] in" a foreign country. Because it will virtually always be possible to assert negligent activity occurring in the United States, such analysis must be viewed with skepticism. Two considerations confirm this Court's skepticism and lead it to reject the headquarters doctrine. Pp. 700-703.

[693] (b) The first consideration applies to cases like this one, where harm was arguably caused both by action in the foreign country and planning in the United States. Proximate cause is necessary to connect the domestic breach of duty with the action in the foreign country, for the headquarters' behavior must be sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to that behavior. A proximate cause connection is not itself sufficient to bar the foreign country exception's application, since a given proximate cause may not be the harm's exclusive proximate cause. Here, for example, assuming the DEA officials' direction was a proximate cause of the abduction, so were the actions of Sosa and others in Mexico. Thus, at most, recognition of additional domestic causation leaves an open question whether the exception applies to Alvarez's claim. Pp. 703-704.

(c) The second consideration is rooted in the fact that the harm occurred on foreign soil. There is good reason to think that Congress understood a claim "arising in" a foreign country to be a claim for injury or harm occurring in that country. This was the common usage of "arising under" in contemporary state borrowing statutes used to determine which State's limitations statute applied in cases with transjurisdictional facts. And such language was interpreted in tort cases in just the same way that the Court reads the FTCA today. Moreover, there is specific reason to believe that using "arising in" to refer to place of harm was central to the foreign country exception's object. When the FTCA was passed, courts generally applied the law of the place where the injury occurred in tort cases, which would have been foreign law for a plaintiff injured in a foreign country. However, application of foreign substantive law was what Congress intended to avoid by the foreign country exception. Applying the headquarters doctrine would thus have thwarted the exception's object by recasting foreign injury claims as claims not arising in a foreign country because of some domestic planning or negligence. Nor has the headquarters doctrine outgrown its tension with the exception. The traditional approach to choice of substantive tort law has lost favor, but many States still use that analysis. And, in at least some cases the Ninth Circuit's approach would treat as arising at headquarters, even the later methodologies of choice point to the application of foreign law. There is also no merit to an argument that the headquarters doctrine should be permitted when a State's choice-of-law approach would not apply the foreign law of the place of injury. Congress did not write the exception to apply when foreign law would be applied. Rather, the exception was written at a time when "arising in" meant where the harm occurred; and the [694] odds are that Congress meant simply that when it used the phrase. Pp. 704-712.

2. Alvarez is not entitled to recover damages from Sosa under the ATS. Pp. 712-738.

(a) The limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 is not authority to recognize the ATS right of action Alvarez asserts here. Contrary to Alvarez's claim, the ATS is a jurisdictional statute creating no new causes of action. This does not mean, as Sosa contends, that the ATS was stillborn because any claim for relief required a further statute expressly authorizing adoption of causes of action. Rather, the reasonable inference from history and practice is that the ATS was intended to have practical effect the moment it became law, on the understanding that the common law would provide a cause of action for the modest number of international law violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, and piracy. Sosa's objections to this view are unpersuasive. Pp. 712-724.

(b) While it is correct to assume that the First Congress understood that district courts would recognize private causes of action for certain torts in violation of the law of nations and that no development of law in the last two centuries has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering such a new cause of action. In deriving a standard for assessing Alvarez's particular claim, it suffices to look to the historical antecedents, which persuade this Court that federal courts should not recognize claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the 18th-century paradigms familiar when 1350 was enacted. Pp. 724-738.

(i) Several reasons argue for great caution in adapting the law of nations to private rights. First, the prevailing conception of the common law has changed since 1790. When 1350 was enacted, the accepted conception was that the common law was found or discovered, but now it is understood, in most cases where a court is asked to state or formulate a common law principle in a new context, as made or created. Hence, a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision. Second, along with, and in part driven by, this conceptual development has come an equally significant rethinking of the federal courts' role in making common law. In Erie R. Co. v. Tompkins, 304 U.S. 64, 78, this Court denied the existence of any federal "general" common law, which largely withdrew to havens of specialty, with the general practice being to look [695] for legislative guidance before exercising innovative authority over substantive law. Third, a decision to create a private right of action is better left to legislative judgment in most cases. E.g., Correctional Services Corp. v. Malesko, 534 U.S. 61, 68. Fourth, the potential implications for the foreign relations of the United States of recognizing private causes of action for violating international law should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. Fifth, this Court has no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. Pp. 725-731.

(ii) The limit on judicial recognition adopted here is fatal to Alvarez's claim. Alvarez contends that prohibition of arbitrary arrest has attained the status of binding customary international law and that his arrest was arbitrary because no applicable law authorized it. He thus invokes a general prohibition of arbitrary detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government. However, he cites little authority that a rule so broad has the status of a binding customary norm today. He certainly cites nothing to justify the federal courts in taking his rule as the predicate for a federal lawsuit, for its implications would be breathtaking. It would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under 42 U. S. C. 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, that now provide damages for such violations. And it would create a federal action for arrests by state officers who simply exceed their authority under state law. Alvarez's failure to marshal support for his rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States, which refers to prolonged arbitrary detention, not relatively brief detention in excess of positive authority. Whatever may be said for his broad principle, it expresses an aspiration exceeding any binding customary rule with the specificity this Court requires. Pp. 731-738.

331 F. 3d 604, reversed.

SOUTER, J., delivered the opinion of the Court, Parts I and III of which were unanimous, Part II of which was joined by REHNQUIST, C. J., and STEVENS, O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., and Part IV of which was joined by STEVENS, O'CONNOR, KENNEDY, GINSBURG, and BREYER, JJ. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 739. GINSBURG, J., filed an opinion concurring in part and concurring [696] in the judgment, in which BREYER, J., joined, post, p. 751. BREYER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 760.

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

Deputy Solicitor General Clement argued the cause for the United States, as petitioner in No. 03-485, and respondent under this Court's Rule 12.6 in support of petitioner in No. 03-339. With him on the briefs were Solicitor General Olson, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Katsas, Gregory G. Garre, Jeffrey A. Lamken, Douglas N. Letter, Barbara L. Herwig, Robert M. Loeb, and William H. Taft IV. Carter G. Phillips argued the cause for petitioner in No. 03-339. With him on the briefs were Joseph R. Guerra, Marinn F. Carlson, Maria T. DiGiulian, Ryan D. Nelson, and Charles S. Leeper.

Paul L. Hoffman argued the cause for respondent Alvarez-Machain in both cases. With him on the brief were Erwin Chemerinsky, Ralph G. Steinhardt, Mark D. Rosenbaum, Steven R. Shapiro, Douglas E. Mirell, and W. Allan Edmiston.

[697] JUSTICE SOUTER delivered the opinion of the Court.

The two issues are whether respondent Alvarez-Machain's allegation that the Drug Enforcement Administration instigated his abduction from Mexico for criminal trial in the United States supports a claim against the Government under the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. 1346(b)(1), 2671-2680, and whether he may recover under the Alien Tort Statute (ATS), 28 U. S. C. 1350. We hold that he is not entitled to a remedy under either statute.

I

We have considered the underlying facts before, United States v. Alvarez-Machain, 504 U. S. 655 (1992). In 1985, an agent of the Drug Enforcement Administration (DEA), Enrique Camarena-Salazar, was captured on assignment in Mexico and taken to a house in Guadalajara, where he was tortured over the course of a 2-day interrogation, then murdered. Based in part on eyewitness testimony, DEA officials in the United States came to believe that respondent Humberto Alvarez-Machain (Alvarez), a Mexican physician, was present at the house and acted to prolong the agent's life in order to extend the interrogation and torture. Id., at 657.

In 1990, a federal grand jury indicted Alvarez for the torture and murder of Camarena-Salazar, and the United States District Court for the Central District of California issued a [698] warrant for his arrest. 331 F. 3d 604, 609 (CA9 2003) (en banc). The DEA asked the Mexican Government for help in getting Alvarez into the United States, but when the requests and negotiations proved fruitless, the DEA approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers. Ibid.

Once in American custody, Alvarez moved to dismiss the indictment on the ground that his seizure was "outrageous governmental conduct," Alvarez-Machain, 504 U. S., at 658, and violated the extradition treaty between the United States and Mexico. The District Court agreed, the Ninth Circuit affirmed, and we reversed, id., at 670, holding that the fact of Alvarez's forcible seizure did not affect the jurisdiction of a federal court. The case was tried in 1992, and ended at the close of the Government's case, when the District Court granted Alvarez's motion for a judgment of acquittal.

In 1993, after returning to Mexico, Alvarez began the civil action before us here. He sued Sosa, Mexican citizen and DEA operative Antonio Garate-Bustamante, five unnamed Mexican civilians, the United States, and four DEA agents. 331 F. 3d, at 610. So far as it matters here, Alvarez sought damages from the United States under the FTCA, alleging false arrest, and from Sosa under the ATS, for a violation of the law of nations. The former statute authorizes suit "for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U. S. C. 1346(b)(1). The latter provides in its entirety that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation [699] of the law of nations or a treaty of the United States." 1350.

The District Court granted the Government's motion to dismiss the FTCA claim, but awarded summary judgment and $25,000 in damages to Alvarez on the ATS claim. A three-judge panel of the Ninth Circuit then affirmed the ATS judgment, but reversed the dismissal of the FTCA claim. 266 F. 3d 1045 (2001).

A divided en banc court came to the same conclusion. 331 F. 3d, at 641. As for the ATS claim, the court called on its own precedent, "that [the ATS] not only provides federal courts with subject matter jurisdiction, but also creates a cause of action for an alleged violation of the law of nations." Id., at 612. The Circuit then relied upon what it called the "clear and universally recognized norm prohibiting arbitrary arrest and detention," id., at 620, to support the conclusion that Alvarez's arrest amounted to a tort in violation of international law. On the FTCA claim, the Ninth Circuit held that, because "the DEA had no authority to effect Alvarez's arrest and detention in Mexico," id., at 608, the United States was liable to him under California law for the tort of false arrest, id., at 640-641.

We granted certiorari in these companion cases to clarify the scope of both the FTCA and the ATS. 540 U. S. 1045 (2003). We now reverse in each.

II

The Government seeks reversal of the judgment of liability under the FTCA on two principal grounds. It argues that the arrest could not have been tortious, because it was authorized by 21 U. S. C. 878, setting out the arrest authority of the DEA, and it says that in any event the liability asserted here falls within the FTCA exception to waiver of sovereign immunity for claims "arising in a foreign country," 28 U. S. C. 2680(k). We think the exception applies and decide on that ground.

[700] A

The FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U. S. 1, 6 (1962); see also 28 U. S. C. 2674. The Act accordingly gives federal district courts jurisdiction over claims against the United States for injury "caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 1346(b)(1). But the Act also limits its waiver of sovereign immunity in a number of ways. See 2680 (no waiver as to, e. g., "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter," "[a]ny claim for damages caused by the imposition or establishment of a quarantine by the United States," or "[a]ny claim arising from the activities of the Panama Canal Company").

Here the significant limitation on the waiver of immunity is the Act's exception for "[a]ny claim arising in a foreign country," 2680(k), a provision that on its face seems plainly applicable to the facts of this action. In the Ninth Circuit's view, once Alvarez was within the borders of the United States, his detention was not tortious, see 331 F. 3d, at 636-637; the appellate court suggested that the Government's liability to Alvarez rested solely upon a false arrest claim. Id., at 640-641. Alvarez's arrest, however, was said to be "false," and thus tortious, only because, and only to the extent that, it took place and endured in Mexico.^[1] The actions [701] in Mexico are thus most naturally understood as the kernel of a "claim arising in a foreign country," and barred from suit under the exception to the waiver of immunity.

Notwithstanding the straightforward language of the foreign country exception, the Ninth Circuit allowed the action to proceed under what has come to be known as the "headquarters doctrine." Some Courts of Appeals, reasoning that "[t]he entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred," Sami v. United States, 617 F. 2d 755, 761 (CADC 1979), have concluded that the foreign country exception does not exempt the United States from suit "for acts or omissions occurring here which have their operative effect in another country." Id., at 762 (refusing to apply 2680(k) where a communique sent from the United States by a federal law enforcement officer resulted in plaintiff's wrongful detention in Germany).^[2] Headquarters claims "typically involve allegations of negligent guidance in an office within the United States of employees who cause damage while in a foreign country, or of activities which take place within a foreign country." Cominotto v. United States, 802 F. 2d 1127, 1130 (CA9 1986). In such instances, these courts have concluded that 2680(k) does not bar suit.

[702] The reasoning of the Ninth Circuit here was that, since Alvarez's abduction in Mexico was the direct result of wrongful acts of planning and direction by DEA agents located in California, "Alvarez's abduction fits the headquarters doctrine like a glove." 331 F. 3d, at 638.

"Working out of DEA offices in Los Angeles, [DEA agents] made the decision to kidnap Alvarez and . . . gave [their Mexican intermediary] precise instructions on whom to recruit, how to seize Alvarez, and how he should be treated during the trip to the United States. DEA officials in Washington, D. C., approved the details of the operation. After Alvarez was abducted according to plan, DEA agents supervised his transportation into the United States, telling the arrest team where to land the plane and obtaining clearance in El Paso for landing. The United States, and California in particular, served as command central for the operation carried out in Mexico." Id., at 638-639.

Thus, the Ninth Circuit held that Alvarez's claim did not "aris[e] in" a foreign country.

The potential effect of this sort of headquarters analysis flashes the yellow caution light. "[I]t will virtually always be possible to assert that the negligent activity that injured the plaintiff [abroad] was the consequence of faulty training, selection or supervisionor even less than that, lack of careful training, selection or supervisionin the United States." Beattie v. United States, 756 F. 2d 91, 119 (CADC 1984) (Scalia, J., dissenting). Legal malpractice claims, Knisley v. United States, 817 F. Supp. 680, 691-693 (SD Ohio 1993), allegations of negligent medical care, Newborn v. United States, 238 F. Supp. 2d 145, 148-149 (DC 2002), and even slip-and-fall cases, Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983-984 (CA5 1986), can all be repackaged as headquarters claims based on a failure to train, a failure to warn, the offering of bad advice, or the adoption of a negligent policy. If [703] we were to approve the headquarters exception to the foreign country exception, the "`headquarters claim' [would] become a standard part of FTCA litigation" in cases potentially implicating the foreign country exception. Beattie, supra, at 119 (Scalia, J., dissenting). The headquarters doctrine threatens to swallow the foreign country exception whole, certainly at the pleadings stage.

The need for skepticism is borne out by two considerations. One of them is pertinent to cases like this one, where harm was arguably caused both by individual action in a foreign country as well as by planning in the United States; the other is suggested simply because the harm occurred on foreign soil.

B

Although not every headquarters case is rested on an explicit analysis of proximate causation, this notion of cause is necessary to connect the domestic breach of duty (at headquarters) with the action in the foreign country (in a case like this) producing the foreign harm or injury. It is necessary, in other words, to conclude that the act or omission at home headquarters was sufficiently close to the ultimate injury, and sufficiently important in producing it, to make it reasonable to follow liability back to the headquarters behavior. Only in this way could the behavior at headquarters properly be seen as the act or omission on which all FTCA liability must rest under 2675. See, e. g., Cominotto, supra, at 1130 ("[A] headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country"); Eaglin, supra, at 983 (noting that headquarters cases require "a plausible proximate nexus or connection between acts or omissions in the United States and the resulting damage or injury in a foreign country").

Recognizing this connection of proximate cause between domestic behavior and foreign harm or injury is not, however, sufficient of itself to bar application of the foreign country exception to a claim resting on that same foreign consequence. [704] Proximate cause is causation substantial enough and close enough to the harm to be recognized by law, but a given proximate cause need not be, and frequently is not, the exclusive proximate cause of harm. See, e. g., 57A Am. Jur. 2d 529 (2004) (discussing proper jury instructions in cases involving multiple proximate causes); Beattie, supra, at 121 (Scalia, J., dissenting) ("[I]n the ordinary case there may be several points along the chain of causality" pertinent to the enquiry). Here, for example, assuming that the direction by DEA officials in California was a proximate cause of the abduction, the actions of Sosa and others in Mexico were just as surely proximate causes, as well. Thus, understanding that California planning was a legal cause of the harm in no way eliminates the conclusion that the claim here arose from harm proximately caused by acts in Mexico. At most, recognition of additional domestic causation under the headquarters doctrine leaves an open question whether the exception applies to the claim.

C

Not only does domestic proximate causation under the headquarters doctrine fail to eliminate application of the foreign country exception, but there is good reason to think that Congress understood a claim "arising in" a foreign country in such a way as to bar application of the headquarters doctrine. There is good reason, that is, to conclude that Congress understood a claim "arising in a foreign country" to be a claim for injury or harm occurring in a foreign country. 28 U. S. C. 2680(k). This sense of "arising in" was the common usage in state borrowing statutes contemporary with the Act, which operated to determine which State's statute of limitations should apply in cases involving transjurisdictional facts. When the FTCA was passed, the general rule, as set out in various state statutes, was that "a cause of action arising in another jurisdiction, which is barred by the laws of that jurisdiction, will [also] be barred in the domestic courts." 41 A. L. R. 4th 1025, 1029, 2 (1985). These borrowing [705] statutes were typically restricted by express terms to situations where a cause of action was time barred in the State "where [the] cause of action arose, or accrued, or originated." 75 A. L. R. 203, 211 (1931) (emphasis in original). Critically for present purposes, these variations on the theme of "arising in" were interpreted in tort cases in just the same way that we read the FTCA today. A commentator noted in 1962 that, for the purposes of these borrowing statutes, "[t]he courts unanimously hold that a cause of action sounding in tort arises in the jurisdiction where the last act necessary to establish liability occurred"; i. e., "the jurisdiction in which injury was received." Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U. Fla. L. Rev. 33, 47.

There is, moreover, specific reason to believe that using "arising in" as referring to place of harm was central to the object of the foreign country exception. Any tort action in a court of the United States based on the acts of a Government employee causing harm outside the State of the district court in which the action is filed requires a determination of the source of the substantive law that will govern liability. When the FTCA was passed, the dominant principle in choice-of-law analysis for tort cases was lex loci delicti: courts generally applied the law of the place where the injury occurred. See Richards v. United States, 369 U. S., at 11-12 ("The general conflict-of-laws rule, followed by a vast majority of the States, is to apply the law of the place of injury to the substantive rights of the parties" (footnote omitted)); see also Restatement (First) of Conflict of Laws 379 (1934) (defendant's liability determined by "the law of the place of wrong");^[3]id., 377, Note 1 (place of wrong for [706] torts involving bodily harm is "the place where the harmful force takes effect upon the body" (emphasis in original)); ibid. (same principle for torts of fraud and torts involving harm to property).^[4] For a plaintiff injured in a foreign country, then, the presumptive choice in American courts under the traditional rule would have been to apply foreign law to determine the tortfeasor's liability. See, e. g., Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3 (1975) (per curiam) (noting that Texas would apply Cambodian law to wrongful-death action involving explosion in Cambodia of an artillery round manufactured in United States); Thomas v. FMC Corp., 610 F. Supp. 912 (MD Ala. 1985) (applying German law to determine American manufacturer's liability for negligently designing and manufacturing a Howitzer that killed decedent in Germany); Quandt v. Beech Aircraft Corp., 317 F. Supp. 1009 (Del. 1970) (noting that Italian law applies to allegations of negligent manufacture in Kansas that resulted in an airplane crash in Italy); Manos v. Trans World Airlines, 295 F. Supp. 1170 (ND Ill. 1969) (applying Italian law to determine American corporation's liability for negligent manufacture of a plane that crashed in Italy); see also, e. g., Dallas v. Whitney, 118 W. Va. 106, 188 S. E. 766 (1936) (Ohio law applied where blasting operations on a West Virginia highway caused property damage in Ohio); Cameron [707] v. Vandegriff, 53 Ark. 381, 13 S. W. 1092 (1890) (Arkansas law applied where a blasting of a rock in Indian territory inflicted injury on plaintiff in Arkansas).

The application of foreign substantive law exemplified in these cases was, however, what Congress intended to avoid by the foreign country exception. In 1942, the House Committee on the Judiciary considered an early draft of the FTCA that would have exempted all claims "arising in a foreign country in behalf of an alien." H. R. 5373, 77th Cong., 2d Sess., 303(12). The bill was then revised, at the suggestion of the Attorney General, to omit the last five words. In explaining the amendment to the House Committee on the Judiciary, Assistant Attorney General Shea said that

"[c]laims arising in a foreign country have been exempted from this bill, H. R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty." Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942).

The amended version, which was enacted into law and constitutes the current text of the foreign country exception, 28 U. S. C. 2680(k), thus codified Congress's "unwilling[ness] to subject the United States to liabilities depending upon the laws of a foreign power." United States v. Spelar, 338 U. S. 217, 221 (1949). See also Sami v. United States, 617 F. 2d, at 762 (noting Spelar's explanation but attempting to recast the object behind the foreign country exception); Leaf v. United States, 588 F. 2d 733, 736, n. 3 (CA9 1978).

The object being to avoid application of substantive foreign law, Congress evidently used the modifier "arising in a foreign country" to refer to claims based on foreign harm or [708] injury, the fact that would trigger application of foreign law to determine liability. That object, addressed by the quoted phrase, would obviously have been thwarted, however, by applying the headquarters doctrine, for that doctrine would have displaced the exception by recasting claims of foreign injury as claims not arising in a foreign country because some planning or negligence at domestic headquarters was their cause.^[5] And that, in turn, would have resulted in applying foreign law of the place of injury, in accordance with the choice-of-law rule of the headquarters jurisdiction.

Nor, as a practical matter, can it be said that the headquarters doctrine has outgrown its tension with the exception. It is true that the traditional approach to choice of substantive tort law has lost favor, Simson, The Choice-of-Law Revolution in the United States: Notes on Rereading Von Mehren, 36 Cornell Int'l L. J. 125 (2002) ("The traditional methodology of place of wrong . . . has receded in importance, and new approaches and concepts such as governmental interest analysis, most significant relationship, and better rule of law have taken over center stage" (footnotes omitted)).^[6] [709] But a good many States still employ essentially the same choice-of-law analysis in tort cases that the First Restatement exemplified. Symeonides, Choice of Law in the American Courts, 51 Am. J. Comp. L. 1, 4-5 (2003) ("Ten states continue to adhere to the traditional method in tort conflicts"); see, e. g., Raskin v. Allison, 30 Kan. App. 2d 1240, 1242 1241, 57 P. 3d 30, 32 (2002) (under "traditional choice of law principles largely reflected in the original Restatement," Mexican law applied to boating accident in Mexican waters because "the injuries were sustained in Mexican waters").

Equally to the point is that in at least some cases that the Court of Appeals's approach would treat as arising at headquarters, not the foreign country, even the later methodologies of choice point to the application of foreign law. The Second Restatement itself, encouraging the general shift toward using flexible balancing analysis to inform choice of law,^[7] includes a default rule for tort cases rooted in the traditional approach: "[i]n an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless . . . some other state has a more significant relationship . . . to the occurrence and the parties." Restatement 2d 146; see also id., Comment e ("On occasion, conduct and personal injury will occur in different states. In such instances, the local law of the state of injury will usually be applied to determine most issues involving the tort"). In practice, then, the new dispensation frequently leads to the traditional application of the [710] law of the jurisdiction of injury. See, e.g., Dorman v. Emerson Elec. Co., 23 F. 3d 1354 (CA8 1994) (applying Canadian law where negligent saw design in Missouri caused injury in Canada); Bing v. Halstead, 495 F. Supp. 517 (SDNY 1980) (applying Costa Rican law where letter written and mailed in Arizona caused mental distress in Costa Rica); McKinnon v. F. H. Morgan & Co., 170 Vt. 422, 750 A. 2d 1026 (2000) (applying Canadian law where a defective bicycle sold in Vermont caused injuries in Quebec).

In sum, current flexibility in choice-of-law methodology gives no assurance against applying foreign substantive law if federal courts follow headquarters doctrine to assume jurisdiction over tort claims against the Government for foreign harm. Based on the experience just noted, the expectation is that application of the headquarters doctrine would in fact result in a substantial number of cases applying the very foreign law the foreign country exception was meant to avoid.^[8]

Before concluding that headquarters analysis should have no part in applying the foreign country exception, however, [711] a word is needed to answer an argument for selective application of headquarters doctrine, that it ought to be permitted when a State's choice-of-law approach would not apply the foreign law of place of injury. See In re "Agent Orange" Product Liability Litigation, 580 F. Supp. 1242, 1254 (EDNY 1984) (noting that the purpose of the exception did not apply to the litigation at hand because foreign law was not implicated). The point would be well taken, of course, if Congress had written the exception to apply when foreign law would be applied. But that is not what Congress said. Its provision of an exception when a claim arises in a foreign country was written at a time when the phrase "arising in" was used in state statutes to express the position that a claim arises where the harm occurs; and the odds are that Congress meant simply this when it used the "arising in" language.^[9] Finally, even if it were not a stretch to equate "arising in a foreign country" with "implicating foreign law," the result of accepting headquarters analysis for foreign injury cases in which no application of foreign law would ensue would be a scheme of federal jurisdiction that would vary from State to State, benefiting or penalizing plaintiffs accordingly. The idea that Congress would have intended any [712] such jurisdictional variety is too implausible to drive the analysis to the point of grafting even a selective headquarters exception onto the foreign country exception itself. We therefore hold that the FTCA's foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.

III

Alvarez has also brought an action under the ATS against petitioner Sosa, who argues (as does the United States supporting him) that there is no relief under the ATS because the statute does no more than vest federal courts with jurisdiction, neither creating nor authorizing the courts to recognize any particular right of action without further congressional action. Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here.

A

Judge Friendly called the ATS a "legal Lohengrin," IIT v. Vencap, Ltd., 519 F. 2d 1001, 1015 (CA2 1975); "no one seems to know whence it came," ibid., and for over 170 years after its enactment it provided jurisdiction in only one case. The first Congress passed it as part of the Judiciary Act of 1789, in providing that the new federal district courts "shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the [713] law of nations or a treaty of the United States." Act of Sept. 24, 1789, ch. 20, 9, 1 Stat. 77.^[10]

The parties and amici here advance radically different historical interpretations of this terse provision. Alvarez says that the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law. We think that reading is implausible. As enacted in 1789, the ATS gave the district courts "cognizance" of certain causes of action, and the term bespoke a grant of jurisdiction, not power to mold substantive law. See, e. g., The Federalist No. 81, pp. 447, 451 (J. Cooke ed. 1961) (A. Hamilton) (using "jurisdiction" interchangeably with "cognizance"). The fact that the ATS was placed in 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its strictly jurisdictional nature. Nor would the distinction between jurisdiction and cause of action have been elided by the drafters of the Act or those who voted on it. As Fisher Ames put it, "there is a substantial difference between the jurisdiction of the courts and the rules of decision." 1 Annals of Cong. 807 (Gales ed. 1834). It is unsurprising, then, that an authority on the historical origins of the ATS has written that "section 1350 clearly does not create a statutory cause of action," and that the contrary suggestion is "simply frivolous." Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986) (hereinafter Casto, Law of Nations); Cf. Dodge, The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int'l L. 687, 689 (2002). [714] In sum, we think the statute was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject.

But holding the ATS jurisdictional raises a new question, this one about the interaction between the ATS at the time of its enactment and the ambient law of the era. Sosa would have it that the ATS was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action. Amici professors of federal jurisdiction and legal history take a different tack, that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time. Brief for Vikram Amar et al. as Amici Curiae. We think history and practice give the edge to this latter position.

1

"When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement." Ware v. Hylton, 3 Dall. 199, 281 (1796) (Wilson, J.). In the years of the early Republic, this law of nations comprised two principal elements, the first covering the general norms governing the behavior of national states with each other: "the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights," E. de Vattel, Law of Nations, Preliminaries 3 (J. Chitty et al. transl. and ed. 1883) (hereinafter Vattel) (footnote omitted), or "that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other," 1 James Kent Commentaries *1. This aspect of the law of nations thus occupied the executive and legislative domains, not the judicial. See 4 W. Blackstone, Commentaries on the Laws of England 68 (1769) (hereinafter Commentaries) ("[O]ffences against" the law of nations are "principally incident to whole states or nations").

[715] The law of nations included a second, more pedestrian element, however, that did fall within the judicial sphere, as a body of judge-made law regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor. To Blackstone, the law of nations in this sense was implicated "in mercantile questions, such as bills of exchange and the like; in all marine causes, relating to freight, average, demurrage, insurances, bottomry . . .; [and] in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills." Id., at 67. The law merchant emerged from the customary practices of international traders and admiralty required its own transnational regulation. And it was the law of nations in this sense that our precursors spoke about when the Court explained the status of coast fishing vessels in wartime grew from "ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law. . . ." The Paquete Habana, 175 U. S. 677, 686 (1900).

There was, finally, a sphere in which these rules binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 4 Commentaries 68. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. See Vattel 463-464. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.

2

Before there was any ATS, a distinctly American preoccupation with these hybrid international norms had taken [716] shape owing to the distribution of political power from independence through the period of confederation. The Continental Congress was hamstrung by its inability to "cause infractions of treaties, or of the law of nations to be punished," J. Madison, Journal of the Constitutional Convention 60 (E. Scott ed. 1893), and in 1781 the Congress implored the States to vindicate rights under the law of nations. In words that echo Blackstone, the congressional resolution called upon state legislatures to "provide expeditious, exemplary and adequate punishment" for "the violation of safe conducts or passports, . . . of hostility against such as are in amity . . . with the United States, . . . infractions of the immunities of ambassadors and other public ministers . . . [and] "infractions of treaties and conventions to which the United States are a party." 21 Journals of the Continental Congress 1136-1137 (G. Hunt ed. 1912) (hereinafter Journals of the Continental Congress). The resolution recommended that the States "authorise suits . . . for damages by the party injured, and for compensation to the United States for damage sustained by them from an injury done to a foreign power by a citizen." Id., at 1137; cf. Vattel 463-464 ("Whoever offends . . . a public minister . . . should be punished . . ., and . . . the state should, at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister"). Apparently only one State acted upon the recommendation, see Public Records of the State of Connecticut, 1782, pp. 82, 83 (L. Larabee ed. 1982) (1942 compilation, exact date of Act unknown), but Congress had done what it could to signal a commitment to enforce the law of nations.

Appreciation of the Continental Congress's incapacity to deal with this class of cases was intensified by the so-called Marbois incident of May 1784, in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French Legion in Philadelphia. See Respublica [717] v. De Longchamps, 1 Dall. 111 (O. T. Phila. 1784).^[11] Congress called again for state legislation addressing such matters, and concern over the inadequate vindication of the law of nations persisted through the time of the Constitutional Convention. See 1 Records of the Federal Convention of 1787, p. 25 (M. Farrand ed. 1911) (speech of J. Randolph). During the Convention itself, in fact, a New York City constable produced a reprise of the Marbois affair and Secretary Jay reported to Congress on the Dutch Ambassador's protest, with the explanation that "`the federal government does not appear . . . to be vested with any judicial Powers competent to the Cognizance and Judgment of such Cases.'" Casto, Law of Nations 494, and n. 152.

The Framers responded by vesting the Supreme Court with original jurisdiction over "all Cases affecting Ambassadors, other public ministers and Consuls." U. S. Const., Art. III, 2, and the First Congress followed through. The Judiciary Act reinforced this Court's original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, 13, created alienage jurisdiction, 11, and, of course, included the ATS, 9. See generally Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute, 18 N. Y. U. J. Int'l L. & Pol. 1, 15-21 (1985) (hereinafter [718] Randall) (discussing foreign affairs implications of the Judiciary Act); W. Casto, The Supreme Court in the Early Republic 27-53 (1995).

3

Although Congress modified the draft of what became the Judiciary Act, see generally Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923), it made hardly any changes to the provisions on aliens, including what became the ATS, see Casto, Law of Nations 498. There is no record of congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for further legislation to create private remedies; there is no record even of debate on the section. Given the poverty of drafting history, modern commentators have necessarily concentrated on the text, remarking on the innovative use of the word "tort," see, e. g., Sweeney, A Tort only in Violation of the Law of Nations, 18 Hastings Int'l & Comp. L. Rev. 445 (1995) (arguing that "tort" refers to the law of prize), and the statute's mixture of terms expansive ("all suits"), see, e. g., Casto, Law of Nations 500, and restrictive ("for a tort only"), see, e. g., Randall 28-31 (limiting suits to torts, as opposed to commercial actions, especially by British plaintiffs).^[12] The historical scholarship has also placed the ATS within the competition between federalist and antifederalist forces over the national role in foreign relations. Id., at 22-23 (nonexclusiveness of federal jurisdiction under the ATS may reflect compromise). But despite considerable scholarly attention, it is fair to say [719] that a consensus understanding of what Congress intended has proven elusive.

Still, the history does tend to support two propositions. First, there is every reason to suppose that the First Congress did not pass the ATS as a jurisdictional convenience to be placed on the shelf for use by a future Congress or state legislature that might, some day, authorize the creation of causes of action or itself decide to make some element of the law of nations actionable for the benefit of foreigners. The anxieties of the preconstitutional period cannot be ignored easily enough to think that the statute was not meant to have a practical effect. Consider that the principal draftsman of the ATS was apparently Oliver Ellsworth,^[13] previously a member of the Continental Congress that had passed the 1781 resolution and a member of the Connecticut Legislature that made good on that congressional request. See generally W. Brown, The Life of Oliver Ellsworth (1905). Consider, too, that the First Congress was attentive enough to the law of nations to recognize certain offenses expressly as criminal, including the three mentioned by Blackstone. See An Act for the Punishment of Certain Crimes Against the United States, 8, 1 Stat. 113-114 (murder or robbery, or other capital crimes, punishable as piracy if committed on the high seas), and 28, id., at 118 (violation of safe conducts and assaults against ambassadors punished by imprisonment and fines described as "infract[ions of] the law of nations"). It would have been passing strange for Ellsworth and this very Congress to vest federal courts expressly with jurisdiction to entertain civil causes brought by aliens alleging violations of the law of nations, but to no effect whatever until the Congress should take further action. There is too much in the historical record to believe that Congress would have enacted the ATS only to leave it lying fallow indefinitely.

[720] The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations. Uppermost in the legislative mind appears to have been offenses against ambassadors, see id., at 118; violations of safe conduct were probably understood to be actionable, ibid., and individual actions arising out of prize captures and piracy may well have also been contemplated, id., at 113-114. But the common law appears to have understood only those three of the hybrid variety as definite and actionable, or at any rate, to have assumed only a very limited set of claims. As Blackstone had put it, "offences against this law [of nations] are principally incident to whole states or nations," and not individuals seeking relief in court. 4 Commentaries 68.

4

The sparse contemporaneous cases and legal materials referring to the ATS tend to confirm both inferences, that some, but few, torts in violation of the law of nations were understood to be within the common law. In Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (SC 1795), the District Court's doubt about admiralty jurisdiction over a suit for damages brought by a French privateer against the mortgagee of a British slave ship was assuaged by assuming that the ATS was a jurisdictional basis for the court's action. Nor is Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (Pa. 1793), to the contrary, a case in which the owners of a British ship sought damages for its seizure in United States waters by a French privateer. The District Court said in dictum that the ATS was not the proper vehicle for suit because "[i]t cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for." Id., at 948. But the judge gave no intimation that further legislation would have been needed to give the District Court jurisdiction over a suit limited to damages.

[721] Then there was the 1795 opinion of Attorney General William Bradford, who was asked whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone. 1 Op. Atty. Gen. 57. Bradford was uncertain, but he made it clear that a federal court was open for the prosecution of a tort action growing out of the episode:

"But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States. . . ." Id., at 59.

Although it is conceivable that Bradford (who had prosecuted in the Marbois incident, see Casto, Law of Nations 503, n. 201) assumed that there had been a violation of a treaty, 1 Op. Atty. Gen., at 58, that is certainly not obvious, and it appears likely that Bradford understood the ATS to provide jurisdiction over what must have amounted to common law causes of action.

B

Against these indications that the ATS was meant to underwrite litigation of a narrow set of common law actions derived from the law of nations, Sosa raises two main objections. First, he claims that this conclusion makes no sense in view of the Continental Congress's 1781 recommendation to state legislatures to pass laws authorizing such suits. Sosa thinks state legislation would have been "absurd," Reply Brief for Petitioner Sosa 5, if common law remedies had been available. Second, Sosa juxtaposes Blackstone's treatise mentioning violations of the law of nations as occasions for criminal remedies, against the statute's innovative reference to "tort," as evidence that there was no familiar [722] set of legal actions for exercise of jurisdiction under the ATS. Neither argument is convincing.

The notion that it would have been absurd for the Continental Congress to recommend that States pass positive law to duplicate remedies already available at common law rests on a misunderstanding of the relationship between common law and positive law in the late 18th century, when positive law was frequently relied upon to reinforce and give standard expression to the "brooding omnipresence"^[14] of the common law then thought discoverable by reason. As Blackstone clarified the relation between positive law and the law of nations, "those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the execution of [its] decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom; without which it must cease to be a part of the civilized world." 4 Commentaries 67. Indeed, Sosa's argument is undermined by the 1781 resolution on which he principally relies. Notwithstanding the undisputed fact (per Blackstone) that the common law afforded criminal law remedies for violations of the law of nations, the Continental Congress encouraged state legislatures to pass criminal statutes to the same effect, and the first Congress did the same, supra, at 719.^[15]

[723] Nor are we convinced by Sosa's argument that legislation conferring a right of action is needed because Blackstone treated international law offenses under the rubric of "public wrongs," whereas the ATS uses a word, "tort," that was relatively uncommon in the legal vernacular of the day. It is true that Blackstone did refer to what he deemed the three principal offenses against the law of nations in the course of discussing criminal sanctions, observing that it was in the interest of sovereigns "to animadvert upon them with a becoming severity, that the peace of the world may be maintained," 4 Commentaries 68.^[16] But Vattel explicitly linked [724] the criminal sanction for offenses against ambassadors with the requirement that the state, "at the expense of the delinquent, give full satisfaction to the sovereign who has been offended in the person of his minister." Vattel 463-464. Cf. Stephens, Individuals Enforcing International Law: The Comparative and Historical Context, 52 DePaul L. Rev. 433, 444 (2002) (observing that a "mixed approach to international law violations, encompassing both criminal prosecution . . . and compensation to those injured through a civil suit, would have been familiar to the founding generation"). The 1781 resolution goes a step further in showing that a private remedy was thought necessary for diplomatic offenses under the law of nations. And the Attorney General's Letter of 1795, as well as the two early federal precedents discussing the ATS, point to a prevalent assumption that Congress did not intend the ATS to sit on the shelf until some future time when it might enact further legislation.

In sum, although the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.

IV

We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone's three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy. We assume, too, that no development in the two centuries from the enactment of 1350 to the birth of the [725] modern line of cases beginning with Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law; Congress has not in any relevant way amended 1350 or limited civil common law power by another statute. Still, there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind. Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized. This requirement is fatal to Alvarez's claim.

A

A series of reasons argue for judicial caution when considering the kinds of individual claims that might implement the jurisdiction conferred by the early statute. First, the prevailing conception of the common law has changed since 1789 in a way that counsels restraint in judicially applying internationally generated norms. When 1350 was enacted, the accepted conception was of the common law as "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute." Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U.S. 518, 533 (1928) (Holmes, J., dissenting). Now, however, in most cases where a court is asked to state or formulate a common law principle in a new context, there is a general understanding that the law is not so much found or discovered as it is either made or created. Holmes explained famously in 1881 that

"in substance the growth of the law is legislative . . . [because t]he very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. [726] I mean, of course, considerations of what is expedient for the community concerned." The Common Law 31-32 (Howe ed. 1963).

One need not accept the Holmesian view as far as its ultimate implications to acknowledge that a judge deciding in reliance on an international norm will find a substantial element of discretionary judgment in the decision.

Second, along with, and in part driven by, that conceptual development in understanding common law has come an equally significant rethinking of the role of the federal courts in making it. Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), was the watershed in which we denied the existence of any federal "general" common law, id., at 78, which largely withdrew to havens of specialty, some of them defined by express congressional authorization to devise a body of law directly, e. g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448 (1957) (interpretation of collective-bargaining agreements); Fed. Rule Evid. 501 (evidentiary privileges in federal-question cases). Elsewhere, this Court has thought it was in order to create federal common law rules in interstitial areas of particular federal interest. E. g., United States v. Kimbell Foods, Inc., 440 U. S. 715, 726-727 (1979).^[17] And although we have even assumed competence to make judicial rules of decision of particular importance to foreign relations, such as the act of state doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398, 427 (1964), the general practice has been to look for legislative guidance before exercising innovative authority over substantive law. It would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries.

[727] Third, this Court has recently and repeatedly said that a decision to create a private right of action is one better left to legislative judgment in the great majority of cases. Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001); Alexander v. Sandoval, 532 U. S. 275, 286-287 (2001). The creation of a private right of action raises issues beyond the mere consideration whether underlying primary conduct should be allowed or not, entailing, for example, a decision to permit enforcement without the check imposed by prosecutorial discretion. Accordingly, even when Congress has made it clear by statute that a rule applies to purely domestic conduct, we are reluctant to infer intent to provide a private cause of action where the statute does not supply one expressly. While the absence of congressional action addressing private rights of action under an international norm is more equivocal than its failure to provide such a right when it creates a statute, the possible collateral consequences of making international rules privately actionable argue for judicial caution.

Fourth, the subject of those collateral consequences is itself a reason for a high bar to new private causes of action for violating international law, for the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs. It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments' power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits. Cf. Sabbatino, supra, at 431-432. Yet modern international law is very much concerned with just such questions, and apt to stimulate calls for vindicating private interests in 1350 cases. Since many attempts by federal courts to craft remedies for the violation [728] of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution. Cf. Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 813 (CADC 1984) (Bork, J., concurring) (expressing doubt that 1350 should be read to require "our courts [to] sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens").

The fifth reason is particularly important in light of the first four. We have no congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field have not affirmatively encouraged greater judicial creativity. It is true that a clear mandate appears in the Torture Victim Protection Act of 1991, 106 Stat. 73, providing authority that "establish[es] an unambiguous and modern basis for" federal claims of torture and extrajudicial killing, H. R. Rep. No. 102-367, pt. 1, p. 3 (1991). But that affirmative authority is confined to specific subject matter, and although the legislative history includes the remark that 1350 should "remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law," id., at 4, Congress as a body has done nothing to promote such suits. Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing. 138 Cong. Rec. 8071 (1992).

B

These reasons argue for great caution in adapting the law of nations to private rights. JUSTICE SCALIA, post, p. 739 (opinion concurring in part and concurring in judgment), concludes that caution is too hospitable, and a word is in order [729] to summarize where we have come so far and to focus our difference with him on whether some norms of today's law of nations may ever be recognized legitimately by federal courts in the absence of congressional action beyond 1350. All Members of the Court agree that 1350 is only jurisdictional. We also agree, or at least JUSTICE SCALIA does not dispute, post, at 739, 744, that the jurisdiction was originally understood to be available to enforce a small number of international norms that a federal court could properly recognize as within the common law enforceable without further statutory authority. JUSTICE SCALIA concludes, however, that two subsequent developments should be understood to preclude federal courts from recognizing any further international norms as judicially enforceable today, absent further congressional action. As described before, we now tend to understand common law not as a discoverable reflection of universal reason but, in a positivistic way, as a product of human choice. And we now adhere to a conception of limited judicial power first expressed in reorienting federal diversity jurisdiction, see Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that federal courts have no authority to derive "general" common law.

Whereas JUSTICE SCALIA sees these developments as sufficient to close the door to further independent judicial recognition of actionable international norms, other considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not in terms bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. See, e. g., Sabbatino, 376 U. S., at 423 ("[I]t is, of course, true that United States [730] courts apply international law as a part of our own in appropriate circumstances");^[18]The Paquete Habana, 175 U. S., at 700 ("International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination"); The Nereide, 9 Cranch 388, 423 (1815) (Marshall, C. J.) ("[T]he Court is bound by the law of nations which is a part of the law of the land"); see also Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 641 (1981) (recognizing that "international disputes implicating . . . our relations with foreign nations" are one of the "narrow areas" in which "federal common law" continues to exist). It would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.

We think an attempt to justify such a position would be particularly unconvincing in light of what we know about congressional understanding bearing on this issue lying at the intersection of the judicial and legislative powers. The First Congress, which reflected the understanding of the framing generation and included some of the Framers, assumed that federal courts could properly identify some international norms as enforceable in the exercise of 1350 jurisdiction. We think it would be unreasonable to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism. Later Congresses [731] seem to have shared our view. The position we take today has been assumed by some federal courts for 24 years, ever since the Second Circuit decided Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), and for practical purposes the point of today's disagreement has been focused since the exchange between Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774 (CADC 1984). Congress, however, has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded to its most notable instance by enacting legislation supplementing the judicial determination in some detail. See supra, at 728 (discussing the Torture Victim Protection Act).

While we agree with JUSTICE SCALIA to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field), just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.^[19]

C

We must still, however, derive a standard or set of standards for assessing the particular claim Alvarez raises, and [732] for this action it suffices to look to the historical antecedents. Whatever the ultimate criteria for accepting a cause of action subject to jurisdiction under 1350, we are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when 1350 was enacted. See, e.g., United States v. Smith, 5 Wheat. 153, 163-180, n. a (1820) (illustrating the specificity with which the law of nations defined piracy). This limit upon judicial recognition is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. See Filartiga, supra, at 890 ("[F]or purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind"); Tel-Oren, supra, at 781 (Edwards, J., concurring) (suggesting that the "limits of section 1350's reach" be defined by "a handful of heinous actions each of which violates definable, universal and obligatory norms"); see also In re Estate of Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994) ("Actionable violations of international law must be of a norm that is specific, universal, and obligatory"). And the determination whether a norm is sufficiently definite to support a cause of action^[20] should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of [733] making that cause available to litigants in the federal courts.^[21]

Thus, Alvarez's detention claim must be gauged against the current state of international law, looking to those sources we have long, albeit cautiously, recognized.

[734] "[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." The Paquete Habana, 175 U. S., at 700.

To begin with, Alvarez cites two well-known international agreements that, despite their moral authority, have little utility under the standard set out in this opinion. He says that his abduction by Sosa was an "arbitrary arrest" within the meaning of the Universal Declaration of Human Rights (Declaration), G. A. Res. 217A (III), U. N. Doc. A/810 (1948). And he traces the rule against arbitrary arrest not only to the Declaration, but also to article nine of the International Covenant on Civil and Political Rights (Covenant), Dec. 16, 1966, 999 U. N. T. S. 171,^[22] to which the United States is a party, and to various other conventions to which it is not. But the Declaration does not of its own force impose obligations as a matter of international law. See Humphrey, The UN Charter and the Universal Declaration of Human Rights, in The International Protection of Human Rights 39, 50 (E. Luard ed. 1967) (quoting Eleanor Roosevelt calling the Declaration "`a statement of principles . . . setting up a common standard of achievement for all peoples and all nations'" [735] and "`not a treaty or international agreement . . . impos[ing] legal obligations'").^[23] And, although the Covenant does bind the United States as a matter of international law, the United States ratified the Covenant on the express understanding that it was not self-executing and so did not itself create obligations enforceable in the federal courts. See supra, at 728. Accordingly, Alvarez cannot say that the Declaration and Covenant themselves establish the relevant and applicable rule of international law. He instead attempts to show that prohibition of arbitrary arrest has attained the status of binding customary international law.

Here, it is useful to examine Alvarez's complaint in greater detail. As he presently argues it, the claim does not rest on the cross-border feature of his abduction.^[24] Although the District Court granted relief in part on finding a violation of international law in taking Alvarez across the border from Mexico to the United States, the Court of Appeals rejected that ground of liability for failure to identify a norm of requisite force prohibiting a forcible abduction across a border. Instead, it relied on the conclusion that the law of the United States did not authorize Alvarez's arrest, because the DEA lacked extraterritorial authority under 21 U. S. C. 878, and because Federal Rule of Criminal Procedure 4(d)(2) limited the warrant for Alvarez's arrest to "the jurisdiction of the United States."^[25] It is this position that Alvarez takes now: [736] that his arrest was arbitrary and as such forbidden by international law not because it infringed the prerogatives of Mexico, but because no applicable law authorized it.^[26]

Alvarez thus invokes a general prohibition of "arbitrary" detention defined as officially sanctioned action exceeding positive authorization to detain under the domestic law of some government, regardless of the circumstances. Whether or not this is an accurate reading of the Covenant, Alvarez cites little authority that a rule so broad has the status of a binding customary norm today.^[27] He certainly cites nothing to justify the federal courts in taking his broad rule as the predicate for a federal lawsuit, for its implications would be breathtaking. His rule would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment, supplanting the actions under Rev. Stat. 1979, 42 U. S. C. 1983, and [737] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), that now provide damages remedies for such violations. It would create an action in federal court for arrests by state officers who simply exceed their authority; and for the violation of any limit that the law of any country might place on the authority of its own officers to arrest. And all of this assumes that Alvarez could establish that Sosa was acting on behalf of a government when he made the arrest, for otherwise he would need a rule broader still.

Alvarez's failure to marshal support for his proposed rule is underscored by the Restatement (Third) of Foreign Relations Law of the United States (1986), which says in its discussion of customary international human rights law that a "state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . prolonged arbitrary detention." 2 id., 702. Although the Restatement does not explain its requirements of a "state policy" and of "prolonged" detention, the implication is clear. Any credible invocation of a principle against arbitrary detention that the civilized world accepts as binding customary international law requires a factual basis beyond relatively brief detention in excess of positive authority. Even the Restatement's limits are only the beginning of the enquiry, because although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone's three common law offenses. In any event, the label would never fit the reckless policeman who botches his warrant, even though that same officer might pay damages under municipal law. E. g., Groh v. Ramirez, 540 U. S. 551 (2004).^[28]

[738] Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require.^[29] Creating a private cause of action to further that aspiration would go beyond any residual common law discretion we think it appropriate to exercise.^[30] It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.

The judgment of the Court of Appeals is Reversed.

[739] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring in part and concurring in the judgment.

There is not much that I would add to the Court's detailed opinion, and only one thing that I would subtract: its reservation of a discretionary power in the Federal Judiciary to create causes of action for the enforcement of international-law-based norms. Accordingly, I join Parts I, II, and III of the Court's opinion in these consolidated cases. Although I agree with much in Part IV, I cannot join it because the judicial lawmaking role it invites would commit the Federal Judiciary to a task it is neither authorized nor suited to perform.

I

The question at hand is whether the Alien Tort Statute (ATS), 28 U. S. C. 1350, provides respondent Alvarez-Machain (hereinafter respondent) a cause of action to sue in federal court to recover money damages for violation of what is claimed to be a customary international law norm against arbitrary arrest and detention. The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Ibid. The challenge posed by this action is to ascertain (in the Court's felicitous phrase) "the interaction between the ATS at the time of its enactment and the ambient law of the era." Ante, at 714. I begin by describing the general principles that must guide our analysis.

At the time of its enactment, the ATS provided a federal forum in which aliens could bring suit to recover for torts committed in "violation of the law of nations." The law of nations that would have been applied in this federal forum was at the time part of the so-called general common law. See Young, Sorting out the Debate Over Customary International Law, 42 Va. J. Int'l L. 365, 374 (2002); Bradley & Goldsmith, [740] Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 824 (1997); Brief for Vikram Amar et al. as Amici Curiae 12-13.

General common law was not federal law under the Supremacy Clause, which gave that effect only to the Constitution, the laws of the United States, and treaties. U. S. Const., Art. VI, cl. 2. Federal and state courts adjudicating questions of general common law were not adjudicating questions of federal or state law, respectively the general common law was neither. See generally Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1279-1285 (1996). The nonfederal nature of the law of nations explains this Court's holding that it lacked jurisdiction in New York Life Ins. Co. v. Hendren, 92 U. S. 286 (1876), where it was asked to review a state-court decision regarding "the effect, under the general public law, of a state of sectional civil war upon [a] contract of life insurance." Ibid. Although the case involved "the general laws of war, as recognized by the law of nations applicable to this case," ibid., it involved no federal question. The Court concluded: "The case, . . . having been presented to the court below for decision upon principles of general law alone, and it nowhere appearing that the constitution, laws, treaties, or executive proclamations, of the United States were necessarily involved in the decision, we have no jurisdiction." Id., at 287.

This Court's decision in Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), signaled the end of federal-court elaboration and application of the general common law. Erie repudiated the holding of Swift v. Tyson, 16 Pet. 1 (1842), that federal courts were free to "express our own opinion" upon "the principles established in the general commercial law." Id., at 19, 18. After canvassing the many problems resulting from "the broad province accorded to the so-called `general law' as to which federal courts exercised an independent judgment," [741] 304 U. S., at 75, the Erie Court extirpated that law with its famous declaration that "[t]here is no federal general common law." Id., at 78. Erie affected the status of the law of nations in federal courts not merely by the implication of its holding but quite directly, since the question decided in Swift turned on the "law merchant," then a subset of the law of nations. See Clark, supra, at 1280-1281.

After the death of the old general common law in Erie came the birth of a new and different common law pronounced by federal courts. There developed a specifically federal common law (in the sense of judicially pronounced law) for a "few and restricted" areas in which "a federal rule of decision is necessary to protect uniquely federal interests, and those in which Congress has given the courts the power to develop substantive law." Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640 (1981) (internal quotation marks and citations omitted). Unlike the general common law that preceded it, however, federal common law was self-consciously "made" rather than "discovered," by judges who sought to avoid falling under the sway of (in Holmes's hyperbolic language) "[t]he fallacy and illusion" that there exists "a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute." Black and White Taxicab & Transfer Co. v. Brown and Yellow Taxicab & Transfer Co., 276 U. S. 518, 533 (1928) (dissenting opinion).

Because post-Erie federal common law is made, not discovered, federal courts must possess some federal-common-law-making authority before undertaking to craft it. "Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision." Milwaukee v. Illinois, 451 U. S. 304, 312 (1981).

The general rule as formulated in Texas Industries, 451 U. S., at 640-641, is that "[t]he vesting of jurisdiction in the federal courts does not in and of itself give rise to authority [742] to formulate federal common law." This rule applies not only to applications of federal common law that would displace a state rule, but also to applications that simply create a private cause of action under a federal statute. Indeed, Texas Industries itself involved the petitioner's unsuccessful request for an application of the latter sort creation of a right of contribution to damages assessed under the antitrust laws. See id., at 639-646. See also Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 99 (1981) (declining to create a federal-common-law right of contribution to damages assessed under the Equal Pay Act and Title VII).

The rule against finding a delegation of substantive lawmaking power in a grant of jurisdiction is subject to exceptions, some better established than others. The most firmly entrenched is admiralty law, derived from the grant of admiralty jurisdiction in Article III, 2, cl. 3, of the Constitution. In the exercise of that jurisdiction federal courts develop and apply a body of general maritime law, "the well-known and well-developed venerable law of the sea which arose from the custom among seafaring men." R. M. S. Titanic, Inc. v. Haver, 171 F. 3d 943, 960 (CA4 1999) (Niemeyer, J.) (internal quotation marks omitted). At the other extreme is Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), which created a private damages cause of action against federal officials for violation of the Fourth Amendment. We have said that the authority to create this cause of action was derived from "our general jurisdiction to decide all cases `arising under the Constitution, laws, or treaties of the United States.'" Correctional Services Corp. v. Malesko, 534 U. S. 61, 66 (2001) (quoting 28 U. S. C. 1331). While Bivens stands, the ground supporting it has eroded. For the past 25 years, "we have consistently refused to extend Bivens liability to any new context." Correctional Services Corp., supra, at 68. Bivens is "a relic of the heady days in which this Court assumed common-law powers to create causes of action." 534 U. S., at 75 (SCALIA, J., concurring).

[743] II

With these general principles in mind, I turn to the question presented. The Court's detailed exegesis of the ATS conclusively establishes that it is "a jurisdictional statute creating no new causes of action." Ante, at 724. The Court provides a persuasive explanation of why respondent's contrary interpretation, that "the ATS was intended not simply as a jurisdictional grant, but as authority for the creation of a new cause of action for torts in violation of international law," is wrong. Ante, at 713. Indeed, the Court properly endorses the views of one scholar that this interpretation is "`simply frivolous.'" Ibid. (quoting Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 479, 480 (1986)).

These conclusions are alone enough to dispose of the present case in favor of petitioner Sosa. None of the exceptions to the general rule against finding substantive lawmaking power in a jurisdictional grant apply. Bivens provides perhaps the closest analogy. That is shaky authority at best, but at least it can be said that Bivens sought to enforce a command of our own law the United States Constitution. In modern international human rights litigation of the sort that has proliferated since Filartiga v. Pena-Irala, 630 F. 2d 876 (CA2 1980), a federal court must first create the underlying federal command. But "the fact that a rule has been recognized as [customary international law], by itself, is not an adequate basis for viewing that rule as part of federal common law." Meltzer, Customary International Law, Foreign Affairs, and Federal Common Law, 42 Va. J. Int'l L. 513, 519 (2002). In Benthamite terms, creating a federal command (federal common law) out of "international norms," and then constructing a cause of action to enforce that command through the purely jurisdictional grant of the ATS, is nonsense upon stilts.

[744] III

The analysis in the Court's opinion departs from my own in this respect: After concluding in Part III that "the ATS is a jurisdictional statute creating no new causes of action," ante, at 724, the Court addresses at length in Part IV the "good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action" under the ATS. Ante, at 725 (emphasis added). By framing the issue as one of "discretion," the Court skips over the antecedent question of authority. This neglects the "lesson of Erie," that "grants of jurisdiction alone" (which the Court has acknowledged the ATS to be) "are not themselves grants of lawmaking authority." Meltzer, supra, at 541. On this point, the Court observes only that no development between the enactment of the ATS (in 1789) and the birth of modern international human rights litigation under that statute (in 1980) "has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law." Ante, at 725 (emphasis added). This turns our jurisprudence regarding federal common law on its head. The question is not what case or congressional action prevents federal courts from applying the law of nations as part of the general common law; it is what authorizes that peculiar exception from Erie's fundamental holding that a general common law does not exist.

The Court would apparently find authorization in the understanding of the Congress that enacted the ATS, that "district courts would recognize private causes of action for certain torts in violation of the law of nations." Ante, at 724. But as discussed above, that understanding rested upon a notion of general common law that has been repudiated by Erie.

The Court recognizes that Erie was a "watershed" decision heralding an avulsive change, wrought by "conceptual development in understanding common law . . . [and accompanied by an] equally significant rethinking of the role of the federal courts in making it." Ante, at 726. The Court's [745] analysis, however, does not follow through on this insight, interchangeably using the unadorned phrase "common law" in Parts III and IV to refer to pre-Erie general common law and post-Erie federal common law. This lapse is crucial, because the creation of post-Erie federal common law is rooted in a positivist mindset utterly foreign to the American common-law tradition of the late 18th century. Post-Erie federal common lawmaking (all that is left to the federal courts) is so far removed from that general-common-law adjudication which applied the "law of nations" that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter.^[*] Yet that is precisely what the discretion-only analysis in Part IV suggests.

[746] Because today's federal common law is not our Framers' general common law, the question presented by the suggestion of discretionary authority to enforce the law of nations is not whether to extend old-school general-common-law adjudication. Rather, it is whether to create new federal common law. The Court masks the novelty of its approach when it suggests that the difference between us is that we would "close the door to further independent judicial recognition of actionable international norms," whereas the Court would permit the exercise of judicial power "on the understanding that the door is still ajar subject to vigilant doorkeeping." Ante, at 729. The general common law was the old door. We do not close that door today, for the deed was done in Erie. Supra, at 740-741. Federal common law is a new door. The question is not whether that door will be left ajar, but whether this Court will open it.

Although I fundamentally disagree with the discretion-based framework employed by the Court, we seem to be in accord that creating a new federal common law of international human rights is a questionable enterprise. We agree that:

• "[T]he general practice has been to look for legislative guidance before exercising innovative authority over substantive law [in the area of foreign relations]. It would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries." Ante, at 726.

• "[T]he possible collateral consequences of making international rules privately actionable argue for judicial caution." Ante, at 727.

• "It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments' power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold [747] that a foreign government or its agent has transgressed those limits." Ibid.

• "[M]any attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences." Ante, at 727-728.

• "Several times, indeed, the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law." Ante, at 728.

These considerations are not, as the Court thinks them, reasons why courts must be circumspect in use of their extant general-common-law-making powers. They are reasons why courts cannot possibly be thought to have been given, and should not be thought to possess, federal-common-law-making powers with regard to the creation of private federal causes of action for violations of customary international law.

To be sure, today's opinion does not itself precipitate a direct confrontation with Congress by creating a cause of action that Congress has not. But it invites precisely that action by the lower courts, even while recognizing (1) that Congress understood the difference between granting jurisdiction and creating a federal cause of action in 1789, ante, at 713, (2) that Congress understands that difference today, ante, at 728, and (3) that the ATS itself supplies only jurisdiction, ante, at 724. In holding open the possibility that judges may create rights where Congress has not authorized them to do so, the Court countenances judicial occupation of a domain that belongs to the people's representatives. One does not need a crystal ball to predict that this occupation will not be long in coming, since the Court endorses the reasoning of "many of the courts and judges who faced the issue before it reached this Court," including the Second and Ninth Circuits. Ante, at 732.

The Ninth Circuit brought us the judgment that the Court reverses today. Perhaps its decision in this particular case, [748] like the decisions of other lower federal courts that receive passing attention in the Court's opinion, "reflects a more assertive view of federal judicial discretion over claims based on customary international law than the position we take today." Ante, at 736, n. 27. But the verbal formula it applied is the same verbal formula that the Court explicitly endorses. Compare ante, at 732 (quoting In re Estate of Marcos Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994), for the proposition that actionable norms must be "`specific, universal, and obligatory'"), with 331 F. 3d 604, 621 (CA9 2003) (en banc) (finding the norm against arbitrary arrest and detention in this action to be "universal, obligatory, and specific"); id., at 619 ("[A]n actionable claim under the [ATS] requires the showing of a violation of the law of nations that is specific, universal, and obligatory" (internal quotation marks omitted)). Endorsing the very formula that led the Ninth Circuit to its result in this action hardly seems to be a recipe for restraint in the future.

The Second Circuit, which started the Judiciary down the path the Court today tries to hedge in, is a good indicator of where that path leads us: directly into confrontation with the political branches. Kadic v. Karadi, 70 F. 3d 232 (CA2 1995), provides a case in point. One of the norms at issue in that case was a norm against genocide set forth in the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U. N. T. S. 278. The Second Circuit held that the norm was actionable under the ATS after applying Circuit case law that the Court today endorses. 70 F. 3d, at 238-239, 241-242. The Court of Appeals then did something that is perfectly logical and yet truly remarkable: It dismissed the determination by Congress and the Executive that this norm should not give rise to a private cause of action. We know that Congress and the Executive made this determination, because Congress inscribed it into the Genocide Convention Implementation Act of 1987, 18 U. S. C. 1091 et seq., a law signed by the [749] President attaching criminal penalties to the norm against genocide. The Act, Congress said, shall not "be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding." 1092. Undeterred, the Second Circuit reasoned that this "decision not to create a new private remedy" could hardly be construed as repealing by implication the cause of action supplied by the ATS. 70 F. 3d, at 242 (emphasis added). Does this Court truly wish to encourage the use of a jurisdiction-granting statute with respect to which there is "no record of congressional discussion about private actions that might be subject to the jurisdictional provision, or about any need for further legislation to create private remedies; [and] no record even of debate on the section," ante, at 718, to override a clear indication from the political branches that a "specific, universal, and obligatory" norm against genocide is not to be enforced through a private damages action? Today's opinion leads the lower courts right down that perilous path.

Though it is not necessary to resolution of the present action, one further consideration deserves mention: Despite the avulsive change of Erie, the Framers who included reference to "the Law of Nations" in Article I, 8, cl. 10, of the Constitution would be entirely content with the post-Erie system I have described, and quite terrified by the "discretion" endorsed by the Court. That portion of the general common law known as the law of nations was understood to refer to the accepted practices of nations in their dealings with one another (treatment of ambassadors, immunity of foreign sovereigns from suit, etc.) and with actors on the high seas hostile to all nations and beyond all their territorial jurisdictions (pirates). Those accepted practices have for the most part, if not in their entirety, been enacted into United States statutory law, so that insofar as they are concerned the demise of the general common law is inconsequential. The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to [750] control a sovereign's treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates. See generally Bradley & Goldsmith, Critique of the Modern Position, 110 Harv. L. Rev., at 831-837. The Framers would, I am confident, be appalled by the proposition that, for example, the American peoples' democratic adoption of the death penalty, see, e. g., Tex. Penal Code Ann. 12.31 (West 2003), could be judicially nullified because of the disapproving views of foreigners.

We Americans have a method for making the laws that are over us. We elect representatives to two Houses of Congress, each of which must enact the new law and present it for the approval of a President, whom we also elect. For over two decades now, unelected federal judges have been usurping this lawmaking power by converting what they regard as norms of international law into American law. Today's opinion approves that process in principle, though urging the lower courts to be more restrained.

This Court seems incapable of admitting that some mattersany mattersare none of its business. See, e.g., Rasul v. Bush, ante, p. 466; INS v. St. Cyr, 533 U. S. 289 (2001). In today's latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then repeating the same formula the ambitious lower courts themselves have used invites them to try again.

It would be bad enough if there were some assurance that future conversions of perceived international norms into American law would be approved by this Court itself. (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal [751] actors; we review but a tiny fraction of their decisions. And no one thinks that all of them are eminently reasonable.

American law the law made by the people's democratically elected representatives does not recognize a category of activity that is so universally disapproved by other nations that it is automatically unlawful here, and automatically gives rise to a private action for money damages in federal court. That simple principle is what today's decision should have announced.

JUSTICE GINSBURG, with whom JUSTICE BREYER joins, concurring in part and concurring in the judgment.

I join in full the Court's disposition of Alvarez's claim pursuant to 28 U. S. C. 1350. See ante, at 712-738. As to Alvarez's Federal Tort Claims Act (FTCA or Act) claim, see ante, at 699-712, although I agree with the Court's result and much of its reasoning, I take a different path and would adopt a different construction of 28 U. S. C. 2680(k). Alvarez's case against the Government does not call for any comparison of old versus newer choice-of-law methodologies. See ante, at 708-710. See generally Kay, Theory into Practice: Choice of Law in the Courts, 34 Mercer L. Rev. 521, 525-584 (1983). In particular, the Court's discussion of developments in choice of law after the FTCA's enactment hardly illuminates the meaning of that statute, and risks giving undue prominence to a jurisdiction-selecting approach the vast majority of States have long abandoned. See Symeonides, Choice of Law in the American Courts in 2002: Sixteenth Annual Survey, 51 Am. J. Comp. L. 1, 5-6 (2003) (lex loci delicti rule has been abandoned in 42 States).

I

The FTCA renders the United States liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U. S. C. 2674. The Act gives federal district courts "exclusive jurisdiction [752] of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 1346(b)(1). Congress included in the FTCA a series of exceptions to that sovereign-immunity waiver. Relevant to this litigation, the Act expressly excepts "[a]ny claim arising in a foreign country." 2680(k). I agree with the Court, see ante, at 699-712, that this provision, the foreign-country exception, applies here, and bars Alvarez's tort claim against the United States. But I would read the words "arising in," as they appear in 2680(k), to signal "place where the act or omission occurred," 1346(b)(1), not "place of injury," ante, at 707-708, 711, and n. 9.^[1]

[753] A

On its face, the foreign-country exception appears to cover this litigation. See ante, at 700. Alvarez's suit is predicated on an arrest in Mexico alleged to be "false" only because it occurred there. Sosa's conduct in Mexico, implicating questions of Mexican law, is, as the Court notes, "the kernel" of Alvarez's claim. Ante, at 701. Once Alvarez was inside United States borders, the Ninth Circuit observed, no activity regarding his detention was tortious. See 331 F. 3d 604, 636-637 (2003). Government liability to Alvarez, as analyzed by the Court of Appeals, rested solely upon a false-arrest claim. Id., at 640-641. Just as Alvarez's arrest was "false," and thus tortious, only because, and only to the extent that, it took place and endured in Mexico, so damages accrued only while the alleged wrongful conduct continued abroad. Id., at 636-637.

Critical in the Ninth Circuit's view, "DEA agents had no authority under federal law to execute an extraterritorial arrest of a suspect indicted in federal court in Los Angeles." Id., at 640; see ante, at 700-701, n. 1. See also Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715, 872 P. 2d 559, 567 (1994) (defining as tortious "the nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short" (emphasis added and internal quotation marks omitted)); App. to Pet. for Cert. 184a in No. 03-339 (same). Once Alvarez arrived in El Paso, Texas, "the actions of domestic law enforcement set in motion [754] a supervening prosecutorial mechanism which met all of the procedural requisites of federal due process." 331 F. 3d, at 637; see ante, at 700-701, n. 1.

Accepting, as the Ninth Circuit did, that no tortious act occurred once Alvarez was within United States borders, the Government's liability on Alvarez's claim for false arrest necessarily depended on the foreign location of the arrest and implicated foreign law. While the Court of Appeals focused on whether United States law furnished authority to seize Alvarez in Mexican territory, see 331 F. 3d, at 626-631, Mexican law equally could have provided or denied authority for such an arrest. Had Sosa and the arrest team been Mexican law enforcement officers, authorized by Mexican law to arrest Alvarez and to hand him over to United States authorities, for example, no false-arrest claim would have been tenable. Similarly, there would have been no viable false-arrest claim if Mexican law authorized a citizen's arrest in the circumstances presented here. Indeed, Mexican and Honduran agents seized other suspects indicted along with Alvarez, respectively in Mexico and Honduras; "Alvarez's abduction was unique in that it involved neither the cooperation of local police nor the consent of a foreign government." Id., at 623, n. 23.

The interpretation of the FTCA adopted by the Ninth Circuit, in short, yielded liability based on acts occurring in Mexico that entangled questions of foreign law. Subjecting the United States to liability depending upon the law of a foreign sovereign, however, was the very result 2680(k)'s foreign-country exception aimed to exclude. See United States v. Spelar, 338 U. S. 217, 221 (1949).

B

I would construe the foreign-country exception, 2680(k), in harmony with the FTCA's sovereign-immunity waiver, 1346(b), which refers to the place where the negligent or intentional act occurred. See Brief for United States in [755] No. 03-485, p. 45 (urging that 2680(k) should be applied by looking to "where the prohibited act is committed"); id., at 46 ("the foreign country exception must be viewed together with []1346," which points to "the law of the place where the [allegedly wrongful] act or omission occurred" (internal quotation marks and citations omitted and emphasis deleted)).

Interpretation of 2680(k) in the light of 1346, as the Government maintains, is grounded in this Court's precedent. In construing 2680(k)'s reference to a "foreign country," this Court has "draw[n] support from the language of 1346(b), the principal provision of the [FTCA]." Smith v. United States, 507 U. S. 197, 201 (1993) (internal quotation marks omitted). In Smith, the Court held that a wrongful-death action "based exclusively on acts or omissions occurring in Antarctica" was barred by the foreign-country exception. Id., at 198-199. Were it not, the Court noted, " 1346(b) would instruct courts to look to the law of a place that has no law [i. e., Antarctica] in order to determine the liability of the United Statessurely a bizarre result." Id., at 201-202. Thus, in Smith, the Court presumed that the place "where the act or omission occurred" for purposes of the sovereign-immunity waiver, 1346(b)(1), coincided with the place where the "claim ar[ose]" for purposes of the foreign-country exception, 2680(k). See also Beattie v. United States, 756 F. 2d 91, 122 (CADC 1984) (Scalia, J., dissenting) ("[A] claim `arises' for purposes of 2680(k) where there occurs the alleged [standard-of-care] violation ... (attributable to government action or inaction) nearest to the injury...."); Sami v. United States, 617 F. 2d 755, 761-762 (CADC 1979) (looking to where "the act or omission complained of occurred" in applying 2680(k)).

Harmonious construction of 1346(b) and 2680(k) accords with Congress' intent in enacting the foreign-country exception. Congress was "unwilling to subject the United States to liabilities depending upon the laws of a foreign power." [756] Spelar, 338 U.S., at 221. The legislative history of the FTCA suggests that Congress viewed cases in which the relevant act or omission occurred in a foreign country as entailing too great a risk of foreign-law application. Thus, Assistant Attorney General Francis M. Shea, in explaining the finally enacted version of the foreign-country exception to the House Committee on the Judiciary, emphasized that, when an act or omission occurred in a foreign country, 1346(b) would direct a court toward the law of that country: "Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country." Hearings on H. R. 5373 et al. before the House Committee on the Judiciary, 77th Cong., 2d Sess., 35 (1942) (emphasis added); see ante, at 707.^[2] In the enacting Congress' view, it thus appears, 1346(b) and 2680(k) were aligned so as to block the United States' waiver of sovereign immunity when the relevant act or omission took place overseas. See supra, at 752-753, n. 1.

True, the Court has read renvoi into 1346(b)(1)'s words "in accordance with the law of." See Richards v. United States, 369 U. S. 1, 11 (1962) ("the [FTCA] ... requires application of the whole law of the State where the act or omission occurred" (emphasis added)).^[3] That, however, is no reason to resist defining the place where a claim arises for 2680(k) purposes to mean the place where the liability-creating act [757] or omission occurred, with no renvoi elsewhere. It is one thing to apply renvoi to determine which State, within the United States, supplies the governing law, quite another to suppose that Congress meant United States courts to explore what choice of law a foreign court would make.^[4]

In 1948, when the FTCA was enacted, it is also true, Congress reasonably might have anticipated that the then prevailing choice-of-law methodology, reflected in the Restatement (First) of Conflicts, would lead mechanically to the law of the place of injury. See Restatement (First) of Conflicts 377 (1934) ("The place of wrong is in the state where the last event necessary to make an actor liable for an alleged tort takes place."); Richards, 369 U. S., at 11-12 ("The general conflict-of-laws rule, followed by a vast majority of the States, [wa]s to apply the law of the place of injury to the substantive rights of the parties." (footnote omitted)); ante, at 705-707, 708, n. 5 (same). Generally, albeit not always, the place where the negligent or intentional act or omission takes place coincides with the place of injury.^[5] Looking to the whole law of the State where the wrongful "act or omission occurred" would therefore ordinarily lead to application of that State's own law. But cf. ante, at 707-708, 711-712 (adopting a place-of-injury rule for 2680(k)).

[758] II

The Ninth Circuit concluded that the foreign-country exception did not bar Alvarez's false-arrest claim because that claim "involve[d] federal employees working from offices in the United States to guide and supervise actions in other countries." 331 F. 3d, at 638. In so holding, the Court of Appeals applied a "`headquarters doctrine,'" whereby "a claim can still proceed ... if harm occurring in a foreign country was proximately caused by acts in the United States." Ibid.

There is good reason to resist the headquarters doctrine described and relied upon by the Ninth Circuit. The Court of Appeals' employment of that doctrine renders the FTCA's foreign-country exception inapplicable whenever some authorization, support, or planning takes place in the United States. But "it will virtually always be possible to assert that the negligent [or intentional] activity that injured the plaintiff was the consequence of faulty training, selection or supervisionor even less than that, lack of careful training, selection or supervisionin the United States." Beattie, 756 F. 2d, at 119 (Scalia, J., dissenting); see ante, at 702-703 (same). Hence the headquarters doctrine, which considers whether steps toward the commission of the tort occurred within the United States, risks swallowing up the foreign-country exception.

Furthermore, the Court of Appeals failed to address the choice-of-law question implicated by both 1346(b) and 2680(k) whenever tortious acts are committed in multiple states. Both those provisions direct federal courts "in multistate tort actions, to look in the first instance to the law of the place where the acts of negligence [or the intentional tort] took place." Richards, 369 U. S., at 10. In cases involving acts or omissions in several states, the question is which acts count. "Neither the text of the FTCA nor Richards provides any guidance ... when the alleged acts or omissions occur in more than one state. Moreover, the legislative [759] history of the FTCA sheds no light on this problem." Gould Electronics Inc. v. United States, 220 F. 3d 169, 181 (CA3 2000); see Raflo v. United States, 157 F. Supp. 2d 1, 9 (DC 2001) (same).

Courts of appeals have adopted varying approaches to this question. See Simon v. United States, 341 F. 3d 193, 202 (CA3 2003) (listing five different choice-of-law methodologies for 1346(b)(1)); Gould Electronics, 220 F. 3d, at 181-183 (same).^[6] Having canvassed those different approaches, Third Circuit Judge Becker concluded that "clarity is the most important virtue in crafting a rule by which [a federal court would] choose a jurisdiction." Simon, 341 F. 3d, at 204. Eschewing "vague and overlapping" approaches that yielded "indeterminate" results, Judge Becker "appl[ied] [under 1346(b)(1)] the choice-of-law regime of the jurisdiction in which the last significant act or omission occurred. This has the salutary effect of avoiding the selection of a jurisdiction based on a completely incidental `last contact,' [760] while also avoiding the conjecture that [alternative] inquires often entail." Ibid. I agree.

A "last significant act or omission" rule applied under 2680(k) would close the door to the headquarters doctrine as applied by the Ninth Circuit in this litigation. By directing attention to the place where the last significant act or omission occurred, rather than to a United States location where some authorization, support, or planning may have taken place, the clear rule advanced by Judge Becker preserves 2680(k) as the genuine limitation Congress intended it to be.

The "last significant act or omission" rule works in this litigation to identify Mexico, not California, as the place where the instant controversy arose. I would apply that rule here to hold that Alvarez's tort claim for false arrest under the FTCA is barred under the foreign-country exception.

Accordingly, I concur in the Court's judgment and concur in Parts I, III, and IV of its opinion.

JUSTICE BREYER, concurring in part and concurring in the judgment.

I join JUSTICE GINSBURG'S concurrence and join the Court's opinion in respect to the Alien Tort Statute (ATS) claim. The Court says that to qualify for recognition under the ATS a norm of international law must have a content as definite as, and an acceptance as widespread as, those that characterized 18th-century international norms prohibiting piracy. Ante, at 732. The norm must extend liability to the type of perpetrator (e. g., a private actor) the plaintiff seeks to sue. Ante, at 732, n. 20. And Congress can make clear that courts should not recognize any such norm, through a direct or indirect command or by occupying the field. See ante, at 731. The Court also suggests that principles of exhaustion might apply, and that courts should give "serious weight" to the Executive Branch's view of the impact on foreign [761] policy that permitting an ATS suit will likely have in a given case or type of case. Ante, at 733, n. 21. I believe all of these conditions are important.

I would add one further consideration. Since enforcement of an international norm by one nation's courts implies that other nations' courts may do the same, I would ask whether the exercise of jurisdiction under the ATS is consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement. In applying those principles, courts help ensure that "the potentially conflicting laws of different nations" will "work together in harmony," a matter of increasing importance in an ever more interdependent world. F. Hoffmann-La Roche Ltd v. Empagran S. A., ante, at 164; cf. Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804). Such consideration is necessary to ensure that ATS litigation does not undermine the very harmony that it was intended to promote. See ante, at 715-718.

These comity concerns normally do not arise (or at least are mitigated) if the conduct in question takes place in the country that provides the cause of action or if that conduct involves that country's own nationalwhere, say, an American assaults a foreign diplomat and the diplomat brings suit in an American court. See Restatement (Third) of Foreign Relations Law of the United States 402(1), (2) (1986) (hereinafter Restatement) (describing traditional bases of territorial and nationality jurisdiction). They do arise, however, when foreign persons injured abroad bring suit in the United States under the ATS, asking the courts to recognize a claim that a certain kind of foreign conduct violates an international norm.

Since different courts in different nations will not necessarily apply even similar substantive laws similarly, workable harmony, in practice, depends upon more than substantive uniformity among the laws of those nations. That is to say, substantive uniformity does not automatically mean [762] that universal jurisdiction is appropriate. Thus, in the 18th century, nations reached consensus not only on the substantive principle that acts of piracy were universally wrong but also on the jurisdictional principle that any nation that found a pirate could prosecute him. See, e. g., United States v. Smith, 5 Wheat. 153, 162 (1820) (referring to "the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed [piracy] against any persons whatsoever, with whom they are in amity").

Today international law will sometimes similarly reflect not only substantive agreement as to certain universally condemned behavior but also procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior. See Restatement 404, and Comment a; International Law Association, Final Report on the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences 2 (2000). That subset includes torture, genocide, crimes against humanity, and war crimes. See id., at 5-8; see also, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1-T, 155-156 (International Tribunal for Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in Territory of Former Yugoslavia Since 1991, Dec. 10, 1998); Attorney Gen. of Israel v. Eichmann, 36 I. L. R. 277 (Sup. Ct. Israel 1962).

The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation's courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. Cf. Restatement 404, Comment b. That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured [763] by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. Brief for European Commission as Amicus Curiae 21, n. 48 (citing 3 Y. Donzallaz, La Convention de Lugano du 16 septembre 1988 concernant la comptence judiciaire et l'excution des dcisions en matire civile et commerciale, 5203-5272 (1998); EC Council Regulation Art. 5, 4, No. 44/2001, 2001 O. J. (L 12/1) (Jan. 16, 2001)). Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.

Taking these matters into account, as I believe courts should, I can find no similar procedural consensus supporting the exercise of jurisdiction in these cases. That lack of consensus provides additional support for the Court's conclusion that the ATS does not recognize the claim at issue here where the underlying substantive claim concerns arbitrary arrest, outside the United States, of a citizen of one foreign country by another.

Notes:

[*] Together with No. 03-485, United States v. Alvarez-Machain et al., also on certiorari to the same court.

Briefs of amici curiae urging reversal in No. 03-339 were filed for the National Association of Manufacturers by Paul R. Friedman, John Townsend Rich, William F. Sheehan, Jan S. Amundson, and Quentin Riegel; for the National Foreign Trade Council et al. by Daniel M. Petrocelli, M. Randall Oppenheimer, Walter E. Dellinger III, Pamela A. Harris, and Robin S. Conrad; for the Pacific Legal Foundation by Anthony T. Caso; for the Washington Legal Foundation et al. by Donald B. Ayer, Christian G. Vergonis, Daniel J. Popeo, and Richard A. Samp; and for Samuel Estreicher et al. by Paul B. Stephan and Mr. Estreicher, pro se.

Briefs of amici curiae urging affirmance in No. 03-339 were filed for Alien Friends Representing Hungarian Jews and Bougainvilleans Interests by Steve W. Berman, R. Brent Walton, Jonathan W. Cuneo, David W. Stanley, Michael Waldman, and Samuel J. Dubbin; for Amnesty International et al. by Beth Stephens; for the Center for Justice and Accountability et al. by Laurel E. Fletcher, Peter Weiss, and Jennifer Green; for the Center for Women Policy Studies et al. by Rhonda Copelon; for the Presbyterian Church of Sudan et al. by Carey R. D'Avino, Stephen A. Whinston, and Lawrence Kill; for the World Jewish Congress et al. by Bill Lann Lee, Stanley M. Chesley, Paul De Marco, Burt Neuborne, and Michael D. Hausfeld; for Wendy A. Adams et al. by William J. Aceves and David S. Weissbrodt; and for Mary Robinson et al. by Harold Hongju Koh, John M. Townsend, and William R. Stein.

Briefs of amici curiae were filed in No. 03-339 for the Government of the Commonwealth of Australia et al. by Donald I. Baker and W. Todd Miller; for the International Labor Rights Fund et al. by Terrence P. Collingsworth and Natacha Thys; for the European Commission by Jeffrey P. Cunard; for James Akins et al. by Thomas E. Bishop; for Vikram Amar et al. by Nicholas W. van Aelstyn; and for Barry Amundsen et al. by Penny M. Venetis.

[1] In the Ninth Circuit's view, it was critical that "DEA agents had no authority under federal law to execute an extraterritorial arrest of a suspect indicted in federal court in Los Angeles." 331 F. 3d, at 640. Once Alvarez arrived in the United States, "the actions of domestic law enforcement set in motion a supervening prosecutorial mechanism which met all of the procedural requisites of federal due process." Id., at 637.

[2] See also Couzado v. United States, 105 F. 3d 1389, 1395 (CA11 1997) ("`[A] claim is not barred by section 2680(k) where the tortious conduct occurs in the United States, but the injury is sustained in a foreign country'" (quoting Donahue v. United States Dept. of Justice, 751 F. Supp. 45, 48 (SDNY 1990))); Martinez v. Lamagno, No. 93-1573, 1994 WL 159771, *2, judgt. order reported at 23 F. 3d 402 (CA4 1994) (per curiam) (unpublished opinion) ("A headquarters claim exists where negligent acts in the United States proximately cause harm in a foreign country"), rev'd on other grounds, 515 U.S. 417 (1995); Leaf v. United States, 588 F. 2d 733, 736 (CA9 1978) ("A claim `arises', as that term is used in . . . 2680(k), where the acts or omissions that proximately cause the loss take place"); cf. Eaglin v. United States, Dept. of Army, 794 F. 2d 981, 983 (CA5 1986) (assuming, arguendo, that headquarters doctrine is valid).

[3] See also Restatement (Second) of Conflict of Laws 412 (1969) (hereinafter Restatement 2d) ("The original Restatement stated that, with minor exceptions, all substantive questions relating to the existence of a tort claim are governed by the local law of the `place of wrong.' This was described . . . as `the state where the last event necessary to make an actor liable for an alleged tort takes place.' Since a tort is the product of wrongful conduct and of resulting injury and since the injury follows the conduct, the state of the `last event' is the state where the injury occurred").

[4] The FTCA was passed with precisely these kinds of garden-variety torts in mind. See S. Rep. No. 1400, 79th Cong., 2d Sess., p. 31 (1946) ("With the expansion of governmental activities in recent years, it becomes especially important to grant to private individuals the right to sue the Government in respect to such torts as negligence in the operation of vehicles"); see generally Feres v. United States, 340 U. S. 135, 139-140 (1950) (Congress was principally concerned with making the Government liable for ordinary torts that "would have been actionable if inflicted by an individual or a corporation").

[5] The application of foreign law might nonetheless have been avoided in headquarters cases if courts had been instructed to apply the substantive tort law of the State where the federal act or omission occurred, regardless of where the ultimate harm transpired. But in Richards v. United States, 369 U.S. 1 (1962), we held that the Act requires "the whole law (including choice-of-law rules) . . . of the State where the [allegedly tortious federal] act or omission occurred," id., at 3, 11. Given the dominant American choice-of-law approach at the time the Act was passed, that would have resulted in the application of foreign law in virtually any case where the plaintiff suffered injury overseas.

[6] See also Rydstrom, Modern Status of Rule that Substantive Rights of Parties to a Tort Action are Governed by the Law of the Place of the Wrong, 29 A. L. R. 3d 603, 608, 2[a] (1970) ("[M]any courts [are] now abandoning the orthodox rule that the substantive rights of the parties are governed by the law of the place of the wrong" (footnotes omitted)). We express no opinion on the relative merits of the various approaches to choice questions; our discussion of the subject is intended only to indicate how, as a positive matter, transjurisdictional cases are likely to be treated today.

[7] Under the Second Restatement, tort liability is determined "by the local law of the state which . . . has the most significant relationship to the occurrence and the parties," taking into account "the place where the injury occurred," "the place where the conduct causing the injury occurred," "the domicil, residence, nationality, place of incorporation and place of business of the parties," and "the place where the relationship, if any, between the parties is centered." Restatement 2d 145.

[8] The courts that have applied the headquarters doctrine, believing it to be intimated by our emphasis, in Richards v. United States, supra, on the place of the occurrence of the negligent act, have acknowledged the possibility that foreign law may govern FTCA claims as a function of Richards's further holding that the whole law of the pertinent State (including its choice-of-law provisions) is to be applied. See, e. g., Leaf, 588 F. 2d, at 736, n. 3. Some courts have attempted to defuse the resulting tension with the object behind the foreign country exception. See, e. g., Sami v. United States, 617 F. 2d 755, 763 (CADC 1979) (believing that norm against application of foreign law when contrary to forum policy is sufficient to overcome possible conflict). We think that these attempts to resolve the tension give short shrift to the clear congressional mandate embodied by the foreign country exception. Cf. Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 N. C. L. Rev. 641, 659-660 (1992) (noting that the Richards rule that the totality of a State's law is to be consulted may undermine the object behind the foreign country exception).

[9] It is difficult to reconcile the Government's contrary reading with the fact that two of the Act's other exceptions specifically reference an "act or omission." See 28 U. S. C. 2680(a) (exempting United States from liability for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation"); 2680(e) ("Any claim arising out of an act or omission of any employee of the Government in administering [certain portions of the Trading with the Enemy Act of 1917]"). The Government's request that we read that phrase into the foreign country exception, when it is clear that Congress knew how to specify "act or omission" when it wanted to, runs afoul of the usual rule that "when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended." 2A N. Singer, Statutes and Statutory Construction 46:06, p. 194 (6th rev. ed. 2000).

[10] The statute has been slightly modified on a number of occasions since its original enactment. It now reads in its entirety: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U. S. C. 1350.

[11] The French minister plenipotentiary lodged a formal protest with the Continental Congress, 27 Journals of the Continental Congress 478, and threatened to leave Pennsylvania "unless the decision on Longchamps Case should give them full satisfaction." Letter from Samuel Hardy to Gov. Benjamin Harrison of Virginia, June 24, 1784, in 7 Letters of Members of the Continental Congress 558, 559 (E. Burnett ed. 1934). De Longchamps was prosecuted for a criminal violation of the law of nations in state court.

The Congress could only pass resolutions, one approving the state-court proceedings, 27 Journals of the Continental Congress 503, another directing the Secretary of Foreign Affairs to apologize and to "explain to Mr. De Marbois the difficulties that may arise . . . from the nature of a federal union," 28 id., at 314, and to explain to the representative of Louis XVI that "many allowances are to be made for" the young Nation, ibid.

[12] The restriction may have served the different purpose of putting foreigners on notice that they would no longer be able to prosecute their own criminal cases in federal court. Compare, e. g., 3 Commentaries 160 (victims could start prosecutions) with the Judiciary Act 35 (creating the office of the district attorney). Cf. 1 Op. Atty. Gen. 41, 42 (1794) (British consul could not himself initiate criminal prosecution, but could provide evidence to the grand jury).

[13] The ATS appears in Ellsworth's handwriting in the original version of the bill in the National Archives. Casto, Law of Nations 498, n. 169.

[14] See Southern Pacific Co. v. Jensen, 244 U. S. 205, 222 (1917) (Holmes, J., dissenting).

[15] Being consistent with the prevailing understanding of international law, the 1781 resolution is sensibly understood as an act of international politics, for the recommendation was part of a program to assure the world that the new Republic would observe the law of nations. On the same day it made its recommendation to state legislatures, the Continental Congress received a confidential report, detailing negotiations between American representatives and Versailles. 21 Journals of the Continental Congress 1137-1140. The King was concerned about the British capture of the ship Marquis de la Fayette on its way to Boston, id., at 1139, and he "expresse[d] a desire that the plan for the appointment of consuls should be digested and adopted, as the Court of France wished to make it the basis of some commercial arrangements between France and the United States," id., at 1140. The congressional resolution would not have been all that Louis XVI wished for, but it was calculated to assure foreign powers that Congress at least intended their concerns to be addressed in the way they would have chosen. As a French legal treatise well known to early American lawyers, see Helmholz, Use of the Civil Law in Post-Revolutionary American Jurisprudence, 66 Tulane L. Rev. 1649 (1992), put it, "the laws ought to be written, to the end that the writing may fix the sense of the law, and determine the mind to conceive a just idea of that which is established by the law, and that it not [be] left free for every one to frame the law as he himself is pleased to understand it. . . ." 1 J. Domat, The Civil Law in its Natural Order 108 (W. Strahan transl. and L. Cushing ed. 1861). A congressional statement that common law was up to the task at hand might well have fallen short of impressing a continental readership.

[16] Petitioner says animadversion is "an archaic reference to the imposition of punishment." Reply Brief for Petitioner Sosa 4 (emphasis in original). That claim is somewhat exaggerated, however. To animadvert carried the broader implication of "turn[ing] the attention officially or judicially, tak[ing] legal cognizance of anything deserving of chastisement or censure; hence, to proceed by way of punishment or censure." 1 Oxford English Dictionary 474 (2d ed. 1989). Blackstone in fact used the term in the context of property rights and damages. Of a man who is disturbed in his enjoyment of "qualified property" "the law will animadvert hereon as an injury." 2 Commentaries 395. See also 9 Papers of James Madison 349 (R. Rutland ed. 1975) ("As yet foreign powers have not been rigorous in animadverting on us" for violations of the law of nations).

[17] See generally R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System, ch. 7 (5th ed. 2003); Friendly, In Praise of Erie and of the New Federal Common Law, 39 N.Y. U. L. Rev. 383, 405-422 (1964).

[18] Sabbatino itself did not directly apply international law, see 376 U. S., at 421-423, but neither did it question the application of that law in appropriate cases, and it further endorsed the reasoning of a noted commentator who had argued that Erie should not preclude the continued application of international law in federal courts, 376 U. S., at 425 (citing Jessup, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 Am. J. Int'l L. 740 (1939)).

[19] Our position does not, as JUSTICE SCALIA suggests, imply that every grant of jurisdiction to a federal court carries with it an opportunity to develop common law (so that the grant of federal-question jurisdiction would be equally as good for our purposes as 1350), see post, at 745, n. Section 1350 was enacted on the congressional understanding that courts would exercise jurisdiction by entertaining some common law claims derived from the law of nations; and we know of no reason to think that federal-question jurisdiction was extended subject to any comparable congressional assumption. Further, our holding today is consistent with the division of responsibilities between federal and state courts after Erie, see supra, at 726, 729-730, as a more expansive common law power related to 28 U. S. C. 1331 might not be.

[20] A related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual. Compare Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 791-795 (CADC 1984) (Edwards, J., concurring) (insufficient consensus in 1984 that torture by private actors violates international law), with Kadic v. Karadi, 70 F. 3d 232, 239-241 (CA2 1995) (sufficient consensus in 1995 that genocide by private actors violates international law).

[21] This requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this action. For example, the European Commission argues as amicus curiae that basic principles of international law require that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system, and perhaps in other forums such as international claims tribunals. See Brief for European Commission as Amicus Curiae 24, n. 54 (citing I. Brownlie, Principles of Public International Law 472-481 (6th ed. 2003)); cf. Torture Victim Protection Act of 1991, 2(b), 106 Stat. 73 (exhaustion requirement). We would certainly consider this requirement in an appropriate case.

Another possible limitation that we need not apply here is a policy of case-specific deference to the political branches. For example, there are now pending in federal district court several class actions seeking damages from various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa. See In re South African Apartheid Litigation, 238 F. Supp. 2d 1379 (JPML 2002) (granting a motion to transfer the cases to the Southern District of New York). The Government of South Africa has said that these cases interfere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a `victors' justice' approach to the crimes of apartheid and chose instead one based on confession and absolution, informed by the principles of reconciliation, reconstruction, reparation and goodwill." Declaration of Penuell Mpapa Maduna, Minister of Justice and Constitutional Development, Republic of South Africa, reprinted in App. to Brief for Government of Commonwealth of Australia et al. as Amici Curiae 7a, 3.2.1 (emphasis deleted). The United States has agreed. See Letter of William H. Taft IV, Legal Adviser, Dept. of State, to Shannen W. Coffin, Deputy Asst. Atty. Gen., Oct. 27, 2003, reprinted in id., at 2a. In such cases, there is a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy. Cf. Republic of Austria v. Altmann, 541 U. S. 677, 701-702 (2004) (discussing the State Department's use of statements of interest in cases involving the Foreign Sovereign Immunities Act of 1976, 28 U. S. C. 1602 et seq.).

[22] Article nine provides that "[n]o one shall be subjected to arbitrary arrest or detention," that "[n]o one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law," and that "[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." 999 U. N. T. S., at 175-176.

[23] It has nevertheless had substantial indirect effect on international law. See Brownlie, supra, at 535 (calling the Declaration a "good example of an informal prescription given legal significance by the actions of authoritative decision-makers").

[24] Alvarez's brief contains one footnote seeking to incorporate by reference his arguments on cross-border abductions before the Court of Appeals. Brief for Respondent Alvarez-Machain 47, n. 46. That is not enough to raise the question fairly, and we do not consider it.

[25] The Rule has since been moved and amended and now provides that a warrant may also be executed "anywhere else a federal statute authorizes an arrest." Fed. Rule Crim. Proc. 4(c)(2).

[26] We have no occasion to decide whether Alvarez is right that 21 U. S. C. 878 did not authorize the arrest.

[27] Specifically, he relies on a survey of national constitutions, Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 Duke J. Comp. & Int'l L. 235, 260-261 (1993); a case from the International Court of Justice, United States v. Iran, 1980 I. C. J. 3, 42; and some authority drawn from the federal courts, see Brief for Respondent Alvarez-Machain 49, n. 50. None of these suffice. The Bassiouni survey does show that many nations recognize a norm against arbitrary detention, but that consensus is at a high level of generality. The Iran case, in which the United States sought relief for the taking of its diplomatic and consular staff as hostages, involved a different set of international norms and mentioned the problem of arbitrary detention only in passing; the detention in that case was, moreover, far longer and harsher than Alvarez's. See 1980 I. C. J., at 42, 91 ("detention of [United States] staff by a group of armed militants" lasted "many months"). And the authority from the federal courts, to the extent it supports Alvarez's position, reflects a more assertive view of federal judicial discretion over claims based on customary international law than the position we take today.

[28] In this action, Sosa might well have been liable under Mexican law. Alvarez asserted such a claim, but the District Court concluded that the applicable law was the law of California, and that under California law Sosa had been privileged to make a citizen's arrest in Mexico. Whether this was correct is not now before us, though we discern tension between the court's simultaneous conclusions that the detention so lacked any legal basis as to violate international law, yet was privileged by state law against ordinary tort recovery.

[29] It is not that violations of a rule logically foreclose the existence of that rule as international law. Cf. Filartiga v. Pena-Irala, 630 F. 2d 876, 884, n. 15 (CA2 1980) ("The fact that the prohibition of torture is often honored in the breach does not diminish its binding effect as a norm of international law"). Nevertheless, that a rule as stated is as far from full realization as the one Alvarez urges is evidence against its status as binding law; and an even clearer point against the creation by judges of a private cause of action to enforce the aspiration behind the rule claimed.

[30] Alvarez also cites, Brief for Respondent Alvarez-Machain 49-50, a finding by a United Nations working group that his detention was arbitrary under the Declaration, the Covenant, and customary international law. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CN.4/1994/27, pp. 139-140 (Dec. 17, 1993). That finding is not addressed, however, to our demanding standard of definition, which must be met to raise even the possibility of a private cause of action. If Alvarez wishes to seek compensation on the basis of the working group's finding, he must address his request to Congress.

Notes:

[*] The Court conjures the illusion of common-law-making continuity between 1789 and the present by ignoring fundamental differences. The Court's approach places the law of nations on a federal-law footing unknown to the First Congress. At the time of the ATS's enactment, the law of nations, being part of general common law, was not supreme federal law that could displace state law. Supra, at 739-740. By contrast, a judicially created federal rule based on international norms would be supreme federal law. Moreover, a federal-common-law cause of action of the sort the Court reserves discretion to create would "arise under" the laws of the United States, not only for purposes of Article III but also for purposes of statutory federal-question jurisdiction. See Illinois v. Milwaukee, 406 U. S. 91, 99-100 (1972).

The lack of genuine continuity is thus demonstrated by the fact that today's opinion renders the ATS unnecessary for federal jurisdiction over (so-called) law-of-nations claims. If the law of nations can be transformed into federal law on the basis of (1) a provision that merely grants jurisdiction, combined with (2) some residual judicial power (from whence nobody knows) to create federal causes of action in cases implicating foreign relations, then a grant of federal-question jurisdiction would give rise to a power to create international-law-based federal common law just as effectively as would the ATS. This would mean that the ATS became largely superfluous as of 1875, when Congress granted general federal-question jurisdiction subject to a $500 amount-in-controversy requirement, Act of Mar. 3, 1875, 1, 18 Stat. 470, and entirely superfluous as of 1980, when Congress eliminated the amount-in-controversy requirement, Pub. L. 96-486, 94 Stat. 2369.

[1] In common with 2680(k), most of the exceptions listed in 2680 use the "claim arising" formulation. See 2680(b), (c), (e), (h), (j), (l), (m), and (n). Only two use the "act or omission" terminology. See 2680(a) (exception for "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation ... or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty ..."); 2680(e) (no liability for "[a]ny claim arising out of an act or omission of any employee of the Government in administering [certain provisions concerning war and national defense]"). It is hardly apparent, however, that Congress intended only 2680(a) and (e) to be interpreted in accord with 1346(b). Congress used the phrase "arising out of" for 2680 exceptions that focus on a governmental act or omission. See 2680(b) (exception for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter"); 2680(h) (no liability for "[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contractual rights"). Given that usage, and in light of the legislative history of 2680(k), omission of a reference to an "act or omission of any employee" from that provision may reflect only Congress' attempt to use the least complex statutory language feasible. Cf. Sami v. United States, 617 F. 2d 755, 762, n. 7 (CADC 1979) ("We do not think the omission of a specific reference to acts or omissions in 2680(k) was meaningful or that the focus of that exemption shifted from acts or omissions to resultant injuries.").

[2] The foreign-country exception's focus on the location of the tortious act or omission is borne out by a further colloquy during the hearing before the House Committee on the Judiciary. A member of that Committee asked whether he understood correctly that "any representative of the United States who committed a tort in England or some other country could not be reached under [the FTCA]." Hearings on H. R. 5373 et al., at 35 (emphasis added). Assistant Attorney General Shea said yes to that understanding of 2680(k). Ibid.

[3] Renvoi is "[t]he doctrine under which a court in resorting to foreign law adopts as well the foreign law's conflict-of-laws principles, which may in turn refer the court back to the law of the forum." Black's Law Dictionary 1300 (7th ed. 1999).

[4] Reading renvoi into 1346(b)(1), even to determine which State supplies the governing law, moreover, is questionable. See Shapiro, Choice of Law Under the Federal Tort Claims Act: Richards and Renvoi Revisited, 70 N. C. L. Rev. 641, 679 (1992) ("It is only fair that federal liability be determined by the law where the federal employee's negligence took place, as Congress intended. The simplicity of the internal law approach is preferable to the complexity and opportunity for manipulation of [Richards'] whole law construction.").

[5] Enacting the FTCA, Congress was concerned with quotidian "wrongs which would have been actionable if inflicted by an individual or a corporation," Feres v. United States, 340 U. S. 135, 139-140 (1950), such as vehicular accidents, see S. Rep. No. 1400, 79th Cong., 2d Sess., 31 (1946). See also ante, at 706, n. 4. The place of injury in such torts almost inevitably would be the place the act or omission occurred as well.

[6] As cataloged by the Court of Appeals for the Third Circuit, these are: "(1) applying different rules to different theories of liability; (2) choosing the place of the last allegedly-wrongful act or omission; (3) determining which asserted act of wrongdoing had the most significant effect on the injury; (4) choosing the state in which the United States' physical actions could have prevented injury; and (5) determining where the `relevant' act or omission occurred." Simon, 341 F. 3d, at 202. For cases applying and discussing one or another of those five approaches, see Ducey v. United States, 713 F. 2d 504, 508, n. 2 (CA9 1983) (considering where "physical acts" that could have prevented the harm would have occurred); Hitchcock v. United States, 665 F. 2d 354, 359 (CADC 1981) (looking for the "relevant" act or omission); Bowen v. United States, 570 F. 2d 1311, 1318 (CA7 1978) (noting "the alternatives of the place of the last act or omission having a causal effect, or the place of the act or omission having the most significant causal effect," but finding that both rules would lead to the same place); Raflo v. United States, 157 F. Supp. 2d 1, 10 (DC 2001) (applying Hitchcock's relevance test by looking for the place where the "most substantial portion of the acts or omissions occurred"); Kohn v. United States, 591 F. Supp. 568, 572 (EDNY 1984) (applying different States' choice-of-law rules on an act-by-act basis).

Supreme Court of the United States
YOUNGSTOWN SHEET & TUBE CO. et al.
v.
SAWYER.
SAWYER
v.
YOUNGSTOWN SHEET & TUBE CO. et al.
Nos. 744, 745.

Argued May 12 and May 13, 1952.
Decided June 2, 1952.

The Youngstown Sheet & Tube Company and other steel companies named in a list attached to Executive Order No. 10340, promulgated April 8, 1952, direct-ing seizure of the plants of such companies, brought actions against Charles Sawyer, Secretary of Com-merce, praying for declaratory judgments and injunc-tive relief. The United States District Court for the District of Columbia, David A. Pine, J., 103 F.Supp. 569, granted plaintiffs’ motions for temporary injunc-tions. Certiorari was granted by the United States Supreme Court after the Court of Appeals for the District of Columbia Circuit had issued stay orders. Mr. Justice Black delivered the opinion of the court holding that the seizure order was not within the con-stitutional power of the President.

Affirmed.

Mr. Chief Justice Vinson, Mr. Justice Reed and Mr. Justice Minton dissented.

The Executive Order directing the Secretary of Commerce to seize the plants of steel companies in-volved in labor dispute was invalid as exceeding con-stitutional power of President. Executive Orders April 21, 1951, No. 10233, 50 U.S.C.A. Appendix, § 2071 note, and April 8, 1952, No. 10340.

**864 *581 Mr. John W. Davis, New York City, for Youngstown Sheet & Tube Co. et al.

Mr. Solicitor General Philip B. Perlman, Washington, D.C., for Sawyer, Secretary of Commerce.

*582 Mr. Arthur J. Goldberg, Washington, D.C., for United Steelworkers of America, CIO, as amicus curiae, by special leave of Court.

Messrs. Clifford D. O’Brien, Chicago, Ill., and Harold C. Heiss, Cleveland, Ohio, for Brotherhood of Loco-motive Firemen and Enginemen, et al., as amici cu-riae, by special leave of Court.

Mr. Justice BLACK delivered the opinion of the Court.

We are asked to decide whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation’s steel mills. The mill owners argue that the President’s or-der amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government’s position is that the order was made on findings of the President that his action was necessary to avert a na-tional catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Na-tion’s Chief Executive and the Commander in Chief of the Armed Forces of the United States. The issue emerges here from the following series of events:

In the latter part of 1951, a dispute arose between the steel companies and their employees over terms and conditions that should be included in new collective bargaining agreements. Long-continued conferences failed to resolve the dispute. On December 18, 1951, the employees’ representative, United Steelworkers of America, C.I.O., gave notice of an intention to strike when the existing bargaining agreements expired on December 31. The Federal Mediation and Concilia-tion Service then intervened in an effort to get labor and management to agree. This failing, the President on December 22, 1951, referred the dispute to the Federal Wage Stabilization 583 BoardFN1 to investi-gate and make recommendations for fair and equita-ble terms of settlement. This Board’s report resulted in no settlement. On April 4, 1952, the Union gave notice of a nation-wide strike called *865 to begin at 12:01 a.m. April 9. The indispensability of steel as a component of substantially all weapons and other war materials led the President to believe that the pro-posed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting these consid-erations for his action, the President, a few hours before the strike was to begin, issued Executive Or-der 10340, a copy of which is attached as an appen-dix, post, 72 S.Ct. 868. The order directed the Secre-tary of Commerce to take possession of most of the steel mills and keep them running. The Secretary immediately issued his own possessory orders, call-ing upon the presidents of the various seized compa-nies to serve as operationg managers for the United States. They were directed to carry on their activities in accordance with regulations and directions of the Secretary. The next morning the President sent a message to Congress reporting his action. Cong.Rec., April 9, 1952, p. 3962. Twelve days later he sent a second message. Cong.Rec., April 21, 1952, p. 4192. Congress has taken no action.

FN1. This Board was established under Ex-ecutive Order 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503, U.S.Code Cong. Service 1951, p. 1018.

Obeying the Secretary’s orders under protest, the companies brought proceedings against him in the District Court. Their complaints charged that the sei-zure was not authorized by an act of Congress or by any constitutional provisions. The District Court was asked to declare the orders of the President and the Secretary invalid and to issue preliminary and per-manent injunctions restraining their enforcement. Opposing the motion for preliminary*584 injunction, the United States asserted that a strike disrupting steel production for even a brief period would so en-danger the well-being and safety of the Nation that the President had ‘inherent power’ to do what he had done-power “supported by the Constitution, by his-torical precedent, and by court decisions.” The Gov-ernment also contended that in any event no prelimi-nary injunction should be issued because the compa-nies had made no showing that their available legal remedies were inadequate or that their injuries from seizure would be irreparable. Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from “continuing the seizure and posses-sion of the plant * * * and from acting under the pur-ported authority of Executive Order No. 10340.” 103 F.Supp. 569. On the same day the Court of Appeals stayed the District Court’s injunction. 197 F.2d 582. Deeming it best that the issues raised be promptly decided by this Court, we granted certiorari on May 3 and set the cause for argument on May 12. 343 U.S. 937, 72 S.Ct. 775.

Two crucial issues have developed: First. Should final determination of the constitutional validity of the President’s order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?

I.

[1][2] It is urged that there were nonconstitutional grounds upon which the District Court could have denied the preliminary injunction and thus have fol-lowed the customary judicial practice of declining to reach and decide constitutional questions until com-pelled to do so. On this basis it is argued that equity’s extraordinary injunctive relief should have been de-nied because (a) seizure of the companies’ properties did not inflict irreparable damages,585 and (b) there were available legal remedies adequate to afford compensation for any possible damages which they might suffer. While separately argued by the Gov-ernment, these two contentions are here closely re-lated, if not identical. Arguments as to both rest in large part on the Government’s claim that should the seizure ultimately be held unlawful, the companies could recover full compensation in the Court of Claims for the unlawful taking. Prior cases in this Court have cast doubt on the right to recover in the Court of Claims on account of properties*866 un-lawfully taken by government officials for public use as these properties were alleged to have been. See e.g., Hooe v. United States, 218 U.S. 322, 335-336, 31 S.Ct. 85, 89, 54 L.Ed. 1055; United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 519, 64 L.Ed. 935. But see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702, 69 S.Ct. 1457, 1467, 93 L.Ed. 1628. Moreover, seizure and governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement. View-ing the case this way, and in the light of the facts presented, the District Court saw no reason for delay-ing decision of the constitutional validity of the or-ders. We agree with the District Court and can see no reason why that question was not ripe for determina-tion on the record presented. We shall therefore con-sider and determine that question now.

II.

[3] The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of prop-erty as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure. There are two statutes which do authorize the President *586 to take both personal and real property under certain condi-tions.FN2 However, the Government admits that these conditions were not met and that the President’s order was not rooted in either of the statutes. The Govern-ment refers to the seizure provisions of one of these statutes (s 201(b) of the Defense Production Act) as “much too cumbersome, involved, and time-consuming for the crisis which was at hand.”

FN2. The Selective Service Act of 1948, 62 Stat. 604, 625-627, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468; the Defense Production Act of 1950, Tit. II, 64 Stat. 798, as amended, 65 Stat. 132, 50 U.S.C.A.Appendix, s 2081.

Moreover, the use of the seizure technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enact-ment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency.FN3 Apparently it was thought that the technique of seizure, like that of compulsory arbitra-tion, would interfere with the process of collective bargaining.FN4 Consequently, the plan Congress adopted in that Act did not provide for seizure under any circumstances. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigation by boards of inquiry, and public reports. In some instances tempo-rary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike after a secret vote by employees as to whether they wished to accept their employers’ final settle-ment offer.FN5

FN3. 93 Cong.Rec. 3637-3645.

FN4. 93 Cong.Rec. 3835-3836.

FN5. Labor Management Relations Act, 1947, 61 Stat. 136, 152-156, 29 U.S.C. (Supp. IV) ss 141, 171-180, 29 U.S.C.A. ss 141, 171-180.

587 It is clear that if the President had authority to issue the order he did, it must be found in some pro-visions of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that “the executive Power shall be vested in a President * ”; that “he shall take Care that the Laws be faith-fully*867 executed”; and that he “shall be Com-mander in Chief of the Army and Navy of the United States.”

[4] The order cannot properly be sustained as an ex-ercise of the President’s military power as Com-mander in Chief of the Armed Forces. The Govern-ment attempts to do so by citing a number of cases upholding broad powers in military commanders en-gaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though ‘theater of war’ be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stop-ping production. This is a job for the Nation’s law-makers, not for its military authorities.

[5] Nor can the seizure order be sustained because of the several constitutional provisions that grant execu-tive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his func-tions in the lawmaking process to the recommending of laws he tninks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The 588 first section of the first article says that “All legislative Powers herein granted shall be vested in a Congress of the United States * *.” After granting many powers to the Congress, Article I goes on to provide that Congress may “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitu-tion in the Government of the United States, or in any Department or Officer thereof.”

[6][7][8][9] The President’s order does not direct that a congressional policy be executed in a manner pre-scribed by Congress-it directs that a presidential pol-icy be executed in a manner prescribed by the Presi-dent. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consis-tent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can makes laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.

[10] It is said that other Presidents without congres-sional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution*589 “in the Government of the United States, or in any Department or Officer thereof.”

[11][12] The Founders of this Nation entrusted the law making power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.

The judgment of the District Court is affirmed.

Affirmed.
Mr. Justice FRANKFURTER.
Although the considerations relevant to the legal en-forcement of the principle of separation of powers seem to me more complicated and flexible than any appear from **868 what Mr. Justice BLACK has written, I join his opinion because I thoroughly agree with the application of the principle to the circum-stances of this case. Even though such differences in attitude toward this principle may be merely differ-ences in emphasis and nuance, they can hardly be reflected by a single opinion for the Court. Individual expression of views in reaching a common result is therefore important.

APPENDIX.

Executive Order

Directing the Secretary of Commerce to Take Posses-sion of and Operate the Plants and Facilities of Cer-tain Steel Companies

Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national*590 security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and

Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against ag-gression; and

Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great ex-tent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and

Whereas steel is likewise indispensable to the carry-ing out of programs of the Atomic Energy Commis-sion of vital importance to our defense efforts; and

Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our mili-tary strength depends; and

Whereas a controversy has arisen between certain companies in the United States producing and fabri-cating steel and the elements thereof and certain of their workers represented by the United Steelworkers of America, CIO, regarding terms and conditions of employment; and

Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pursuant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and

Whereas a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense *591 of those joined with us in resisting ag-gression, and would add to the continuing danger of our soldiers, sailors, and airmen engaged in combat in the field; and

Whereas is order to assure the continued availability of steel and steel products during the existing emer-gency, it is necessary that the United States take pos-session of and operate the plants, facilities, and other property of the said companies as hereinafter pro-vided:

Now, therefore, by virtue of the authority vested in me by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto (List of specific Steel Companies and Plants omitted), or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or incidental to, such operation.

**869 2. In carrying out this order the Secretary of Commerce may act through or with the aid of such public or private instrumentalities or persons as he may designate; and all Federal agencies shall cooper-ate with the Secretary of Commerce to the fullest extent possible in carrying out the purposes of this order.

3. The Secretary of Commerce shall determine and prescribe terms and conditions of employment under which the plants, facilities, and other properties pos-session of which is taken pursuant to this order shall be operated. The Secretary of Commerce shall recog-nize the rights of workers to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of col-lective bargaining, adjustment of grievances, or other mutual aid or protection, provided *592 that such activities do not interfere with the operation of such plants, facilities, and other properties.

4. Except so far as the Secretary of Commerce shall otherwise provide from time to time, the manage-ments of the plants, facilities, and other properties possession of which is taken pursuant to this order shall continue their functions, including the collection and disbursement of funds in the usual and ordinary course of business in the names of their respective companies and by means of any instrumentalities used by such companies.

5. Except so far as the Secretary of Commerce may otherwise direct, existing rights and obligations of such companies shall remain in full force and effect, and there may be made, in due course, payments of dividends on stock, and of principal, interest, sinking funds, and all other distributions upon bonds, deben-tures, and other obligations, and expenditures may be made for other ordinary corporate or business pur-poses.

6. Whenever in the judgment of the Secretary of Commerce further possession and operation by him of any plant, facility, or other property is no longer necessary or expedient in the interest of national de-fense, and the Secretary has reason to believe that effective future operation is assured, he shall return the possession and operation of such plant, facility, or other property to the company in possession and con-trol thereof at the time possession was taken under this order.

7. The Secretary of Commerce is authorized to pre-scribe and issue such regulations and orders not in-consistent herewith as he may deem necessary or desirable for carrying out the purposes of this order; and he may delegate and authorize subdelegation of such of his functions under this order as he may been desirable.

Harry S. Truman.

The White House, April 8, 1952.

*634 Mr. Justice JACKSON, concurring in the judg-ment and opinion of the Court.
That comprehensive and undefined presidential pow-ers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial de-cision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infir-mity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize tran-sient results upon policies-such as wages or stabiliza-tion-and lose sight of enduring consequences upon the balanced power structure of our Republic.

A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of execu-tive power as they actually present themselves. Just what our forefathers did envision, or **870 would have envisioned had they foreseen modern condi-tions, must be divined from materials almost as en-igmatic as the dreams Joseph was called upon to in-terpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from *635 respected sources on each side of any question. They largely cancel each other.FN1 And court deci-sions are indecisive because of the judicial practice of dealing with the largest questions in the most narrow way.

FN1. A Hamilton may be matched againt a Madison. 7 The Works of Alexander Hamil-ton, 76-117; 1 Madison, Letters and Other Writings, 611-654. Professor Taft is coun-terbalanced by Theodore Roosevelt. Taft, Our Chief Magistrate and His Powers, 139-140; Theodore Roosevelt, Autobiography, 388-389. It even seems that President Taft cancels out Professor Taft. Compare his ‘Temporary Petroleum Withdrawal No. 5’ of September 27, 1909, United States v. Mid-west Oil Co., 236 U.S. 459, 467, 468, 35 S.Ct. 309, 311, 59 L.Ed. 673, with his ap-praisal of executive power in “Our Chief Magistrate and His Powers” 139-140.

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 gov-ernment. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presiden-tial powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal con-sequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.FN2 In these circumstances,636 and in these only, may he be said (for what it may *871 be worth), to per-sonify the federal sovereignty. If his act is held un-constitutional under these circumstances, it usually means that the Federal Government *637 as an undi-vided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the bur-den of persuasion would rest heavily upon any who might attack it.

FN2. It is in this class of cases that we find the broadest recent statements of presiden-tial power, including those relied on here. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 221, 81 L.Ed. 255, involved, not the question of the President’s power to act without congres-sional authority, but the question of his right to act under and in accord with an Act of Congress. The constitutionality of the Act under which the President had proceeded was assailed on the ground that it delegated legislative powers to the President. Much of the Court’s opinion is dictum, but the ratio decidendi is contained in the following lan-guage:

“When the President is to be authorized by legislation to act in respect of a matter in-tended to affect a situation in foreign terri-tory, the legislator properly bears in mind the important consideration that the form of the President’s action-or, indeed, whether he shall act at all-may well depend, among other things, upon the nature of the confi-dential information which he has or may thereafter receive, or upon the effect which his action may have upon our foreign rela-tions. This consideration, in connection with what we have already said on the subject, discloses the unwisdom of requiring Con-gress in this field of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 108, 60 L.Ed. 297, “As a government, the United States is invested with all the attributes of sover-eignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and inter-course with other countries. We should hesi-tate long before limiting or embarrasing such powers.” (Italics supplied.)”

That case does not solve the present contro-versy. It recognized internal and external af-fairs as being in separate categories, and held that the strict limitation upon congres-sional delegations of power to the President over internal affairs does not apply with re-spect to delegations of power in external af-fairs. It was intimated that the President might act in external affairs without con-gressional authority, but not that he might act contrary to an Act of Congress.

Other examples of wide definition of presi-dential powers under statutory authorization are Chicago & Southern Air Lines v. Wa-terman Steamship Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774. But see, Jecker v. Montgom-ery, 13 How. 498, 515, 14 L.Ed. 240; Western Union Telegraph Co. v. United States, D.C., 272 F. 311, affirmed, 2 Cir., 272 F. 893, reversed on consent of the par-ties, 260 U.S. 754, 43 S.Ct. 91, 67 L.Ed. 497; United States Harness Co. v. Graham, D.C., 288 F. 929.

2. When the President acts in absence of either a con-gressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indiffer-ence or quiescence may sometimes, at least as a prac-tical matter, enable, if not invite, measures on inde-pendent presidential responsibility. In this area, any actual test of power is likely to depend on the impera-tives of events and contemporary imponderables rather than on abstract theories of law.FN3

FN3. Since the Constitution implies that the writ of habeas corpus may be suspended in certain circumstances but does not say by whom, President Lincoln asserted and main-tained it as an executive function in the face of judicial challenge and doubt. Ex parte Merryman, 17 Fed.Cas. 144, No. 9,487; Ex parte Milligan, 4 Wall. 2, 125, 18 L.Ed. 281; see Ex parte Bollman, 4 Cranch, 75, 101, 2 L.Ed. 554. Congress eventually ratified his action. Habeas Corpus Act of March 3, 1863, 12 Stat. 755. See Hall, Free Speech in War Time, 21 Col.L.Rev. 526. Compare Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, with Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611, and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, with the case at bar. Also compare Ex parte Vallandigham, 1 Wall. 243, 17 L.Ed. 589, with Ex parte Milligan, supra.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any consti-tutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only be disabling*638 the Congress from acting upon the subject.FN4 Presidential claim to a power at once so conclusive and preclusive must be scruti-nized with caution, for what is at stake is the equilib-rium established by our constitutional system.

FN4. President Roosevelt’s effort to remove a Federal Trade Commissioner was found to be contrary to the policy of Congress and impinging upon an area of congressional control, and so his removal power was cut down accordingly. Humphrey’s Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611. However, his exclusive power of removal in executive agencies, af-firmed in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, continued to be asserted and maintained. Morgan v. Tennessee Valley Authority, 6 Cir., 115 F.2d 990, certiorari denied 312 U.S. 701, 61 S.Ct. 806, 85 L.Ed. 1135; In re Power to Remove Members of the Tennessee Valley Authority, 39 O.A.G. 145; President Roose-velt’s Message to Congress of March 23, 1938, The Public Papers and Addresses of Franklin D. Roosevelt, 1938 (Rosenman), 151.

Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no con-gressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which **872 were made in relation, and must be confined, to this category.FN5

FN5. The oft-cited Louisiana Purchase had nothing to do with the separation of powers as between the President and Congress, but only with state and federal power. The Lou-isiana Purchase was subject to rather aca-demic criticism, not upon the ground that Mr. Jefferson acted without authority from Congress, but that neither had express authority to expand the boundaries of the United States by purchase or annexation. Mr. Jefferson himself had strongly opposed the doctrine that the State’s delegation of powers to the Federal Government could be enlarged by resort to implied powers. Af-terwards in a letter to John Breckenridge, dated August 12, 1803, he declared:

“The Constitution has made no provision for our holding foreign territory, still less for in-corporating foreign nations into our Union. The executive in seizing the fugitive occur-rence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature is casting be-hind them metaphysical subtleties, and risk-ing themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unau-thorized, what we know they would have done for themselves had they been in a situation to do it.” 10 The Writings of Tho-mas Jefferson 407.

*639 Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Gov-ernment,FN6 another, condemnation of facilities, in-cluding temporary use under the power of eminent domain.FN7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests.FN8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties.

FN6. Selective Service Act of 1948, s 18, 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468©, 50 U.S.C.A.Appendix, s 468©.

FN7. Defense Production Act of 1950, s 201, 64 Stat. 799, amended, 65 Stat. 132, 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. For the latitude of the condemnation power which underlies this Act, see United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261, 70 S.Ct. 644, 94 L.Ed. 816, and cases therein cited.

FN8. Labor Management Relations Act, 1947, ss 1, 206-210, 61 Stat. 136, 155, 156, 29 U.S.C. (Supp. IV) ss 141, 176-180, 29 U.S.C.A. ss 141, 176-180. The analysis, his-tory and application of this Act are fully covered by the opinion of the Court, sup-plemented by that of Mr. Justice FRANK-FURTER and of Mr. Justice BURTON, in which I concur.

*640 This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court’s first review of such seizures occurs under circumstances which leave Presidential power most vulnerable to attack and in the least favorable of possible constitu-tional postures.

I did not suppose, and I am not persuaded, that his-tory leaves it open to question, at least in the courts, that the executive branch, like the Federal Govern-ment as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. How-ever, because the President does not enjoy unmentioned powers does not mean that the men-tioned ones should be narrowed by a niggardly con-struction. Some clauses could be made almost un-workable, as well as immutable, **873 by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable practical implications instead of the rigidity dictated by a doctrinaire textu-alism.

The Solicitor General seeks the power of seizure in three clauses of the Executive Article, the first read-ing, “The executive Power shall be vested in a Presi-dent of the United States of America.” Lest I be thought to exaggerate, I quote the interpretation which his brief puts upon it: “In our view, this clause constitutes a grant of all the executive powers of which the Government is capable.” If that be true, it is difficult to see why the *641 forefathers bothered to add several specific items, including some trifling ones.FN9

FN9. “* * * he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Sub-ject relating to the Duties of their respective Offices * * *.” U.S.Const. Art. II, s 2. He “* * * shall Commission all the Officers of the United States.” U.S.Const. Art. II, s 3. Mat-ters such as those would seem to be inherent in the Executive if anything is.

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the descrip-tion of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European exam-ples were no more appealing. And if we seek instruc-tion from our own times, we can match it only from the executive powers in those governments we dis-paragingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceiv-able executive power but regard it as an allocation to the presidential office of the generic powers thereaf-ter stated.

The clause on which the Government next relies is that “The President shall be Commander in Chief of the Army and Navy of the United States * * *.” These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued Presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Na-tion’s armed forces under Presidential command. Hence, this loose appellation is sometimes advanced as support for any Presidential action, internal or ex-ternal, involving use of force, the *642 idea being that it vests power to do anything, anywhere, that can be done with an army or navy.

That seems to be the logic of an argument tendered at our bar-that the President having, on his own respon-sibility, sent American troops abroad derives from that act ‘affirmative power’ to seize the means of producing a supply of steel for them. To quote, “Per-haps the most forceful illustrations of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effec-tiveness are so directly involved here, were sent to the field by an exercise of the President’s constitu-tional powers.” Thus, it is said he has invested him-self with ‘war powers.’

I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Consti-tution is plainer than that declaration of a war is en-trusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncon-trolled, and often even is unknown, can vastly en-large his mastery over the internal affairs of the coun-try by his own commitment of the Nation’s armed forces to some foreign venture.FN10 643 I do not, however,*874 find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

FN10. How widely this doctrine espoused by the President’s counsel departs from the early view of presidential power is shown by a comparison. President Jefferson, without authority from Congress, sent the American Fleet into the Mediterranean, where it en-gaged in a naval battle with the Tripolitan fleet. He sent a message to Congress on De-cember 8, 1801, in which he said:

“Tripoli, the least considerable of the Bar-bary States, had come forward with de-mands unfounded either in right or in com-pact, and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frig-ates into the Mediterranean * * * with orders to protect our commerce against the threat-ened attack. * * * Our commerce in the Mediterranean was blockaded, and that of the Atlantic in peril. * * * One of the Trip-olitan cruisers having fallen in with, and en-gaged the small schooner Enterprise, * * * was captured, after a heavy slaughter of her men * * *. Unauthorized by the constitution, without the sanction of Congress, to go be-yond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubltless consider whether, by author-izing measures of offence, also, they will place our force on an equal footing with that of its adversaries. I communicate all mate-rial information on this subject, that in the exercise of the important function confided by the constitution to the legislature exclu-sively, their judgment may form itself on a knowledge and consideration of every cir-cumstance of weight.” I Richardson, Mes-sages and Papers of the Presidents, 314.

Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Com-mander-in-Chief to seize industries he thinks neces-sary to supply our army? The Constitution expressly places in Congress power ‘to raise and support Ar-mies’ and “to provide and maintain a Navy.” (Empha-sis supplied.) This certainly lays upon Congress pri-mary responsibility for supplying the armed forces. Congress alone controls the raising of revenues and their appropriation and may determine in what man-ner and by what means they shall be spent for mili-tary and naval procurement. I suppose no one would doubt that Congress can take over war supply as a Government enterprise. On the other hand, if Con-gress sess fit to rely on free private enterprise collec-tively bargaining with free labor for support and maintenance of our armed forces can the Executive because of lawful disagreements incidental to that process, seize the facility for operation upon Gov-ernment-imposed terms?

There are indications that the Constitution did not contemplate that the title Commander-in-Chief of the *644 Army and Navy will constitute him also Com-mander-in-Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval forces,” by which it may to some unknown extent impinge upon even command functions.

That military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. Time out of mind, and even now in many parts of the world, a military commander can seize private housing to shelter his troops. Not so, however, in the United States, for the Third Amendment says, “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Thus, even in war time, his seizure of needed military housing must be authorized by Congress. It also was ex-pressly left to Congress to “provide for calling forth the Militia to execute the Laws of the Union, sup-press Insurrections and repel Invasions * * *.”FN11 Such a limitation on the command power, written at a time when the militia rather than a standing army was contemplated as the **875 military weapon of the Republic, underscores the Constitution’s policy that Congress, not the Executive, should control utiliza-tion of the war power as an instrument of domestic policy. Congress, fulfilling that function, has author-ized the President to use the army to enforce certain civil rights.FN12 On the other hand, Congress has for-bidden him to use the army for the purpose*645 of executing general laws except when expressly authorized by the Constitution or by Act of Congress. FN13

FN11. U.S.Const., Art. I, s 8, cl. 15.

FN12. 14 Stat. 29, 16 Stat. 143, 8 U.S.C. s 55, 8 U.S.C.A. s 55.

FN13. 20 Stat. 152, 10 U.S.C. s 15, 10 U.S.C.A. s 15.

While broad claims under this rubric often have been made, advice to the President in specific matters usu-ally has carried overtones that powers, even under this head, are measured by the command functions usual to the topmost officer of the army and navy. Even then, heed has been taken of any efforts of Congress to negative his authority.FN14

FN14. In 1940, President Roosevelt pro-posed to transfer to Great Britain certain overage destroyers and small patrol boats then under construction. He did not presume to rely upon any claim of constitutional power as Commander-in-Chief. On the con-trary, he was advised that such destroyers-if certified not to be essential to the defense of the United States-could be “transferred, ex-changed, sold, or otherwise disposed of,” because Congress had so authorized him. Accordingly, the destroyers were exchanged for air bases. In the same opinion, he was advised that Congress had prohibited the re-lease or transfer of the so-called ‘mosquito boats’ then under construction, so those boats were not transferred. In the Matter of Acquisition of Naval and Air Bases in Ex-change for Overage Destroyers, 39 O.A.G. 484. See also Matter of Training British Fly-ing Students in the United States, 40 O.A.G. 58.

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander-in-Chief. I should indulge the widest latitude of interpretation to sustain his exclusive func-tion to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful eco-nomic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making breanch *646 is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envi-sion, but I think it is not a military prerogative, with-out support of law, to seize persons or property be-cause they are important or even essential for the military and naval establishment.

The third clause in which the Solicitor General finds seizure powers is that “he shall take Care that the Laws be faithfully executed * * *.”FN15 That authority must be matched against words of the Fifth Amend-ment that “No person shall be * * * deprived of life, liberty, or property, without due process of law * * *.” One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.

FN15. U.S.Const. Art. II, s 3.

The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never ex-pressly granted but said to have accrued to the office from the customs and claims of preceding administra-tions. The plea is for a resulting power to deal **876 with a crisis or an emergency according to the neces-sities of the case, the unarticulated assumption being that necessity knows no law.

Loose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers. *647 ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’ powers, ‘war’ powers and ‘emergency’ powers are used, often inter-changeably and without fixed or ascertainable mean-ings.

The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presi-dential powers has long been a persuasive dialectical weapon in political controversy. While it is not sur-prising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reli-ance on such nebulous claims stop short of provoking a judicial test.FN16

FN16. President Wilson, just before our en-trance into World War I, went before the Congress and asked its approval of his deci-sion to authorize merchant ships to carry de-fensive weapons. He said:

“No doubt I already possess that authority without special warrant of law, by the plain implication of my constitutional duties and powers; but I prefer in the present circum-stances not to act upon general implication. I wish to feel that the authority and the power of the Congress are behind me in whatever it may become necessary for me to do. We are jointly the servants of the people and must act together and in their spirit, so far as we can divine and interpret it.” XVII Richardson, op.cit., 8211.

When our Government was itself in need of shipping whilst ships flying the flags of na-tions overrun by Hitler, as well as belliger-ent merchantmen, were immobilized in American harbors where they had taken ref-uge, President Roosevelt did not assume that it was in his power to seize such foreign vessels to make up our own deficit. He in-formed Congress: “I am satisfied, after con-sultation with the heads of the interested de-partments and agencies, that we should have statutory authority to take over such vessels as our needs require. * * *” 87 Cong.Rec. 3072 (77th Cong., 1st Sess.); The Public Pa-pers and Addresses of Franklin D. Roose-velt, 1941 (Rosenman), 94. The necessary statutory authority was shortly forthcoming. 55 Stat. 242.

In his first inaugural address President Roo-sevelt pointed out two courses to obtain leg-islative remedies, one being to enact meas-ures he was prepared to recommend, the other to enact measures “the Congress may build out of its experience and wisdom.” He continued, “But in the event that the Con-gress shall fail to take and of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then con-front me. I shall ask the Congress for the one remaining instrument to meet the crisis-broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe.” (Emphasis sup-plied.) The Public Papers and Adresses of Franklin D. Roosevelt, 1933 (Rosenman), 15.

On March 6, 1933, 48 Stat. 1689, President Roosevelt proclaimed the Bank Holiday. The Proclamation did not invoke constitu-tional powers of the Executive but expressly and solely relied upon the Act of Congress of October 6, 1917, 40 Stat. 411, s 5(b), as amended, 50 U.S.C.A.Appendix, s 5(b). He relied steadily on legislation to empower him to deal with economic emergency. The Public Papers and Addresses of Franklin D. Roosevelt, 1933 (Rosenman), 24.

It is interesting to note Holdsworth’s com-ment on the powers of legislation by proc-lamation when in the hands of the Tudors. “The extent to which they could be legally used was never finally settled in this cen-tury, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.” 4 Holdsworth, History of English Law, 104.

648 The Solicitor General, acknowledging that Congress has never authorized the *877 seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt’s seizure of June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it *649 cannot be re-garded as even a precedent, much less an authority for the present seizure. FN17

FN17. The North American Aviation Com-pany was under direct and binding contracts to supply defense items to the Government. No such contracts are claimed to exist here. Seizure of plants which refused to comply with Government orders had been expressly authorized by Congress in s 9 of the Selec-tive Service Act of 1940, 54 Stat. 885, 892, so that the seizure of the North American plant was entirely consistent with congres-sional policy. The company might have ob-jected on technical grounds to the seizure, but it was taken over with acquiescence, amounting to all but consent, of the owners who had admitted that the situation was be-yond their control. The strike involved in the North American case was in violation of the union’s collective agreement and the na-tional labor leaders approved the seizure to end the strike. It was described as in the na-ture of an insurrection, a Communist-led po-litical strike against the Government’s lend-lease policy. Here we have only a loyal, law-ful, but regrettable economic disagreement between management and labor. The North American plant contained government-owned machinery, material and goods in the process of production to which workmen were forcibly denied access by picketing strikers. Here no Government property is protected by the seizure. See New York Times of June 10, 1941, pp. 1, 14 and 16, for substantially accurate account of the pro-ceedings and the conditions of violence at the North American plant.

The North American seizure was regarded as an execution of congressional policy. I do not regard it as a precedent for this, but, even if I did, I should not bind present judi-cial judgment by earlier partisan advocacy.

Statements from a letter by the Attorney General to the Chairman of the Senate Committee on Labor and Public Welfare, dated February 2, 1949, with reference to pending labor legislation, while not cited by any of the parties here are sometimes quoted as being in support of the ‘inherent’ powers of the President. The proposed bill contained a mandatory provision that during certain investigations the disputants in a labor dis-pute should continue operations under the terms and conditions of employment exist-ing prior to the beginning of the dispute. It made no provision as to how continuance should be enforced and specified no penalty for disobedience. The Attorney General ad-vised that in appropriate circumstances the United States would have access to the courts to protect the national health, safety and welfare. This was the rule laid down by this Court in Texas & N.O.R. Co. v. Broth-erhood of Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034. The Attorney General observed:

“However, with regard to the question of the power of the Government under Title III, I might point out that the inherent power of the President to deal with emergencies that affect the health, safety and welfare of the entire Nation is exceedingly great. See Opinion of Attorney General Murphy of Oc-tober 4, 1939, 39 Op.A.G. 344, 347; United States v. United Mine Workers of America, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884.”

“Regardless of the general reference to ‘in-herent powers,’ the citations were instances of congressional authorization. I do not sup-pose it is open to doubt that power to see that the laws are faithfully executed was ample basis for the specific advice given by the Attorney General in this letter.”

The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, al-though 650 it is something the forefathers omitted. They knew what emergencies were, knew the pres-sures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emer-gency powers would tend to kindle emergencies. Aside from suspension of the privilege of *878 the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it,FN18 they made no express provision for exercise of extraordinary authority because of a crisis.FN19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, al-though many modern nations have forthrightly rec-ognized that war and economic crises may upset the normal balance between liberty and authority.*651 Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.

FN18. U.S.Const. Art. I, s 9, cl. 2.

FN19. I exclude, as in a very limited cate-gory by itself, the establishment of martial law. Cf. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Duncan v. Kahanamoku, 327 U.S. 304, 66 S.Ct. 606, 90 L.Ed. 688.

Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seri-ously distrubed or endangered. This proved a tempta-tion to every government, whatever its shade of opin-ion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler per-suaded President Von Hindenberg to suspend all such rights, and they were never restored.FN20

FN20. I Nazi Conspiracy and Aggression 126-127; Rossiter, Constitutional Dictator-ship, 33-61; Brecht, Prelude to Silence, 138.

The French Republic provided for a very different kind of emergency government known as the ‘state of siege.’ It differed from the German emergency dicta-torship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or ab-rogation of law but was a legal institution governed by special legal rules and terminable by parliamen-tary authority.FN21

FN21. Rossiter, Constitutional Dictatorship, 117-129.

Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legisla-tion.FN22 As Parliament is not bound by written con-stitutional limitations, it established a crisis govern-ment simply by *652 delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the “highwater mark in the voluntary surrender of lib-erty,” but, as Churchill put it, “Parliament stands cus-todian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our per-severance.”FN23 Thus, parliamentary control made emergency powers compatible with freedom.

FN22. Defense of the Realm Act, 1914, 4 & 5, Geo. V. c. 29, as amended, c. 63; Emer-gency Powers (Defence) Act, 1939, 2 & 3 Geo. VI, c. 62; Rossiter, Constitutional Dic-tatorship, 135-184.

FN23. Churchill, The Unrelenting Struggle, 13. See also id., at 279-281.

This contemporary foreign experience may be incon-clusive as to the wisdom of lodging emergency pow-ers somewhere in a modern government. But it sug-gests that emergency powers are consistent with free government only when their control is lodged else-where than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the “ ‘inherent powers’ formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such pow-ers would, of course, be an executive convenience.”

In the practical working of our Government we al-ready have evolved a technique within the framework of the Constitution by which normal executive pow-ers may be considerably expanded to meet an emer-gency. Congress may and has granted extraordi-nary**879 authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney Gen-eral listed ninety-nine such separate statutory grants by Congress of emergency or war-time executive powers.FN24 They were invoked from time to time as need appeared. Under this procedure we retain Gov-ernment *653 by law-special, temporary law, per-haps, but law nonetheless. The public may know the extent and limitations of the powers that can be as-serted, and persons affected may be informed from the statute of their rights and duties.

FN24. 39 Op.Atty.Gen. 348.

In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dic-tatorship, but it is at least a step in that wrong direc-tion.

As to whether there is imperative necessity for such powers, it is relevant to note the gap that exists be-tween the President’s paper powers and his real pow-ers. The Constitution does not disclose the measure of the actual controls wielded by the modern presi-dential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from that re-served by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution.

Executive power has the advantage of concentration in a single head in those choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No othe person-ality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a lever-age upon those who are supposed *654 to check and balance his power which often cancels their effec-tiveness.

Moreover, rise of the party system has made a sig-nificant extraconstitutional supplement to real execu-tive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effec-tive control into branches of government other than his own and he often may win, as a political leader, what he cannot command under the Constitution. Indeed, Woodrow Wilson, commenting on the Presi-dent as leader both of his party and of the Nation, observed, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. * * * His office is anything he has the sagacity and force to make it.”FN25 I cannot be brought to believe that this country will suffer if the Court refuses further to ag-grandize the presidential office, already so potent and so relatively immune from judicial review,FN26 at the expense of Congress.

FN25. Wilson, Constitutional Government in the United States, 68-69.

FN26. Rossiter, The Supreme Court and the Commander in Chief, 126-132.

But I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primar-ily, challenges Congress. If not good law, there was worldly wisdom in the maxim attributed to Napoleon that “The tools belong to the man who can use them.” We may say that power to legislate for **880 emer-gencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.

The essence of our free Government is “ ‘leave to live by no man’s leave, underneath the law’-to be governed by those impersonal forces which we call law. Our Government*655 is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legisla-tive power. The executive action we have here origi-nates in the individual will of the President and repre-sents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Govern-ment possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its de-fects, delays and inconveniences, men have discov-ered no technique for long preserving free govern-ment except that the Executive be under the law, and that the law be made by parliamentary deliberations.”

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.FN27

FN27. We follow the judicial tradition insti-tuted on a memorable Sunday in 1612, when King James took offense at the independ-ence of his judges and, in rage, declared: “Then I am to be under the law-which it is treason to affirm.” Chief Justice Coke re-plied to his King: “Thus wrote Bracton, “The King ought not to be under any man, but he is under God and the law. ”” 12 Coke 63 (as to its verity, 18 Eng.Hist.Rev. 664-675); 1 Campbell, Lives of the Chief Jus-tices, 272.
Mr. Justice BURTON, concurring in both the opinion and judgment of the Court.
My position may be summarized as follows:

The validity of the President’s order of seizure is at issue and ripe for decision. Its validity turns upon its relation to the constitutional division of governmental power between Congress and the President.

*656 The Constitution has delegated to Congress power to authorize action to meet a national emer-gency of the kind we face.FN1 Aware of this responsi-bility, Congress has responded to it. It has provided at least two procedures for the use of the President.

FN1. ‘Article I

“Section. 1. All legislative Powers herein granted shall be vested in a Congress of the United States * * *.

‘Section. 8. The Congress shall have Power * * *;

‘To regulate Commerce with foreign Na-tions, and among the several States * * *;

‘To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Govern-ment of the United States, or in any Depart-ment or Officer thereof.”

It has outlined one in the Labor Management Rela-tions Act, 1947, better known as the Taft-Hartley Act. The accuracy with which Congress there de-scribes the present emergency demonstrates its appli-cability. It says:

“Whenever in the opinion of the President of the United States, a threatened or actual strike or lock-out affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation, transmission, or communication among the several States or with foreign nations, or engaged in the pro-duction of goods for commerce, will, if permitted to occur or to continue, imperil the national health or safety, he may appoint a board of inquiry to inquire into the issues involved in the dispute and to make a written report to him within *881 such time as he shall prescribe. * *” FN2

FN2. 61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.

*657 In that situation Congress has authorized not only negotiation, conciliation and impartial inquiry but also a 60-day cooling-off period under injunction, followed by 20 days for a secret ballot upon the final offer of settlement and then by recommendations from the President to Congress.FN3

FN3. 61 Stat. 155-156, 29 U.S.C. (Supp. IV) ss 176-180, 29 U.S.C.A. ss 176-180.

For the purposes of this case the most significant feature of that Act is its omission of authority to seize an affected industy. The debate preceding its passage demonstrated the significance of that omission. Col-lective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies. FN4

FN4. The Chairman of the Senate Commit-tee sponsoring the bill said in the Senate:

“We did not feel that we should put into the law, as a part of the collectivebargaining machinery, an ultimate resort to compulsory arbitration, or to seizure, or to any other ac-tion. We feel that it would interfere with the whole process of collective bargaining. If such a remedy is available as a routine rem-edy, there will always be pressure to resort to it by whichever party thinks it will receive better treatment through such a process than it would receive in collective bargaining, and it will back out of collective bargaining. It will not make a bona-fide attempt to settle if it thinks it will receive a better deal under the final arbitration which may be provided.

‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes, after the termination of every possi-ble effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.

‘I have had in mind drafting such a bill, giv-ing power to seize the plants, and other nec-essary facilities, to seize the unions, their money, and their treasury, and requisition trucks and other equipment; in fact, to do everything that the British did in their gen-eral strike of 1926. But while such a bill might be prepared, I should be unwilling to place such a law on the books until we actu-ally face such an emergency, and Congress applies the remedy for the particular emer-gency only. Eighty days will provide plenty of time within which to consider the possi-bility of what should be done; and we be-lieve very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835-3836.

Part of this quotation was relied upon by this Court in Amalgamated Association of Street Railway & Motor Coach Employees v. Wis-consin Employment Relations Board, 340 U.S. 383, 396, note 21, 71 S.Ct. 359, 366, 95 L.Ed. 364.

*658 The President, however, chose not to use the Taft-Hartley procedure. He chose another course, also authorized by Congress. He referred the contro-versy to the Wage Stabilization Board.FN5 If that course had led to a settlement of the labor dispute, it would have avoided the need for other action. It, however, did not do so.

FN5. Under Titles IV and V of the Defense Production Act of 1950, 64 Stat. 803-812, 50 U.S.C.App. (Supp. IV) ss 2101-2123, 50 U.S.C.A.Appendix, ss 2101-2123; and see Exec. Order No. 10233, 50 U.S.C.A.Appendix, s 2071 note, 16 Fed.Reg. 3503.

Now it is contended that although the President did not follow the procedure authorized by the Taft-Hartley Act, his substituted procedure served the same purpose and must be accepted as it equivalent. Without appraising that equivalence, it is enough to point out that neither procedure carried statutory authority for the seizure of private industries in the manner now at issue. FN6 The exhaustion of both pro-cedures fails to cloud the *659 clarity of the congres-sional reservation of seizure for its own considera-tion.

FN6. Congress has authorized other types of seizure under conditions not present here. Section 201 of the Defense Production Act authorizes the President to acquire specific “real property, including facilities, tempo-rary use thereof, or other interest therein * * *” by condemnation. 64 Stat. 799, as amended, 65 Stat. 132, see 50 U.S.C.App. (Supp. IV) s 2081, 50 U.S.C.A.Appendix, s 2081. There have been no declarations of taking or condemnation proceedings in rela-tion to any of the properties involved here. Section 18 of the Selective Service Act of 1948 authorizes the President to take posses-sion of a plant or other facility failing to fill certain defense orders placed with it in the manner there prescribed. 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. No orders have been so placed with the steel plants seized.

**882 The foregoing circumstances distinguish this emergency from one in which Congress takes no ac-tion and outlines no governmental policy. In the case before us, Congress authorized a procedure which the President declined to follow. Instead, he followed another procedure which he hoped might eliminate the need for the first. Upon its failure, he issued an executive order to seize the steel properties in the fact of the reserved right of Congress to adopt or reject that course as a matter of legislative policy.

This brings us to a further crucial question. Does not President, in such a situation, have inherent constitu-tional power to seize private property which makes congressional action in relation thereto unnecessary? We find no such power available to him under the present circumstances. The present situation is not comparable to that of an imminent invasion or threat-ened attack. We do not face the issue of what might be the President’s constitutional power to meet such catastrophic situations. Nor is it claimed that the cur-rent seizure is in the nature of a military command addressed by the President, as Commander-in-Chief, to a mobilized nation waging, or imminently threat-ened with, total war.FN7

FN7. The President and Congress have rec-ognized the termination of the major hostili-ties in the total wars in which the Nation has been engaged. Many wartime procedures have expired or been terminated.

The War Labor Disputes Act, 57 Stat. 163 et seq., 50 U.S.C.App. ss 1501-1511, 50 U.S.C.A.Appendix, ss 1501-1511, expired June 30, 1947, six months after the Presi-dent’s declaration of the end of hostilities, 3 CFR, 1946 Supp., p. 77. The Japanese Peace Treaty was approved by the Senate March 20, 1952, 98 Cong.Rec. 2635, and pro-claimed by the President April 28, 1952, No. 2974, 17 Fed.Reg. 3813.

*660 The controlling fact here is that Congress, within its constitutionally delegated power, has pre-scribed for the President specific procedures, exclu-sive of seizure, for his use in meeting the present type of emergency. Congress has reserved to itself the right to determine where and when to authorize the seizure of property in meeting such an emergency. Under these circumstances, the President’s order of April 8 invaded the jurisdiction of Congress. It vio-lated the essence of the principle of the separation of governmental powers. Accordingly, the injunction against its effectiveness should be sustained.
Mr. Justice CLARK, concurring in the judgment of the Court.
One of this Court’s first pronouncements upon the powers of the President under the Constitution was made by Chief Justice John Marshall some one hun-dred and fifty years ago. In Little v. Barreme,FN1 he used this characteristically clear language in discuss-ing the power of the President to instruct the seizure of the ‘Flying-Fish,’ a vessel bound from a French port: “It is by no means clear that the President of the United States whose high duty it is to “take care that the laws be faithfully executed,” and who is com-mander in chief of the armies and navies of the United States, might not, without any special author-ity for that purpose, in the then existing state of things, have empowered the officers commanding the armed vessels of the United States, to seize and send into port for adjudication, American vessels which were forfeited by being engaged in this illicit com-merce. But when it is observed that (an act of Con-gress) gives a special authority to seize on the high seas, and limits that **883 authority to the seizure of vessels bound or sailing to a French port, the legisla-ture seem to have prescribed that *661 the manner in which this law shall be carried into execution, was to exclude a seizure of any vessel not bound to a French port.”FN2 Accordingly, a unanimous Court held that the President’s instructions had been issued without authority and that they could not “legalize an act which without those instructions would have been a plain trespass.” I know of no subsequent holding of this Court to the contrary.FN3

FN1. 1804, 2 Cranch 170, 2 L.Ed. 243.

FN2. 2 Cranch at pages 177-178, 2 L.Ed. 243 (emphasis added).

FN3. Decisions of this Court which have upheld the exercise of presidential power in-clude the following: Prize Cases (The Amy Warwick), 1863, 2 Black 635, 17 L.Ed. 459, (subsequent ratification of President’s acts by Congrss); In re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, (protection of federal officials from personal violence while performing official duties); In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (injunction to prevent forcible obstruction of interstate commerce and the mails); United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673 (acquiescence by Congress in more than 250 instances of exercise of same power by various Presidents over period of 80 years); Myers v. United States, 1926, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (control over sub-ordinate officials in executive department) (but see Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626-628, 55 S.Ct. 869, 873, 874, 79 L.Ed. 1611); Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, and Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (express congressional authorization); cf. United States v. Russell, 1871, 13 Wall. 623, 20 L.Ed. 474 (imperative military necessity in area of combat during war); United States v. Curtiss-Wright Export Corp., 1936, 299 U.S 304, 57 S.Ct. 216, 81 L.Ed. 255 (power to negotiate with foreign governments); United States v. United Mine Workers, 1947, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (sei-zure under specific statutory authorization).

The limits of presidential power are obscure. How-ever, Article II, no less than Article I, is part of “a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” FN4 Some of our Presidents, such as Lincoln, “felt that measures otherwise unconstitu-tional might become lawful by becoming indispensa-ble to the preservation of the Constitution through the preservation of the nation.” FN5 *662 Others, such as Theodore Roosevelt, thought the President to be ca-pable, as a ‘steward’ of the people, of exerting all power save that which is specifically prohibited by the Constitution or the Congress.FN6 In my view-taught me not only by the decision of Chief Justice Marshall in Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243, but also by a score of other pronouncements of distinguished members of this bench-the Constitution does grant to the President extensive authority in times of grave and imperative national emergency. In fact, to my thinking, such a grant may well be neces-sary to the very existence of the Constitution itself. As Lincoln aptly said, “(is) it possible to lose the nation and yet preserve the Constitution?’ FN7 In de-scribing this authority I care not whether one calls it ‘residual,’ ‘inherent,’ “moral, ‘implied,’ ‘aggregate,’ ‘emergency,’ or otherwise. I am of the conviction that those who have had the grantifying experience of being the President’s lawyer have used one or more of these adjectives only with the utmost of sincerity and the highest of purpose.”

FN4. Chief Justice Marshall, in McCulloch v. Maryland, 1819, 4 Wheat. 316, 415, 4 L.Ed. 579.

FN5. Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Works of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.

FN6. Roosevelt, Autobiography (1914 ed.), 371-372.

FN7. Letter of April 4, 1864, to A. G. Hodges, in 10 Complete Words of Abraham Lincoln (Nicolay and Hay ed. 1894), 66.

**884 I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those pro-cedures in meeting the crisis; but that in the absence of such action by Congress, the President’s independ-ent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Bar-reme, 2 Cranch 170, 2 L.Ed. 243, Congress had pre-scribed methods to be followed by the President in meeting the emergency at hand.

*663 Three statutory procecures were available: those provided in the Defense Production Act of 1950, 50 U.S.C.A.Appendix, s 2061 et seq., the La-bor Management Relations Act, 29 U.S.C.A. s 141 et seq., and the Selective Service Act of 1948, 50 U.S.C.A.Appendix, s 451 et seq. In this case the President invoked the first of these procedures; he did not invoke the other two.

The Defense Production Act of 1950 provides for mediation of labor disputes affecting national de-fense. Under this statutory authorization, the Presi-dent has established the Wage Stabilization Board. The Defense Production Act, however, grants the President no power to seize real property except through ordinary condemnation proceedings, which were not used here, and creates no sanctions for the settlement of labor disputes.

The Labor Management Relations Act, commonly known as the Taft-Hartley Act, includes provisions adopted for the purpose of dealing with nationwide strikes. They establish a procedure whereby the President may appoint a board of inquiry and thereaf-ter, in proper cases, seek injunctive relief for an 80-day period against a threatened work stoppage. The President can invoke that procedure whenever, in his opinion, “a threatened or actual strike * * * affecting an entire industry * * * will, if permitted to occur or to continue, imperil the national health or safety.”FN8 At the time that Act was passed, Congress specifi-cally rejected a proposal to empower the President to seize any ‘plant, mine, or facility’ in which a threat-ened work stoppage would, in his judgment, “imperil the public health or security.”FN9 Instead, the Taft-Hartley Act directed the President, in the event a strike had not been settled during the 80-day injunc-tion period, to submit to Congress “a full and com-prehensive report * * * together with such recom-mendations as he may see fit to make for considera-tion and *664 appropriate action.”FN10 The legislative history of the Act demonstrates Congress’ belief that the 80-day period would afford it adequate opportu-nity to determine whether special legislation should be enacted to meet the emergency at hand.FN11

FN8. 61 Stat. 155, 29 U.S.C. (Supp. IV) s 176, 29 U.S.C.A. s 176.

FN9. 93 Cong.Rec. 3637-3645; cf. id., at 3835-3836.

FN10. 61 Stat. 156, 29 U.S.C. (Supp. IV) s 180, 29 U.S.C.A. s 180.

FN11. E.g., S.Rep.No.105, 80th Cong., 1st Sess. 15; 93 Cong.Rec. 3835-3836; id., at 4281.

The Selective Service Act of 1948 gives the President specific authority to seize plants which fail to pro-duce goods required by the armed forces or the Atomic Energy Commission for national defense purposes. The Act provides that when a producer from whom the President has ordered such goods ‘refuses or fails’ to fill the order within a period of time prescribed by the President, the President may take immediate possession of the producer’s plant.FN12 This language is significantly broader than **885 *665 that used in the National Defense Act of 1916 and the Selective Training and Service Act of 1940, which provided for seizure when a producer ‘refused’ to supply essential defense materials, but not when he ‘failed’ to do so.FN13

FN12. The producer must have been notified that the order was placed pursuant to the Act. The Act provides in pertinent part as follows:

“(a) Whenever the President after consulta-tion with and receiving advice from the Na-tional Security Resources Board determines that it is in the interest of the national secu-rity for the Government to obtain prompt de-livery of any articles or materials the pro-curement of which has been authorized by the Congress exclusively for the use of the armed forces of the United States, or for the use of the Atomic Energy Commission, he is authorized, through the head of any Gov-ernment agency, to place with any person operating a plant, mine, or other facility ca-pable of producing such articles or materials an order for such quantity of such articles or materials as the President deems appropri-ate. Any person with whom an order is placed pursuant to the provisions of this sec-tion shall be advised that such order is placed pursuant to the provisions of this sec-tion.

‘(c) In case any person with whom an order is placed pursuant to the provisions of sub-section (a) refuses or fails-

‘(2) to fill such order within the period of time prescribed by the President or as soon thereafter as possible as determined by the President;

‘(3) to produce the kind or quality of articles or materials ordered; or

‘(4) to furnish the quantity, kind, and quality of articles or materials ordered at such price as shall be negotiated between such person and the Government agency concerned; or in the event of failure to negotiate a price, to furnish the quantity, kind, and quality of ar-ticles or materials ordered at such price as he may subsequently be determined to be enti-tled to receive under subsection (d); the President is authorized to take immediate possession of any plant, mine, or other facil-ity of such person and to operate it, through any Government agency, for the production of such articles or materials as may be re-quired by the Government.” 62 Stat. 625, 50 U.S.C.App. (Supp. IV) s 468, 50 U.S.C.A.Appendix, s 468. The Act was amended in 1951 and redesignated the Uni-versal Military Training and Service Act, but no change was made in this section. 65 Stat. 75.

FN13. 39 Stat. 213, 50 U.S.C.A. s 80; 54 Stat. 892.

These three statutes furnish the guideposts for deci-sion in this case. Prior to seizing the steel mills on April 8 the President had exhausted the mediation procedures of the Defense Production Act through the Wage Stabilization Board. Use of those proce-dures had failed to avert the impending crisis; how-ever, it had resulted in a 99-day postponement of the strike. The Government argues that this accomplished more than the maximum 80-day waiting period pos-sible under the sanctions of the Taft-Hartley Act, and therefore amounted to compliance with the substance of that Act. Even if one were to accept this somewhat hyperbolic conclusion, the hard fact remains that nei-ther the Defense Production Act nor Taft-Hartley authorized the seizure challenged here, and the Gov-ernment made no effort to comply with the proce-dures*666 established by the Selective Service Act of 1948, a statute which expressly authorizes seizures when producers fail to supply necessary defense mate riel.FN14

FN14. The Government has offered no ex-planation, in the record, the briefs, or the oral argument, as to why it could not have made both a literal and timely compliance with the provisions of that Act. Apparently the Government could have placed orders with the steel companies for the various types of steel needed for defense purposes, and instructed the steel companies to ship the mate riel directly to producers of planes, tanks, and munitions. The Act does not re-quire that government orders cover the en-tire capacity of a producer’s plant before the President has power to seize.

Our experience during World War I demon-strates the speed with which the Government can invoke the remedy of seizing plants which fail to fill compulsory orders. The Federal Enameling & Stamping Co., of McKees Rocks, Pa., was served with a com-pulsory order on September 13, 1918, and seized on the same day. The Smith & Wes-son plant at Springfield, Mass., was seized on September 13, 1918, after the company had failed to make deliveries under a com-pulsory order issued the preceding week. Communication from Ordnance Office to War Department Board of Appraisers, enti-tled “Report on Plants Commandeered by the Ordnance Office,” Dec. 19, 1918, pp. 3, 4, in National Archives, Records of the War Department, Office of the Chief of Ord-nance, O.O. 004.002/260. Apparently the Mosler Safe Co., of Hamilton, Ohio, was seized on the same day on which a compul-sory order was issued. Id., at 2; Letter from counsel for Mosler Safe Co. to Major Gen-eral George W. Goethals, Director of Pur-chase, Storage and Traffic, War Department, Dec. 9, 1918, p. 1, in National Archives, Re-cords of the War Department, Office of the General Staff, PST Division 400.1202.

**886 For these reasons I concur in the judgment of the Court. As Justice Story once said: “For the execu-tive department of the government, this court enter-tain the most entire respect; and amidst the multiplic-ity of cares in that department, it may, without any violation of decorum, be presumed, that sometimes there may be an inaccurate construction of a law. It is our duty to expound the laws as we find them in the records of state; *667 and we cannot, when called upon by the citizens of the country, refuse our opin-ion, however it may differ from that of very great authorities.”FN15

FN15. The Orono, C.C.D.Mass.1812, 18 Fed.Cas.No.10,585.

*629 Mr. Justice DOUGLAS, concurring.
There can be no doubt that the emergency which caused the President to seize these steel plants was one that bore heavily on the country. But the emer-gency did not create power; it merely marked an oc-casion when power should be exercised. And the fact that it was necessary that measures be taken to keep steel in production does not mean that the President, rather than the Congress, had the constitutional authority to act. The Congress, as well as the Presi-dent, is trustee of the national welfare. The President can act more quickly than the Congress. The Presi-dent with the armed services at his disposal can move with force as well as with speed. All executive power-from the reign of ancient kings to the rule of modern dictators-has the outward appearance of effi-ciency.

Legislative power, by contrast, is slower to exercise. There must be delay while the ponderous machinery of committees, hearings, and debates is put into mo-tion. That takes time; and while the Congress slowly moves into action, the emergency may take its toll in wages, consumer goods, war production, the standard of living of the people, and perhaps even lives. Legis-lative action may indeed often be cumbersome, time-consuming, and apparently inefficient. But as Mr. Justice Brandeis stated in his dissent in Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160:

“The doctrine of the separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distri-bution of the governmental powers among three de-partments, to save the people from autocracy.”

*630 We therefore cannot decide this case by deter-mining which branch of government can deal most expeditiously with the present crisis. The answer must depend on the allocation of powers under the Constitution. That in turn requires an analysis of the conditions giving rise to the seizure and of the seizure itself.

The relations between labor and industry are one of the crucial problems of the era. Their solution will doubtless entail many methods-education of labor leaders and business executives; the encouragement of mediation and conciliation by the President and the use of his great office in the cause of industrial peace; and the passage of laws. Laws entail sanc-tions-penalties for their violation. One type of sanc-tion is find and imprisonment. Another is seizure of property. An industry may become so lawless, so irresponsible as to endanger the whole economy. Sei-zure of the industry may be the only wise and practi-cal solution.

The method by which industrial peace is achieved is of vital importance not only to **887 the parties but to society as well. A determination that sanctions should be applied, that the hand of the law should be placed upon the parties, and that the force of the courts should be directed against them, is an exercise of legislative power. In some nations that power is entrusted to the executive branch as a matter of course or in case of emergencies. We chose another course. We chose to place the legislative power of the Federal Government in the Congress. The language of the Constitution is not ambiguous or qualified. It places not some legislative power in the Congress; Article I, Section 1 says “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

The legislative nature of the action taken by the President seems to me to be clear. When the United States *631 takes over an industrial plant to settle a labor controversy, it is condemning property. The seizure of the plant is a taking in the constitutional sense. United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809. A permanent tak-ing would amount to the nationalization of the indus-try. A temporary taking falls short of that goal. But though the seizure is only for a week or a month, the condemnation is complete and the United States must pay compensation for the temporary possession. United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311; United States v. Pewee Coal Co., supra.

The power of the Federal Government to condemn property is well established. Kohl v. United States, 91 U.S. 367, 23 L.Ed. 449. It can condemn for any public purpose; and I have no doubt but that condem-nation of a plant, factory, or industry in order to pro-mote industrial peace would be constitutional. But there is a duty to pay for all property taken by the Government. The command of the Fifth Amendment is that no “private property be taken for public use, without just compensation. That constitutional re-quirement has an important bearing on the present case.”

The President has no power to raise reveunes. That power is in the Congress by Article I, Section 8 of the Constitution. The President might seize and the Con-gress by subsequent action might ratify the sei-zure.FN1 But until and unless Congress acted, no con-demnation would be lawful. The branch of govern-ment that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that *632 the President had effected. FN2 That seems to me to be the necessary result of the condemnation provision in the Fifth Amendment. It squares with the theory of checks and balances ex-pounded by Mr. Justice BLACK in the opinion of the Court in which I Join.

FN1. What a President may do as a matter of expediency or extremity may never reach a definitive consitutional decision. For exam-ple, President Lincoln suspended the writ of habeas corpus, claiming the constitutional right to do so. See Ex part Merryman, 17 Fed.Cas.No.9,487. Congress ratified his ac-tion by the Act of March 3, 1863. 12 Stat. 755.

FN2. Mr. Justice Brandeis, speaking for the Court in United States v. North American Transportation & Trading Co., 253 U.S. 330, 333, 40 S.Ct. 518, 520, 64 L.Ed. 935, stated that the basis of the Government’s li-ability for a taking of property was legisla-tive authority, “In order that the Government shall be liable to must appear that the officer who has physically taken possession of the property was duly authorized so to do, either directly by Congress or by the official upon whom Congress conferred the power.”

That theory explains cases like United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, where the acts of the officials resulting in a taking were acts authorized by the Congress, though the Congress had not treated the acts us one of appropriation of private property.

War-time seizures by the military in connec-tion with military operations, cf. United States v. Russell, 13 Wall. 623, 20 L.Ed. 474, are also in a different category.

If we sanctioned the present exercise of power by the President, we would be expanding**888 Article II of the Constitution and rewriting it to suit the political conveniences of the present emergency. Article II which vests the ‘executive Power’ in the President defines that power with particularity. Article II, Sec-tion 2 makes the Chief Executive the Commander in Chief of the Army and Navy. But our history and tradition rebel at the thought that the grant of military power carries with it authority over civilian affairs. Article II, Section 3 provides that the President shall “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge neces-sary and expedient.” The power to recommend legis-lation, granted to the President, serves only to em-phasize that it is his function to recommend and that it is the function of the Congress to legislate. *633Article II, Section 3, also provides that the President “shall take Care that the Laws be faithfully executed.” But as Mr. Justice BLACK and Mr. Jus-tice FRANKFURTER point out the power to execute the laws starts and ends with the laws Congress has enacted.

The great office of President is not a weak and pow-erless one. The President represents the people and is their spokesman in domestic and foreign affairs. The office is respected more than any other in the land. It gives a position of leadership that is unique. The power to formulate policies and mould opinion in-heres in the Presidency and conditions our national life. The impact of the man and the philosophy he represents may at times be thwarted by the Congress. Stalemates may occur when emergencies mount and the Nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers. The tragedy of such stalemates might be avoided by allowing the President the use of some legislative authority. The Framers with memories of the tyrannies produced by a blending of executive and legislative power rejected that political arrange-ment. Some future generation may, however, deem it so urgent that the President have legislative authority that the Constitution will be amended. We could not sanction the seizures and condemnations of the steel plants in this case without reading Article II as giving the President not only the power to execute the laws but to make some. Such a step would most assuredly alter the pattern of the Constitution.

We pay a price for our system of checks and bal-ances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Today a kindly President uses the seizure power to effect a wage increase and to keep the steel furnaces in production. Yet tomor-row another President might use the same power to prevent a wage increase, to curb trade unionists, to regiment labor as oppressively as industry thinks it has been regimented by this seizure.

*593 Mr. Justice FRANKFURTER, concurring.
Before the cares of the White House were his own, President Harding is reported to have said that gov-ernment after all is a very simple thing. He must have said that, if he said it, as a fleeting inhabitant of fairy-land. The opposite is the truth. A constitutional de-mocracy like ours is perhaps the most difficult of man’s social arrangements to manage successfully. Our scheme of society is more dependent than any other form of government on knowledge and wisdom and self-descipline for the achievement of its aims. For our democracy implies the reign of reason on the most extensive scale. The Founders of this Nation were not imbued with the modern cynicism that the only thing that history teaches is that it teaches noth-ing. They acted on the conviction that the experience of man sheds a good deal of light on his nature. It sheds a good deal of light not merely on the need for effective power, if a society is to be at once cohesive and civilized, but also on the need for limitations on the power of governors over the governed.

**889 To that end they rested the structure of our central government on the system of checks and bal-ances. For them the doctrine of separation of powers was not mere theory; it was a felt necessity. Not so long ago it was fashionable to find our system of checks and balances obstructive to effective govern-ment. It was easy to ridicule that system as out-moded-too easy. The experience through which the world has passed in our own day has made vivid the realization that the Framers of our Constitution were not inexperienced doctrinaires. These long-headed statesmen had no illusion that our people enjoyed biological or psychological or sociological immuni-ties from the hazards of concentrated power. It is absurd to see a dictator in a representative product of the sturdy democratic traditions of the Mississippi Valley.*594 The accretion of dangerous power does not come in a day. It does come, however slowly, from the generative force of unchecked dis-regard of the restrictions that fence in even the most disinterested assertion of authority.

The Framers, however, did not make the judiciary the overseer of our government. They were familiar with the revisory functions entrusted to judges in a few of the States and refused to lodge such powers in this Court. Judicial power can be exercised only as to matters that were the traditional concern of the courts at Westminster, and only if they arise in ways that to the expert feel of lawyers constitute ‘Cases’ or ‘Con-troversies.’ Even as to questions that were the staple of judicial business, it is not for the courts to pass upon them unless they are indispensably involved in a conventional litigation. And then, only to the extent that they are so involved. Rigorous adherence to the narrow scope of the judicial function is especially demanded in controversies that arouse appeals to the Constitution. The attitude with which this Court must approach its duty when confronted with such issues is precisely the opposite of that normally manifested by the general public. So-called constitutional questions seem to exercise a mesmeric influence over the popu-lar mind. This eagerness to settle-preferably forever-a specific problem on the basis of the broadest possible constitutional pronouncements may not unfairly be called one of our minor national traits. An English observer of our scene has acutely described it: “At the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy. The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry’s men before Harfleur, they stand like greyhounds in the slips, straining upon the start.” The Economist, May 10, 1952, p. 370.

*595 The path of duty for this Court, it bears repeti-tion, lies in the opposite direction. Due regard for the implications of the distribution of powers in our Con-stitution and for the nature of the judicial process as the ultimate authority in interpreting the Constitution, has not only confined the Court within the narrow domain of appropriate adjudication. It has also led to “a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Brandeis, J., in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 346, 56 S.Ct. 466, 480, 482, 80 L.Ed. 688. A basic rule is the duty of the Court not to pass on a constitutional issue at all, however narrowly it may be confined, if the case may, as a matter of intellec-tual honesty, be decided without even considering delicate problems of power under the Constitution. It ought to be, but apparently is not a matter of common understanding that clashes between different branches of the government should be avoided if a legal ground of less explosive potentialities is prop-erly available. Constitutional adjudications are apt by exposing differences to exacerbate them.

So here our first inquiry must be not into the powers of the President, but into the powers of a District Judge to issue a temporary injunction in the circum-stances of this case. Familiar as that remedy is, it remains an extraordinary remedy. To **890 start with a consideration of the relation between the President’s powers and those of Congress-a most delicate matter that has occupied the thoughts of statesmen and judges since the Nation was founded and will continue to occupy their thoughts as long as our democracy lasts-is to start at the wrong end. A plaintiff is not entitled to an injunction if money damages would fairly compensate him for any wrong he may have suffered. The same considerations by which the Steelworkers, in their brief amicus, demon-strate, from the seizure here in controversy, conse-quences*596 that cannot be translated into dollars and cents, preclude a holding that only compensable damage for the plaintiffs is involved. Again, a court of equity ought not to issue an injunction, even though a plaintiff otherwise makes out a case for it, if the plaintiff’s right to an injunction is overborne by a commanding public interest against it. One need not resort to a large epigrammatic generalization that the evils of industrial dislocation are to be preferred to allowing illegality to go unchecked. To deny inquiry into the President’s power in a case like this, because of the damage to the public interest to be feared from upsetting its exercise by him, would in effect always preclude inquiry into challenged power, which pre-sumably only avowed great public interest brings into action. And so, with the utmost unwillingness, with every desire to avoid judicial inquiry into the powers and duties of the other two branches of the govern-ment, I cannot escape consideration of the legality of Executive Order No. 10340.

The pole-star for constitutional adjudications is John Marshall’s greatest judicial utterance that “it is a con-stitution we are expounding.” McCulloch v. Mary-land, 4 Wheat. 316, 407, 4 L.Ed. 579. That requires both a spacious view in applying an instrument of government “made for an underfined and expanding future,” Hurtado v. People of State of California, 110 U.S. 516, 530, 4 S.Ct. 111, 118, 28 L.Ed. 232, and as narrow a delimitation of the constitutional issues as the circumstances permit. Not the least characteristic of great statesmanship which the Framers manifested was the extent to which they did not attempt to bind the future. It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pro-nouncements today.

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.*597 “The great ordinances of the Constitu-tion do not establish and divide fields of black and white.” Holmes, J., dissenting in Springer v. Gov-ernment of Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845.

The issue before us can be met, and therefore should be, without attempting to define the President’s pow-ers comprehensively. I shall not attempt to delineate what belongs to him by virtue of his office beyond the power even of Congress to contract; what author-ity belongs to him until Congress acts; what kind of problems may be dealt with either by the Congress or by the President or by both, cf. La Abra Silver Mine Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; what power must be exercised by the Congress and cannot be delegated to the President. It is as unprofitable to lump together in an undiscrimi-nating hotch-potch past presidential actions claimed to be derived from occupancy of the office, as it is to conjure up hypothetical future cases. The judiciary may, as this case proves, have to intervene in deter-mining where authority lies as between the democ-ratic forces in our scheme of government. But in do-ing so we should be wary and humble. Such is the teaching of this Court’s ro le in the history of the country.

It is in this mood and with this perspective that the issue before the Court must be approached. We must therefore put to one side consideration of what pow-ers the President would have had if there had been no legislation whatever bearing on the **891 authority asserted by the seizure, or if the seizure had been only for a short, explicitly temporary period, to be terminated automatically unless Congressional ap-proval were given. These and other questions, like or unlike, are not now here. I would exceed my author-ity were I to say anything about them.

The question before the Court comes in this setting. Congress has frequently-at least 16 times since 1916-*598 specifically provided for executive seizure of production, transportation, communications, or stor-age facilities. In every case it has qualified this grant of power with limitations and safeguards. This body of enactments-summarized in tabular form in Appen-dix I-demonstrates that Congress deemed seizure so drastic a power as to require that it be carefully cir-cumscribed whenever the President was vested with this extraordinary authority. The power to seize has uniformly been given only for a limited period or for a defined emergency, or has been repealed after a short period. Its exercise has been restricted to par-ticular circumstances such as “time of war or when was is imminent,” the needs of ‘public safety’ or of ‘national security or defense,’ or ‘urgent and impend-ing need.’ The period of governmental operation has been limited, as, for instance, to “sixty days after the restoration of productive efficiency.” Seizure statutes usually make executive action dependent on detailed conditions: for example, (a) failure or refusal of the owner of a plant to meet governmental supply needs or (b) failure of voluntary negotiations with the owner for the use of a plant necessary for great public ends. Congress often has specified the particular ex-ecutive agency which should seize or operate the plants or whose judgment would appropriately test the need for seizure. Congress also has not left to implication that just compensation be paid: it has usually legislated in detail regarding enforcement of this litigation-breeding general requirement.

Congress in 1947 was again called upon to consider whether governmental seizure should be used to avoid serious industrial shutdowns. Congress decided against conferring such power generally and in ad-vance, without special congressional enactment to meet each particular need. Under the urgency of tele-phone and coal strikes in 599 the winter of 1946, Congress addressed itself to the problems raised by ‘national emergency’ strikes and lockouts. FN1 The termination of wartime seizure powers on December 31, 1946, brought these matters to the attention of Congress with vivid impact. A proposal that the President be given powers to seize plants to avert a shutdown where the ‘health or safety’ of the nation was endangered, was thoroughly canvassed by Con-gress and rejected. No room for doubt remains that the proponents as well as the opponents of the bill which became the Labor Management Relations Act of 1947 clearly understood that as a result of that legislation the only recourse for preventing a shut-down in any basic industry, after failure of mediation, was Congress.FN2 Authorization for seizure as *600 an available remedy*892 for potential dangers was unequivocally put aside. The Senate Labor Commit-tee, through its Chairman, explicitly reported to the Senate that a general grant of seizure powers had been considered and rejected in favor of reliance on ad hoc legislation, as a particular emergency might call for it.FN3 An amendment presented in the House providing that where necessary “to preserve and pro-tect the public health and security” the President might seize any industry in which there is *601 an impending curtailment of production, was voted down after debate, by a vote of more than three to one.FN4

FN1. The power to seize plants under the War Labor Disputes Act ended with the termination of hostilities, proclaimed on Dec. 31, 1946, prior to the incoming of the Eightieth Congress; and the power to oper-ate previously seized plants ended on June 30, 1947, only a week after the enactment of the Labor Management Relations Act over the President’s veto. 57 Stat. 163, 165, 50 U.S.C.App. (1946 ed.) s 1503, 50 U.S.C.A.Appendix, s 1503. See 2 Legisla-tive History of the Labor Management Rela-tions Act, 1947 (published by National La-bor Relations Board, 1948), 1145, 1519, 1626.

FN2. Some of the more directly relevant statements are the following: “In most in-stances the force of public opinion should make itself sufficiently felt in this 80-day period to bring about a peaceful termination of the controversy. Should this expectation fail, the bill provides for the President laying the matter before Congress for whatever leg-islation seems necessary to preserve the health and safety of the Nation in the crisis.” Senate Report No. 105, 80th Cong., 1st Sess. 15.

“We believe it would be most unwise for the Congress to attempt to adopt laws relating to any single dispute between private parties.” Senate Minority Report, id., Part 2, at 17.

In the debates Senator H. Alexander Smith, a member of the Senate Committee on La-bor and Public Welfare, said, “In the event of a deadlock and a strike is not ended, the matter is referred to the President, who can use his discretion as to whether he will pre-sent the matter to the Congress, whether or not the situation is such that emergency leg-islation is required.”

“Nothing has been done with respect to the Smith-Connally Act. There is no provision for taking over property or running plants by the Government. We simply provide a pro-cedure which we hope will be effective in 99 out of 100 cases where the health or safety of the people may be affected, and still leave a loophole for congressional action.” 93 Cong.Rec. 4281.

The President in his veto message said, “* * * it would be mandatory for the President to transfer the whole problem to the Congress, even if it were not in session. Thus, major economic disputes between employers and their workers over contract terms might ul-timately be thrown into the political arena for disposition. One could scarcely devise a less effective method for discouraging criti-cal strikes.” 93 Cong.Rec. 7487.

FN3. Senator Taft said:

“If there finally develops a complete na-tional emergency threatening the safety and health of the people of the United States, Congress can pass an emergency law to cover the particular emergency. * * *

‘We have felt that perhaps in the case of a general strike, or in the case of other serious strikes after the termination of every possi-ble effort to resolve the dispute, the remedy might be an emergency act by Congress for that particular purpose.

‘* * * But while such a bill (For seizure of plants and union funds) might be prepared, I should be unwilling to place such a law on the books until we actually face such an emergency, and Congress applies the rem-edy for the particular emergency only. Eighty days will provide plenty of time within which to consider the possibility of what should be done; and we believe very strongly that there should not be anything in this law which prohibits finally the right to strike.” 93 Cong.Rec. 3835-3836.

FN4. 93 Cong. Rec. 3637-3645.

In adopting the provisions which it did, by the Labor Management Relations Act of 1947, for dealing with a ‘national emergency’ arising out of a breakdown in peaceful industrial relations, Congress was very fa-miliar with Government seizure as a protective meas-ure. On a balance of considerations Congress chose not to lodge this power in the President. It chose not to make available in advance a remedy to which both industry and labor were fiercely hostile. FN5 In decid-ing that authority to seize should be given to the President only after full consideration of the particu-lar situation should show such legislation to be nec-essary,**893 Congress presumably acted on experi-ence with similar industrial conflicts in the past. It evidently assumed that industrial shutdowns in basic industries are not instances of spontaneous genera-tion, *602 and that danger warnings are sufficiently plain before the event to give ample opportunity to start the legislative process into action.

FN5. See, for instance, the statements of James B. Carey, Secretary of the C.I.O., in opposition to S. 2054, 77th Cong., 1st Sess., which eventually became the War Labor Disputes Act. Central to that Act, of course, was the temporary grant of the seizure power to the President. Mr. Carey then said:

“Senator Burton. If this would continue for-ever it might mean the nationalization of in-dustry?

‘Mr. Carey. Let us consider it on a tempo-rary basis. How is the law borne by labor? Here is the Government-sponsored strike breaking agency, and nothing more.

‘Our suggestion of a voluntary agreement of the representatives of industry and labor and Government, participating in calling a con-ference, is a democratic way. The other one is the imposition of force, the other is the imposition of seizure of certain things for a temporary period; the destruction of collec-tive bargaining, and it would break down la-bor relations that may have been built up over a long period.”

Hearing before a Subcommittee of the Sen-ate Committee on the Judiciary on S. 2054, 77th Cong. 1st Sess. 132.

In any event, nothing can be plainer than that Con-gress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative respon-sibility for choice. In formulating legislation for deal-ing with industrial conflicts, Congress could not more clearly and emphatically have withheld authority than it did in 1947. Perhaps as much so as is true of any piece of modern legislation, Congress acted with full consciousness of what it was doing and in the light of much recent history. Previous seizure legislation had subjected the powers granted to the President to re-strictions of varying degrees of stringency. Instead of giving him even limited powers, Congress in 1947 deemed it wise to require the President, upon failure of attempts to reach a voluntary settlement, to report to Congress if he deemed the power of seizure a needed shot for his locker. The President could not ignore the specific limitations of prior seizure stat-utes. No more could he act in disregard of the limita-tion put upon seizure by the 1947 Act.

It cannot be contended that the President would have had power to issue this order had Congress explicitly negated such authority in formal legislation. Con-gress has expressed its will to withhold this power from the President as though it had said so in so many words. The authoritatively expressed purpose of Congress to disallow such power to the President and to require him, when in his mind the occasion arose for such a seizure, to put the matter to Congress and ask for specific authority from it, could not be more decisive if it had been written into ss 206-210 of the Labor Management Relations Act of 1947. Only the other day we treated the Congressional gloss upon those sections as part of the Act. Amalgamated Ass’n of Street Electric Railway & Motor Coach Employees v. Wisconsin Employment Relations Board, 340 U.S. 383, 395-396, 71 S.CT. 359, 365, 366, 95 L.ED. 364. *603 GRAFTING upon the words a purpOSE of Congress thus unequivocally expressed is the regular legislative mode for defining the scope of an Act of Congress. It would be not merely infelicitous draftsmanship but almost offen-sive gaucherie to write such a restriction upon the President’s power in terms into a statute rather than to have it authoritatively expounded, as it was, by con-trolling legislative history.

By the Labor Management Relations Act of 1947, Congress said to the President, “You may not seize. Please report to us and ask for seizure power if you think it is needed in a specific situation.” This of course calls for a report on the unsuccessful efforts to reach a voluntary settlement, as a basis for discharge by Congress of its responsibility-which it has un-quivocally reserved-to fashion further remedies than it provided.FN6 But it is now claimed that the Presi-dent has seizure power by virtue of the Defense Pro-duction Act of 1950 and its Amendments.FN7 And the claim is based on the occurrence of new events-Korea and the need for stabilization, etc.-although it was well known that seizure power was withheld by the Act of 1947 and although the President, whose specific requests for other authority were in the main granted by Congress, never suggested that in view **894 of the new events he needed the power of sei-zure which Congress in its judgment had decided to withhold from him. The utmost that the Korean con-flict may imply is that it may have been desirable to have given the President further authority, a freer hand in these matters. Absence of authority in the President to deal with a crisis does not *604 imply want of power in the Government. Conversely the fact that power exists in the Government does not vest it in the President. The need for new legislation does not enact it. Nor does it repeal or amend existing law.

FN6. Clearly the President’s message of April 9 and his further letter to the President of the Senate on April 21 do not satisfy this requirement. Cong.Rec., April 9, 1952, pp. 3962-3963; id., April 21, 1952, p. 4192.

FN7. 64 Stat. 798 et seq., 65 Stat. 131 et seq., 50 U.S.C.App. s 2061 et seq., 50 U.S.C.A.Appendix, s 2061 et seq.

No authority that has since been given to the Presi-dent can by any fair process of statutory construction be deemed to withdraw the restriction or change the will of Congress as expressed by a body of enact-ments, culminating in the Labor Management Rela-tions Act of 1947. Title V of the Defense Production Act, entitled ‘Settlement of Labor Disputes,’ pro-nounced the will of Congress “that there be effective procedures for the settlement of labor disputes affect-ing national defense,” and that ‘primary reliance’ be placed “upon the parties to any labor dispute to make every effort through negotiation and collective bar-gaining and the full use of mediation and conciliation facilities to effect a settlement in the national inter-est.”FN8 Section 502 authorized the President to hold voluntary conferences of labor, industry, and public and government representatives and to “take such action as may be agreed upon in any such conference and appropriate to carry out the provisions of this title,” provided that no action was taken inconsistent with the Labor Management Relations Act of 1947.FN9 This provisionFN10 was said by the Senate Committee*605 on Banking and Currency to con-template a board similar to the War Labor Board of World War II and “a national labor-management con-ference such as was held during World War II, when a no-strike, no-lock-out pledge was obtained.”FN11 Section 502 was believed necessary**895 *606 in addition to existing means for settling disputes volun-tarily because the Federal Mediation and Conciliation Service could not enter a labor dispute unless re-quested by one party.FN12 Similar explanations of Title V were given in the Conference Report and by Senator Ives, a member of the Senate Committee to whom Chairman Maybank during the debates on the Senate floor referred questions relating to Title V.FN13 Senator Ives said:

FN8. ss 501, 502, 64 Stat. 798, 812, 50 U.S.C.App. ss 2121, 2122, 50 U.S.C.A.Appendix, ss 2121, 2122.

FN9. ss 502, 503, 64 Stat. 798, 812, 50 U.S.C.App. ss 2122, 2123, 50 U.S.C.A.Appendix, ss 2122, 2123.

FN10. The provision of s 502 in S. 3936, as reported by the Senate Committee on Bank-ing and Currency, read as follows: “The President is authorized, after consultation with labor and management, to establish such principles and procedures and to take such action as he deems appropriate for the settlement of labor disputes affecting na-tional defense, including the designation of such persons, boards or commissions as he may deem appropriate to carry out the pro-visions of this title.” That language was su-perseded in the Conference Report by the language that was finally enacted. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 16, 35. The change made by the Conference Committee was for the purpose of emphasizing the vol-untary nature of the cooperation sought from the public, labor, and management; as Sena-tor Ives explained under repeated question-ing, “If any group were to hold out, there would be no agreement (on action to carry out the provisions of this title).” 96 Cong.Rec. 14071-14072. Chairman May-bank of the Senate Committee on Banking and Currency said, “The labor disputes title of the Senate was accepted by the House with amendment which merely indicates more specific avenues through which the President may bring labor and management together.” Id., at 14073.

FN11. S.Rep. No. 2250, 81st Cong., 2d Sess. 41; H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35. It is hardly necessary to note that Congressional authorization of an agency similar to the War Labor Board does not im-ply a Congressional grant of seizure power similar to that given the President specifi-cally by s 3 of the War Labor Disputes Act of 1943. The War Labor Board, created by s 7 of the 1943 Act, had only administrative sanctions. See 57 Stat. 163, 166-167; see Report of Senate Committee on Labor and Public Welfare, The Disputes Functions of the Wage Stabilization Board, 1951, S.Rep. No. 1037, 82d Cong., 1st Sess. 6. The sei-zure power given by Congress in s 3 of the 1943 Act was given to the President, not to the War Labor Board, and was needed only when the War Labor Board reported it had failed; the seizure power was separate and apart from the War Labor Board machinery for settling disputes. At most the Defense Production Act does what s 7 of the War Labor Disputes Act did; the omission of any grant of seizure power similar to s 3 is too obvious not to have been conscious. At any rate, the Wage Stabilization Board differs substantially from the earlier War Labor Board. In 1951 the Senate Committee study-ing the disputes functions of the Wage Sta-bilization Board pointed out the substantial differences between that Board and its predecessor and concluded that “The New Wage Stabilization Board * * * does not rely on title V of the Defense Production Act for its authority.” S.Rep.No. 1037, 82d Cong., 1st Sess., supra, at 4-6.

FN12. S.Rep. No. 2250, 81st Cong., 2d Sess. 41.

FN13. See 96 Cong.Rec. 14071.

“It should be remembered in this connection that dur-ing the period of the present emergency it is expected that the Congress will not adjourn, but at most, will recess only for very limited periods of time. If, there-fore, any serious work stoppage should arise or even be threatened, in spite of the terms of the Labor-Management Relations Act of 1947, the Congress would be readily available to pass such legislation as might be needed to meet the difficulty.” FN14

FN14. Id., at 12275. Just before the para-graph quoted in the text, Senator Ives had said:

“In fact, the courts have upheld the constitu-tionality of the national emergency provi-sions of the Labor-Management Relations Act of 1947, which can require that workers stay on the job for at least 80 days when a strike would seriously threaten the national health and safety in peacetime.

‘By the terms of the pending bill, the Labor-Management Relations Act of 1947 would be controlling in matters affecting the rela-tionship between labor and management, in-cluding collective bargaining. It seems to me, however, that this is as far as we should go in legislation of this type.”

*607 The Defense Production Act affords no ground for the suggestion that the 1947 denial to the Presi-dent of seizure powers has been impliedly repealed, and its legislative history contradicts such a sugges-tion. Although the proponents of that Act recognized that the President would have a choice of alternative methods of seeking a mediated settlement, they also recognized that Congress alone retained the ultimate coercive power to meet the threat of ‘any serious work stoppage.’

That conclusion is not changed by what occurred after the passage of the 1950 Act. Seven and a half months later, on April 21, 1951, the President by Executive Order 10233 gave the reconstituted Wage Stabilization Board authority to investigate labor dis-putes either (1) submitted voluntarily by the parties, or (2) referred to it by the President.FN15 The Board can make only “recommendations to the parties as to fair and equitable terms of settlement” unless the parties agree to be bound by the Board’s recommen-dation. About a month thereafter Sub-Committees of both the House and Senate Labor Committees began hearings on the newly assigned disputes functions of the Board.FN16 Amendments**896 to deny the *608 Board these functions were voted down in the House, FN17 and Congress extended the Defense Production Act without changing Title V in relevant part.FN18 The legislative history of the Defense Production Act and its Amendments in 1951 cannot possibly be vouched for more than Congressional awareness and tacit approval that the President had charged the Wage Stabilization Board with authority to seek vol-untary settlement of labor disputes. The most favor-able interpretation of the statements in the committee reports can make them mean no more than “We are glad to have all the machinery possible for the volun-tary settlement of labor disputes.” In considering the Defense Production Act Amendments, Congress was never asked to approve-and there is not the slightest indication that the responsible committees ever had in mind-seizure of plants to coerce settlement of dis-putes. *609 We are not even confronted by an incon-sistency between the authority conferred on the Wage Board, as formulated by the Executive Order, and the denial of Presidential seizure powers under the 1947 legislation. The Board has been given merely media-tory powers similar to those of agencies created by the Taft-Hartley Act and elsewhere, with no other sanctions for acceptance of its recommendations than are offered by its own moral authority and the pres-sure of public opinion. The Defense Production Act and the disputes-mediating agencies created subse-quent to it still leave for solution elsewhere the ques-tion what action can be taken when attempts at volun-tary settlement fail. To draw implied approval of sei-zure power from this history is to make something out of nothing.

FN15. 16 Fed.Reg. 3503. The disputes func-tions were not given to the Wage Stabiliza-tion Board under Title V, see note 11, supra, but apparently under the more general Title IV, entitled ‘Price and Wage Stabilization.’

FN16. See Hearings before a Subcommittee of the House Committee on Education and Labor, Disputes Functions of Wage Stabili-zation Board, 82d Cong., 1st Sess. (May 28-June 15, 1951); Hearings before the Sub-committee on Labor and Labor-Management Relations of Senate Committee on Labor and Public Welfare, Wage Stabilization and Disputes Program, 82d Cong., 1st Sess. (May 17-June 7, 1951). The resulting Report of the Senate Committee, S.Rep. No. 1037, 82d Cong., 1st Sess. 9, recommended that “Title V of the Defense Production Act be retained” and that “No statutory limitations be imposed on the President’s authority to deal with disputes through voluntary ma-chinery; such limitations, we believe, would infringe on the President’s constitutional power.” (Emphasis added.) The Committee found, id., at 10, that the “Wage Stabiliza-tion Board relies completely on voluntary means for settling disputes and is, therefore, an extension of free collective bargaining. The Board has no powers of legal compul-sion.” ‘Executive Order No. 10233,’ the Committee found further, “does not in any way run counter to the * * * Taft-Hartley Act. It is simply an additional tool, not a substitute for these laws.” Of particular rele-vance to the present case, the Committee de-clared:

“The recommendations of the Wage Stabili-zation Board in disputes certified by the President have no compulsive force. The parties are free to disregard recommenda-tions of the Wage Stabilization Board * * *.

‘There is, of course, the President’s authority to seize plants under the Selective Service Act (a power not here used), but this is an authority which exists independently of the Wage Stabilization Board and its disputes-handling functions. In any case, seizure is an extraordinary remedy, and the authority to seize, operates whether or not there is a dis-putes-handling machinery.” Id., at 5.

FN17. 97 Cong.Rec. 8390-8415.

FN18. 65 Stat. 131.

It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Con-gress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the intersti-ces of legislation the very grant of power which Con-gress consciously withheld. To find authority so ex-plicitly withheld is not merely to disregard in a par-ticular instance the clear will of Congress. It is to disrespect the whole legislative process and the con-stitutional division of authority between President and Congress.

The legislative history here canvassed is relevant to yet another of the issues before us, namely, the Gov-ernment’s argument that overriding public interest prevents the issuance of the injunction despite the illegality of the seizure. I cannot accept that conten-tion. “Balancing the **897 equities’ when consider-ing whether an injunction should issue, is lawyers’ jargon for choosing between conflicting public inter-ests. When Congress itself has struck *610 the bal-ance, has defined the weight to be given the compet-ing interests, a court of equity is not justified in ig-noring that pronouncement under the guise of exer-cising equitable discretion.”

Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing func-tion of the President is that “he shall take Care that the Laws be faithfully executed * * *.” Art. II, s 3. The nature of that authority has for me been compre-hensively indicated by Mr. Justice Holmes. “The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power.” Myers v. United States, 272 U.S. 52, 177, 47 S.Ct. 21, 85, 71 L.Ed. 160. The powers of the President are not as particularized as are those of Congress. But unenumerated powers do not mean undefined powers. The separation of powers built into our Constitution gives essential content to unde-fined provisions in the frame of our government.

To be sure, the content of the three authorities of government is not to be derived from an abstract analysis. The areas are partly interacting, not wholly disjointed. The Constitution is a framework for gov-ernment. Therefore the way the framework has con-sistently operated fairly establishes that it has oper-ated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American con-stitutional law to confine it to the words of the Con-stitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part *611 of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by s 1 of Art. II.

Such was the case of United States v. Midwest Oil Co., 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673. The contrast between the circumstances of that case and this one helps to draw a clear line between authority not explicitly conferred yet authorized to be exercised by the President and the denial of such authority. In both instances it was the concern of Congress under express constitutional grant to make rules and regula-tions for the problems with which the President dealt. In the one case he was dealing with the protection of property belonging to the United States; in the other with the enforcement of the Commerce Clause and with raising and supporting armies and maintaining the Navy. In the Midwest Oil case lands which Con-gress had opened for entry were, over a period of 80 years and in 252 instances, and by Presidents learned and unlearned in the law, temporarily withdrawn from entry so as to enable Congress to deal with such withdrawals. No remotely comparable practice can be vouched for executive seizure of property at a time when this country was not at war, in the only consti-tutional way in which it can be at war. It would pur-sue the irrelevant to reopen the controversy over the constitutionality of some acts of Lincoln during the Civil War. See J. G. Randall, Constitutional Problems under Lincoln (Revised ed. 1951). Suffice it to say that he seized railroads in territory where armed hos-tilities had already interrupted the movement of troops to the beleaguered Capitol, and his order was ratified by the Congress.

The only other instances of seizures are those during the periods of the first and second World Wars.FN19 In his eleven seizures**898 of industrial facilities, President Wilson *612 acted, or at least purported to act, FN20 under authority granted by Congress. Thus his seizures cannot be adduced as interpretations by a President of his own powers in the absence of statute.

FN19 Instances of seizure by the President are summarized in Appendix II, infra.

FN20. One of President Wilson’s seizures has given rise to controversy. In his testi-mony in justification of the Montgomery Ward seizure during World War II, Attorney General Biddle argued that the World War I seizure of Smith & Wesson could not be supported under any of the World War I statutes authorizing seizure. He thus ad-duced it in support of the claim of so-called inherent presidential power of seizure. See Hearings before House Select Committee to Investigate the Seizure of Montgomery Ward, 78th Cong., 2d Sess. 167-168. In so doing, he followed the ardor of advocates in claiming everything. In his own opinion to the President, he rested the power to seize Montgomery Ward on the statutory author-ity of the War Labor Disputes Act, see 40 Ops. Att’y Gen. 312 (1944), and the Court of Appeals decision upholding the Montgom-ery Ward seizure confined itself to that ground. United States v. Montgomery Ward & Co., 7 Cir., 150 F.2d 369. What At-torney General Biddle said about Smith & Wesson was, of course, post litem motam. Whether or not the World War I statutes were broad enough to justify that seizure, it is clear that the taking officers conceived themselves as moving within the scope of statute law. See n. 3, Appendix II, infra. Thus, whether or not that seizure was within the statute, it cannot properly be cited as a precedent for the one before us. On this gen-eral subject, compare Attorney General Knox’s opinion advising President Theodore Roosevelt against the so-called ‘steward-ship’ theory of the Presidency. National Ar-chives, Opinions of the Attorney General, Book 31, Oct. 10, 1902 (R.G. 60); Theodore Roosevelt, Autobiography, 388-389; 3 Morison, The Letters of Theodore Roose-velt, 323-366.

Down to the World War II period, then, the record is barren of instances comparable to the one before us. Of twelve seizures by President Roosevelt prior to the enactment of the War Labor Disputes Act in June, 1943, three were sanctioned by existing law, and six others *613 were effected after Congress, on Decem-ber 8, 1941, had declared the existence of a state of war. In this case, reliance on the powers that flow from declared war has been commendably disclaimed by the Solicitor General. Thus the list of executive assertions of the power of seizure in circumstances comparable to the present reduces to three in the six-month period from June to December of 1941. We need not split hairs in comparing those actions to the one before us, though much might be said by way of differentiation. Without passing on their validity, as we are not called upon to do, it suffices to say that these three isolated instances do not add up, either in number, scope, duration or contemporaneous legal justification, to the kind of executive construction of the Constitution revealed in the Midwest Oil case. Nor do they come to us sanctioned by long-continued acquiescence of Congress giving decisive weight to a construction by the Executive of its powers.

A scheme of government like ours no doubt at times feels the lack of power to act with complete, all-embracing, swiftly moving authority. No doubt a government with distributed authority, subject to be challenged in the courts of law, at least long enough to consider and adjudicate the challenge, labors under restrictions from which other governments are free. It has not been our tradition to envy such governments. In any event our government was designed to have such restrictions. The price was deemed not too high in view of the safeguards which these restrictions afford. I know no more impressive words on this sub-ject than those of Mr. Justice Brandeis:

“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid fricition, but, 614 by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from *899 autocracy.” Myers v. United States, 272 U.S. 52, 240, 293, 47 S.Ct. 21, 85, 71 L.Ed. 160.

It is not a pleasant judicial duty to find that the Presi-dent has exceeded his powers and still less so when his purposes were dictated by concern for the Na-tion’s wellbeing, in the assured conviction that he acted to avert danger. But it would stultify one’s faith in our people to entertain even a momentary fear that the patriotism and the wisdom of the President and the Congress, as well as the long view of the immedi-ate parties in interest, will not find ready accommo-dation for differences on matters which, however close to their concern and however intrinsically im-portant, are overshadowed by the awesome issues which confront the world. When at a moment of ut-most anxiety President Washington turned to this Court for advice, and he had to be denied it as be-yond the Court’s competence to give, Chief Justice Jay, on behalf of the Court, wrote thus to the Father of his Country:

“ ‘We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual pru-dence, decision, and firmness will surmount every obstacle to the preservations of the rights, peace, and dignity of the United States.’ Letter of August 8, 1793, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 489.”

In reaching the conclusion that conscience compels, I too derive consolation from the reflection that the President and the Congress between them will con-tinue to safeguard the heritage which comes to them straight from George Washington.
Mr. Chief Justice VINSON, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.
The President of the United States directed the Secre-tary of Commerce to take temporary possession of the Nation’s steel mills during the existing emergency because “a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense of those joined with us in resisting aggression, and would add to the continuing danger of our sol-diers, sailors and airmen engaged in combat in the field.” The District Court ordered the mills returned to their private owners on the ground that the Presi-dent’s action was beyond his powers under the Con-stitution.

This Court affirms. Some members of the Court are of the view that the President is without power to act in time of crisis in the absence of express statutory authorization. Other members of the Court affirm on the basis of their reading of certain statutes. Because we cannot agree that affirmance is proper on any ground, and because of the transcending importance of the questions presented not only in this critical litigation but also to the powers the President and of future Presidents to act in time of crisis, we are com-pelled to register this dissent.

I.

In passing upon the question of Presidential powers in this case, we must first consider the context in which those powers were exercised.

*668 Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict.

Accepting in full measure its responsibility in the world community, the United States was instrumental in securing adoption of the United Nations Charter, approved by the Senate by a vote of 89 to 2. The first purpose of the United Nations is to “maintain interna-tional peace and security, and to that end: to take ef-fective collective measures for the prevention and removal of threats to the peace, and for the suppres-sion of acts of aggression or other breaches of the peace, * * *.”FN1 In 1950, when the United Nations called upon member nations ‘to render every assis-tance’ to repel aggression in Korea, the United States furnished its vigorous support.FN2 For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. The “determination of the United Nations to continue its action in Korea to meet the aggression” has been reaffirmend.FN3 Congressional support of the action in Korea has been manifested by provisions for increased military manpower and equipment and for economic stabilization, as herein-after described.

FN1. 59 Stat. 1031, 1037 (1945); 91 Cong.Rec. 8190 (1945).

FN2. U.N. Security Council, U.N. Doc. S/1501 (1950); Statement by the President, June 25, 1950, United States Policy in the Korean Crisis, Dept. of State Pub. (1950), 16.

FN3. U.N. General Assembly, U.N. Doc. A/1771 (1951).

Further efforts to protect the free world from aggres-sion are found in the congressional enactments of the Truman Plan for assistance to Greece and Turkey FN4 and 669 the Marshall Plan for economic aid needed to build up the strength of our friends in Western Europe.FN5 In 1949, the Senate approved the North Atlantic Treaty under which each member nation agrees that an armed attack against one is an armed attack against all.FN6 Congress immediately imple-mented*930 the North Atlantic Treaty by authoriz-ing military assistance to nations dedicated to the principles of mutual security under the United Na-tions Charter.FN7 The concept of mutual security re-cently has been extended by treaty to friends in the Pacific. FN8

FN4. 61 Stat. 103 (1947), 22 U.S.C.A. s 1401 et seq.

FN5. 62 Stat. 137 (1948), as amended, 63 Stat. 50 (1949), 64 Stat. 198 (1950), 22 U.S.C.A. s 1501 et seq.

FN6. 63 Stat. 2241 (1949), extended to Greece and Turkey, S. Exec. E, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 930.

FN7. 63 Stat. 714 (1949), 22 U.S.C.A. s 1571 et seq.

FN8. S. Execs. A, B, C and D, 82d Cong., 2d Sess. (1952), advice and consent of the Senate granted. 98 Cong.Rec. 2594, 2595, 2605.

Our treaties represent not merely legal obligations but show congressional recognition that mutual security for the free world is the best security against the threat of aggression on a global scale. The need for mutual security is shown by the very size of the armed forces outside the free world. Defendant’s brief informs us that the Soviet Union maintains the largest air force in the world and maintains ground forces much larger than those presently available to the United States and the countries joined with us in mu-tual security arrangements. Constant international tensions are cited to demonstrate how precarious is the peace.

Even this brief review of our responsibilities in the world community discloses the enormity of our un-dertaking. Success of these measures may, as has often been *670 observed, dramatically influence the lives of many generations of the world’s peoples yet unborn. Alert to our responsibilities, which coincide with our own self preservation through mutual secu-rity, Congress has enacted a large body of imple-menting legislation. As an illustration of the magni-tude of the over-all program, Congress has appropri-ated $130 billion for our own defense and for military assistance to our allies since the June, 1950, attack in Korea.

In the Mutual Security Act of 1951, Congress author-ized “military, economic, and technical assistance to friendly countries to strengthen the mutual security and individual and collective defenses of the free world, * * *.” FN9 Over $5 1/2 billion were appropri-ated for military assistance for fiscal year 1952, the bulk of that amount to be devoted to purchase of military equipment. FN10 A request for over $7 billion for the same purpose for fiscal year 1953 is currently pending in Congress.FN11 In addition to direct ship-ment of military equipment to nations of the free world, defense production in those countries relies upon shipment of machine tools and allocation of steel tonnage from the United States.FN12

FN9. 65 Stat. 373 (1951), 22 U.S.C.A. s 1651.

FN10. 65 Stat. 730 (1951); see H.R.Doc. No. 147, 82d Cong., 1st Sess. 3 (1951).

FN11. See H.R.Doc. 382, 82d Cong., 2d Sess. (1952).

FN12. Hearings before Senate Committee on Foreign Relations on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 565-566 (1952); Hearings before House Committee on Foreign Affairs on the Mutual Security Act of 1952, 82d Cong., 2d Sess. 370 (1952).

Congress also directed the President to build up our own defenses. Congress, recognizing the “grim fact * * * that the United States is now engaged in a strug-gle for survival” and that “it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour,” granted authority to draft men into *671 the armed forces.FN13 As a result, we now have over 3,500,000 men in our armed forces.FN14

FN13. 65 Stat. 75 (1951); S.Rep. No. 117, 82d Cong., 1st Sess. 3 (1951).

FN14. Address by Secretary of Defense Lovett Before the American Society of Newspaper Editors, Washington, April 18, 1952.

Appropriations for the Department of Defense, which had averaged less than $13 billion per year for the three years before attack in Korea, were increased by Congress to $48 billion for fiscal year 1951 and to $60 billion for fiscal year 1952.FN15 A request for $51 billion for the Department of **931 Defense for fis-cal year 1953 is currently pending in Congress.FN16 The bulk of the increase is for military equipment and supplies-guns, tanks, ships, planes and ammunition-all of which require steel. Other defense programs requiring great quantities of steel include the large scale expansion of facilities for the Atomic Energy CommissionFN17 and the expansion of the Nation’s productive capacity affirmatively encouraged by Congress.FN18

FN15. Fiscal Year 1952, 65 Stat. 423, 760 (1951); F.Y. 1951, 64 Stat. 595, 1044, 1223, 65 Stat. 48, (1950-1951); F.Y. 1950, 63 Stat. 869, 973, 987 (1949); F.Y. 1949, 62 Stat. 647 (1948); F.Y. 1948, 61 Stat. 551 (1947).

FN16. See H.R.Rep. No. 1685, 82d Cong., 2d Sess. 2 (1952), on H.R. 7391.

FN17. See H.R.Rep. No. 384, 82d Cong., 1st Sess. 5 (1951); 97 Cong.Rec. 13647-13649.

FN18. Defense Production Act, Tit. III, 64 Stat. 798 (1950), 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2091 et seq.

Congress recognized the impact of these defense pro-grams upon the economy. Following the attack in Korea, the President asked for authority to requisition property and to allocate and fix priorities for scarce goods. In the Defense Production Act of 1950, Con-gress granted the powers requested and, in addition, granted power to stabilize prices and wages and to provide for settlement *672 of labor disputes arising in the defense program.FN19 The Defense Production Act was extended in 1951, a Senate Committee not-ing that in the dislocation caused by the programs for purchase of military equipment “lies the seed of an economic disaster that might well destroy the military might we are straining to build.”FN20 Significantly, the Committee examined the problem “in terms of just one commodity, steel,” and found “a graphic picture of the over-all inflationary danger growing out of reduced civilian supplies and rising incomes.” Even before Korea, steel production at levels above theoretical 100% capacity was not capable of supply-ing civilian needs alone. Since Korea, the tremendous military demand for steel has far exceeded the in-creases in productive capacity. This Committee em-phasized that the shortage of steel, even with the mills operating at full capacity, coupled with in-creased civilian purchasing power, presented grave danger of disastrous inflation.FN21

FN19. Note 18, supra, Tits. IV and V, 50 U.S.C.A.Appendix, ss 2101 et seq., 2121 et seq.

FN20. S.Rep. No. 470, 82d Cong., 1st Sess. 8 (1951).

FN21. Id., at 8-9.

The President has the duty to execute the foregoing legislative programs. Their successful execution de-pends upon continued production of steel and stabi-lized prices for steel. Accordingly, when the collec-tive bargaining agreements between the Nation’s steel producers and their employees, represented by the United Steel Workers, were due to expire on Decem-ber 31, 1951, and a strike shutting down the entire basic steel industry was threatened, the President acted to avert a complete shutdown of steel produc-tion. On December 22, 1951, he certified the dispute to the Wage Stabilization Board, requesting that the Board investigate the dispute and promptly report its recommendation as to fair and equitable terms of settlement. The Union complied with the President’s *673 request and delayed its threatened strike while the dispute was before the Board. After a special Board panel had conducted hearings and submitted a report, the full Wage Stabilization Board submitted its report and recommendations to the President on March 20, 1952.

The Board’s report was acceptable to the Union but was rejected by plaintiffs. The Union gave notice of its intention to strike as of 12:01 a.m., April 9, 1952, but bargaining between the parties continued with hope of settlement until the evening of April 8, 1952. After bargaining had failed to avert the threatened shutdown of steel production, the President issued the following Executive Order:

“Whereas on December 16, 1950, I proclaimed the existence of a national emergency which requires that the military, naval, air, and civilian defenses of **932 this country be strengthened as speedily as possible to the end that we may be able to repel any and all threats against our national security and to fulfill our responsibilities in the efforts being made throughout the United Nations and otherwise to bring about a lasting peace; and

‘Whereas American fighting men and fighting men of other nations of the United Nations are now engaged in deadly combat with the forces of aggression in Korea, and forces of the United States are stationed elsewhere overseas for the purpose of participating in the defense of the Atlantic Community against ag-gression; and

‘Whereas the weapons and other materials needed by our armed forces and by those joined with us in the defense of the free world are produced to a great ex-tent in this country, and steel is an indispensable component of substantially all of such weapons and materials; and

*674 ‘Whereas steel is likewise indispensable to the carrying out of programs of the Atomic Energy Commission of vital importance to our defense ef-forts; and

‘Whereas a continuing and uninterrupted supply of steel is also indispensable to the maintenance of the economy of the United States, upon which our mili-tary strength depends; and

‘Whereas a controversy has arisen between certain companies in the United States producing and fabri-cating steel and the elements thereof and certain of their workers represented by the United Steel Work-ers of America, CIO, regarding terms and conditions of employment; and

‘Whereas the controversy has not been settled through the processes of collective bargaining or through the efforts of the Government, including those of the Wage Stabilization Board, to which the controversy was referred on December 22, 1951, pur-suant to Executive Order No. 10233, and a strike has been called for 12:01 A.M., April 9, 1952; and

‘Whereas a work stoppage would immediately jeop-ardize and imperil our national defense and the de-fense of those joined with us in resisting aggression, and would add to the continuing danger of our sol-diers, sailors, and airmen engaged in combat in the field; and

‘Whereas in order to assure the continued availability of steel and steel products during the existing emer-gency, it is necessary that the United States take pos-session of and operate the plants, facilities, and other property of the said companies as hereinafter pro-vided:

‘Now, Therefore, by virtue of the authority vested in me by the Constitution and laws of the *675 United States, and as President of the United States and Commander in Chief of the armed forces of the United States, it is hereby ordered as follows:

‘1. The Secretary of Commerce is hereby authorized and directed to take possession of all or such of the plants, facilities, and other property of the companies named in the list attached hereto, or any part thereof, as he may deem necessary in the interests of national defense; and to operate or to arrange for the operation thereof and to do all things necessary for, or inciden-tal to, such operation * * *.”FN22

FN22. Exec.Order 10340, 17 Fed.Reg. 3139 (1952).

The next morning, April 9, 1952, the President ad-dressed the following Message to Congress:

“To the Congress of the United States:

‘The Congress is undoubtedly aware of the recent events which have taken **933 place in connection with the management-labor dispute in the steel indus-try. These events culminated in the action which was taken last night to provide for temporary operation of the steel mills by the Government.

‘I took this action with the utmost reluctance. The idea of Government operation of the steel mills is thoroughly distasteful to me and I want to see it ended as soon as possible. However, in the situation which confronted me yesterday, I felt that I could make no other choice. The other alternatives ap-peared to be even worse-so much worse that I could not accept them.

‘One alternative would have been to permit a shut-down in the steel industry. The effects of such a shut-down would have been so immediate and damaging with respect to our efforts to support our Armed Forces and to protect our national security that it made this alternative unthinkable.

*676 ‘The only way that I know of, other than Gov-ernment operation, by which a steel shut-down could have been avoided was to grant the demands of the steel industry for a large price increase. I believed and the officials in charge of our stabilization agen-cies believed that this would have wrecked our stabi-lization program. I was unwilling to accept the incal-culable damage which might be done to our country by following such a course.

‘Accordingly, it was my judgment that Government operation of the steel mills for a temporary period was the least undesirable of the courses of action which lay open. In the circumstances, I believed it to be, and now believe it to be, my duty and within my powers as President to follow that course of action.

‘It may be that the Congress will deem some other course to be wiser. It may be that the Congress will feel we should give in to the demands of the steel industry for an exorbitant price increase and take the consequences so far as resulting inflation is con-cerned.

‘It may be that the Congress will feel the Government should try to force the steel workers to continue to work for the steel companies for another long period, without a contract, even though the steel workers have already voluntarily remained at work without a contract for 100 days in an effort to reach an orderly settlement of their differences with management.

‘It may even be that the Congress will feel that we should permit a shutdown of the steel industry, al-though that would immediately endanger the safety of our fighting forces abroad and weaken the whole structure of our national security.

*677 ‘I do not believe the Congress will favor any of these courses of action, but that is a matter for the Congress to determine.

‘It may be, on the other hand, that the Congress will wish to pass legislation establishing specific terms and conditions with reference to the operation of the steel mills by the Government. Sound legislation of this character might be very desirable.

‘On the basis of the facts that are known to me at this time, I do not believe that immediate congressional action is essential; but I would, of course, be glad to cooperate in developing any legislative proposals which the Congress may wish to consider.

‘If the Congress does not deem it necessary to act at this time, I shall continue to do all that is within my power to keep the steel industry operating and at the same time make every effort to bring about a settle-ment of the dispute so the mills can be returned to their private owners as soon as possible.”FN23

FN23. Cong.Rec., April 9, 1952, pp. 3962-3963.

**934 Twelve days passed without action by Con-gress. On April 21, 1952, the President sent a letter to the President of the Senate in which he again de-scribed the purpose and need for his action and again stated his position that “The Congress can, if it wishes, reject the course of action I have followed in this matter.”FN24 Congress has not so acted to this date.

FN24. Cong.Rec., April 21, 1952, p. 4192.

Meanwhile, plaintiffs instituted this action in the Dis-trict Court to compel defendant to return possession of the steel mills seized under Executive Order 10340. In this litigation for return of plaintiffs’ prop-erties, we assume that defendant Charles Sawyer is not immune from judicial restraint and that plaintiffs are entitled to equitable relief if we find that the Ex-ecutive Order *678 under which defendant acts is unconstitutional. We also assume without deciding that the courts may go behind a President’sfinding of fact that an emergency exists. But there is not the slightest basis for suggesting that the President’s find-ing in this case can be undermined. Plaintiffs moved for a preliminary injunction before answer or hearing. Defendant opposed the motion, filing uncontroverted affidavits of Government officials describing the facts underlying the President’s order.

Secretary of Defense Lovett swore that “a work stop-page in the steel industry will result immediately in serious curtailment of production of essential weap-ons and munitions of all kinds.” He illustrated by showing that 84% of the national production of cer-tain alloy steel is currently used for production of military-end items and that 35% of total production of another form of steel goes into ammunition, 80% of such ammunition now going to Korea. The Secre-tary of Defense stated that: “We are holding the line (in Korea) with ammunition and not with the lives of our troops.”

Affidavits of the Chairman of the Atomic Energy Commission, the Secretary of the Interior, defendant as Secretary of Commerce, and the Administrators of the Defense Production Administration, the National Production Authority, the General Services Admini-stration and the Defense Transport Administration were also filed in the District Court. These affidavits disclose an enormous demand for steel in such vital defense programs as the expansion of facilities in atomic energy, petroleum, power, transportation and industrial production, including steel production. Those charged with administering allocations and priorities swore to the vital part steel production plays in our economy. The affidavits emphasize the critical need for steel in our defense program, *679 the absence of appreciable inventories of steel, and the drastic results of any interruption in steel produc-tion.

One is not here called upon even to consider the pos-sibility of executive seizure of a farm, a corner gro-cery store or even a single industrial plant. Such con-siderations arise only when one ignores the central fact of this case-that the Nation’s entire basic steel production would have shut down completely if there had been no Government seizure. Even ignoring for the moment whatever confidential information the President may possess as “the Nation’s organ for for-eign affairs,”FN25 the uncontroverted affidavits in this record amply support the finding that “a work stop-page would immediately jeopardize and imperil our national defense.”

FN25. Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948, 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568, and cases cited.

Plaintiffs do not remotely suggest any basis for re-jecting the President’s finding that any stoppage of steel production would immediately place the Nation in peril. Moreover, even self-generated doubts that any stoppage of steel production constitutes an emer-gency are of little comfort here. The Union and the plaintiffs bargained for 6 months with over 100 is-sues in dispute-issues not limited to wage demands but including**935 the union shop and other matters of principle between the parties. At the time of sei-zure there was not, and there is not now, the slightest evidence to justify the belief that any strike will be of short duration. The Union and the steel companies may well engage in a lengthy struggle. Plaintiff’s counsel tells us that ‘sooner or later’ the mills will operate again. That May satisfy the steel companies and, perhaps, the Union. But our soldiers and our allies will hardly be cheered with the assurance that the ammunition upon which their lives depend will be forthcoming-‘sooner or later,’ or, in other words, ‘too little and too late.’

*680 Accordingly, if the President has any power under the Constitution to meet a critical situation in the absence of express statutory authorization, there is no basis whatever for criticizing the exercise of such power in this case.

II.

The steel mills were seized for a public use. The power of eminent domain, invoked in that case, is an essential attribute of sovereignty and has long been recognized as a power of the Federal Government. Kohl v. United States, 1876, 91 U.S. 367, 23 L.Ed. 449. Plaintiffs cannot complain that any provision in the Constitution prohibits the exercise of the power of eminent domain in this case. The Fifth Amend-ment provides: “nor shall private property be taken for public use, without just compensation.” It is no bar to this seizure for, if the taking is not otherwise unlawful, plaintiffs are assured of receiving the re-quired just compensation. United States v. Pewee Coal Co., 1951, 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809.

Admitting that the Government could seize the mills, plaintiffs claim that the implied power of eminent domain can be exercised only under an Act of Con-gress; under no circumstances, they say, can that power be exercised by the President unless he can point to an express provision in enabling legislation. This was the view adopted by the District Judge when he granted the preliminary injunction. Without an answer, without hearing evidence, he determined the issue on the basis of his “fixed conclusion * * * that defendant’s acts are illegal” because the Presi-dent’s only course in the face of an emergency is to present the matter to Congress and await the final passage of legislation which will enable the Govern-ment to cope with threatened disaster.

Under this view, the President is left powerless at the very moment when the need for action may be most pressing and when no one, other than he, is immedi-ately *681 capable of action. Under this view, he is left powerless because a power not expressly given to Congress is nevertheless found to rest exclusively with Congress.

Consideration of this view of executive impotence calls for further examination of the nature of the separation of powers under our tripartite system of Government.

The Constitution provides:

Art. I,

“Section 1. “All legislative Powers herein granted shall be vested in a Congress of the United States, * * *.”

Art. II,

Section 1. “The executive Power shall be vested in a President of the United States of America. * * *.”

Section 2. “The President shall be Commander in Chief of the Army and Navy of the United States, * * *”

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; * * *.”

Section 3. “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; * * * he shall take Care that the Laws be faithfully executed, * * *.’

**936 Art. III,

Section 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.””

The whole of the ‘executive Power’ is vested in the President. Before entering office, the President swears that he “will faithfully execute the Office of President of the *682 United States, and will to the best of (his) Ability, preserve, protect and defend the Constitution of the United States.” Art. II, s 1.

This comprehensive grant of the executive power to a single person was bestowed soon after the country had thrown the yoke of monarchy. Only by instilling initiative and vigor in all of the three departments of Government, declared Madison, could tyranny in any from be avoided.FN26 Hamilton added: “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attack; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and highhanded combinations which sometimes interrupt the ordinary course of justice; to the security of lib-erty against the enterprises and assaults of ambition, of faction, and of anarchy.”FN27 It is thus apparent that the Presidency was deliberately fashioned as an office of power and independence. Of course, the Framers created no autocrat capable of arrogating any power unto himself at any time. But neither did they create an automaton impotent to exercise the powers of Government at a time when the survival of the Republic itself may be at stake.

FN26. The Federalist, No. XLVIII.

FN27. The Federalist, No. LXX.

In passing upon the grave constitutional question presented in this case, we must never forget, as Chief Justice Marshall admonished, that the Constitution is “intended to endure for ages to come, and conse-quently, to be adapted to the various crises of human affairs,” and that “(i)ts means are adequate to its ends.”FN28 Cases do arise presenting questions which could not have been foreseen by the Framers. In such cases, the Constitution has been treated as a living document adaptable to new situations. [FN29] *683 But we are not called upon today to expand the Con-stitution to meet a new situation. For, in this case, we need only look to history and time-honored principles of constitutional law-principles that have been ap-plied consistently by all branches of the Government throughout our history. It is those who assert the in-validity of the Executive Order who seek to amend the Constitution in this case.

FN28. McCulloch v. State of Maryland, 1819, 4 Wheat. 316, 415, 424, 4 L.Ed. 579.

FN29. United States v. Classic, 1941, 313 U.S. 299, 315-316, 1037-1038, 61 S.Ct. 1031, 85 L.Ed. 1368; Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 442-443, 241-242, 54 S.Ct. 231, 78 L.Ed. 413.

III.

A review of executive action demonstrates that our Presidents have on many occasions exhibited the leadership contemplated by the Framers when they made the President Commander in Chief, and im-posed upon him the trust to “take Care that the Laws be faithfully executed.” With or without explicit statutory authorization, Presidents have at such times dealt with national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. Congress and the courts have responded to such ex-ecutive initiative with consistent approval.

Our first President displayed at once the leadership contemplated by the Framers. When the national revenue laws were openly flouted in some sections of Pennsylvania, President Washington, without waiting for a call from the state government, summoned the militia and took decisive steps **937 to secure the faithful execution of the laws.FN30 When international disputes engendered by the French revolution threat-ened to involve this country in war, and while con-gressional policy remained undertain, Washington issued his Proclamation of Neutrality. Hamilton, whose defense of the Proclamation *684 has endured the test of time, invoked the argument that the Execu-tive has the duty to do that which will preserve peace until Congress acts and, in addition, pointed to the need for keeping the Nation informed of the require-ments of existing laws and treaties as part of the faithful execution of the laws.FN31

FN30. 4 Annals of Congress 1411, 1413 (1794).

FN31. IV Works of Hamilton (Lodge ed. 1904) 432-444.

President John Adams issued a warrant for the arrest of Jonathan Robbins in order to execute the extradi-tion provisions of a treaty. This action was chal-lenged in Congress on the ground that no specific statute prescribed the method to be used in executing the treaty. John Marshall, then a member of the House of Representatives, made the following argu-ment in support of the President’s action:

“The treaty, which is a law, enjoins the performance of a particular object. The person who is to perform this object is marked out by the Constitution, since the person is named who conducts the foreign inter-course, and is to take care that the laws be faithfully executed. The means by which it is to be performed, the force of the nation, are in the hands of this person. Ought not this person to perform the object, although the particular mode of using the means has not been prescribed? Congress, unquestionably may prescribe the mode, and Congress may devolve on others the whole execution of the contract; but, till this be done, it seems the duty of the Executive department to exe-cute the contract by any means it possesses.”FN32

FN32. 10 Annals of Congress 596, 613-614 (1800); also printed in 5 Wheat.App. pp. 3, 27 (1820).

Efforts in Congress to discredit the President for his action failed. FN33 Almost a century later, this Court had *685 occasion to give its express approval to “the masterly and conclusive argument of John Marshall.” FN34

FN33. 10 Annals of Congress 619 (1800).

FN34. Fong Yue Ting v. United States, 1893, 149 U.S. 698, 714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905.

Jefferson’s initiative in the Louisiana Purchase, the Monroe Doctrine, and Jackson’s removal of Govern-ment deposits from the Bank of the United States further serve to demonstrate by deed what the Fram-ers described by word when they vested the whole of the executive power in the President.

Without declaration of war, President Lincoln took energetic action with the outbreak of the War Be-tween the States. He summoned troops and paid them out of the Treasury without appropriation therefor. He proclaimed a naval blockade of the Confederacy and seized ships violating that blockade. Congress, far from denying the validity of these acts, gave them express approval. The most striking action of Presi-dent Lincoln was the Emancipation Proclamation, issued in aid of the successful prosecution of the War Between the States, but wholly without statutory authority.FN35

FN35. See The Prize Cases (the Amy War-wick), 1863, 2 Black 635, 17 L.Ed. 459; Randall, Constitutional Problems Under Lincoln (1926); Corwin, The President: Of-fice and Powers (1948 ed.), 277-281.

In an action furnishing a most apt precedent for this case, President Lincoln without statutory authority directed the seizure of rail and telegraph lines leading to Washington.FN36 Many months later, Congress **938 recognized and confirmed the power of the President to seize railroads and telegraph lines and provided criminal penalties for interference with Government operation. FN37 This Act did not confer on the President any additional powers of seizure. Congress plainly rejected the view that the President’s acts had been without legal sanction until *686 rati-fied by the legislature. Sponsors of the bill declared that its purpose was only to confirm the power which the President already possessed.FN38 Opponents in-sisted a statute authorizing seizure was unnecessary and might even be construed as limiting existing Presidential powers.FN39

FN36. War of the Rebellion, Official Re-cords of the Union and Confederate Armies, Series I, Vol. II, pp. 603-604 (1880).

FN37. 12 Stat. 334 (1862).

FN38. Senator Wade, Cong. Globe, 37th Cong., 2d Sess. 509 (1862); Rep. Blair, id., at 548.

FN39. Senators Browning, Fessenden, Cowan, Grimes, id., at 510, 512, 516, 520.

Other seizures of private property occurred during the War Between the States, just as they had occurred during previous wars.FN40 In United States v. Russell, 1872, 13 Wall. 623, 20 L.Ed. 624, three river steam-ers were seized by Army Quartermasters on the ground of ‘imperative military necessity.’ This Court affirmed an award of compensation, stating:

FN40. In 1818, the House Committee on Military Affairs recommended payment of compensation for vessels seized by the Army during the War of 1812. American State Papers, Claims (1834), 649. Mitchell v. Harmony, 1852, 13 How. 115, 134, 14 L.Ed. 75, involving seizure of a wagon train by an Army officer during the Mexican War, noted that such executive seizure was proper in case of emergency, but affirmed a per-sonal judgment against the officer on the ground that no emergency had been found to exist. The judgment was paid by the United States pursuant to Act of Congress. 10 Stat. 727 (1852).

“ ‘ Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme ne-cessity in time of war or of immediate and impending public danger, in which private property may be im-pressed into the public service, or may be seized and appropriated to the public use, or may even be de-stroyed without the consent of the owner.”

“Exigencies of the kind do arise in time of war or impending public danger, but it is the emergency, as was said by a great magistrate, that gives the right, *687 and it is clear that the emergency must be shown to exist before the taking can be justified. Such a justification may be shown, and when shown the rule is well settled that the officer taking private property for such a purpose, if the emergency is fully proved, is not a trespasser, and that the government is bound to make full compensation to the owner.”FN41”

FN41. 13 Wall. at pages 627-628. Such a compensable taking was soon distinguished from the noncompensable taking and de-struction of property during the extreme exi-gencies of a military campaign. United States v. Pacific R. Co., 1887, 120 U.S. 227, 7 S.Ct. 490, 30 L.Ed. 634.

In Re Neagle, 1890, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55, this Court held that a federal officer had acted in line of duty when he was guarding a Justice of this Court riding circuit. It was conceded that there was no specific statute authorizing the President to assign such a guard. In holding that such a statute was not necessary, the Court broadly stated the ques-tion as follows:

“(The President) is enabled to fulfill the duty of his great department, expressed in the phrase that “he shall take care that the laws be faithfully executed.”

‘Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitu-tion itself, our international relations, and all the **939 protection implied by the nature of the gov-ernment under the Constitution?”FN42

FN42. 135 U.S. at page 64, 10 S.Ct. at page 668.

The latter approach was emphatically adopted by the Court.

President Hayes authorized the widespread use of federal troops during the Railroad Strike of 1877.FN43 President Cleveland also used the troops in the Pull-man Strike *688 of 1895 and his action is of special significance. No statute authorized this action. No call for help had issued from the Governor of Illinois; indeed Governor Altgeld disclaimed the need for supplemental forces. But the President’s concern was that federal laws relating to the free flow of interstate commerce and the mails be continuously and faith-fully executed without interruption.FN44 To further this aim his agents sought and obtained the injunction upheld by this Court in In re Debs, 1895, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. The Court scruti-nized each of the steps taken by the President to in-sure execution of the ‘mass of legislation’ dealing with commerce and the mails and gave his conduct full approval. Congress likewise took note of this use of Presidential power to forestall apparent obstacles to the faithful execution of the laws. By separate resolutions, both the Senate and the House com-mended the Executive’s action.FN45

FN43. Rich, The President and Civil Disor-ders (1941), 72-86.

FN44. Cleveland, The Government in the Chicago Strike of 1894 (1913).

FN45. 26 Cong.Rec. 7281-7284, 7544-7546 (1894).

President Theodore Roosevelt seriously contemplated seizure of Pennsylvania coal mines if a coal shortage necessitated such action.FN46 In his autobiography, President Roosevelt expounded the ‘Stewardship Theory’ of Presidential power, stating that “the ex-ecutive is subject only to the people, and, under the Constitution, bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service.” FN47 Because the contemplated seizure of the coal mines was based on this theory, then ex-President Taft criticized President Roosevelt in a passage in his book relied upon by the District Court in this case. Taft, Our Chief Magistrate and His Powers (1915), 139-147. In the same book, however, President Taft agreed that *689 such pow-ers of the President as the duty “to take care that the laws be faithfully executed” could not be confined to ‘express Congressional statutes.’ In re Neagle, supra, and In re Debs, supra, were cited as conforming with Taft’s concept of the office, id., at pp. 88-94, as they were later to be cited with approval in his opinion as Chief Justice in Myers v. United States, 1926, 272 U.S. 52, 133, 47 S.Ct. 21, 31, 71 L.Ed. 160. FN48

FN46. Theodore Roosevelt, Autobiography (1916 ed.), 479-491.

FN47. Id., at 378.

FN48. Humphrey’s Executor v. United States, 1935, 295 U.S. 602, 626, 55 S.Ct. 869, 873, 79 L.Ed. 1611, disapproved ex-pressions in the Myers opinion only to the extent that they related to the President’s power to remove members of quasi-legislative and judicial commissions as con-strasted with executive employees.

In 1909, President Taft was informed that govern-ment owned oil lands were being patented by private parties at such a rate that public oil lands would be depleted in a matter of months. Although Congress had explicitly provided that these lands were open to purchase by United States citizens, 29 Stat. 526 (1897), the President nevertheless ordered the lands withdrawn from sale “(i)n aid of proposed legisla-tion.” In United States v. Midwest Oil Co., 1915, 236 U.S. 459, 35 S.Ct. 309, 59 L.Ed. 673, the President’s action was sustained as consistent with executive practice throughout our history. An excellent brief was filed in the case by the Solicitor General, Mr. John W. Davis, together with Assistant Attorney General Knaebel, later Reporter for this Court. In this brief, the situation confronting President Taft was described as “an emergency; there was no time to wait for the action of Congress.” **940 The brief then discusses the powers of the President under the Constitution in such a case:

“Ours is a self-sufficient Government within its sphere. (Ex parte Siebold, 100 U.S. 371, 395 (25 L.Ed. 717); In re Debs, 158 U.S. 564, 578 (15 S.Ct. 900, 39 L.Ed. 1092).) “Its means are adequate to its ends” ( McCulloch v. (State of) Maryland, 4 Wheat. 316, 424 (4 L.Ed. 579)), *690 and it is rational to assume that its active forces will be found equal in most things to the emergencies that confront it. While perfect flexibility is not to be expected in a Govern-ment of divided powers, and while division of power is one of the principal features of the Constitution, it is the plain duty of those who are called upon to draw the dividing lines to ascertain the essential, recognize the practical, and avoid a slavish formalism which can only serve to ossify the Government and reduce its efficiency without any compensating good. The function of making laws is peculiar to Congress, and the Executive can not exercise that function to any degree. But this is not to say that all of the subjects concerning which laws might be made are perforce removed from the possibility of Executive influence. The Executive may act upon things and upon men in many relations which have not, though they might have, been actually regulated by Congress. In other words, just as there are fields which are peculiar to Congress and fields which are peculiar to the Execu-tive, so there are fields which are common to both, in the sense that the Executive may move within them until they shall have been occupied by legislative action. These are not the fields of legislative preroga-tive, but fields within which the lawmaking power may enter and dominate whenever it chooses. This situation results from the fact that the President is the active agent, not of Congress, but of the Nation. As such he performs the duties which the Constitution lays upon him immediately, and as such, also, he executes the laws and regulations adopted by Con-gress. He is the agent of the people of the United States, deriving all his powers from them and respon-sible directly to them. In no *691 sense is he the agent of Congress. He obeys and executes the laws of Congress, not because Congress is enthroned in authority over him, but because the Constitution di-rects him to do so.

‘Therefore it follows that in ways short of making laws or disobeying them, the Executive may be under a grave constitutional duty to act for the national pro-tection in situations not covered by the acts of Con-gress, and in which, even, it may not be said that his action is the direct expression of any particular one of the independent powers which are granted to him specifically by the Constitution. Instances wherein the President has felt and fulfilled such a duty have not been rare in our history, though, being for the public benefit and approved by all, his acts have sel-dom been challenged in the courts. We are able, however, to present a number of apposite cases which were subjected to judicial inquiry.”

The brief then quotes from such cases as In re Debs, supra, and In re Neagle, supra, and continues:
“As we understand the doctrine of the Neagle case, and the cases therein cited, it is clearly this: The Ex-ecutive is authorized to exert the power of the United States when he finds this necessary for the protection of the agencies, the instrumentalities, or the property of the Government. This does not mean an authority to disregard the wishes of Congress on the subject, when that subject lies within its control and when those wishes have been expressed, and it certainly does not involve the slightest semblance of a power to legislate, much less to ‘suspend’**941 legislation already passed by Congress. It involves the perform-ance of specific acts, not of a *692 legislative but purely of an executive character-acts which are not in themselves laws, but which presuppose a ‘law’ authorizing him to perform them. This law is not ex-pressed, either in the Constitution or in the enact-ments of Congress, but reason and necessity compel that it be implied from the exigencies of the situation.

‘In none of the cases which we have mentioned, nor in the cases cited in the extracts taken from the Nea-gle case, was it possible to say that the action of the President was directed, expressly or impliedly, by Congress. The situations dealt with had never been covered by any act of Congress, and there was no ground whatever for a contention that the possibility of their occurrence had ever been specifically consid-ered by the legislative mind. In none of those cases did the action of the President amount merely to the execution of some specific law.

‘Neither does any of them stand apart in principle from the case at bar, as involving the exercise of spe-cific constitutional powers of the President in a de-gree in which this case does not involve them. Taken collectively, the provisions of the Constitution which designate the President as the official who must rep-resent us in foreign relations, in commanding the Army and Navy, in keeping Congress informed of the state of the Union, in insuring the faithful execution of the laws and in recommending new ones, consid-ered in connection with the sweeping declaration that the executive power shall be vested in him, com-pletely demonstrate that his is the watchful eye, the active hand, the overseeing dynamic force of the United States.”FN49

FN49. Brief for the United States, No. 278, October Term, 1914, pp. 11, 75-77, 88-90.

*693 This brief is valuable not alone because of the caliber of its authors but because it lays bare in suc-cinct reasoning the basis of the executive practice which this Court approved in the Midwest Oil case.

During World War I, President Wilson established a War Labor Board without awaiting specific direction by Congress.FN50 With William Howard Taft and Frank P. Walsh as co-chairmen, the Board had as its purpose the prevention of strikes and lockouts inter-fering with the production of goods needed to meet the emergency. Effectiveness of War Labor Board decision was accomplished by Presidental action, including seizure of industrial plants.FN51 Seizure of the Nation’s railroads was also ordered by President Wilson. FN52

FN50. National War Labor Board. Bureau of Labor Statistics, Bull. 287 (1921).

FN51. Id., at 24-25, 32-34. See also, 2 Offi-cial U.S. Bull. (1918) No. 412; 8 Baker, Woodrow Wilson, Life & Letters (1939), 400-402; Berman, Labor Disputes and the President (1924), 125-153; Pringle, The Life and Times of William Howard Taft (1939), 915-925.

FN52. 39 Stat. 619, 645 (1916), 10 U.S.C.A. s 1361, provides that the President may take possession of any system of transportation in time of war. Following seizure of the rail-roads by President Wilson, Congress en-acted detailed legislation regulating the mode of federal control. 40 Stat. 451 (1918).

When Congress was considering the statute authorizing the President to seize communi-cations systems whenever he deemed such action necessary during the war, 40 Stat. 904 (1918), 47 U.S.C.A. s 63 note, Senator (later President) Harding opposed on the ground that there was no need for such stand-by powers because, in event of a present neces-sity, the Chief Excutive ‘ought to’ seize communications lines, “else he would be un-faithful to his duties as such Chief Execu-tive.” 56 Cong.Rec. 9064 (1918).

Beginning with the Bank Holiday ProclamationFN53 and continuing through World War II, executive leadership and intiative were characteristic of Presi-dent **942 Franklin D. Roosevelt’s administration. In 1939, upon the outbreak *694 of war in Europe, the President proclaimed a limited national emergency for the purpose of strengthening our national de-fense.FN54 By May of 1941, the danger from the Axis belligerents having become clear, the President pro-claimed ‘an unlimited national emergency’ calling for mobilization of the Nation’s defenses to repel ag-gression.FN55 The President took the initiative in strengthening our defenses by acquiring rights from the British Government to establish air bases in ex-change for overage destroyers.FN56

FN53. 48 Stat. 1689 (1933).

FN54. 54 Stat. 2643 (1939).

FN55. 55 Stat. 1647 (1941).

FN56. 86 Cong.Rec. 11354 (1940) (Message of the President). See 39 Ops.Atty.Gen. 484 (1940). Attorney General Jackson’s opinion did not extend to the transfer of ‘Mosquito boats’ solely because an express statutory prohibition on transfer was applicable.

In 1941, President Roosevelt acted to protect Iceland from attack by Axis powers when British forces were withdrawn by sending our forces to occupy Iceland. Congress was informed of this action on the same day that our forces reached Iceland.FN57 The occupa-tion of Iceland was but one of ‘at least 125 incidents’ in our history in which Presidents, “without Con-gressinal authorization, and in the absence of a decla-ration of war, (have) ordered the Armed Forces to take action or maintain positions abroad.”FN58

FN57. 87 Cong.Rec. 5868 (1941) (Message of the President).

FN58. Powers of the President to Send the Armed Forces Outside the United States, Report prepared by executive department for use of joint committee of Senate Commit-tees on Foreign Relations and Armed Serv-ices, 82d Cong., 1st Sess., Committee Print 2 (1951).

Some six months before Pearl Harbor, a dispute at a single aviation plant at Inglewood, California, inter-rupted a segment of the production of military air-craft. In spite of the comparative insignificance of this work stoppage to total defense production as contrasted with the complete paralysis now threat-ened by a shutdown of the entire basic steel industry, and even though *695 our armed forces were not then engaged in combat, President Roosevelt ordered the seizure of the plant “pursuant to the powers vested in (him) by the Constitution and laws of the United States, as President of the United States of America and Commander in Chief of the Army and Navy of the United States.” FN59 The Attorney General (Jack-son) vigorously proclaimed that the President had the moral duty to keep this Nation’s defense effort a ‘go-ing concern.’ His ringing moral justification was coupled with a legal justification equally well stated:

FN59. Exec. Order 8773, 6 Fed.Reg. 2777 (1941).

“The Presidential proclamation rests upon the aggre-gate of the Presidential powers derived from the Con-stitution itself and from statutes enacted by the Con-gress.

‘The Constitution lays upon the President the duty “to take care that the laws be faithfully executed.” Among the laws which he is required to find means to execute are those which direct him to equip an enlarged army, to provide for a strengthened navy, to protect Government property, to protect those who are engaged in carrying out the business of the Gov-ernment, and to carry out the provisions of the Lend-Lease Act (22 U.S.C.A. s 411 et seq.). For the faith-ful execution of such laws the President has back of him not only each general law-enforcement power conferred by the various acts of Congress but the aggregate of all such laws plus that wide discretion as to method vested in him by the Constitution for the purpose of executing the laws.

‘The Constititution also places on the President the responsibility and vests in him the powers of Com-mander in **943 Chief of the Army and of the Navy. These weapons for the protection of the continued existence of the Nation are placed in his sole com-mand*696 and the implication is clear that he should not allow them to become paralyzed by failure to obtain supplies for which Congress has appropriated the money and which it has directed the President to obtain.” FN60

FN60. See 89 Cong.Rec. 3992 (1943). The Attorney General also noted that the dispute at North American Aviation was Communist inspired and more nearly resembled an in-surrection than a labor strike. The relative size of North American Aviation and the impact of an interruption in production upon our defense effort were not described.

At this time, Senator Connally proposed amending the Selective Service and Training Act to authorize the President to seize any plant where an interruption of production would unduly impede the defense ef-fort.FN61 Proponents of the measure in no way implied that the legislation would add to the powers already possessed by the PresidentFN62 and the amendment was opposed as unnecessary since the President al-ready had the power.FN63 The amendment relating to plant seizures was not approved at that session of Congress.FN64

FN61. 87 Cong.Rec. 4932 (1941). See also S. 1600 and S. 2054, 77th Cong., 1st Sess. (1941).

FN62. Reps. May, Whittington; 87 Cong.Rec. 5895, 5972 (1941).

FN63. Reps. Dworshak, Feddis, Harter, Dirksen, Hook; 87 Cong.Rec. 5901, 5910, 5974, 5975 (1941).

FN64. The plant seizure amendment passed the Senate, but was rejected in the House af-ter a Conference Committee adopted the amendment. 87 Cong.Rec. 6424 (1941).

Meanwhile, and also prior to Pearl Harbor, the Presi-dent ordered the seizure of a shipbuilding company and an aircraft parts plant.FN65 Following the declara-tion of war, but prior to the Smith-Connally Act of 1943, five additional industrial concerns were seized to avert interruption*697 of needed production.FN66 During the same period, the President directed sei-zure of the Nation’s coal mines to remove an obstruc-tion to the effective prosecution of the war.FN67

FN65. Exec. Order 8868, 6 Fed.Reg. 4349 (1941); Exec. Order 8928, 6 Fed.Reg. 5559 (1941).

FN66. Exec. Order 9141, 7 Fed.Reg. 2961 (1942); Exec. Order 9220, 7 Fed.Reg. 6413 (1942); Exec. Order 9225, 7 Fed.Reg. 6627 (1942); Exec. Order 9254, 7 Fed.Reg. 8333 (1942); Exec. Order 9351, 8 Fed.Reg. 8097 (1943).

FN67. Exec. Order 9340, 8 Fed.Reg. 5695 (1943).

The procedures adopted by President Roosevelt closely resembled the methods employed by Presi-dent Wilson. A National War Labor Board, like its predecessor of World War I, was created by Execu-tive Order to deal effectively and fairly with disputes affecting defense production.FN68 Seizures were con-sidered necessary, upon disobedience of War Labor Board orders, to assure that the mobilization effort remained a ‘going concern,’ and to enforce the eco-nomic stabilization program.

FN68. Exec. Order 9017, 7 Fed.Reg. 237 (1942); 1 Termination Report of the Na-tional War Labor Board 5-11.

At the time of the seizure of the coal mines, Senator Connally’s bill to provide a statutory basis for sei-zures and for the War Labor Board was again before Congress. As stated by its sponsor, the purpose of the bill was not to augment Presidential power, but to “let the country know that the Congress is squarely behind the President.”FN69 As in the case of the legis-lative recognition of President Lincoln’s power to seize, Congress again recognized that the President already had the necessary power, for there was no intention to ‘ratify’ past actions of doubtful validity. Indeed, **944 when Senator Tydings offered an amendment to the Connally bill expressly to confirm and validate the seizure of the coal mines, sponsors of the bill *698 opposed the amendment as casting doubt on the legality of the seizure and the amend-ment was defeated. FN70 When the Connally bill, S. 796, came before the House, all parts after the enact-ing clause were stricken and a bill introduced by Rep-resentative Smith of Virginia was substituted and passed. This action in the House is significant be-cause the Smith bill did not contain the provisions authorizing seizure by the President but did contain provisions controlling and regulating activities in respect to properties seized by the Government under statute ‘or otherwise.’FN71 After a conference, the sei-zure provisions of the Connally bill, enacted as the Smith-Connally or War Labor Disputes Act of 1943, 57 Stat. 163, were agreed to by the House.

FN69. 89 Cong.Rec. 3807 (1943). Similar views of the President’s existing power were expressed by Senators Lucas, Wheeler, Aus-tin and Barkley. Id., at 3885-3887, 3896, 3992.

FN70. 89 Cong.Rec. 3989-3992 (1943).

FN71. S. 796, 78th Cong., 1st Sess., ss 12, 13 (1943), as passed by the House.

Following passage of the Smith-Connally Act, sei-zures to assure continued production on the basis of terms recommended by the War Labor Board were based upon that Act as well as upon the President’s power under the Constitution and the laws generally. A question did arise as to whether the statutory lan-guage relating to “any plant, mine, or facility equipped for the manufacture, production, or mining of any articles or materials”FN72 authorized the sei-zure of properties of Montgomery Ward & Co., a retail department store and mail order concern. The Attorney General (Biddle) issued an opinion that the President possessed the power to seize Montgomery Ward properties to prevent a work stoppage whether or not the terms of the Smith-Connally Act author-ized such a seizure.FN73 This opinion was in line with *699 the views on Presidential powers maintained by the Attorney General’s predecessors (Murphy FN74 and JacksonFN75) and his successor (ClarkFN76). Accord-ingly, the President ordered seizure of the Chicago properties of Montgomery Ward in April, 1944, when that company refused to obey a War Labor Board order concerning the bargaining represenative of its employees in Chicago.FN77 In Congress, a Select Commitee to Investigate Seizure of the Property of Montgomery Ward & Co., assuming that the terms of the Smith-Connally Act did not cover this seizure, concluded that the seizure “was not only within the Constitutional power but was the plain duty of the President.” FN78 Thereafter, an election determined the bargaining representative for the Chicago em-ployees and the properties were returned to Mont-gomery Ward & Co. In December, 1944, after con-tinued defiance of a series of War Labor Board or-ders, President Roosevelt ordered the seizure of Montgomery Ward properties throughout the coun-try.FN79 The Court of Appeals for the Seventh Circuit upheld this seizure on statutory grounds and also in-dicated its disapproval of a lower court’s denial of seizure power apart from express statute.FN80

FN72. 57 Stat. 163, 164 (1943).

FN73. 40 Ops.Atty.Gen. 312 (1944). See also Hearings before House Select Commit-tee to Investigate Seizure of Montgomery Ward & Co., 78th Cong., 2d Sess. 117-132 (1944).

FN74. 39 Ops.Atty.Gen. 343, 347 (1939).

FN75. Note 60, supra.

FN76. Letter introduced in Hearings before Senate Committee on Labor and Public Wel-fare on S. 249, 81st Cong., 1st Sess. 232 (1949) pointing to the ‘exceedingly great’ powers of the President to deal with emer-gencies even before the Korea crisis.

FN77. Exec. Order 9438, 9 Fed.Reg. 4459 (1944).

FN78. H.R.Rep. No. 1904, 78th Cong., 2d Sess. 25 (1944) (the Committee divided along party lines).

FN79. Exec. Order 9508, 9 Fed.Reg. 15079 (1944).

FN80. United States v. Montgomery Ward & Co., 7 Cir., 1945, 150 F.2d 369, reversing D.C.N.D.Ill.1945, 58 F.Supp. 408. See also Ken-Rad Tube & Lamp Corp. v. Badeau, D.C.W.D. Ky.1944, 55 F.Supp. 193, 197-199, where the court held that a seizure was proper with or without express statutory authorization.

**945 *700 More recently, President Truman acted to repel aggression by employing our armed forces in Korea.FN81 Upon the intervention of the Chinese Communists, the President proclaimed the existence of an unlimited national emergency requiring the speedy build-up of our defense establishment. FN82 Congress responded by providing for increased man-power and weapons for our own armed forces, by increasing military aid under the Mutual Security Program and by enacting economic stabilization measures, as previously described.

FN81. United States Policy in the Korean Crisis (1950), Dept. of State Pub. 3922.

FN82. 15 Fed.Reg. 9029 (1950).

This is but a cursory summary of executive leader-ship. But it amply demonstrates that Presidents have taken prompt action to enforce the laws and protect the country whether or not Congress happened to provide in advance for the particular method of exe-cution. At the minimum, the executive actions re-viewed herein sustain the action of the President in this case. And many of the cited examples of Presi-dential practice go far beyond the extent of power necessary to sustain the President’s order to seize the steel mills. The fact that temporary executive seizures of industrial plants to meet an emergency have not been directly tested in this Court furnishes not the slightest suggestion that such actions have been ille-gal. Rather, the fact that Congress and the courts have consistently recognized and given their support to such executive action indicates that such a power of seizure has been accepted throughout our history.

History bears out the genius of the Founding Fathers, who created a Government subject to law but not left subject to inertia when vigor and initiative are re-quired.

*701 IV.

Focusing now on the situation confronting the Presi-dent on the night of April 8, 1952, we cannot but conclude that the President was performing his duty under the Constitution to “take Care that the Laws be faithfully executed’-a duty described by President Benjamin Harrison as “the central idea of the of-fice.”FN83”

FN83. Harrison, This Country of Ours (1897), 98.

The President reported to Congress the morning after the seizure that he acted because a work stoppage in steel production would immediately imperil the safety of the Nation by preventing execution of the legislative programs for procurement of military equipment. And, while a shutdown could be averted by granting the price concessions requested by plain-tiffs, granting such concessions would disrupt the price stabilization program also enacted by Congress. Rather than fail to execute either legislative program, the President acted to execute both.

Much of the argument in this case has been directed at straw men. We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any ques-tion of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act.

The absence of a specific statute authorizing seizure of the steel mills as a mode of executing the laws-both the military procurement program and the anti-inflation program-has not until today been thought to prevent 702 the President from executing the laws. Unlike an administrative commission confined to the enforcement of the statute under which it was cre-ated, or the head to a department when administering a particular statute, the *946 President is a constitu-tional officer charged with taking care that a ‘mass of legislation’ be executed. Flexibility as to mode of execution to meet critical situations is a matter of practical necessity. This practical construction of the ‘Take Care’ clause, advocated by John Marshall, was adopted by this Court in In re Neagle, In re Debs and other cases cited supra. See also Ex parte Quirin, 1942, 317 U.S. 1, 26, 63 S.Ct. 2, 10, 87 L.Ed. 3. Al-though more restrictive views of executive power, advocated in dissenting opinions of Justices Holmes, McReynolds and Brandeis, were emphatically re-jected by this Court in Myers v. United States, supra, members of today’s majority treat these dissenting views as authoritative.

There is no statute prohibiting seizure as a method of enforcing legislative programs. Congress has in no wise indicated that its legislation is not to be executed by the taking of private property (subject of course to the payment of just compensation) if its legislation cannot otherwise be executed. Indeed, the Universal Military Training and Service Act authorizes the sei-zure of any plant that fails to fill a Government con-tractFN84 or the properties of any steel producer that fails to allocate steel as directed for defense produc-tion. FN85 And the Defense Production Act authorizes the President to requisition equipment and condemn real property needed without delay in the defense effort. FN86 Where Congress authorizes seizure in instances not necessarily crucial to the defense *703 program, it can hardly be said to have disclosed an intention to prohibit seizures where essential to the execution of that legislative program.

FN84. 62 Stat. 604, 626 (1948), 50 U.S.C.App. (Supp. IV) s 468©, 50 U.S.C.A.Appendix, s 468©.

FN85. 62 Stat. 604, 627 (1948), 50 U.S.C.App. (Supp. IV) s 468(h)(1), 50 U.S.C.A.Appendix, s 468(h)(1).

FN86. Tit. II, 64 Stat. 798 (1950), as amended 65 Stat. 138 (1951), 50 U.S.C.A.Appendix, s 2081.

Whatever the extent of Presidential power on more tranquil occasions, and whatever the right of the President to execute legislative programs as he sees fit without reporting the mode of execution to Con-gress, the single Presidential purpose disclosed on this record is to faithfully execute the laws by acting in an emergency to maintain the status quo, thereby preventing collapse of the legislative programs until Congress could act. The President’s action served the same purposes as a judicial stay entered to maintain the status quo in order to preserve the jurisdiction of a court. In his Message to Congress immediately fol-lowing the seizure, the President explained the neces-sity of his action in executing the military procure-ment and anti-inflation legislative programs and ex-pressed his desire to cooperate with any legislative proposals approving, regulating or rejecting the sei-zure of the steel mills. Consequently, there is no evi-dence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the leg-islative will.

In United States v. Midwest Oil Co., supra, this Court approved executive action where, as here, the Presi-dent acted to preserve an important matter until Con-gress could act-even though his action in that case was contrary to an express statute. In this case, there is no statute prohibiting the action taken by the Presi-dent in a matter not merely important but threatening the very safety of the Nation. Executive inaction in such a situation, courting national disaster, is foreign to the concept of energy and initiative in the Execu-tive as created by the Founding Fathers. The Consti-tution was itself “adopted in a period of grave emer-gency. * * * While emergency does not create power, emergency may furnish 704 the occasion for the exercise of power.” FN87 The Framers knew, as we should know in these times of peril, that there is real danger in Executive weakness. There is no cause to fear Executive tyranny so long as the laws *947 of Congress are being faithfully executed. Certainly there is no basis for fear of dictatorship when the Executive acts, as he did in this case, only to save the situation until Congress could act.

FN87. Home Building & Loan Ass’n v. Blaisdell, 1934, 290 U.S. 398, 425-426, 54 S.Ct. 231, 235, 78 L.Ed. 413.

V.

Plaintiffs place their primary emphasis on the Labor Management Relations Act of 1947, hereinafter re-ferred to as the Taft-Hartley Act, but do not contend that that Act contains any provision prohibiting sei-zure.

Under the Taft-Hartley Act, as under the Wagner Act, collective bargaining and the right to strike are at the heart of our national labor policy. Taft-Hartley preserves the right to strike in any emergency, how-ever serious, subject only to an 80-day delay in cases of strikes imperiling the national health and safety.FN88 In such a case, the President may appoint a board of inquiry to report the facts of the labor dis-pute. Upon receiving that report, the President may direct the Attorney General to petition a District Court to enjoin the strike. If the injunction is granted, it may continue in effect for no more than 80 days, during which time the board of inquiry makes further report and efforts are made to settle the dispute. When the injunction is dissolved, the President is directed to submit a report to Congress together with his recommendations.FN89

FN88. See Amalgamated Ass’n of Street, Electric Railway & Motor Coach Employees v. Wisconsin Board, 1951, 340 U.S. 383, 71 S.Ct. 359, 95 L.Ed. 364.

FN89. ss 206-210, Labor Management Rela-tions Act of 1947. 29 U.S.C. (Supp. IV) ss 176-180, 29 U.S.C.A. ss 176-180.

Enacted after World War II, Taft-Hartley restricts the right to strike against private employers only to a limited*705 extent and for the sole purpose of afford-ing an additional period of time within which to settle the dispute. Taft-Hartley in no way curbs strikes be-fore an injunction can be obtained and after an 80-day injunction is dissolved.

Plaintiffs admit that the emergency procedures of Taft-Hartley are not mandatory. Nevertheless, plain-tiffs apparently argue that, since Congress did pro-vide the 80-day injunction method for dealing with emergency strikes, the President cannot claim that an emergency exists until the procedures of Taft-Hartley have been exhausted. This argument was not the ba-sis of the District Court’s opinion and, whatever merit the argument might have had following the enact-ment of Taft-Hartley, it loses all force when viewed in light of the statutory pattern confronting the Presi-dent in this case.

In Title V of the Defense Production Act of 1950,FN90 Congress stated:

FN90. 64 Stat. 812, 65 Stat. 132 (1950, 1951).

“It is the intent of Congress, in order to provide for effective price and wage stabilization pursuant to title IV of this Act and to maintain uninterrupted produc-tion, that there be effective procedures for the settle-ment of labor disputes affecting national defense.” s 501.
Title V authorized the President to initiate labor-management conferences and to take action appropri-ate to carrying out the recommendations of such con-ferences and the provisions of Title V. s 502. Due regard is to be given to collective bargaining practice and stabilization policies and no action taken is to be inconsistent with Taft-Hartley and other laws. s 503. The purpose of these provisions was to authorize the President “to establish a board, commission or other agency, similar*706 to the War Labor Board of World War II, to carry out the title.”FN91

FN91. H.R.Rep. No. 3042, 81st Cong., 2d Sess. 35 (1950) (Conference Report). See also S.Rep. No. 2250, 81st Cong., 2d Sess. 41 (1950).

The President authorized the Wage Stabilization Board (WSB), which administers the wage stabiliza-tion functions of Title IV of the Defense Production Act, also to deal with labor disputes affecting the defense **948 program. FN92 When extension of the Defense Production Act was before Congress in 1951, the Chairman of the Wage Stabilization Board described in detail the relationship between the Taft-Hartley procedures applicable to labor disputes im-periling the national health and safety and the new WSB dispute procedures especially devised for set-tlement of labor disputes growing out of the needs of the defense program.FN93 Aware that a technique separate from Taft-Hartley had been devised, mem-bers of Congress attempted to divest the WSB of its disputes powers. These attempts were defeated in the House, were not brought to a vote in the Senate and the Defense Production Act was extended through June 30, 1952, without change in the disputes powers of the WSB. FN94 *707 Certainly this legislative crea-tion of a new procedure for dealing with defense dis-putes negatives any notion that Congress intended the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure.

FN92. Exec. Order 10161, 15 Fed.Reg. 6105 (1950), as amended, Exec. Order 10233, 16 Fed.Reg. 3503 (1951), 50 U.S.C.A.Appendix, s 2071 note.

FN93. Hearings before the House Commit-tee on Banking and Currency on Defense Production Act Amendments of 1951, 82d Cong., 1st Sess. 305-306, 312-313 (1951).

FN94. The Lucas Amendment to abolish the disputes function of the WSB was debated at length in the House, the sponsor of the amendment pointing out the similarity of the WSB functions to those of the War Labor Board and noting the seizures that occurred when War Labor Board orders were not obeyed. 97 Cong. 8390-8415. The amend-ment was rejected by a vote of 217 to 113. Id., at 8415. A similar amendment intro-duced in the Senate was withdrawn. 97 Cong.Rec. 7373-7374. The Defense Produc-tion Act was extended without amending Tit. V or otherwise affecting the disputes functions of the WSB. 65 Stat. 132 (1951).

Accordingly, as of December 22, 1951, the President had a choice between alternate procedures for settling the threatened strike in the steel mills: one route cre-ated to deal with peacetime disputes; the other route specially created to deal with disputes growing out of the defense and stabilization program. There is no question of by-passing a statutory procedure because both of the routes available to the President in De-cember were based upon statutory authorization. Both routes were available in the steel dispute. The Union, by refusing to abide by the defense and stabi-lization program, could have forced the President to invoke Taft-Hartley at that time to delay the strike a maximum of 80 days. Instead, the Union agreed to cooperate with the defense program and submit the dispute to the Wage Stabilization Board.

Plaintiffs had no objection whatever at that time to the President’s choice of the WSB route. As a result, the strike was postponed, a WSB panel held hearings and reported the position of the parties and the WSB recommended the terms of a settlement which it found were fair and equitable. Moreover, the WSB performed a function which the board of inquiry con-templated by Taft-Hartley could not have accom-plished when it checked the recommended wage set-tlement against its own wage stabilization regulations issued pursuant to its stabilization functions under Title IV of the Defense Production Act. Thereafter, the parties bargained on the basis of the WSB rec-ommendation.

When the President acted on April 8, he had ex-hausted the procedures for settlement available to him. Taft-Hartley was a route parallel to, not con-nected with, the WSB procedure. The strike had been delayed 99 708 days as contrasted with the maxi-mum delay of 80 days under Taft-Hartley. There had been a hearing on the issues in dispute and bargaining which promised settlement up to the very hour before seizure had broken down. Faced with immediate na-tional peril through stoppage in steel production on the one hand and faced with destruction of the wage and price legislative programs on the other, the Presi-dent took temporary possession of the steel mills as the only course *949 open to him consistent with his duty to take care that the laws be faithfully executed.

Plaintiffs’ property was taken and placed in the pos-session of the Secretary of Commerce to prevent any interruption in steel production. It made no difference whether the stoppage was caused by a union-management dispute over terms and conditions of employment, a union-Government dispute over wage stabilization or a management-Government dispute over price stabilization. The President’s action has thus far been effective, not in settling the dispute, but in saving the various legislative programs at stake from destruction until Congress could act in the mat-ter.

VI.

The diversity of views expressed in the six opinions of the majority, the lack of reference to authoritative precedent, the repeated reliance upon prior dissenting opinions, the complete disregard of the uncontro-verted facts showing the gravity of the emergency and the temporary nature of the taking all serve to demonstrate how far afield one must go to affirm the order of the District Court.

The broad executive power granted by Article II to an officer on duty 365 days a year cannot, it is said, be invoked to avert disaster. Instead, the President must confine himself to sending a message to Congress recommending action. Under this messenger-boy concept of *709 the Office, the President cannot even act to preserve legislative programs from destruction so that Congress will have something left to act upon. There is no judicial finding that the executive action was unwarranted because there was in fact no basis for the President’s finding of the existence of an emergencyFN95 for, under this view, the gravity of the emergency and the immediacy of the threatened dis-aster are considered irrelevant as a matter of law.

FN95. Compare Sterling v. Constantin, 1932, 287 U.S. 378, 399-401, 53 S.Ct. 190, 195-196, 77 L.Ed. 375.

Seizure of plaintiffs’ property is not a pleasant under-taking. Similarly unpleasant to a free country are the draft which disrupts the home and military procure-ment which causes economic dislocation and com-pels adoption of price controls, wage stabilization and allocation of materials. The President informed Congress that even a temporary Government opera-tion of plaintiffs’ properties was ‘thoroughly distaste-ful’ to him, but was necessary to prevent immediate paralysis of the mobilization program. Presidents have been in the past, and any man worthy of the Office should be in the future, free to take at least interim action necessary to execute legislative pro-grams essential to survival of the Nation. A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to “take Care that the Laws be faithfully executed.”

As the District Judge stated, this is no time for ‘tim-orous’ judicial action. But neither is this a time for timorous executive action. Faced with the duty of executing the defense programs which Congress had enacted and the disastrous effects that any stoppage in steel production would have on those programs, the President acted to preserve those programs by seizing the steel mills. *710 There is no question that the possession was other than temporary in character and subject to congressional direction-either approv-ing, disapproving or regulating the manner in which the mills were to be administered and returned to the owners. The President immediately informed Con-gress of his action and clearly stated his intention to abide by the legislative will. No basis for claims of arbitrary action, unlimited powers or dictatorial usur-pation of congressional power appears from the facts of this case. On the contrary, judicial, legislative and executive precedents throughout our history demon-strate that in this case the President acted in full con-formity with his duties under the Constitution. Ac-cordingly, we would reverse the order of the District Court.

U.S. 1952
Youngstown Sheet & Tube Co. v. Sawyer
343 U.S. 579, 72 S.Ct. 863, 30 L.R.R.M. (BNA) 2172, 26 A.L.R.2d 1378, 96 L.Ed. 1153, 62 Ohio Law Abs. 417, 62 Ohio Law Abs. 473, 47 O.O. 430, 47 O.O. 460, 21 Lab.Cas. P 67,008

            In response to the seizure of American personnel as hostages at the American Embassy in Tehran, Iran, President Carter, pursuant to the International Emergency Economic Powers Act (IEEPA), declared a national emergency on November 14, 1979, and blocked the removal or transfer of all property and interests in property of the Government of Iran which were subject to the jurisdiction of the United States. The Treasury Department then issued implementing regulations providing that "[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since [November 14, 1979,] there existed an interest of Iran; " and that any licenses or authorizations granted could be "amended, modified, or revoked at any time." The President then granted a general license that authorized certain judicial proceedings, including prejudgment attachments, against Iran but did not allow the entry of any judgment or decree. On December 19, 1979, petitioner filed suit in Federal District Court against the Government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks, alleging that it was owed a certain amount of money for services performed under a contract with the Atomic Energy Organization. The District Court issued orders of attachment against the defendants' property, and property of certain Iranian banks was then attached to secure any judgment that might be entered against them. Subsequently, on January 19, 1981, the Americans held hostage were released by Iran pursuant to an agreement with the United States. Under this agreement the United States was obligated to terminate all legal proceedings in United States courts involving claims of United States nationals against Iran, to nullify all attachments and judgments obtained therein, and to bring about the termination of such claims through binding arbitration in an Iran-United States Claims Tribunal. The President at the same time issued implementing Executive Orders revoking all licenses that permitted the exercise of "any right, power, or privilege" with regard to Iranian funds, nullifying all non-Iranian interests in such assets acquired after the blocking order of Novem-

Page 655

ber 14, 1979, and requiring banks holding Iranian assets to transfer them to the Federal Reserve Bank of New York to be held or transferred as directed by the Secretary of the Treasury. On February 24, 1981, President Reagan issued an Executive Order which ratified President Carter's Executive Orders and "suspended" all claims that may be presented to the Claims Tribunal, but which provided that the suspension of a claim terminates if the Claims Tribunal determines that it has no jurisdiction over the claim. Meanwhile, the District Court granted summary judgment for petitioner and awarded it the amount claimed under the contract plus interest, but stayed execution of the judgment pending appeal by the defendants, and ordered that all prejudgment attachments against the defendants be vacated and that further proceedings against the bank defendants be stayed. Petitioner then filed an action in Federal District Court against the United States and the Secretary of the Treasury, seeking to prevent enforcement of the various Executive Orders and regulations implementing the agreement with Iran. It was alleged that the actions of the President and the Secretary of the Treasury were beyond their statutory and constitutional powers, and in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against Iran and the Atomic Energy Organization, its execution of that judgment, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. The District Court dismissed the complaint for failure to state a claim upon which relief could be granted, but entered an injunction pending appeal to the Court of Appeals prohibiting the United States from requiring the transfer of Iranian property that is subject to any writ of attachment issued by any court in petitioner's favor. This Court then granted certiorari before judgment.

          Held:

          1. The President was authorized to nullify the attachments and order the transfer of Iranian assets by the provision of the IEEPA, 50 U.S.C. § 1702(a)(1)(B), which empowers the President to "compel," "nullify," or "prohibit" any "transfer" with respect to, or transactions involving, any property subject to the jurisdiction of the United States, in which any foreign country has any interest. Pp. 669-674.

          (a) Nothing in the legislative history of either § 1702 or § 5(b) of the Trading With the Enemy Act (TWEA), from which § 1702 was directly drawn, requires reading out of § 1702 all meaning to the words "transfer," "compel," or "nullify," and limiting the President's authority in this case only to continuing the freeze, as petitioner claims. To the contrary, both the legislative history and cases interpreting the TWEA fully sustain the President's broad authority when acting under

Page 656

such congressional grant of power. And the changes brought about by the enactment of the IEEPA did not in any way affect the President's authority to take the specific action taken here. By the time petitioner brought the instant action, the President had already entered the freeze order, and petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The attachments obtained by petitioner, being subject to revocation, were specifically made subordinate to further actions which the President might take under the IEEPA. Pp. 671-673.

          (b) Blocking orders, such as the one here, permit the President to maintain foreign assets at his disposal for use in negotiating the resolution of a declared national emergency, and the frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. To limit the President's authority, as petitioner urges, would mean that claimants could minimize or eliminate this "bargaining chip" through attachments or similar encumbrances. Pp. 673-674.

          (c) Petitioner's interest in its attachments was conditional and revocable and as such the President's action nullifying the attachments and ordering the transfer of the assets did not effect a taking of property in violation of the Fifth Amendment absent just compensation. P. 674, n. 6.

          (d) Because the President's action in nullifying the attachments and ordering the transfer of assets was taken pursuant to specific congressional authorization, it is "supported by the strongest presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (Jackson, J., concurring). Under the circumstances of this case, petitioner has not sustained that burden. P. 674.

          2. On the basis of the inferences to be drawn from the character of the legislation, such as the IEEPA and the Hostage Act, which Congress has enacted in the area of the President's authority to deal with international crises, and from the history of congressional acquiescence in executive claims settlement, the President was authorized to suspend claims pursuant to the Executive Order in question here. Pp. 675-688.

          (a) Although neither the IEEPA nor the Hostage Act constitutes specific authorization for the President's suspension of the claims, these statutes are highly relevant as an indication of congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. Pp. 675-679.

          (b) The United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries.

Page 657

Although those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate, and this practice continues at the present time. Pp. 679-680.

          (c) That Congress has implicitly approved the practice of claims settlement by executive agreement is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, which created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. And the legislative history of the IEEPA further reveals that Congress has accepted the authority of the President to enter into settlement agreements. Pp. 680-682.

          (d) In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President has some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. See, e. g., United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796. Pp. 682-683.

          (e) Petitioner's argument that all settlement claims prior to 1952 when the United States had adhered to the doctrine of absolute sovereign immunity should be discounted because of the evolution of sovereign immunity, is refuted by the fact that since 1952 there have been at least 10 claim settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here. Pp. 683-684.

          (f) By enacting the Foreign Sovereign Immunities Act of 1976 (FSIA), which granted personal and subject-matter jurisdiction to federal district courts over commercial suits by claimants against foreign states that waived immunity, Congress did not divest the President of the authority to settle claims. The President, by suspending petitioner's claim, has not circumscribed the jurisdiction of the United States courts in violation of Art. III, but has simply effected a change in the substantive law governing the lawsuit. The FSIA was designed to remove one particular barrier to suit, namely, sovereign immunity, and cannot be read as prohibiting the President from settling claims of United States nationals against foreign governments. Pp. 684-686.

          (g) Long continued executive practice, known to and acquiesced in by Congress, raises a presumption that the President's action has been taken pursuant to Congress' consent. Such practice is present here and such a presumption is also appropriate. P. 686.

          (h) The conclusion that the President's action in suspending peti-

Page 658

tioner's claim did not exceed his powers is buttressed by the fact the President has provided an alternative forum, the Claims Tribunal, to settle the claims of the American nationals. Moreover, Congress has not disapproved the action taken here. Pp. 686-688.

          (i) While it is not concluded that the President has plenary power to settle claims, even against foreign governmental entities, nevertheless, where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between this country and another, and Congress has acquiesced in the President's action, it cannot be said that the President lacks the power to settle such claims. P. 688.

          3. The possibility that the President's actions with respect to the suspension of the claims may effect a taking of petitioner's property in violation of the Fifth Amendment in the absence of just compensation, makes ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims. And there is no jurisdictional obstacle to an appropriate action in that court under the Tucker Act. Pp. 688-690.

          Affirmed.

          C. Stephen Howard, Tuttle & Taylor, Inc., Los Angeles, Cal., for petitioner.

          Rex E. Lee, Special Atty., U.S. Dept. of Justice, Washington, D. C., for federal respondents.

          Thomas Shack, Jr., Abourezk, Shack & Mendenhall, Washington, D. C., for the Islamic Republic of Iran.

          Eric M. Lieberman, New York City, for the Bank Markazi Iran.

Page 659

           Justice REHNQUIST delivered the opinion of the Court.

          The questions presented by this case touch fundamentally upon the matter in which our Republic is to be governed. Throughout the nearly two centuries of our Nation's existence under the Constitution, this subject has generated considerable debate. We have had the benefit of commentators such as John Jay, Alexander Hamilton, and James Madison writing in The Federalist Papers at the Nation's very inception, the benefit of astute foreign observers of our system such as

Page 660

Alexis deTocqueville and James Bryce writing during the first century of the Nation's existence, and the benefit of many other treatises as well as more than 400 volumes of reports of decisions of this Court. As these writings reveal it is doubtless both futile and perhaps dangerous to find any epigrammatical explanation of how this country has been governed. Indeed, as Justice Jackson noted, "[a] judge . . . may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634, 72 S.Ct. 863, 888, 96 L.Ed. 1153 (1952) (concurring opinion).

          Our decision today will not dramatically alter this situation, for the Framers "did not make the judiciary the overseer of our government." Id., at 594, 72 S.Ct., at 889 (Frankfurter, J., concurring). We are confined to a resolution of the dispute presented to us. That dispute involves various Executive Orders and regulations by which the President nullified attachments and liens on Iranian assets in the United States, directed that these assets be transferred to Iran, and suspended claims against Iran that may be presented to an International Claims Tribunal. This action was taken in an effort to comply with an Executive Agreement between the United States and Iran. We granted certiorari before judgment in this case, and set an expedited briefing and argument schedule, because lower courts had reached conflicting conclusions on the validity of the President's actions and, as the Solicitor General informed us, unless the Government acted by July 19, 1981, Iran could consider the United States to be in breach of the Executive Agreement.

          But before turning to the facts and law which we believe determine the result in this case, we stress that the expeditious treatment of the issues involved by all of the courts which have considered the President's actions makes us acutely aware of the necessity to rest decision on the narrowest possible ground capable of deciding the case. Ashwander v. TVA,

Page 661

297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). This does not mean that reasoned analysis may give way to judicial fiat. It does mean that the statement of Justice Jackson—that we decide difficult cases presented to us by virtue of our commissions, not our competence is especially true here. We attempt to lay down no general "guidelines" covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case.

          Perhaps it is because it is so difficult to reconcile the foregoing definition of Art. III judicial power with the broad range of vitally important day-to-day questions regularly decided by Congress or the Executive, without either challenge or interference by the Judiciary, that the decisions of the Court in this area have been rare, episodic, and afford little precedential value for subsequent cases. The tensions present in any exercise of executive power under the tri-partite system of Federal Government established by the Constitution have been reflected in opinions by Members of this Court more than once. The Court stated in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-320, 57 S.Ct. 216, 220-221, 81 L.Ed. 255 (1936):

          "[W]e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."

          And yet 16 years later, Justice Jackson in his concurring opinion in Youngstown, supra, which both parties agree brings together as much combination of analysis and common sense as there is in this area, focused not on the "plenary and ex-

Page 662

clusive power of the President" but rather responded to a claim of virtually unlimited powers for the Executive by noting:

                    "The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image." 343 U.S., at 641, 72 S.Ct., at 873.

          As we now turn to the factual and legal issues in this case, we freely confess that we are obviously deciding only one more episode in the never-ending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution under which we all live and which no one disputes embodies some sort of system of checks and balances.

          On November 4, 1979, the American Embassy in Tehran was seized and our diplomatic personnel were captured and held hostage. In response to that crisis, President Carter, acting pursuant to the International Emergency Economic Powers Act, 91 Stat. 1626, 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III) (hereinafter IEEPA), declared a national emergency on November 14, 1979,¹ and blocked the removal or transfer of "all property and interests in property of the Government of Iran, its instrumentalities and controlled entities and the Central Bank of Iran which are or become subject to

Page 663

the jurisdiction of the United States. . . ." Exec. Order No. 12170, 3 CFR 457 (1980), note following 50 U.S.C. § 1701 (1976 ed., Supp. III).² President Carter authorized the Secretary of the Treasury to promulgate regulations carrying out the blocking order. On November 15, 1979, the Treasury Department's Office of Foreign Assets Control issued a regulation providing that "[u]nless licensed or authorized . . . any attachment, judgment, decree, lien, execution, garnishment, or other judicial process is null and void with respect to any property in which on or since [November 14, 1979,] there existed an interest of Iran." 31 CFR § 535.203(e) (1980). The regulations also made clear that any licenses or authorizations granted could be "amended, modified, or revoked at any time." § 535.805.³

          On November 26, 1979, the President granted a general license authorizing certain judicial proceedings against Iran but which did not allow the "entry of any judgment or of any decree or order of similar or analogous effect. . . ." § 535.504(a). On December 19, 1979, a clarifying regulation was issued stating that "the general authorization for judicial proceedings contained in § 535.504(a) includes pre-judgment attachment." § 535.418.

          On December 19, 1979, petitioner Dames & Moore filed suit in the United States District Court for the Central District of California against the Government of Iran, the Atomic

Page 664

Energy Organization of Iran, and a number of Iranian banks. In its complaint, petitioner alleged that its wholly owned subsidiary, Dames & Moore International, S. R. L., was a party to a written contract with the Atomic Energy Organization, and that the subsidiary's entire interest in the contract had been assigned to petitioner. Under the contract, the subsidiary was to conduct site studies for a proposed nuclear power plant in Iran. As provided in the terms of the contract, the Atomic Energy Organization terminated the agreement for its own convenience on June 30, 1979. Petitioner contended, however, that it was owed $3,436,694.30 plus interest for services performed under the contract prior to the date of termination.⁴ The District Court issued orders of attachment directed against property of the defendants, and the property of certain Iranian banks was then attached to secure any judgment that might be entered against them.

          On January 20, 1981, the Americans held hostage were released by Iran pursuant to an Agreement entered into the day before and embodied in two Declarations of the Democratic and Popular Republic of Algeria. Declaration of the Government of the Democratic and Popular Republic of Algeria (App. to Pet. for Cert. 21-29), and Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran (id., at 30-35). The Agreement

Page 665

stated that "[i]t is the purpose of [the United States and Iran] . . . to terminate all litigation as between the Government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." Id., at 21-22. In furtherance of this goal, the Agreement called for the establishment of an Iran-United States Claims Tribunal which would arbitrate any claims not settled within six months. Awards of the Claims Tribunal are to be "final and binding" and "enforceable . . . in the courts of any nation in accordance with its laws." Id., at 32. Under the Agreement, the United States is obligated

          "to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration." Id., at 22.

          In addition, the United States must "act to bring about the transfer" by July 19, 1981, of all Iranian assets held in this country by American banks. Id., at 24-25. One billion dollars of these assets will be deposited in a security account in the Bank of England, to the account of the Algerian Central Bank, and used to satisfy awards rendered against Iran by the Claims Tribunal. Ibid.

          On January 19, 1981, President Carter issued a series of Executive Orders implementing the terms of the agreement. Exec. Orders Nos. 12276-12285, 46 Fed.Reg. 7913-7932. These Orders revoked all licenses permitting the exercise of "any right, power, or privilege" with regard to Iranian funds, securities, or deposits; "nullified" all non-Iranian interests in such assets acquired subsequent to the blocking order of November 14, 1979; and required those banks holding Iranian assets to transfer them "to the Federal Reserve Bank of New

Page 666

York, to be held or transferred as directed by the Secretary of the Treasury." Exec. Order No. 12279, 46 Fed.Reg. 7919.

          On February 24, 1981, President Reagan issued an Executive Order in which he "ratified" the January 19th Executive Orders. Exec. Order No. 12294, 46 Fed.Reg. 14111. Moreover, he "suspended" all "claims which may be presented to the . . . Tribunal" and provided that such claims "shall have no legal effect in any action now pending in any court of the United States." Ibid. The suspension of any particular claim terminates if the Claims Tribunal determines that it has no jurisdiction over that claim; claims are discharged for all purposes when the Claims Tribunal either awards some recovery and that amount is paid, or determines that no recovery is due. Ibid.

          Meanwhile, on January 27, 1981, petitioner moved for summary judgment in the District Court against the Government of Iran and the Atomic Energy Organization, but not against the Iranian banks. The District Court granted petitioner's motion and awarded petitioner the amount claimed under the contract plus interest. Thereafter, petitioner attempted to execute the judgment by obtaining writs of garnishment and execution in state court in the State of Washington, and a sheriff's sale of Iranian property in Washington was noticed to satisfy the judgment. However, by order of May 28, 1981, as amended by order of June 8, the District Court stayed execution of its judgment pending appeal by the Government of Iran and the Atomic Energy Organization. The District Court also ordered that all prejudgment attachments obtained against the Iranian defendants be vacated and that further proceedings against the bank defendants be stayed in light of the Executive Orders discussed above. App. to Pet. for Cert. 106-107.

          On April 28, 1981, petitioner filed this action in the District Court for declaratory and injunctive relief against the United States and the Secretary of the Treasury, seeking to

Page 667

prevent enforcement of the Executive Orders and Treasury Department regulations implementing the Agreement with Iran. In its complaint, petitioner alleged that the actions of the President and the Secretary of the Treasury implementing the Agreement with Iran were beyond their statutory and constitutional powers and, in any event, were unconstitutional to the extent they adversely affect petitioner's final judgment against the Government of Iran and the Atomic Energy Organization, its execution of that judgment in the State of Washington, its prejudgment attachments, and its ability to continue to litigate against the Iranian banks. Id., at 1-12. On May 28, 1981, the District Court denied petitioner's motion for a preliminary injunction and dismissed petitioner's complaint for failure to state a claim upon which relief could be granted. Id., at 106-107. Prior to the District Court's ruling, the United States Courts of Appeals for the First and the District of Columbia Circuits upheld the President's authority to issue the Executive Orders and regulations challenged by petitioner. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d 800 (CA1 1981); American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 657 F.2d 430 (1981).

          On June 3, 1981, petitioner filed a notice of appeal from the District Court's order, and the appeal was docketed in the United States Court of Appeals for the Ninth Circuit. On June 4, the Treasury Department amended its regulations to mandate "the transfer of bank deposits and certain other financial assets of Iran in the United States to the Federal Reserve Bank of New York by noon, June 19." App. to Pet. for Cert. 151-152. The District Court, however, entered an injunction pending appeal prohibiting the United States from requiring the transfer of Iranian property that is subject to "any writ of attachment, garnishment, judgment, levy, or other judicial lien" issued by any court in favor of petitioner. Id., at 168. Arguing that this is a case of "imperative public importance," petitioner then sought a writ of certiorari be-

Page 668

fore judgment. Pet. for Cert. 10. See 28 U.S.C. § 2101(e); this Court's Rule 18. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981. 452 U.S. 932, 101 S.Ct. 3071, 69 L.Ed.2d 434 (1981).

          The parties and the lower courts, confronted with the instant questions, have all agreed that much relevant analysis is contained in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Justice Black's opinion for the Court in that case, involving the validity of President Truman's effort to seize the country's steel mills in the wake of a nationwide strike, recognized that "[t]he President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself." Id., at 585, 72 S.Ct. at 864. Justice Jackson's concurring opinion elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case. When the President acts pursuant to an express or implied authorization from Congress, he exercises not only his powers but also those delegated by Congress. In such a case the executive action "would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Id., at 637, 72 S.Ct., at 871. When the President acts in the absence of congressional authorization he may enter "a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain." Ibid. In such a case the analysis becomes more complicated, and the validity of the President's action, at least so far as separation-of-powers principles are concerned, hinges on a consideration of all the circumstances which might shed light on the views of the Legislative Branch toward such action, including "con-

Page 669

gressional inertia, indifference or quiescence." Ibid. Finally, when the President acts in contravention of the will of Congress, "his power is at its lowest ebb," and the Court can sustain his actions "only by disabling the Congress from acting upon the subject." Id., at 637-638, 72 S.Ct., at 871-872.

          Although we have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition, quoted by Justice Frankfurter in Youngstown, supra, at 597, 72 S.Ct., at 890 (concurring opinion), that "[t]he great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928) (dissenting opinion). Justice Jackson himself recognized that his three categories represented "a somewhat over-simplified grouping," 343 U.S., at 635, 72 S.Ct., at 870, and it is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.

          In nullifying post-November 14, 1979, attachments and directing those persons holding blocked Iranian funds and securities to transfer them to the Federal Reserve Bank of New York for ultimate transfer to Iran, President Carter cited five sources of express or inherent power. The Government, however, has principally relied on § 203 of the IEEPA, 91 Stat. 1626, 50 U.S.C. § 1702(a)(1) (1976 ed., Supp. III), as authorization for these actions. Section 1702(a)(1) provides in part:

                    "At the times and to the extent specified in section 1701 of this title, the President may, under such regu-

Page 670

          lations as he may prescribe, by means of instructions, licenses, or otherwise—

                    "(A) investigate, regulate, or prohibit—

                    "(i) any transactions in foreign exchange,

                    "(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,

                    "(iii) the importing or exporting of currency or securities, and

                    "(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest;

          "by any person, or with respect to any property, subject to the jurisdiction of the United States."

          The Government contends that the acts of "nullifying" the attachments and ordering the "transfer" of the frozen assets are specifically authorized by the plain language of the above statute. The two Courts of Appeals that have considered the issue agreed with this contention. In Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, the Court of Appeals for the First Circuit explained:

          "The President relied on his IEEPA powers in November 1979, when he 'blocked' all Iranian assets in this country, and again in January 1981, when he 'nullified' interests acquired in blocked property, and ordered that property's transfer. The President's actions, in this regard, are in keeping with the language of IEEPA: initially he 'prevent[ed] and prohibit[ed]' 'transfers' of Iranian assets; later he 'direct[ed] and compel[led]' the

Page 671

          'transfer' and 'withdrawal' of the assets, 'nullify[ing]' certain 'rights' and 'privileges' acquired in them.

                    "Main argues that IEEPA does not supply the President with power to override judicial remedies, such as attachments and injunctions, or to extinguish 'interests' in foreign assets held by United States citizens. But we can find no such limitation in IEEPA's terms. The language of IEEPA is sweeping and unqualified. It provides broadly that the President may void or nullify the 'exercising [by any person of] any right, power or privilege with respect to . . . any property in which any foreign country has any interest. . . .' 50 U.S.C. § 1702(a)(1)(B)." 651 F.2d, at 806-807 (emphasis in original).

          In American Int'l Group, Inc. v. Islamic Republic of Iran, the Court of Appeals for the District of Columbia Circuit employed a similar rationale in sustaining President Carter's action:

                    "The Presidential revocation of the license he issued permitting prejudgment restraints upon Iranian assets is an action that falls within the plain language of the IEEPA. In vacating the attachments, he acted to 'nullify [and] void . . . any . . . exercising any right, power, or privilege with respect to . . . any property in which any foreign country . . . has any interest . . . by any person . . . subject to the jurisdiction of the United States.' " 211 U.S.App.D.C., at 477, 657 F.2d, at 439 (footnote omitted).

          Petitioner contends that we should ignore the plain language of this statute because an examination of its legislative history as well as the history of § 5(b) of the Trading With the Enemy Act (hereinafter TWEA), 40 Stat. 411, as amended, 50 U.S.C. App. § 5(b) (1976 ed. and Supp. III), from which the pertinent language of § 1702 is directly drawn,

Page 672

reveals that the statute was not intended to give the President such extensive power over the assets of a foreign state during times of national emergency. According to petitioner, once the President instituted the November 14, 1979, blocking order, § 1702 authorized him "only to continue the freeze or to discontinue controls." Brief for Petitioner 32.

          We do not agree and refuse to read out of § 1702 all meaning to the words "transfer," "compel," or "nullify." Nothing in the legislative history of either § 1702 or § 5(b) of the TWEA requires such a result. To the contrary, we think both the legislative history and cases interpreting the TWEA fully sustain the broad authority of the Executive when acting under this congressional grant of power. See, e. g., Orvis v. Brownell, 345 U.S. 183, 73 S.Ct. 596, 97 L.Ed. 938 (1953).⁵ Although Congress in-

Page 673

tended to limit the President's emergency power in peacetime, we do not think the changes brought about by the enactment of the IEEPA in any way affected the authority of the President to take the specific actions taken here. We likewise note that by the time petitioner instituted this action, the President had already entered the freeze order. Petitioner proceeded against the blocked assets only after the Treasury Department had issued revocable licenses authorizing such proceedings and attachments. The Treasury Regulations provided that "unless licensed" any attachment is null and void, 31 CFR § 535.203(e) (1980), and all licenses "may be amended, modified, or revoked at any time." § 535.805. As such, the attachments obtained by petitioner were specifically made subordinate to further actions which the President might take under the IEEPA. Petitioner was on notice of the contingent nature of its interest in the frozen assets.

          This Court has previously recognized that the congressional purpose in authorizing blocking orders is "to put control of foreign assets in the hands of the President. . . ." Propper v. Clark, 337 U.S. 472, 493, 69 S.Ct. 1333, 1345, 93 L.Ed. 1480 (1949). Such orders permit the President to maintain the foreign assets at his disposal for use in negotiating the resolution of a declared national emergency. The frozen assets serve as a "bargaining chip" to be used by the President when dealing with a hostile country. Accordingly, it is difficult to accept petitioner's argument because the practical effect of it is to allow individual claimants throughout the country to minimize or wholly eliminate this "bargaining chip" through attachments, garnishments, or similar encumbrances on property. Neither the purpose the

Page 674

statute was enacted to serve nor its plain language supports such a result.⁶

          Because the President's action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown, 343 U.S., at 637, 72 S.Ct., at 871 (Jackson, J., concurring). Under the circumstances of this case, we cannot say that petitioner has sustained that heavy burden. A contrary ruling would mean that the Federal Government as a whole lacked the power exercised by the President, see id., at 636-637, 72 S.Ct., at 870-871, and that we are not prepared to say.

Page 675

          Although we have concluded that the IEEPA constitutes specific congressional authorization to the President to nullify the attachments and order the transfer of Iranian assets, there remains the question of the President's authority to suspend claims pending in American courts. Such claims have, of course, an existence apart from the attachments which accompanied them. In terminating these claims through Executive Order No. 12294 the President purported to act under authority of both the IEEPA and 22 U.S.C. § 1732, the so-called "Hostage Act." ⁷ 46 Fed.Reg. 14111 (1981).

          We conclude that although the IEEPA authorized the nullification of the attachments, it cannot be read to authorize the suspension of the claims. The claims of American citizens against Iran are not in themselves transactions involving Iranian property or efforts to exercise any rights with respect to such property. An in personam lawsuit, although it might eventually be reduced to judgment and that judgment might be executed upon, is an effort to establish liability and fix damages and does not focus on any particular property within the jurisdiction. The terms of the IEEPA therefore do not authorize the President to suspend claims in American courts. This is the view of all the courts which have considered the question. Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 809-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 481, n. 15, 657 F.2d, at 443, n. 15; The Marschalk Co. v. Iran National Airlines Corp., 518 F.Supp. 69, 79 (SDNY

Page 676

1981); Electronic Data Systems Corp. v. Social Security Organization of Iran, 508 F.Supp. 1350, 1361 (ND Tex. 1981).

          The Hostage Act, passed in 1868, provides:

                    "Whenever it is made known to the President that any citizen of the United States has been unjustly deprived of his liberty by or under the authority of any foreign government, it shall be the duty of the President forthwith to demand of that government the reasons of such imprisonment; and if it appears to be wrongful and in violation of the rights of American citizenship, the President shall forthwith demand the release of such citizen, and if the release so demanded is unreasonably delayed or refused, the President shall use such means, not amounting to acts of war, as he may think necessary and proper to obtain or effectuate the release; and all the facts and proceedings relative thereto shall as soon as practicable be communicated by the President to Congress." Rev.Stat. § 2001, 22 U.S.C. § 1732.

          We are reluctant to conclude that this provision constitutes specific authorization to the President to suspend claims in American courts. Although the broad language of the Hostage Act suggests it may cover this case, there are several difficulties with such a view. The legislative history indicates that the Act was passed in response to a situation unlike the recent Iranian crisis. Congress in 1868 was concerned with the activity of certain countries refusing to recognize the citizenship of naturalized Americans traveling abroad, and repatriating such citizens against their will. See, e. g., Cong. Globe, 40th Cong., 2d Sess., 4331 (1868) (Sen. Fessenden); id., at 4354 (Sen. Conness); see also 22 U.S.C. § 1731. These countries were not interested in returning the citizens in exchange for any sort of ransom. This also explains the reference in the Act to imprisonment "in violation of the rights of American citizenship." Although the Iranian hostage-taking violated international law and common decency,

Page 677

the hostages were not seized out of any refusal to recognize their American citizenship—they were seized precisely because of their American citizenship. The legislative history is also somewhat ambiguous on the question whether Congress contemplated Presidential action such as that involved here or rather simply reprisals directed against the offending foreign country and its citizens. See, e. g., Cong. Globe, 40th Cong., 2d Sess., 4205 (1868); American Int'l Group, Inc. v. Islamic Republic of Iran, supra, at 490-491, 657 F.2d, at 452-453 (opinion of Mikva, J.).

          Concluding that neither the IEEPA nor the Hostage Act constitutes specific authorization of the President's action suspending claims, however, is not to say that these statutory provisions are entirely irrelevant to the question of the validity of the President's action. We think both statutes highly relevant in the looser sense of indicating congressional acceptance of a broad scope for executive action in circumstances such as those presented in this case. As noted in Part III, supra, at 670-672, the IEEPA delegates broad authority to the President to act in times of national emergency with respect to property of a foreign country. The Hostage Act similarly indicates congressional willingness that the President have broad discretion when responding to the hostile acts of foreign sovereigns. As Senator Williams, draftsman of the language eventually enacted as the Hostage Act, put it:

          "If you propose any remedy at all, you must invest the Executive with some discretion, so that he may apply the remedy to a case as it may arise. As to England or France he might adopt one policy to relieve a citizen imprisoned by either one of those countries; as to the Barbory powers, he might adopt another policy; as to the islands of the ocean, another. With different countries that have different systems of government he might adopt different means." Cong. Globe, 40th Cong., 2d Sess., 4359 (1868).

Page 678

            Proponents of the bill recognized that it placed a "loose discretion" in the President's hands, id., at 4238 (Sen. Stewart), but argued that "[s]omething must be intrusted to the Executive" and that "[t]he President ought to have the power to do what the exigencies of the case require to rescue [a] citizen from imprisonment." Id., at 4233, 4357 (Sen. Williams). An original version of the Act, which authorized the President to suspend trade with a foreign country and even arrest citizens of that country in the United States in retaliation, was rejected because "there may be a great variety of cases arising where other and different means would be equally effective, and where the end desired could be accomplished without resorting to such dangerous and violent measures." Id., at 4233 (Sen. Williams).

          Although we have declined to conclude that the IEEPA or the Hostage Act directly authorizes the President's suspension of claims for the reasons noted, we cannot ignore the general tenor of Congress' legislation in this area in trying to determine whether the President is acting alone or at least with the acceptance of Congress. As we have noted, Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act. Such failure of Congress specifically to delegate authority does not, "especially . . . in the areas of foreign policy and national security," imply "congressional disapproval" of action taken by the Executive. Haig v. Agee, 453 U.S. 280, 291, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640. On the contrary, the enactment of legislation closely related to the question of the President's authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to "invite" "measures on independent presidential responsibility," Youngstown, 343 U.S., at 637, 72 S.Ct., at 871 (Jackson, J., concurring). At least this is so where there is no contrary indication of legislative intent and when, as here, there is a history of congressional acquiescence in conduct of the sort

Page 679

engaged in by the President. It is to that history which we now turn.

          Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one state against the government of another "are established international practice reflecting traditional international theory." L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. Though those settlements have sometimes been made by treaty, there has also been a longstanding practice of settling such claims by executive agreement without the advice and consent of the Senate.⁸ Under such agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also undisputed

Page 680

that the "United States has sometimes disposed of the claims of its citizens without their consent, or even without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state . . . [even] without the consent of the [injured] national"). It is clear that the practice of settling claims continues today. Since 1952, the President has entered into at least 10 binding settlements with foreign nations, including an $80 million settlement with the People's Republic of China.⁹

          Crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement. This is best demonstrated by Congress' enactment of the International Claims Settlement Act of 1949, 64 Stat. 13, as amended, 22 U.S.C. § 1621 et seq. (1976 ed. and Supp. IV). The Act had two purposes: (1) to allocate to United States nationals funds received in the course of an executive claims settlement with Yugoslavia, and (2) to provide a procedure whereby funds resulting from future settlements could be distributed. To achieve these ends Congress created the International Claims Commission, now the Foreign Claims Settlement Commission, and gave it jurisdiction to make final and binding decisions with respect to claims by United States nationals against settlement funds. 22 U.S.C. § 1623(a). By creating a procedure to implement future settlement agreements, Congress placed its stamp of approval on such agreements. Indeed, the legislative history of the Act observed that the United States was seeking settle-

Page 681

ments with countries other than Yugoslavia and that the bill contemplated settlements of a similar nature in the future. H.R.Rep. No. 770, 81st Cong., 1st Sess., 4, 8 (1949).

          Over the years Congress has frequently amended the International Claims Settlement Act to provide for particular problems arising out of settlement agreements, thus demonstrating Congress' continuing acceptance of the President's claim settlement authority. With respect to the Executive Agreement with the People's Republic of China, for example, Congress established an allocation formula for distribution of the funds received pursuant to the Agreement. 22 U.S.C. § 1627(f) (1976 ed. and Supp. IV). As with legislation involving other executive agreements, Congress did not question the fact of the settlement or the power of the President to have concluded it. In 1976, Congress authorized the Foreign Claims Settlement Commission to adjudicate the merits of claims by United States nationals against East Germany, prior to any settlement with East Germany, so that the Executive would "be in a better position to negotiate an adequate settlement . . . of these claims." S.Rep. No. 94-1188, p. 2 (1976), U. S. Code Cong. & Admin. News, 1976, pp. 5582, 5583; 22 U.S.C. § 1644b. Similarly, Congress recently amended the International Claims Settlement Act to facilitate the settlement of claims against Vietnam. 22 U.S.C. §§ 1645, 1645a(5) (1976 ed., Supp. IV). The House Report stated that the purpose of the legislation was to establish an official inventory of losses of private United States property in Vietnam so that recovery could be achieved "through future direct Government-to-Government negotiation of private property claims." H.R.Rep. No. 96-915, pp. 2-3, U. S. Code Cong. & Admin. News, 1980, pp. 7328, 7329-7330. Finally, the legislative history of the IEEPA further reveals that Congress has accepted the authority of the Executive to enter into settlement agreements. Though the IEEPA was enacted to provide for some limitation on the President's emergency powers, Congress stressed that "[n]othing in this act is intended . . . to interfere with the authority

Page 682

of the President to [block assets], or to impede the settlement of claims of U. S. citizens against foreign countries." S.Rep. No. 95-466, p. 6 (1977), U. S. Code Cong. & Admin. News, 1977, pp. 4540, 4544; 50 U.S.C. § 1706(a)(1) (1976 ed., Supp. III).¹⁰

          In addition to congressional acquiescence in the President's power to settle claims, prior cases of this Court have also recognized that the President does have some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. In United States v. Pink, 315 U.S. 203, 62 S.Ct. 552, 86 L.Ed. 796 (1942), for example, the Court upheld the validity of the Litvinov Assignment, which was part of an Executive Agreement whereby the Soviet Union assigned to the United States amounts owed to it by American nationals so that outstanding claims of other American nationals could

Page 683

be paid. The Court explained that the resolution of such claims was integrally connected with normalizing United States' relations with a foreign state:

          "Power to remove such obstacles to full recognition as settlement of claims of our nationals . . . certainly is a modest implied power of the President. . . . No such obstacle can be placed in the way of rehabilitation of relations between this country and another nation, unless the historic conception of the powers and responsibilities . . . is to be drastically revised." Id., at 229-230, 62 S.Ct., at 565-566.

          Similarly, Judge Learned Hand recognized:

          "The constitutional power of the President extends to the settlement of mutual claims between a foreign government and the United States, at least when it is an incident to the recognition of that government; and it would be unreasonable to circumscribe it to such controversies. The continued mutual amity between the nation and other powers again and again depends upon a satisfactory compromise of mutual claims; the necessary power to make such compromises has existed from the earliest times and been exercised by the foreign offices of all civilized nations." Ozanic v. United States, 188 F.2d 228, 231 (CA2 1951).

          Petitioner raises two arguments in opposition to the proposition that Congress has acquiesced in this longstanding practice of claims settlement by executive agreement. First, it suggests that all pre-1952 settlement claims, and corresponding court cases such as Pink, should be discounted because of the evolution of the doctrine of sovereign immunity. Petitioner observes that prior to 1952 the United States adhered to the doctrine of absolute sovereign immunity, so that absent action by the Executive there simply would be no remedy for a United States national against a foreign government. When the United States in 1952 adopted a more restrictive

Page 684

notion of sovereign immunity, by means of the so-called "Tate" letter, it is petitioner's view that United States nationals no longer needed executive aid to settle claims and that, as a result, the President's authority to settle such claims in some sense "disappeared." Though petitioner's argument is not wholly without merit, it is refuted by the fact that since 1952 there have been at least 10 claims settlements by executive agreement. Thus, even if the pre-1952 cases should be disregarded, congressional acquiescence in settlement agreements since that time supports the President's power to act here.

          Petitioner next asserts that Congress divested the President of the authority to settle claims when it enacted the Foreign Sovereign Immunities Act of 1976 (hereinafter FSIA), 28 U.S.C. §§ 1330, 1602 et seq. The FSIA granted personal and subject-matter jurisdiction in the federal district courts over commercial suits brought by claimants against those foreign states which have waived immunity. 28 U.S.C. § 1330. Prior to the enactment of the FSIA, a foreign government's immunity to suit was determined by the Executive Branch on a case-by-case basis. According to petitioner, the principal purpose of the FSIA was to depoliticize these commercial lawsuits by taking them out of the arena of foreign affairs—where the Executive Branch is subject to the pressures of foreign states seeking to avoid liability through a grant of immunity—and by placing them within the exclusive jurisdiction of the courts. Petitioner thus insists that the President, by suspending its claims, has circumscribed the jurisdiction of the United States courts in violation of Art. III of the Constitution.

          We disagree. In the first place, we do not believe that the President has attempted to divest the federal courts of jurisdiction. Executive Order No. 12294 purports only to "suspend" the claims, not divest the federal court of "jurisdiction." As we read the Executive Order, those claims not within the jurisdiction of the Claims Tribunal will "revive"

Page 685

and become judicially enforceable in United States courts. This case, in short, illustrates the difference between modifying federal-court jurisdiction and directing the courts to apply a different rule of law. See United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801). The President has exercised the power, acquiesced in by Congress, to settle claims and, as such, has simply effected a change in the substantive law governing the lawsuit. Indeed, the very example of sovereign immunity belies petitioner's argument. No one would suggest that a determination of sovereign immunity divests the federal courts of "jurisdiction." Yet, petitioner's argument, if accepted, would have required courts prior to the enactment of the FSIA to reject as an encroachment on their jurisdiction the President's determination of a foreign state's sovereign immunity.

          Petitioner also reads the FSIA much too broadly. The principal purpose of the FSIA was to codify contemporary concepts concerning the scope of sovereign immunity and withdraw from the President the authority to make binding determinations of the sovereign immunity to be accorded foreign states. See Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 813-814; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 482, 657 F.2d, at 444. The FSIA was thus designed to remove one particular barrier to suit, namely sovereign immunity, and cannot be fairly read as prohibiting the President from settling claims of United States nationals against foreign governments. It is telling that the Congress which enacted the FSIA considered but rejected several proposals designed to limit the power of the President to enter into executive agreements, including claims settlement agreements.¹¹

Page 686

It is quite unlikely that the same Congress that rejected proposals to limit the President's authority to conclude executive agreements sought to accomplish that very purpose sub silentio through the FSIA. And, as noted above, just one year after enacting the FSIA, Congress enacted the IEEPA, where the legislative history stressed that nothing in the IEEPA was to impede the settlement of claims of United States citizens. It would be surprising for Congress to express this support for settlement agreements had it intended the FSIA to eliminate the President's authority to make such agreements.

          In light of all of the foregoing—the inferences to be drawn from the character of the legislation Congress has enacted in the area, such as the IEEPA and the Hostage Act, and from the history of acquiescence in executive claims settlement—we conclude that the President was authorized to suspend pending claims pursuant to Executive Order No. 12294. As Justice Frankfurter pointed out in Youngstown, 343 U.S., at 610-611, 72 S.Ct., at 897-898, "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned . . . may be treated as a gloss on 'Executive Power' vested in the President by § 1 of Art. II." Past practice does not, by itself, create power, but "long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent. . . ." United States v. Midwest Oil Co., 236 U.S. 459, 474, 35 S.Ct. 309, 313, 59 L.Ed. 673 (1915). See Haig v. Agee, 453 U.S., at 291, 292, 101 S.Ct., at 2774. Such practice is present here and such a presumption is also appropriate. In light of the fact that Congress may be considered to have consented to the President's action in suspending claims, we cannot say that action exceeded the President's powers.

          Our conclusion is buttressed by the fact that the means

Page 687

chosen by the President to settle the claims of American nationals provided an alternative forum, the Claims Tribunal, which is capable of providing meaningful relief. The Solicitor General also suggests that the provision of the Claims Tribunal will actually enhance the opportunity for claimants to recover their claims, in that the Agreement removes a number of jurisdictional and procedural impediments faced by claimants in United States courts. Brief for Federal Respondents 13-14. Although being overly sanguine about the chances of United States claimants before the Claims Tribunal would require a degree of naivete which should not be demanded even of judges, the Solicitor General's point cannot be discounted. Moreover, it is important to remember that we have already held that the President has the statutory authority to nullify attachments and to transfer the assets out of the country. The President's power to do so does not depend on his provision of a forum whereby claimants can recover on those claims. The fact that the President has provided such a forum here means that the claimants are receiving something in return for the suspension of their claims, namely, access to an international tribunal before which they may well recover something on their claims. Because there does appear to be a real "settlement" here, this case is more easily analogized to the more traditional claim settlement cases of the past.

          Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself,¹² Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Sen-

Page 688

ate Committee has stated that the establishment of the Tribunal is "of vital importance to the United States." S.Rep.No.97-71, p. 5 (1981).¹³ We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority.

          Finally, we re-emphasize the narrowness of our decision. We do not decide that the President possesses plenary power to settle claims, even as against foreign governmental entities. As the Court of Appeals for the First Circuit stressed, "[t]he sheer magnitude of such a power, considered against the background of the diversity and complexity of modern international trade, cautions against any broader construction of authority than is necessary." Chas T. Main Int'l, Inc. v. Khuzestan Water & Power Authority, 651 F.2d, at 814. But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President's action, we are not prepared to say that the President lacks the power to settle such claims.

          We do not think it appropriate at the present time to address petitioner's contention that the suspension of claims, if authorized, would constitute a taking of property in violation of the Fifth Amendment to the United States Constitution in the absence of just compensation.¹⁴ Both petitioner and

Page 689

the Government concede that the question whether the suspension of the claims constitutes a taking is not ripe for review. Brief for Petitioner 34, n. 32; Brief for Federal Respondents 65. Accord, Chas T. Main Int'l, Inc. v. Khuzenstan Water & Power Authority, supra, at 814-815; American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C., at 485, 657 F.2d, at 447. However, this contention, and the possibility that the President's actions may effect a taking of petitioner's property, make ripe for adjudication the question whether petitioner will have a remedy at law in the Court of Claims under the Tucker Act, 28 U.S.C. § 1491 (1976 ed., Supp. III), in such an event. That the fact and extent of the taking in this case is yet speculative is inconsequential because "there must be at the time of taking 'reasonable, certain and adequate provision for obtaining compensation.' " Regional Rail Reorganization Act Cases, 419 U.S. 102, 124-125, 95 S.Ct. 335, 349, 42 L.Ed.2d 320 (1974), quoting Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 971, 34 L.Ed. 295 (1890); see also Cities Service Co. v. McGrath, 342 U.S. 330, 335-336, 72 S.Ct. 334, 337-338, 96 L.Ed. 359 (1952); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 94, n. 39, 98 S.Ct. 2620, 2641, n. 39, 57 L.Ed.2d 595 (1978).

          It has been contended that the "treaty exception" to the jurisdiction of the Court of Claims, 28 U.S.C. § 1502, might preclude the Court of Claims from exercising jurisdiction over any takings claim the petitioner might bring. At oral argument, however, the Government conceded that § 1502 would not act as a bar to petitioner's action in the Court of Claims. Tr. of Oral Arg. 39-42, 47. We agree. See United States v. Weld, 127 U.S. 51, 8 S.Ct. 1000, 32 L.Ed. 62 (1888); United States v. Old Settlers, 148 U.S. 427, 13 S.Ct. 650, 37 L.Ed. 509 (1893); Hughes Aircraft Co. v. United States, 534 F.2d 889, 209 Ct.Cl. 446 (1976). Accordingly, to the extent petitioner believes it has suffered an unconstitutional taking by the suspension of the claims, we see no jurisdic-

Page 690

tional obstacle to an appropriate action in the United States Court of Claims under the Tucker Act.

          The judgment of the District Court is accordingly affirmed, and the mandate shall issue forthwith.

          It is so ordered.

           Justice STEVENS, concurring in part.

          In my judgment the possibility that requiring this petitioner to prosecute its claim in another forum will constitute an unconstitutional "taking" is so remote that I would not address the jurisdictional question considered in Part V of the Court's opinion. However, I join the remainder of the opinion.

           Justice POWELL, concurring and dissenting in part.

          I join the Court's opinion except its decision that the nullification of the attachments did not effect a taking of property interests giving rise to claims for just compensation. Ante, at 674, n. 6. The nullification of attachments presents a separate question from whether the suspension and proposed settlement of claims against Iran may constitute a taking. I would leave both "taking" claims open for resolution on a case-by-case basis in actions before the Court of Claims. The facts of the hundreds of claims pending against Iran are not known to this Court and may differ from the facts in this case. I therefore dissent from the Court's decision with respect to attachments. The decision may well be erroneous,¹ and it certainly is premature with respect to many claims.

Page 691

            I agree with the Court's opinion with respect to the suspension and settlement of claims against Iran and its instrumentalities. The opinion makes clear that some claims may not be adjudicated by the Claims Tribunal and that others may not be paid in full. The Court holds that parties whose valid claims are not adjudicated or not fully paid may bring a "taking" claim against the United States in the Court of Claims, the jurisdiction of which this Court acknowledges. The Government must pay just compensation when it furthers the Nation's foreign policy goals by using as "bargaining chips" claims lawfully held by a relatively few persons and subject to the jurisdiction of our courts.² The extraordinary powers of the President and Congress upon which our decision rests cannot, in the circumstances of this case, displace the Just Compensation Clause of the Constitution.

^{1. Title 50 U.S.C. § 1701(a) (1976 ed., Supp. III) states that the President's authority under the Act "may be exercised to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." Petitioner does not challenge President Carter's declaration of a national emergency.}

^2. Title 50 U.S.C. § 1702(a)(1)(B) (1976 ed., Supp. III) empowers the President to

"investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest. . . ."

^3. Title 31 CFR § 535.805 (1980) provides in full: "The provisions of this part and any rulings, licenses, authorizations, instructions, orders, or forms issued thereunder may be amended, modified, or revoked at any time."

^4. The contract stated that any dispute incapable of resolution by agreement of the parties would be submitted to conciliation and that, if either party was unwilling to accept the results of conciliation, "the matter shall be decided finally by resort to the courts of Iran." Pet. for Cert. 7, n.2. In its complaint, which was based on breach of contract and related theories, petitioner alleged that it had sought a meeting with the Atomic Energy Organization for purposes of settling matters relating to the contract but that the Organization "has continually postponed [the] meeting and obviously does not intend that it take place." Complaint in Dames & Moore v. Atomic Energy Organization of Iran, No. CV 79-04918 LEW (Px) (CD Cal.), ¶ 27.

^5. Petitioner argues that under the TWEA the President was given two powers: (1) the power temporarily to freeze or block the transfer of foreign-owned assets; and (2) the power summarily to seize and permanently vest title to foreign-owned assets. It is contended that only the "vesting" provisions of the TWEA gave the President the power permanently to dispose of assets and when Congress enacted the IEEPA in 1977 it purposefully did not grant the President this power. According to petitioner, the nullification of the attachments and the transfer of the assets will permanently dispose of the assets and would not even be permissible under the TWEA. We disagree. Although it is true the IEEPA does not give the President the power to "vest" or to take title to the assets, it does not follow that the President is not authorized under both the IEEPA and the TWEA to otherwise permanently dispose of the assets in the manner done here. Petitioner errs in assuming that the only power granted by the language used in both § 1702 and § 5(b) of the TWEA is the power temporarily to freeze assets. As noted above, the plain language of the statute defies such a holding. Section 1702 authorizes the President to "direct and compel" the "transfer, withdrawal, transportation, . . . or exportation of . . . any property in which any foreign country . . . has any interest. . . ."

We likewise reject the contention that Orvis v. Brownell and Zittman v. McGrath, 341 U.S. 446, 71 S.Ct. 832, 95 L.Ed. 1096 (1951), grant petitioner the right to retain its attachments on the Iranian assets. To the contrary, we think Orvis supports the proposition that an American claimant may not use an attachment that is subject to a revocable license and that has been obtained after the entry of a freeze order to limit in any way the actions the President may take under § 1702 respecting the frozen assets. An attachment so obtained is in every sense subordinate to the President's power under the IEEPA.

^6. Although petitioner concedes that the President could have forbidden attachments, it nevertheless argues that once he allowed them the President permitted claimants to acquire property interests in their attachments. Petitioner further argues that only the licenses to obtain the attachments were made revocable, not the attachments themselves. It is urged that the January 19, 1981, order revoking all licenses only affected petitioner's right to obtain future attachments. We disagree. As noted above, the regulations specifically provided that any attachment is null and void "unless licensed," and all licenses may be revoked at any time. Moreover, common sense defies petitioner's reading of the regulations. The President could hardly have intended petitioner and other similarly situated claimants to have the power to take control of the frozen assets out of his hands.

Our construction of petitioner's attachments as being "revocable," "contingent," and "in every sense subordinate to the President's power under the IEEPA," in effect answers petitioner's claim that even if the President had the authority to nullify the attachments and transfer the assets, the exercise of such would constitute an unconstitutional taking of property in violation of the Fifth Amendment absent just compensation. We conclude that because of the President's authority to prevent or condition attachments, and because of the orders he issued to this effect, petitioner did not acquire any "property" interest in its attachments of the sort that would support a constitutional claim for compensation.

^7. Judge Mikva, in his separate opinion in American Int'l Group, Inc. v. Islamic Republic of Iran, 211 U.S.App.D.C. 468, 490, 657 F.2d 430, 452 (1981), argued that the moniker "Hostage Act" was newly coined for purposes of this litigation. Suffice it to say that we focus on the language of 22 U.S.C. § 1732, not any shorthand description of it. See W. Shakespeare, Romeo and Juliet, Act II, scene 2, line 43 ("What's in a name?").

^8. At least since the case of the "Wilmington Packet" in 1799, Presidents have exercised the power to settle claims of United States nationals by executive agreement. See Lillich, The Gravel Amendment to the Trade Reform Act of 1974, 69 Am.J.Int'l L. 837, 844 (1975). In fact, during the period of 1817-1917, "no fewer than eighty executive agreements were entered into by the United States looking toward the liquidation of claims of its citizens." W. McClure, International Executive Agreements 53 (1941). See also 14 M. Whiteman, Digest of International Law 247 (1970).

^9. Those agreements are [1979] 30 U.S.T. 1957 (People's Republic of China); [1976] 27 U.S.T. 3933 (Peru); [1976] 27 U.S.T. 4214 (Egypt); [1974] 25 U.S.T. 227 (Peru); [1973] 24 U.S.T. 522 (Hungary); [1969] 20 U.S.T. 2654 (Japan); [1965] 16 U.S.T. 1 (Yugoslavia); [1963] 14 U.S.T. 969 (Bulgaria); [1960] 11 U.S.T. 1953 (Poland); [1960] 11 U.S.T. 317 (Rumania).

^10. Indeed, Congress has consistently failed to object to this longstanding practice of claim settlement by executive agreement, even when it has had an opportunity to do so. In 1972, Congress entertained legislation relating to congressional oversight of such agreements. But Congress took only limited action, requiring that the text of significant executive agreements be transmitted to Congress. 1 U.S.C. § 112b. In Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640, we noted that "[d]espite the longstanding and officially promulgated view that the Executive has the power to withhold passports for reasons of national security and foreign policy, Congress in 1978, 'though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act.' " Id., at 301, 101 S.Ct., at 2779, quoting Zemel v. Rusk, 381 U.S. 1, 12, 85 S.Ct. 1271, 1278, 14 L.Ed.2d 179 (1965). Likewise in this case, Congress, though legislating in the area has left "untouched" the authority of the President to enter into settlement agreements.

The legislative history of 1 U.S.C. § 112b further reveals that Congress has accepted the President's authority to settle claims. During the hearings on the bill, Senator Case, the sponsor of the Act, stated with respect to executive claim settlements:

"I think it is a most interesting [area] in which we have accepted the right of the President, one individual, acting through his diplomatic force, to adjudicate and settle claims of American nationals against foreign countries. But that is a fact." Transmittal of Executive Agreements to Congress: Hearings on S. 596 before the Senate Committee on Foreign Relations, 92d Cong., 1st Sess., 74 (1971).

^11. The rejected legislation would typically have required congressional approval of executive agreements before they would be considered effective. See Congressional Oversight of Executive Agreements: Hearings on S. 632 and S. 1251 before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 243-261, 302-311 (1975); Congressional Review of International Agreements: Hearings before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, 94th Cong., 2d Sess., 167, 246 (1976).

^12. See Hearings on the Iranian Agreements before the Senate Committee on Foreign Relations, 97th Cong., 1st Sess. (1981); Hearings on the Iranian Asset Settlement before the Senate Committee on Banking, Housing and Urban Affairs, 97th Cong., 1st Sess. (1981); Hearings on the Algerian Declarations before the House Committee on Foreign Affairs, 97th Cong., 1st Sess. (1981).

^13. Contrast congressional reaction to the Iranian Agreements with congressional reaction to a 1973 Executive Agreement with Czechoslovakia. There the President sought to settle over $105 million in claims against Czechoslovakia for $20.5 million. Congress quickly demonstrated its displeasure by enacting legislation requiring that the Agreement be renegotiated. See Lillich, supra, n. 8, at 839-840. Though Congress has shown itself capable of objecting to executive agreements, it has rarely done so and has not done so in this case.

^14. Though we conclude that the President has settled petitioner's claims against Iran, we do not suggest that the settlement has terminated petitioner's possible taking claim against the United States. We express no views on petitioner's claims that it has suffered a taking.

^1. Even though the Executive Orders purported to make attachments conditional, there is a substantial question whether the Orders themselves may have effected a taking by making conditional the attachments that claimants against Iran otherwise could have obtained without condition. Moreover, because it is settled that an attachment entitling a creditor to resort to specific property for the satisfaction of a claim is a property right compensable under the Fifth Amendment, Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960); Louisville Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935), there is a question whether the revocability of the license under which petitioner obtained its attachments suffices to render revocable the attachments themselves. See Marschalk Co. v. Iran National Airlines Corp., 518 F.Supp. 69 (SDNY 1981).

^2. As the Court held in Armstrong v. United States, supra, at 49, 80 S.Ct., at 1569:

"The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

The Court unanimously reaffirmed this understanding of the Just Compensation Clause in the recent case of Agins v. City of Tiburon, 447 U.S. 255, 260-261, 100 S.Ct. 2138, 2141-2142, 65 L.Ed.2d 106 (1980).

  [Argument of Counsel from pages 602-604 intentionally omitted]

Page 604

          Mr. William J. Donovan, of Washington, D.C. (Messrs. Henry H. Bond and Ralstone R. Irvine, both of Washington, D.C., of counsel), for plaintiff.

  [Argument of Counsel from pages 604-612 intentionally omitted]

Page 612

          The Attorney General and Mr. Stanley F. Reed, Sol. Gen., of Washington, D.C., for the United States.

  [Argument of Counsel from pages 612-618 intentionally omitted]

Page 618

           Mr. Justice SUTHERLAND delivered the opinion of the Court.

          Plaintiff brought suit in the Court of Claims against the United States to recover a sum of money alleged to be due the deceased for salary as a Federal Trade Commissioner from October 8, 1933, when the President undertook to remove him from office, to the time of his death on February 14, 1934. The court below has certified to this court two questions (Act of February 13, 1925, § 3(a), c. 229, 43 Stat. 936, 939, 28 U.S.C. § 288 (28 USCA § 288)), in respect of the power of the President to make the removal. The material facts which give rise to the questions are as follows:

          William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate. He was duly commissioned for a term of seven years, expiring September 25, 1938; and, after taking the required oath of office, entered upon his duties. On July 25, 1933, President Roosevelt addressed a letter to the commissioner asking for his resignation, on the ground 'that the aims and purposes of the Administration with respect to the work of the Commission can be carried out most effectively with personnel of my own selection,' but disclaiming any reflection upon the commissioner personally or upon his services. The commissioner replied, asking time to con-

Page 619

sult his friends. After some further correspondence upon the subject, the President on August 31, 1933, wrote the commissioner expressing the hope that the resignation would be forthcoming, and saying: 'You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.'

          The commissioner declined to resign; and on October 7, 1933, the President wrote him: 'Effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission.'

          Humphrey never acquiesced in this action, but continued thereafter to insist that he was still a member of the commission, entitled to perform its duties and receive the compensation provided by law at the rate of $10,000 per annum. Upon these and other facts set forth in the certificate, which we deem it unnecessary to recite, the following questions are certified:

          '1. Do the provisions of section 1 of the Federal Trade Commission Act, stating that 'any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office', restrict or limit the power of the President to remove a commissioner except upon one or more of the causes named?

          'If the foregoing question is answered in the affirmative, then—

          '2. If the power of the President to remove a commissioner is restricted or limited as shown by the foregoing interrogatory and the answer made thereto, is such a restriction or limitation valid under the Constitution of the United States?'

          The Federal Trade Commission Act, c. 311, 38 Stat. 717, 718, §§ 1, 2, 15 U.S.C. §§ 41, 42 (15 USCA §§ 41, 42), creates a commission of five

Page 620

members to be appointed by the President by and with the advice and consent of the Senate, and section 1 provides: 'Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act (September 26, 1914), the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency. neglect of duty, or malfeasance in office. * * *'

          Section 5 of the act (15 USCA § 45) in part provides that:

          'Unfair methods of competition in commerce are declared unlawful.

          'The commission is empowered and directed to prevent persons, partnerships, or corporations, except banks, and common carriers subject to the Acts to regulate commerce, from using unfair methods of competition in commerce.'

          In exercising this power, the commission must issue a complaint stating its charges and giving notice of hearing upon a day to be fixed. A person, partnership, or corporation proceeded against is given the right to appear at the time and place fixed and show cause why an order to cease and desist should not be issued. There is provision for intervention by others interested. If the commission finds the method of competition is one prohibited by the act, it is directed to make a report in writing stating its findings as to the facts, and to issue and cause to be served a cease and desist order. If the order is disobeyed, the commission may apply to the appropriate Circuit Court of

Page 621

Appeals for its enforcement. The party subject to the order may seek and obtain a review in the Circuit Court of Appeals in a manner provided by the act.

          Section 6 (15 USCA § 46), among other things, gives the commission wide powers of investigation in respect of certain corporations subject to the act, and in respect of other matters, upon which it must report to Congress with recommendations. Many such investigations have been made, and some have served as the basis of congressional legislation.

          Section 7 (15 USCA § 47), provides that: 'In any suit in equity brought by or under the direction of the Attorney General as provided in the antitrust Acts, the court may, upon the conclusion of the testimony therein, if it shall be then of opinion that the complainant is entitled to relief, refer said suit to the commission, as a master in chancery, to ascertain and report an appropriate form of decree therein. The commission shall proceed upon such notice to the parties and under such rules of procedure as the court may prescribe, and upon the coming in of such report such exceptions may be filed and such proceedings had in relation thereto as upon the report of a master in other equity causes, but the court may adopt or reject such report, in whole or in part, and enter such decree as the nature of the case may in its judgment require.'

          First. The question first to be considered is whether, by the provisions of section 1 of the Federal Trade Commission Act already quoted, the President's power is limited to removal for the specific causes enumerated therein. The negative contention of the government is based principally upon the decision of this court in Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 537, 47 L.Ed. 828. That case involved the power of the President to remove a general appraiser of merchandise appointed under the Act of June 10, 1890, 26 Stat. 131. Section 12 of the act provided for the appointment by the President, by and with the advice and con-

Page 622

sent of the Senate, of nine general appraisers of merchandise, who 'may be removed from office at any time by the President for inefficiency, neglect of duty, or malfeasance in office.' The President removed Shurtleff without assigning any cause therefor. The Court of Claims dismissed plaintiff's petition to recover salary, upholding the President's power to remove for causes other than those stated. In this court Shurtleff relied upon the maxim expressio unius est exclusio alterius; but this court held that, while the rule expressed in the maxim was a very proper one and founded upon justifiable reasoning in many instances, it 'should not be accorded controlling weight when to do so would involve the alteration of the universal practice of the government for over a century, and the consequent curtailment of the powers of the Executive in such an unusual manner.' What the court meant by this expression appears from a reading of the opinion. That opinion, after saying that no term of office was fixed by the act and that, with the exception of judicial officers provided for by the Constitution, no civil officer had ever held office by life tenure since the foundation of the government, points out that to construe the statute as contended for by Shurtleff would give the appraiser the right to hold office during his life or until found guilty of some act specified in the statute, the result of which would be a complete revolution in respect of the general tenure of office, effected by implication with regard to that particular office only.

          'We think it quite inadmissible,' the court said (189 U.S. 311, at pages 316, 318, 23 S.Ct. 535, 537, 47 L.Ed. 828), 'to attribute an intention on the part of Congress to make such an extraordinary change in the usual rule governing the tenure of office, and one which is to be applied to this particular office only, without stating such intention in plain and explicit language, instead of leaving it to be implied from doubtful inferences. * * * We cannot bring ourselves to the belief that Congress ever

Page 623

intended this result while omitting to use language which would put that intention beyond doubt.'

          These circumstances, which led the court to reject the maxim as inapplicable, are exceptional. In the face of the unbroken precedent against life tenure, except in the case of the judiciary, the conclusion that Congress intended that, from among all other civil officers, appraisers alone should be selected to hold office for life was so extreme as to forbid, in the opinion of the court, any ruling which would produce that result if it reasonably could be avoided. The situation here presented is plainly and wholly different. The statute fixes a term of office, in accordance with many precedents. The first commissioners appointed are to continue in office for terms of three, four, five, six, and seven years, respectively; and their successors are to be appointed for terms of seven years—any commissioner being subject to removal by the President for inefficiency, neglect of duty, or malfeasance in office. The words of the act are definite and unambiguous.

          The government says the phrase 'continue in office' is of no legal significance and, moreover, applies only to the first Commissioners. We think it has significance. It may be that, literally, its application is restricted as suggested; but it, nevertheless, lends support to a view contrary to that of the government as to the meaning of the entire requirement in respect of tenure; for it is not easy to suppose that Congress intended to secure the first commissioners against removal except for the causes specified and deny like security to their successors. Putting this phrase aside, however, the fixing of a definite term subject to removal for cause, unless there be some countervailing provision or circumstance indicating the contrary, which here we are unable to find, is enough to establish the legislative intent that the term is not to be curtailed in the absence of such cause. But if the intention of

Page 624

Congress that no removal should be made during the specified term except for one or more of the enumerated causes were not clear upon the face of the statute, as we think it is, it would be made clear by a consideration of the character of the commission and the legislative history which accompanied and preceded the passage of the act.

          The commission is to be nonpartisan; and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi judicial and quasi legislative. Like the Interstate Commerce Commission, its members are called upon to exercise the trained judgment of a body of experts 'appointed by law and informed by experience.' Illinois Cent. &c. R.R. v. Inter. Com. Comm., 206 U.S. 441, 454, 27 S.Ct. 700, 704, 51 L.Ed. 1128; Standard Oil Co. v. United States, 283 U.S. 235, 238, 239, 51 S.Ct. 429, 75 L.Ed. 999.

          The legislative reports in both houses of Congress clearly reflect the view that a fixed term was necessary to the effective and fair administration of the law. In the report to the Senate (No. 597, 63d Cong., 2d Sess., pp. 10, 11) the Senate Committee on Interstate Commerce, in support of the bill which afterwards became the act in question, after referring to the provision fixing the term of office at seven years, so arranged that the membership would not be subject to complete change at any one time, said: 'The work of this commission will be of a most exacting and difficult character, demanding persons who have experience in the problems to be met—that is, a proper knowledge of both the public requirements and the practical affairs of industry. It is manifestly desirable that the terms of the commissioners shall be long enough to give them an opportunity to acquire the expertness in dealing with these special questions concerning industry that comes from experience.'

Page 625

          The report declares that one advantage which the commission possessed over the Bureau of Corporations (an executive subdivision in the Department of Commerce which was abolished by the act) lay in the fact of its independence, and that it was essential that the commission should not be open to the suspicion of partisan direction. The report quotes (p. 22) a statement to the committee by Senator Newlands, who reported the bill, that the tribunal should be of high character and 'independent of any department of the government. * * * a board or commission of dignity, permanence, and ability, independent of executive authority, except in its selection, and independent in character.'

          The debates in both houses demonstrate that the prevailing view was that the Commission was not to be 'subject to anybody in the government but * * * only to the people of the United States'; free from 'political domination or control' or the 'probability or possibility of such a thing'; to be 'separate and apart from any existing department of the government—not subject to the orders of the President.'

          More to the same effect appears in the debates, which were long and thorough and contain nothing to the contrary. While the general rule precludes the use of these debates to explain the meaning of the words of the statute, they may be considered as reflecting light upon its general purposes and the evils which it sought to remedy. Federal Trade Commission v. Raladam Co., 283 U.S. 643, 650, 51 S.Ct. 587, 75 L.Ed. 1324, 79 A.L.R. 1191.

          Thus, the language of the act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service; a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official

Page 626

or any department of the government. To the accomplishment of these purposes, it is clear that Congress was of opinion that length and certainty of tenure would vitally contribute. And to hold that, nevertheless, the members of the commission continue in office at the mere will of the President, might be to thwart, in large measure, the very ends which Congress sought to realize by definitely fixing the term of office.

          We conclude that the intent of the act is to limit the executive power of removal to the causes enumerated, the existence of none of which is claimed here; and we pass to the second question.

          Second. To support its contention that the removal provision of section 1, as we have just construed it, is an unconstitutional interference with the executive power of the President, the government's chief reliance is Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160. That case has been so recently decided, and the prevailing and dissenting opinions so fully review the general subject of the power of executive removal, that further discussion would add little of value to the wealth of material there collected. These opinions examine at length the historical, legislative, and judicial data bearing upon the question, beginning with what is called 'the decision of 1789' in the first Congress and coming down almost to the day when the opinions were delivered. They occupy 243 pages of the volume in which they are printed. Nevertheless, the narrow point actually decided was only that the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress. In the course of the opinion of the court, expressions occur which tend to sustain the government's contention, but these are beyond the point involved and, therefore, do not come within the rule of stare decisis. In so far as they are out of harmony with the views here set forth, these expressions are disapproved. A like situation was

Page 627

presented in the case of Cohens v. Virginia, 6 Wheat, 264, 399, 5 L.Ed. 257, in respect of certain general expressions in the opinion in Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60. Chief Justice Marshall, who delivered the opinion in the Marbury Case, speaking again for the court in the Cohens Case, said: 'It is a maxim, not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.'

          And he added that these general expressions in the case of Marbury v. Madison were to be understood with the limitations put upon them by the opinion in the Cohens Case. See, also, Carroll v. Lessee of Carroll et al., 16 How. 275, 286—287, 14 L.Ed. 936; O'Donoghue v. United States, 289 U.S. 516, 550, 53 S.Ct. 740, 77 L.Ed. 1356.

          The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers Case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers Case finds support in the theory that such an officer is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include

Page 628

all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department and who exercises no part of the executive power vested by the Constitution in the President.

          The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the executive. Its duties are performed without executive leave and, in the contemplation of the statute, must be free from executive control. In administering the provisions of the statute in respect of 'unfair methods of competition,' that is to say, in filling in and administering the details embodied by that general standard, the commission acts in part quasi legislatively and in part quasi judicially. In making investigations and reports thereon for the information of Congress under section 6, in aid of the legislative power, it acts as a legislative agency. Under section 7, which authorizes the commission to act as a master in chancery under rules prescribed by the court, it acts as an agency of the judiciary. To the extent that it exercises any executive function, as distinguished from executive power in the constitutional sense, it does so in the discharge and effectuation of its quasi legislative or quasi judicial powers, or as an agency of the legislative or judicial departments of the government.¹

Page 629

          If Congress is without authority to prescribe causes for removal of members of the trade commission and limit executive power of removal accordingly, that power at once becomes practically all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution. The Solicitor General, at the bar, apparently recognizing this to be true, with commendable candor, agreed that his view in respect of the removability of members of the Federal Trade Commission necessitated a like view in respect of the Interstate Commerce Commission and the Court of Claims. We are thus confronted with the serious question whether not only the members of these quasi legislative and quasi judicial bodies, but the judges of the legislative Court of Claims, exercising judicial power (Williams v. United States, 289 U.S. 553, 565—567, 53 S.Ct. 751, 77 L.Ed. 1372), continue in office only at the pleasure of the President.

          We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named. The authority of Congress, in creating quasi legislative or quasi judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted; and that authority includes, as an appropriate incident, power to fix the period during which they shall continue, and to forbid their removal except for cause in the meantime. For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.

          The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in

Page 630

the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential coequality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there. James Wilson, one of the framers of the Constitution and a former justice of this court, said that the independence of each department required that its proceedings 'should be free from the remotest influence, direct or indirect, of either of the other two powers.' Andrews, The Works of James Wilson (1896), vol. 1, p. 367. And Mr. Justice Story in the first volume of his work on the Constitution (4th Ed.) § 530, citing No. 48 of the Federalist, said that neither of the departments in reference to each other 'ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers.' And see O'Donoghue v. United States, supra, 289 U.S. 516, at pages 530-531, 53 S.Ct. 740, 77 L.Ed. 1356.

          The power of removal here claimed for the President falls within this principle, since its coercive influence threatens the independence of a commission, which is not only wholly disconnected from the executive department, but which, as already fully appears, was created by Congress as a means of carrying into operation legislative and judicial powers, and as an agency of the legislative and judicial departments.

          In the light of the question now under consideration, we have re-examined the precedents referred to in the Myers Case, and find nothing in them to justify a conclusion contrary to that which we have reached. The so-called 'decision of 1789' had relation to a bill proposed by Mr. Madison to establish an executive Department of Foreign Affairs. The bill provided that the principal officer was 'to be removable

Page 631

from office by the President of the United States.' This clause was changed to read 'whenever the principal officer shall be removed from office by the President of the United States,' certain things should follow, thereby, in connection with the debates, recognizing and confirming, as the court thought in the Myers Case, the sole power of the President in the matter. We shall not discuss the subject further, since it is so fully covered by the opinions in the Myers Case, except to say that the office under consideration by Congress was not only purely executive, but the officer one who was responsible to the President, and to him alone, in a very definite sense. A reading of the debates shows that the President's illimitable power of removal was not considered in respect of other than executive officers. And it is pertinent to observe that when, at a later time, the tenure of office for the Comptroller of the Treasury was under consideration, Mr. Madison quite evidently thought that, since the duties of that office were not purely of an executive nature but partook of the judiciary quality as well, a different rule in respect of executive removal might well apply. 1 Annals of Congress, cols. 611-612.

          In Marbury v. Madison, supra, 1 Cranch, 137, at pages 162, 165-166, 2 L.Ed. 60, it is made clear that Chief Justice Marshall was of opinion that a justice of the peace for the District of Columbia was not removable at the will of the President; and that there was a distinction between such an officer and officers appointed to aid the President in the performance of his constitutional duties. In the latter case, the distinction he saw was that 'their acts are his acts' and his will, therefore, controls; and, by way of illustration, he adverted to the act establishing the Department of Foreign Affairs, which was the subject of the 'decision of 1789.'

          The result of what we now have said is this: Whether the power of the President to remove an officer shall prevail over the authority of Congress to condition the power by fixing a definite term and precluding a removal except for cause will depend upon the character of the office; the Myers decision, affirming the power of the President

Page 632

alone to make the removal, is confined to purely executive officers; and as to officers of the kind here under consideration, we hold that no removal can be made during the prescribed term for which the officer is appointed, except for one or more of the causes named in the applicable statute.

          To the extent that, between the decision in the Myers Case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.

          In accordance with the foregoing, the questions submitted are answered:

          Question No. 1, Yes.

          Question No. 2, Yes.

          Mr. Justice McREYNOLDS agrees that both questions should be answered in the affirmative. A separate opinion in Myers v. United States, 272 U.S. 52, at page 178, 47 S.Ct. 21, at page 46, 71 L.Ed. 160, states his views concerning the power of the President to remove appointees.

^{1 The provision of section 6(d) of the act (15 USCA § 46(d) which authorizes the President to direct an investigation and report by the commission in relation to alleged violations of the anti-trust acts, is so obviously collateral to the main design of the act as not to detract from the force of this general statement as to the character of that body.}

          This case presents the question of the constitutionality of the independent counsel provisions of the Ethics in Government Act of 1978 (Act). It arose when the House Judiciary Committee began an investigation into the Justice Department's role in a controversy between the House and the Environmental Protection Agency (EPA) with regard to the Agency's limited production of certain documents that had been subpoenaed during an earlier House investigation. The Judiciary Committee's Report suggested that an official of the Attorney General's Office (appellee Olson) had given false testimony during the earlier EPA investigation, and that two other officials of that Office (appellees Schmults and Dinkins) had obstructed the EPA investigation by wrongfully withholding certain documents. A copy of the report was forwarded to the Attorney General with a request, pursuant to the Act, that he seek appointment of an independent counsel to investigate the allegations against appellees. Ultimately, pursuant to the Act's provisions, the Special Division (a special court created by the Act) appointed appellant as independent counsel with respect to Olson only, and gave her jurisdiction to investigate whether Olson's testimony, or any other matter related thereto, violated federal law, and to prosecute any violations. When a dispute arose between independent counsel and the Attorney General, who refused to furnish as "related matters" the Judiciary Committee's allegations against Schmults and Dinkins, the Special Division ruled that its grant of jurisdiction to counsel was broad enough to permit inquiry into whether Olson had conspired with others, including Schmults and Dinkins, to obstruct the EPA investigation. Appellant then caused a grand jury to issue subpoenas on appellees, who moved in Federal District Court to quash the subpoenas, claiming that the Act's independent counsel provisions were unconstitutional and that appellant accordingly had no authority to proceed. The court upheld the Act's constitutionality, denied the motions, and later ordered that appellees be held in contempt for continuing to refuse to comply with the subpoenas. The Court of Appeals reversed, holding that the Act violated the Appointments Clause of the Constitution, Art. II, § 2, cl. 2; the limitations

Page 655

OF articLE III; and the principle of separation of powers by interfering with the President's authority under Article II.

          Held:

          1. There is no merit to appellant's contention—based on Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979, which limited the issues that may be raised by a person who has been held in contempt for failure to comply with a grand jury subpoena that the constitutional issues addressed by the Court of Appeals cannot be raised on this appeal from the District Court's contempt judgment. The Court of Appeals ruled that, because appellant had failed to object to the District Court's consideration of the merits of appellees' constitutional claims, she had waived her opportunity to contend on appeal that Blair barred review of those claims. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. Nor is it the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case or Controversy" is lacking. Pp. 669-670.

          2. It does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division. Pp. 670-677.

          (a) Appellant is an "inferior" officer for purposes of the Clause, which—after providing for the appointment of certain federal officials ("principal" officers) by the President with the Senate's advice and consent—states that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as, under the Act, she possesses a degree of independent discretion to exercise the powers delegated to her, the fact that the Act authorizes her removal by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Moreover, appellant is empowered by the Act to perform only certain, limited duties, restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. In addition, appellant's office is limited in jurisdiction to that which has been granted by the Special Division pursuant to a request by the Attorney General. Also, appellant's office is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by counsel herself or by action of the Special Division. Pp. 670-673.

          (b) There is no merit to appellees' argument that, even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch—that

Page 656

is, to make "interbranch appointments." The Clause's language as to "inferior" officers admits of no limitation on interbranch appointments, but instead seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." The Clause's history provides no support for appellees' position. Moreover, Congress was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers, and the most logical place to put the appointing authority was in the Judicial Branch. In light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, appointment of independent counsels by that court does not run afoul of the constitutional limitation on "incongruous" interbranch appointments. Pp. 673-677.

          3. The powers vested in the Special Division do not violate Article III, under which executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Article III. Pp. 677-685.

          (a) There can be no Article III objection to the Special Division's exercise of the power, under the Act, to appoint independent counsel, since the power itself derives from the Appointments Clause, a source of authority for judicial action that is independent of Article III. Moreover, the Division's Appointments Clause powers encompass the power to define the independent counsel's jurisdiction. When, as here, Congress creates a temporary "office," the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the office's scope in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. However, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's request for the appointment of independent counsel in the particular case. Pp. 678-679.

          (b) Article III does not absolutely prevent Congress from vesting certain miscellaneous powers in the Special Division under the Act. One purpose of the broad prohibition upon the courts' exercise of executive or administrative duties of a nonjudicial nature is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accomplished by those branches. Here, the Division's miscellaneous powers—such as the passive powers to "receive" (but not to act on or specifically approve) various reports from independent counsel or the Attorney General—do not encroach upon the Executive Branch's authority. The Act

Page 657

simply does not give the Division power to "supervise" the independent counsel in the exercise of counsel's investigative or prosecutorial authority. And, the functions that the Division is empowered to perform are not inherently "Executive," but are directly analogous to functions that federal judges perform in other contexts. Pp. 680—681.

          (c) The Special Division's power to terminate an independent counsel's office when counsel's task is completed—although "administrative" to the extent that it requires the Division to monitor the progress of counsel's proceedings and to decide whether counsel's job is "completed"—is not such a significant judicial encroachment upon executive power or upon independent counsel's prosecutorial discretion as to require that the Act be invalidated as inconsistent with Article III. The Act's termination provisions do not give the Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway—this power is vested solely in the Attorney General. Pp. 682-683.

          (d) Nor does the Special Division's exercise of the various powers specifically granted to it pose any threat to the impartial and independent federal adjudication of claims within the judicial power of the United States. The Act gives the Division itself no power to review any of the independent counsel's actions or any of the Attorney General's actions with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Moreover, the Act prevents the Division's members from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regardless of whether such independent counsel is still serving in that office." Pp. 683-685.

          4. The Act does not violate separation of powers principles by impermissibly interfering with the functions of the Executive Branch. Pp. 685-696.

          (a) The Act's provision restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, does not impermissibly interfere with the President's exercise of his constitutionally appointed functions. Here, Congress has not attempted to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583, and Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160, distinguished. The determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official does not turn on whether or not that official is classified as "purely executive." The

Page 658

analysis contained in this Court's removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Cf. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611; Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377. Here, the Act's imposition of a "good cause" standard for removal by itself does not unduly trammel on executive authority. The congressional determination to limit the Attorney General's removal power was essential, in Congress' view, to establish the necessary independence of the office of independent counsel. Pp. 685-693.

          (b) The Act, taken as a whole, does not violate the principle of separation of powers by unduly interfering with the Executive Branch's role. This case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. Other than that, Congress' role under the Act is limited to receiving reports or other information and to oversight of the independent counsel's activities, functions that have been recognized generally as being incidental to the legislative function of Congress. Similarly, the Act does not work any judicial usurpation of properly executive functions. Nor does the Act impermissibly undermine the powers of the Executive Branch, or disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions. Even though counsel is to some degree "independent" and free from Executive Branch supervision to a greater extent than other federal prosecutors, the Act gives the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties. Pp. 693-696.

          267 U.S.App.D.C. 178, 838 F.2d 476 (1988), reversed.

          REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 697. KENNEDY, J., took no part in the consideration or decision of the case.

          Alexia Morrison, Washington, D.C., pro se.

Page 659

          Michael Davidson, Washington, D.C., for the Senate, as amicus curiae, supporting the appellant, by special leave of Court.

          Thomas S. Martin, Washington, D.C., for the appellees.

          Sol. Gen., Charles Fried, Washington, D.C., for the U.S., as amicus curiae, supporting the appellees, by special leave of Court.

           Chief Justice REHNQUIST delivered the opinion of the Court.

          This case presents us with a challenge to the independent counsel provisions of the Ethics in Government Act of 1978, 28 U.S.C. §§ 49, 591 et seq. (1982 ed., Supp. V). We hold

Page 660

today that these provisions of the Act do not violate the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, or the limitations of Article III, nor do they impermissibly interfere with the President's authority under Article II in violation of the constitutional principle of separation of powers.

          Briefly stated, Title VI of the Ethics in Government Act (Title VI or the Act), 28 U.S.C. §§ 591-599 (1982 ed., Supp. V),^[1] allows for the appointment of an "independent counsel" to investigate and, if appropriate, prosecute certain high-ranking Government officials for violations of federal criminal laws.^[2] The Act requires the Attorney General, upon receipt of information that he determines is "sufficient to constitute grounds to investigate whether any person [covered by the Act] may have violated any Federal criminal law," to conduct a preliminary investigation of the matter. When the Attor-

Page 661

ney General has completed this investigation, or 90 days has elapsed, he is required to report to a special court (the Special Division) created by the Act "for the purpose of appointing independent counsels." 28 U.S.C. § 49 (1982 ed., Supp. V).^[3] If the Attorney General determines that "there are no reasonable grounds to believe that further investigation is warranted," then he must notify the Special Division of this result. In such a case, "the division of the court shall have no power to appoint an independent counsel." § 592(b)(1). If, however, the Attorney General has determined that there are "reasonable grounds to believe that further investigation or prosecution is warranted," then he "shall apply to the division of the court for the appointment of an independent counsel." ^[4] The Attorney General's application to the court "shall contain sufficient information to assist the [court] in selecting an independent counsel and in defining that independent counsel's prosecutorial jurisdiction." § 592(d). Upon receiving this application, the Special Division "shall appoint an appropriate independent counsel and shall define that independent counsel's prosecutorial jurisdiction." § 593(b).^[5]

Page 662

          With respect to all matters within the independent counsel's jurisdiction, the Act grants the counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice." § 594(a).^[6] The functions of the independent counsel include conducting grand jury proceedings and other investigations, participating in civil and criminal court proceedings and litigation, and appealing any decision in any case in which the counsel participates in an official capacity. §§ 594(a)(1)-(3). Under § 594(a)(9), the counsel's powers include "initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case, in the name of the United States." The counsel may appoint employees, § 594(c), may request and obtain assistance from the Department of Justice, § 594(d), and may accept referral of matters from the Attorney General if the matter falls within the counsel's jurisdiction as defined by the Special Division, § 594(e). The Act also states that an independent counsel "shall, except where not possible, comply with the written or other established policies of the Department of Justice respecting enforcement of the criminal laws." § 594(f). In addition, whenever a matter has been referred to an independent counsel under the Act, the Attorney Gen-

Page 663

eral and the Justice Department are required to suspend all investigations and proceedings regarding the matter. § 597(a). An independent counsel has "full authority to dismiss matters within [his or her] prosecutorial jurisdiction without conducting an investigation or at any subsequent time before prosecution, if to do so would be consistent" with Department of Justice policy. § 594(g).^[7]

          Two statutory provisions govern the length of an independent counsel's tenure in office. The first defines the procedure for removing an independent counsel. Section 596(a)(1) provides:

                    "An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties."

          If an independent counsel is removed pursuant to this section, the Attorney General is required to submit a report to both the Special Division and the Judiciary Committees of the Senate and the House "specifying the facts found and the ultimate grounds for such removal." § 596(a)(2). Under the current version of the Act, an independent counsel can obtain judicial review of the Attorney General's action by filing a civil action in the United States District Court for the District of Columbia. Members of the Special Division "may not hear or determine any such civil action or any appeal of a de-

Page 664

cision in any such civil action." The reviewing court is authorized to grant reinstatement or "other appropriate relief." § 596(a)(3).^[8]

          The other provision governing the tenure of the independent counsel defines the procedures for "terminating" the counsel's office. Under § 596(b)(1), the office of an independent counsel terminates when he or she notifies the Attorney General that he or she has completed or substantially completed any investigations or prosecutions undertaken pursuant to the Act. In addition, the Special Division, acting either on its own or on the suggestion of the Attorney General, may terminate the office of an independent counsel at any time if it finds that "the investigation of all matters within the prosecutorial jurisdiction of such independent counsel . . . have been completed or so substantially completed that it would be appropriate for the Department of Justice to complete such investigations and prosecutions." § 596(b)(2).^[9]

          Finally, the Act provides for congressional oversight of the activities of independent counsel. An independent counsel may from time to time send Congress statements or reports on his or her activities. § 595(a)(2). The "appropriate committees of the Congress" are given oversight jurisdiction in regard to the official conduct of an independent counsel, and the counsel is required by the Act to cooperate with Congress in the exercise of this jurisdiction. § 595(a)(1). The counsel is required to inform the House of Representatives of

Page 665

"substantial and credible information which [the counsel] receives . . . that may constitute grounds for an impeachment." § 595(c). In addition, the Act gives certain congressional committee members the power to "request in writing that the Attorney General apply for the appointment of an independent counsel." § 592(g)(1). The Attorney General is required to respond to this request within a specified time but is not required to accede to the request. § 592(g)(2).

          The proceedings in this case provide an example of how the Act works in practice. In 1982, two Subcommittees of the House of Representatives issued subpoenas directing the Environmental Protection Agency (EPA) to produce certain documents relating to the efforts of the EPA and the Land and Natural Resources Division of the Justice Department to enforce the "Superfund Law." ^[10] At that time, appellee Olson was the Assistant Attorney General for the Office of Legal Counsel (OLC), appellee Schmults was Deputy Attorney General, and appellee Dinkins was the Assistant Attorney General for the Land and Natural Resources Division. Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained "enforcement sensitive information." The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.

          The following year, the House Judiciary Committee began an investigation into the Justice Department's role in the controversy over the EPA documents. During this investigation, appellee Olson testified before a House Subcommittee

Page 666

on March 10, 1983. Both before and after that testimony, the Department complied with several Committee requests to produce certain documents. Other documents were at first withheld, although these documents were eventually disclosed by the Department after the Committee learned of their existence. In 1985, the majority members of the Judiciary Committee published a lengthy report on the Committee's investigation. Report on Investigation of the Role of the Department of Justice in the Withholding of Environmental Protection Agency Documents from Congress in 1982-83, H.R.Rep. No. 99-435 (1985). The report not only criticized various officials in the Department of Justice for their role in the EPA executive privilege dispute, but it also suggested that appellee Olson had given false and misleading testimony to the Subcommittee on March 10, 1983, and that appellees Schmults and Dinkins had wrongfully withheld certain documents from the Committee, thus obstructing the Committee's investigation. The Chairman of the Judiciary Committee forwarded a copy of the report to the Attorney General with a request, pursuant to 28 U.S.C. § 592(c), that he seek the appointment of an independent counsel to investigate the allegations against Olson, Schmults, and Dinkins.

          The Attorney General directed the Public Integrity Section of the Criminal Division to conduct a preliminary investigation. The Section's report concluded that the appointment of an independent counsel was warranted to investigate the Committee's allegations with respect to all three appellees. After consulting with other Department officials, however, the Attorney General chose to apply to the Special Division for the appointment of an independent counsel solely with respect to appellee Olson.^[11] The Attorney General accordingly

Page 667

requested appointment of an independent counsel to investigate whether Olson's March 10, 1983, testimony "regarding the completeness of [OLC's] response to the Judiciary Committee's request for OLC documents, and regarding his knowledge of EPA's willingness to turn over certain disputed documents to Congress, violated 18 U.S.C. § 1505, § 1001, or any other provision of federal criminal law." Attorney General Report, at 2-3. The Attorney General also requested that the independent counsel have authority to investigate "any other matter related to that allegation." Id., at 11.

          On April 23, 1986, the Special Division appointed James C. McKay as independent counsel to investigate "whether the testimony of . . . Olson and his revision of such testimony on March 10, 1983, violated either 18 U.S.C. § 1505 or § 1001, or any other provision of federal law." The court also ordered that the independent counsel

          "shall have jurisdiction to investigate any other allegation of evidence of violation of any Federal criminal law by Theodore Olson developed during investigations, by the Independent Counsel, referred to above, and connected with or arising out of that investigation, and Independent Counsel shall have jurisdiction to prosecute for any such violation." Order, Div. No. 86-1 (CADC Special Division, April 23, 1986).

          McKay later resigned as independent counsel, and on May 29, 1986, the Division appointed appellant Morrison as his replacement, with the same jurisdiction.

          In January 1987, appellant asked the Attorney General pursuant to § 594(e) to refer to her as "related matters" the Committee's allegations against appellees Schmults and Dinkins. The Attorney General refused to refer the matters, concluding that his decision not to request the appointment of

Page 668

an independent counsel in regard to those matters was final under § 592(b)(1). Appellant then asked the Special Division to order that the matters be referred to her under § 594(e). On April 2, 1987, the Division ruled that the Attorney General's decision not to seek appointment of an independent counsel with respect to Schmults and Dinkins was final and unreviewable under § 592(b)(1), and that therefore the court had no authority to make the requested referral. In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34. The court ruled, however, that its original grant of jurisdiction to appellant was broad enough to permit inquiry into whether Olson may have conspired with others, including Schmults and Dinkins, to obstruct the Committee's investigation. Id., at 181-182, 818 F.2d, at 47-48.

          Following this ruling, in May and June 1987, appellant caused a grand jury to issue and serve subpoenas ad testificandum and duces tecum on appellees. All three appellees moved to quash the subpoenas, claiming, among other things, that the independent counsel provisions of the Act were unconstitutional and that appellant accordingly had no authority to proceed. On July 20, 1987, the District Court upheld the constitutionality of the Act and denied the motions to quash. In re Sealed Case, 665 F.Supp. 56 (DC). The court subsequently ordered that appellees be held in contempt pursuant to 28 U.S.C. § 1826(a) for continuing to refuse to comply with the subpoenas. See App. to Juris. Statement 140a, 143a, 146a. The court stayed the effect of its contempt orders pending expedited appeal.

          A divided Court of Appeals reversed. In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). The majority ruled first that an independent counsel is not an "inferior Officer" of the United States for purposes of the Appointments Clause. Accordingly, the court found the Act invalid because it does not provide for the independent counsel to be nominated by the President and confirmed by the Senate, as the Clause requires for "principal" officers. The court then

Page 669

went on to consider several alternative grounds for its conclusion that the statute was unconstitutional. In the majority's view, the Act also violates the Appointments Clause insofar as it empowers a court of law to appoint an "inferior" officer who performs core executive functions; the Act's delegation of various powers to the Special Division violates the limitations of Article III; the Act's restrictions on the Attorney General's power to remove an independent counsel violate the separation of powers; and finally, the Act interferes with the Executive Branch's prerogative to "take care that the Laws be faithfully executed," Art. II, § 3. The dissenting judge was of the view that the Act was constitutional. 267 U.S.App.D.C., at 238, 838 F.2d, at 536. Appellant then sought review by this Court, and we noted probable jurisdiction. 484 U.S. 1058, 108 S.Ct. 1010, 98 L.Ed.2d 976 (1988). We now reverse.

          Before we get to the merits, we first must deal with appellant's contention that the constitutional issues addressed by the Court of Appeals cannot be reviewed on this appeal from the District Court's contempt judgment. Appellant relies on Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919), in which this Court limited rather sharply the issues that may be raised by an individual who has been subpoenaed as a grand jury witness and has been held in contempt for failure to comply with the subpoena. On the facts of this case, however, we find it unnecessary to consider whether Blair has since been narrowed by our more recent decisions, as appellees contend and the Court of Appeals found in another related case, In re Sealed Case, 264 U.S.App.D.C. 125, 827 F.2d 776 (1987). Appellant herself admits that she failed to object to the District Court's consideration of the merits of appellees' constitutional claims, and as a result, the Court of Appeals ruled that she had waived her opportunity to contend on appeal that review of those claims was barred by Blair. We see no reason why the Court of Appeals was not entitled to conclude

Page 670

that the failure of appellant to object on this ground in the District Court was a sufficient reason for refusing to consider it, and we likewise decline to consider it. Appellant's contention is not "jurisdictional" in the sense that it cannot be waived by failure to raise it at the proper time and place. It is not the sort of claim which would defeat jurisdiction in the District Court by showing that an Article III "Case" or "Controversy" is lacking. Appellees are subject to the burden of complying with the grand jury subpoena as a result of the District Court's contempt order, there is a legitimate adversarial relationship between the parties, and the courts possess the power to redress or resolve the current controversy. See Bender v. Williamsport Area School District, 475 U.S. 534, 541-543, 106 S.Ct. 1326, 1331-1332, 89 L.Ed.2d 501 (1986). We therefore turn to consider the merits of appellees' constitutional claims.

          The Appointments Clause of Article II reads as follows:

          "[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const., Art. II, § 2, cl. 2.

          The parties do not dispute that "[t]he Constitution for purposes of appointment . . . divides all its officers into two classes." United States v. Germaine, 99 U.S. (9 Otto) 508, 509, 25 L.Ed. 482 (1879). As we stated in Buckley v. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 688, 46 L.Ed.2d 659 (1976): "[P]rincipal officers are selected by the President with the advice and consent of the Senate. Inferior officers Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary." The initial

Page 671

question is, accordingly, whether appellant is an "inferior" or a "principal" officer.^[12] If she is the latter, as the Court of Appeals concluded, then the Act is in violation of the Appointments Clause.

          The line between "inferior" and "principal" officers is one that is far from clear, and the Framers provided little guidance into where it should be drawn. See, e.g., 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed. 1858) ("In the practical course of the government there does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution, whose appointment does not necessarily require the concurrence of the senate"). We need not attempt here to decide exactly where the line falls between the two types of officers, because in our view appellant clearly falls on the "inferior officer" side of that line. Several factors lead to this conclusion.

          First, appellant is subject to removal by a higher Executive Branch official. Although appellant may not be "subordinate" to the Attorney General (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act, the fact that she can be removed by the Attorney General indicates that she is to some degree "inferior" in rank and authority. Second, appellant is empowered by the Act to perform only certain, limited duties. An independent counsel's role is restricted primarily to investigation and, if appropriate, prosecution for certain federal crimes. Admittedly, the Act delegates to appellant "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice," § 594(a), but this grant of authority does not include any authority to formulate policy for the Government or the Executive Branch, nor does it give appellant any administrative duties outside of those nec-

Page 672

essary to operate her office. The Act specifically provides that in policy matters appellant is to comply to the extent possible with the policies of the Department. § 594(f).

          Third, appellant's office is limited in jurisdiction. Not only is the Act itself restricted in applicability to certain federal officials suspected of certain serious federal crimes, but an independent counsel can only act within the scope of the jurisdiction that has been granted by the Special Division pursuant to a request by the Attorney General. Finally, appellant's office is limited in tenure. There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is "temporary" in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division. Unlike other prosecutors, appellant has no ongoing responsibilities that extend beyond the accomplishment of the mission that she was appointed for and authorized by the Special Division to undertake. In our view, these factors relating to the "ideas of tenure, duration . . . and duties" of the independent counsel, Germaine, supra, 9 Otto, at 511, are sufficient to establish that appellant is an "inferior" officer in the constitutional sense.

          This conclusion is consistent with our few previous decisions that considered the question whether a particular Government official is a "principal" or an "inferior" officer. In United States v. Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), for example, we approved Department of State regulations that allowed executive officials to appoint a "vice-consul" during the temporary absence of the consul, terming the "vice-consul" a "subordinate officer" notwithstanding the Appointment Clause's specific reference to "Consuls" as principal officers. As we stated: "Because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions he is not thereby transformed into the superior and permanent offi-

Page 673

cial." Id., at 343, 18 S.Ct., at 379. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), the Court found that federal "supervisor[s] of elections," who were charged with various duties involving oversight of local congressional elections, see id., 10 Otto at 379-380, were inferior officers for purposes of the Clause. In Go-Bart Importing Co. v. United States, 282 U.S. 344, 352-353, 51 S.Ct. 153, 156-157, 75 L.Ed. 374 (1931), we held that "United States commissioners are inferior officers." Id., at 352, 51 S.Ct., at 156. These commissioners had various judicial and prosecutorial powers, including the power to arrest and imprison for trial, to issue warrants, and to institute prosecutions under "laws relating to the elective franchise and civil rights." Id., at 353, n. 2, 51 S.Ct., at 156, n. 2. All of this is consistent with our reference in United States v. Nixon, 418 U.S. 683, 694, 696, 94 S.Ct. 3090, 3100, 3101, 41 L.Ed.2d 1039 (1974), to the office of Watergate Special Prosecutor—whose authority was similar to that of appellant, see id., at 694, n. 8, 94 S.Ct., at 3100, n. 8—as a "subordinate officer."

          This does not, however, end our inquiry under the Appointments Clause. Appellees argue that even if appellant is an "inferior" officer, the Clause does not empower Congress to place the power to appoint such an officer outside the Executive Branch. They contend that the Clause does not contemplate congressional authorization of "interbranch appointments," in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: ". . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments." On its face, the language of this "excepting clause" admits of no limitation on interbranch appointments. Indeed, the inclusion of "as they think proper" seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." We recognized as much in one of our few decisions in this area, Ex parte Siebold, supra, where we stated:

Page 674

          "It is no doubt usual and proper to vest the appointment of inferior officers in that department of the government, executive or judicial, or in that particular executive department to which the duties of such officers appertain. But there is no absolute requirement to this effect in the Constitution; and, if there were, it would be difficult in many cases to determine to which department an office properly belonged. . . .

                    "But as the Constitution stands, the selection of the appointing power, as between the functionaries named, is a matter resting in the discretion of Congress. And, looking at the subject in a practical light, it is perhaps better that it should rest there, than that the country should be harassed by the endless controversies to which a more specific direction on this subject might have given rise." Id., 100 U.S. (10 Otto), at 397-398.

          Our only decision to suggest otherwise, Ex parte Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839), from which the first sentence in the above quotation from Siebold was derived, was discussed in Siebold and distinguished as "not intended to define the constitutional power of Congress in this regard, but rather to express the law or rule by which it should be governed." 100 U.S. (10 Otto), at 398. Outside of these two cases, there is very little, if any, express discussion of the propriety of interbranch appointments in our decisions, and we see no reason now to depart from the holding of Siebold that such appointments are not proscribed by the excepting clause.

          We also note that the history of the Clause provides no support for appellees' position. Throughout most of the process of drafting the Constitution, the Convention concentrated on the problem of who should have the authority to appoint judges. At the suggestion of James Madison, the Convention adopted a proposal that the Senate should have this authority, 1 Records of the Federal Convention of 1787, pp. 232-233 (M. Farrand ed. 1966), and several attempts to transfer the appointment power to the President were re-

Page 675

jected. See 2 id., at 42-44, 80-83. The August 6, 1787, draft of the Constitution reported by the Committee of Detail retained Senate appointment of Supreme Court Judges, provided also for Senate appointment of ambassadors, and vested in the President the authority to "appoint officers in all cases not otherwise provided for by this Constitution." Id., at 183, 185. This scheme was maintained until September 4, when the Committee of Eleven reported its suggestions to the Convention. This Committee suggested that the Constitution be amended to state that the President "shall nominate and by and with the advice and consent of the Senate shall appoint ambassadors, and other public Ministers, Judges of the Supreme Court, and all other Officers of the [United States], whose appointments are not otherwise herein provided for." Id., at 498-499. After the addition of "Consuls" to the list, the Committee's proposal was adopted, id., at 539, and was subsequently reported to the Convention by the Committee of Style. See id., at 599. It was at this point, on September 15, that Gouverneur Morris moved to add the Excepting Clause to Art. II, § 2. Id., at 627. The one comment made on this motion was by Madison, who felt that the Clause did not go far enough in that it did not allow Congress to vest appointment powers in "Superior Officers below Heads of Departments." The first vote on Morris' motion ended in a tie. It was then put forward a second time, with the urging that "some such provision [was] too necessary, to be omitted." This time the proposal was adopted. Id., at 627-628. As this discussion shows, there was little or no debate on the question whether the Clause empowers Congress to provide for interbranch appointments, and there is nothing to suggest that the Framers intended to prevent Congress from having that power.

          We do not mean to say that Congress' power to provide for interbranch appointments of "inferior officers" is unlimited. In addition to separation-of-powers concerns, which would arise if such provisions for appointment had the potential to

Page 676

impair the constitutional functions assigned to one of the branches, Siebold itself suggested that Congress' decision to vest the appointment power in the courts would be improper if there was some "incongruity" between the functions normally performed by the courts and the performance of their duty to appoint. 100 U.S. (10 Otto), at 398 ("[T]he duty to appoint inferior officers, when required thereto by law, is a constitutional duty of the courts; and in the present case there is no such incongruity in the duty required as to excuse the courts from its performance, or to render their acts void"). In this case, however, we do not think it impermissible for Congress to vest the power to appoint independent counsel in a specially created federal court. We thus disagree with the Court of Appeals' conclusion that there is an inherent incongruity about a court having the power to appoint prosecutorial officers.^[13] We have recognized that courts may appoint private attorneys to act as prosecutor for judicial contempt judgments. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987). In Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), we approved court appointment of United States commissioners, who exercised certain limited prosecutorial powers. Id., at 353, n. 2, 51 S.Ct., at 156, n. 2. In Siebold, as well, we indicated that judicial appointment of federal marshals, who are "executive officer[s]," would not be inappropriate. Lower courts have also upheld interim judicial appointments of United States Attorneys, see United States v. Solomon, 216 F.Supp. 835 (SDNY 1963), and Congress itself has vested the power to make these interim appointments in the district courts, see 28

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U.S.C. § 546(d) (1982 ed., Supp. V).^[14] Congress, of course, was concerned when it created the office of independent counsel with the conflicts of interest that could arise in situations when the Executive Branch is called upon to investigate its own high-ranking officers. If it were to remove the appointing authority from the Executive Branch, the most logical place to put it was in the Judicial Branch. In the light of the Act's provision making the judges of the Special Division ineligible to participate in any matters relating to an independent counsel they have appointed, 28 U.S.C. § 49(f) (1982 ed., Supp. V) we do not think that appointment of the independent counsel by the court runs afoul of the constitutional limitation on "incongruous" interbranch appointments.

          Appellees next contend that the powers vested in the Special Division by the Act conflict with Article III of the Constitution. We have long recognized that by the express provision of Article III, the judicial power of the United States is limited to "Cases" and "Controversies." See Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 253, 55 L.Ed. 246 (1911). As a general rule, we have broadly stated that "executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution." Buckley, 424 U.S., at 123, 96 S.Ct., at 684 (citing United States v. Ferreira, 13 How. 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 Dall. 409 (1792)).^[15] The pur-

Page 678

pose of this limitation is to help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). With this in mind, we address in turn the various duties given to the Special Division by the Act.

          Most importantly, the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction. § 593(b). Clearly, once it is accepted that the Appointments Clause gives Congress the power to vest the appointment of officials such as the independent counsel in the "courts of Law," there can be no Article III objection to the Special Division's exercise of that power, as the power itself derives from the Appointments Clause, a source of authority for judicial action

Page 679

that is independent of Article III.^[16] Appellees contend, however, that the Division's Appointments Clause powers do not encompass the power to define the independent counsel's jurisdiction. We disagree. In our view, Congress' power under the Clause to vest the "Appointment" of inferior officers in the courts may, in certain circumstances, allow Congress to give the courts some discretion in defining the nature and scope of the appointed official's authority. Particularly when, as here, Congress creates a temporary "office" the nature and duties of which will by necessity vary with the factual circumstances giving rise to the need for an appointment in the first place, it may vest the power to define the scope of the office in the court as an incident to the appointment of the officer pursuant to the Appointments Clause. This said, we do not think that Congress may give the Division unlimited discretion to determine the independent counsel's jurisdiction. In order for the Division's definition of the counsel's jurisdiction to be truly "incidental" to its power to appoint, the jurisdiction that the court decides upon must be demonstrably related to the factual circumstances that gave rise to the Attorney General's investigation and request for the appointment of the independent counsel in the particular case.^[17]

Page 680

          The Act also vests in the Special Division various powers and duties in relation to the independent counsel that, because they do not involve appointing the counsel or defining his or her jurisdiction, cannot be said to derive from the Division's Appointments Clause authority. These duties include granting extensions for the Attorney General's preliminary investigation, § 592(a)(3); receiving the report of the Attorney General at the conclusion of his preliminary investigation, §§ 592(b)(1), 593(c)(2)(B); referring matters to the counsel upon request, § 594(e) ^[18] ; receiving reports from the counsel regarding expenses incurred, § 594(h)(1)(A); receiving a report from the Attorney General following the removal of an independent counsel, § 596(a)(2); granting attorney's fees upon request to individuals who were investigated but not indicted by an independent counsel, § 593(f); receiving a final report from the counsel, § 594(h)(1)(B); deciding whether to release the counsel's final report to Congress or the public and determining whether any protective orders should be issued, § 594(h)(2); and terminating an independent counsel when his or her task is completed, § 596(b)(2).

          Leaving aside for the moment the Division's power to terminate an independent counsel, we do not think that Article III absolutely prevents Congress from vesting these other miscellaneous powers in the Special Division pursuant to the Act. As we observed above, one purpose of the broad prohibition upon the courts' exercise of "executive or administrative duties of a nonjudicial nature," Buckley, 424 U.S., at 123, 96 S.Ct., at 684, is to maintain the separation between the Judiciary and the other branches of the Federal Government by ensuring that judges do not encroach upon executive or legislative authority or undertake tasks that are more properly accom-

Page 681

plished by those branches. In this case, the miscellaneous powers described above do not impermissibly trespass upon the authority of the Executive Branch. Some of these allegedly "supervisory" powers conferred on the court are passive: the Division merely "receives" reports from the counsel or the Attorney General, it is not entitled to act on them or to specifically approve or disapprove of their contents. Other provisions of the Act do require the court to exercise some judgment and discretion,^[19] but the powers granted by these provisions are themselves essentially ministerial. The Act simply does not give the Division the power to "supervise" the independent counsel in the exercise of his or her investigative or prosecutorial authority. And, the functions that the Special Division is empowered to perform are not inherently "Executive"; indeed, they are directly analogous to functions that federal judges perform in other contexts, such as deciding whether to allow disclosure of matters occurring before a grand jury, see Fed. Rule Crim.Proc. 6(e), deciding to extend a grand jury investigation, Rule 6(g), or awarding attorney's fees, see, e.g., 42 U.S.C. § 1988.^[20]

Page 682

          We are more doubtful about the Special Division's power to terminate the office of the independent counsel pursuant to § 596(b)(2). As appellees suggest, the power to terminate, especially when exercised by the Division on its own motion, is "administrative" to the extent that it requires the Special Division to monitor the progress of proceedings of the independent counsel and come to a decision as to whether the counsel's job is "completed." § 596(b)(2). It also is not a power that could be considered typically "judicial," as it has few analogues among the court's more traditional powers. Nonetheless, we do not, as did the Court of Appeals, view this provision as a significant judicial encroachment upon executive power or upon the prosecutorial discretion of the independent counsel.

          We think that the Court of Appeals overstated the matter when it described the power to terminate as a "broadsword and . . . rapier" that enables the court to "control the pace and depth of the independent counsel's activities." 267 U.S.App.D.C., at 217, 838 F.2d, at 515. The provision has not been tested in practice, and we do not mean to say that an adventurous special court could not reasonably construe the provision as did the Court of Appeals; but it is the duty of federal courts to construe a statute in order to save it from constitutional infirmities, see, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986), and to that end we think a narrow construction is appropriate here. The termination provisions of the Act do not give the Special Division anything approaching the power to remove the counsel while an investigation or court proceeding is still underway—this power is vested solely in the Attorney General. As we see it, "termination" may occur only when the duties of

Page 683

the counsel are truly "completed" or "so substantially completed" that there remains no need for any continuing action by the independent counsel.^[21] It is basically a device for removing from the public payroll an independent counsel who has served his or her purpose, but is unwilling to acknowledge the fact. So construed, the Special Division's power to terminate does not pose a sufficient threat of judicial intrusion into matters that are more properly within the Executive's authority to require that the Act be invalidated as inconsistent with Article III.

          Nor do we believe, as appellees contend, that the Special Division's exercise of the various powers specifically granted to it under the Act poses any threat to the "impartial and independent federal adjudication of claims within the judicial power of the United States." Commodity Futures Trading Comm'n v. Schor, supra, at 850, 106 S.Ct., at 3256. We reach this conclusion for two reasons. First, the Act as it currently stands gives the Special Division itself no power to review any of the actions of the independent counsel or any of the actions of the Attorney General with regard to the counsel. Accordingly, there is no risk of partisan or biased adjudication of claims regarding the independent counsel by that court. Second, the Act prevents members of the Special Division from participating in "any judicial proceeding concerning a matter which involves such independent counsel while such independent counsel is serving in that office or which involves the exercise of such independent counsel's official duties, regard-

Page 684

less of whether such independent counsel is still serving in that office." 28 U.S.C. § 49(f) (1982 ed., Supp. V) (emphasis added); see also § 596(a)(3) (preventing members of the Special Division from participating in review of the Attorney General's decision to remove an independent counsel). We think both the special court and its judges are sufficiently isolated by these statutory provisions from the review of the activities of the independent counsel so as to avoid any taint of the independence of the Judiciary such as would render the Act invalid under Article III.

          We emphasize, nevertheless, that the Special Division has no authority to take any action or undertake any duties that are not specifically authorized by the Act. The gradual expansion of the authority of the Special Division might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications. The record in other cases involving independent counsel indicate that the Special Division has at times given advisory opinions or issued orders that are not directly authorized by the Act. Two examples of this were cited by the Court of Appeals, which noted that the Special Division issued "orders" that ostensibly exempted the independent counsel from conflict-of-interest laws. See 267 U.S.App.D.C., at 216, and n. 60, 838 F.2d, at 514, and n. 60 (citing In re Deaver, No. 86-2 (CADC Special Division, July 2, 1986), and In re Olson, No. 86-1 (CADC Special Division, June 18, 1986)). In another case, the Division reportedly ordered that a counsel postpone an investigation into certain allegations until the completion of related state criminal proceedings. See H.R.Rep.Conf.Rep. No. 100-452, p. 26 (1987), U.S.Code Cong. & Admin.News 1987, pp. 2150, 2192. The propriety of the Special Division's actions in these instances is not before us as such, but we nonetheless think it appropriate to point out not only that there is no authorization for such actions in the Act itself, but that the Division's exercise of unauthorized

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powers risks the transgression of the constitutional limitations of Article III that we have just discussed.^[22]

          We now turn to consider whether the Act is invalid under the constitutional principle of separation of powers. Two related issues must be addressed: The first is whether the provision of the Act restricting the Attorney General's power to remove the independent counsel to only those instances in which he can show "good cause," taken by itself, impermissibly interferes with the President's exercise of his constitutionally appointed functions. The second is whether, taken as a whole, the Act violates the separation of powers by reducing the President's ability to control the prosecutorial powers wielded by the independent counsel.

          Two Terms ago we had occasion to consider whether it was consistent with the separation of powers for Congress to pass a statute that authorized a Government official who is removable only by Congress to participate in what we found to be "executive powers." Bowsher v. Synar, 478 U.S. 714, 730, 106 S.Ct. 3181, 3190, 92 L.Ed.2d 583 (1986). We held in Bowsher that "Congress cannot reserve

Page 686

for itself the power of removal of an officer charged with the execution of the laws except by impeachment." Id., at 726, 106 S.Ct., at 3188. A primary antecedent for this ruling was our 1926 decision in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). Myers had considered the propriety of a federal statute by which certain postmasters of the United States could be removed by the President only "by and with the advice and consent of the Senate." There too, Congress' attempt to involve itself in the removal of an executive official was found to be sufficient grounds to render the statute invalid. As we observed in Bowsher, the essence of the decision in Myers was the judgment that the Constitution prevents Congress from "draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power. To do this would be to go beyond the words and implications of the [Appointments Clause] and to infringe the constitutional principle of the separation of governmental powers." Myers, supra, at 161, 47 S.Ct., at 40.

          Unlike both Bowsher and Myers, this case does not involve an attempt by Congress itself to gain a role in the removal of executive officials other than its established powers of impeachment and conviction. The Act instead puts the removal power squarely in the hands of the Executive Branch; an independent counsel may be removed from office, "only by the personal action of the Attorney General, and only for good cause." § 596(a)(1).^[23] There is no requirement of congressional approval of the Attorney General's removal decision, though the decision is subject to judicial review. § 596(a)(3). In our view, the removal provisions of the Act make this case more analogous to Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), and Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), than to Myers or Bowsher.

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          In Humphrey's Executor, the issue was whether a statute restricting the President's power to remove the Commissioners of the Federal Trade Commission (FTC) only for "inefficiency, neglect of duty, or malfeasance in office" was consistent with the Constitution. 295 U.S., at 619, 55 S.Ct., at 870. We stated that whether Congress can "condition the [President's power of removal] by fixing a definite term and precluding a removal except for cause, will depend upon the character of the office." Id., at 631, 55 S.Ct., at 875. Contrary to the implication of some dicta in Myers,^[24] the President's power to remove Government officials simply was not "all-inclusive in respect of civil officers with the exception of the judiciary provided for by the Constitution." 295 U.S., at 629, 55 S.Ct., at 874. At least in regard to "quasi-legislative" and "quasi-judicial" agencies such as the FTC,^[25] "[t]he authority of Congress, in creating [such] agencies, to require them to act in discharge of their duties independently of executive control . . . includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime." Ibid. In Humphrey's Executor, we found it "plain" that the Constitution did not give the President "illimitable power of removal" over the officers of independent agencies. Ibid. Were the President to have

Page 688

the power to remove FTC Commissioners at will, the "coercive influence" of the removal power would "threate[n] the independence of [the] commission." Id., at 630, 55 S.Ct., at 875.

          Similarly, in Wiener we considered whether the President had unfettered discretion to remove a member of the War Claims Commission, which had been established by Congress in the War Claims Act of 1948, 62 Stat. 1240. The Commission's function was to receive and adjudicate certain claims for compensation from those who had suffered personal injury or property damage at the hands of the enemy during World War II. Commissioners were appointed by the President, with the advice and consent of the Senate, but the statute made no provision for the removal of officers, perhaps because the Commission itself was to have a limited existence. As in Humphrey's Executor, however, the Commissioners were entrusted by Congress with adjudicatory powers that were to be exercised free from executive control. In this context, "Congress did not wish to have hang over the Commission the Damocles' sword of removal by the President for no reason other than that he preferred to have on that Commission men of his own choosing." 357 U.S., at 356, 78 S.Ct., at 1279. Accordingly, we rejected the President's attempt to remove a Commissioner "merely because he wanted his own appointees on [the] Commission," stating that "no such power is given to the President directly by the Constitution, and none is impliedly conferred upon him by statute." Ibid.

          Appellees contend that Humphrey's Executor and Wiener are distinguishable from this case because they did not involve officials who performed a "core executive function." They argue that our decision in Humphrey's Executor rests on a distinction between "purely executive" officials and officials who exercise "quasi-legislative" and "quasi-judicial" powers. In their view, when a "purely executive" official is involved, the governing precedent is Myers, not Humphrey's Executor. See Humphrey's Executor, supra, 295 U.S., at 628, 55 S.Ct., at 874. And, under Myers, the President must have absolute discretion to

Page 689

discharge "purely" executive officials at will. See Myers, 272 U.S., at 132-134, 47 S.Ct., at 30-31.^[26]

          We undoubtedly did rely on the terms "quasi-legislative" and "quasi-judicial" to distinguish the officials involved in Humphrey's Executor and Wiener from those in Myers, but our present considered view is that the determination of whether the Constitution allows Congress to impose a "good cause"-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as "purely executive." ^[27] The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President,^[28] but to ensure that Congress does

Page 690

not interfere with the President's exercise of the "executive power" and his constitutionally appointed duty to "take care that the laws be faithfully executed" under Article II. Myers was undoubtedly correct in its holding, and in its broader suggestion that there are some "purely executive" officials who must be removable by the President at will if he is to be able to accomplish his constitutional role.^[29] See 272 U.S., at 132-134, 47 S.Ct., at 30-31. But as the Court noted in Wiener:

                    "The assumption was short-lived that the Myers case recognized the President's inherent constitutional power to remove officials no matter what the relation of the executive to the discharge of their duties and no matter what restrictions Congress may have imposed regarding the nature of their tenure." 357 U.S., at 352, 78 S.Ct., at 1277.

          At the other end of the spectrum from Myers, the characterization of the agencies in Humphrey's Executor and Wie-

Page 691

ner as "quasi-legislative" or "quasi-judicial" in large part reflected our judgment that it was not essential to the President's proper execution of his Article II powers that these agencies be headed up by individuals who were removable at will.^[30] We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

          Considering for the moment the "good cause" removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a "good cause" standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are "executive" in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of consti-

Page 692

tutional law that the counsel be terminable at will by the President.^[31]

          Nor do we think that the "good cause" removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the "faithful execution" of the laws. Rather, because the independent counsel may be terminated for "good cause," the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.^[32] Although we need not decide in this case exactly what is encompassed within the term "good cause" under the Act, the legislative history of the removal provision also makes clear that the Attorney General may remove an independent counsel for "misconduct." See H.R.Conf.Rep. No. 100-452, p. 37 (1987). Here, as with the provision of the Act conferring the appointment authority of

Page 693

the independent counsel on the special court, the congressional determination to limit the removal power of the Attorney General was essential, in the view of Congress, to establish the necessary independence of the office. We do not think that this limitation as it presently stands sufficiently deprives the President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.^[33]

          The final question to be addressed is whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S., at 725, 106 S.Ct., at 3187 (citing Humphrey's Executor, 295 U.S., at 629-630, 55 S.Ct., at 874-875). As we stated in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as "a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other." Id., at 122, 96 S.Ct., at 684. We have not hesitated to invalidate provisions of law which violate this principle. See id., at 123, 96 S.Ct., at 684. On the other hand, we have never held that the Constitution requires that the three

Page 694

branches of Government "operate with absolute independence." United States v. Nixon, 418 U.S., at 707, 94 S.Ct., at 3107; see also Nixon v. Administrator of General Services, 433 U.S. 425, 442, 97 S.Ct. 2777, 2789, 53 L.Ed.2d 867 (1977) (citing James Madison in The Federalist No. 47, and Joseph Story in 1 Commentaries on the Constitution § 525 (M. Bigelow, 5th ed. 1905)). In the often-quoted words of Justice Jackson:

          "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, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurring opinion).

          We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch. Cf. Commodity Futures Trading Comm'n v. Schor, 478 U.S., at 856, 106 S.Ct., at 3259-3260. Unlike some of our previous cases, most recently Bowsher v. Synar, this case simply does not pose a "dange[r] of congressional usurpation of Executive Branch functions." 478 U.S., at 727, 106 S.Ct., at 3188; see also INS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983). Indeed, with the exception of the power of impeachment—which applies to all officers of the United States Congress retained for itself no powers of control or supervision over an independent counsel. The Act does empower certain Members of Congress to request the Attorney General to apply for the appointment of an independent counsel, but the Attorney General has no duty to comply with the request, although he must respond within a certain time limit. § 529(g). Other than that, Congress' role under the Act is limited to receiving reports or other information and oversight of the independent counsel's activities, § 595(a), functions that we have recognized generally as being incidental to the legislative function of Congress. See McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580 (1927).

Page 695

          Similarly, we do not think that the Act works any judicial usurpation of properly executive functions. As should be apparent from our discussion of the Appointments Clause above, the power to appoint inferior officers such as independent counsel is not in itself an "executive" function in the constitutional sense, at least when Congress has exercised its power to vest the appointment of an inferior office in the "courts of Law." We note nonetheless that under the Act the Special Division has no power to appoint an independent counsel sua sponte; it may only do so upon the specific request of the Attorney General, and the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f). In addition, once the court has appointed a counsel and defined his or her jurisdiction, it has no power to supervise or control the activities of the counsel. As we pointed out in our discussion of the Special Division in relation to Article III, the various powers delegated by the statute to the Division are not supervisory or administrative, nor are they functions that the Constitution requires be performed by officials within the Executive Branch. The Act does give a federal court the power to review the Attorney General's decision to remove an independent counsel, but in our view this is a function that is well within the traditional power of the Judiciary.

          Finally, we do not think that the Act "impermissibly undermine[s]" the powers of the Executive Branch, Schor, supra, 478 U.S., at 856, 106 S.Ct., at 3260, or "disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions," Nixon v. Administrator of General Services, supra, 433 U.S., at 443, 97 S.Ct., at 2790. It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity. The Attorney General is not allowed to appoint the individual of his choice; he does not determine the counsel's jurisdiction; and his

Page 696

power to remove a counsel is limited.^[34] Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for "good cause," a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are "faithfully executed" by an independent counsel. No independent counsel may be appointed without a specific request by the Attorney General, and the Attorney General's decision not to request appointment if he finds "no reasonable grounds to believe that further investigation is warranted" is committed to his unreviewable discretion. The Act thus gives the Executive a degree of control over the power to initiate an investigation by the independent counsel. In addition, the jurisdiction of the independent counsel is defined with reference to the facts submitted by the Attorney General, and once a counsel is appointed, the Act requires that the counsel abide by Justice Department policy unless it is not "possible" to do so. Notwithstanding the fact that the counsel is to some degree "independent" and free from executive supervision to a greater extent than other federal prosecutors, in our view these features of the Act give the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties.

          In sum, we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate

Page 697

Article III; and that the Act does not violate the separation-of-powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore

          Reversed.

          Justice KENNEDY took no part in the consideration or decision of this case.

           Justice SCALIA, dissenting.

          It is the proud boast of our democracy that we have "a government of laws and not of men." Many Americans are familiar with that phrase; not many know its derivation. It comes from Part the First, Article XXX, of the Massachusetts Constitution of 1780, which reads in full as follows:

                    "In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

          The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that "[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961) (hereinafter Federalist). Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.

          The principle of separation of powers is expressed in our Constitution in the first section of each of the first three Articles. Article I, § 1, provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United

Page 698

States, which shall consist of a Senate and House of Representatives." Article III, § 1, provides that "[t]he 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." And the provision at issue here, Art. II, § 1, cl. 1, provides that "[t]he executive Power shall be vested in a President of the United States of America."

          But just as the mere words of a Bill of Rights are not self-effectuating, the Framers recognized "[t]he insufficiency of a mere parchment delineation of the boundaries" to achieve the separation of powers. Federalist No. 73, p. 442 (A. Hamilton). "[T]he great security," wrote Madison, "against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack." Federalist No. 51, pp. 321-322. Madison continued:

                    "But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. . . . As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified." Id., at 322-323.

          The major "fortification" provided, of course, was the veto power. But in addition to providing fortification, the Founders conspicuously and very consciously declined to sap the Executive's strength in the same way they had weakened

Page 699

the Legislature: by dividing the executive power. Proposals to have multiple executives, or a council of advisers with separate authority were rejected. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 66, 71-74, 88, 91-92 (rev. ed. 1966); 2 id., at 335-337, 533, 537, 542. Thus, while "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives," U.S. Const., Art. I, § 1 (emphasis added), "[t]he executive Power shall be vested in a President of the United States," Art. II, § 1, cl. 1 (emphasis added).

          That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that "a gradual concentration of the several powers in the same department," Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

          The present case began when the Legislative and Executive Branches became "embroiled in a dispute concerning the scope of the congressional investigatory power," United States v. House of Representatives of United States, 556 F.Supp. 150, 152 (DC 1983), which—as is often the case with such interbranch conflicts—became quite acrimonious. In the course of oversight hearings into the administration of the Superfund by the Environmental Protection Agency (EPA), two Subcommittees of the House of Representatives requested and then subpoenaed numerous internal EPA documents. The President responded by personally directing the EPA Administrator not to turn over certain of the docu-

Page 700

ments, see Memorandum of November 30, 1982, from President Reagan for the Administrator, Environmental Protection Agency, reprinted in H.R.Rep. No. 99-435, pp. 1166-1167 (1985), and by having the Attorney General notify the congressional Subcommittees of this assertion of executive privilege, see Letters of November 30, 1982, from Attorney General William French Smith to Hon. John D. Dingell and Hon. Elliott H. Levitas, reprinted, id., at 1168-1177. In his decision to assert executive privilege, the President was counseled by appellee Olson, who was then Assistant Attorney General of the Department of Justice for the Office of Legal Counsel, a post that has traditionally had responsibility for providing legal advice to the President (subject to approval of the Attorney General). The House's response was to pass a resolution citing the EPA Administrator, who had possession of the documents, for contempt. Contempt of Congress is a criminal offense. See 2 U.S.C. § 192. The United States Attorney, however, a member of the Executive Branch, initially took no steps to prosecute the contempt citation. Instead, the Executive Branch sought the immediate assistance of the Third Branch by filing a civil action asking the District Court to declare that the EPA Administrator had acted lawfully in withholding the documents under a claim of executive privilege. See ibid. The District Court declined (in my view correctly) to get involved in the controversy, and urged the other two branches to try "[c]ompromise and cooperation, rather than confrontation." 556 F.Supp., at 153. After further haggling, the two branches eventually reached an agreement giving the House Subcommittees limited access to the contested documents.

          Congress did not, however, leave things there. Certain Members of the House remained angered by the confrontation, particularly by the role played by the Department of Justice. Specifically, the Judiciary Committee remained disturbed by the possibility that the Department had persuaded the President to assert executive privilege despite reservations by the

Page 701

EPA; that the Department had "deliberately and unnecessarily precipitated a constitutional confrontation with Congress"; that the Department had not properly reviewed and selected the documents as to which executive privilege was asserted; that the Department had directed the United States Attorney not to present the contempt certification involving the EPA Administrator to a grand jury for prosecution; that the Department had made the decision to sue the House of Representatives; and that the Department had not adequately advised and represented the President, the EPA, and the EPA Administrator. H.R.Rep. No. 99-435, p. 3 (1985) (describing unresolved "questions" that were the basis of the Judiciary Committee's investigation). Accordingly, staff counsel of the House Judiciary Committee were commissioned (apparently without the knowledge of many of the Committee's members, see id., at 731) to investigate the Justice Department's role in the controversy. That investigation lasted 21/2 years, and produced a 3,000-page report issued by the Committee over the vigorous dissent of all but one of its minority-party members. That report, which among other charges questioned the truthfulness of certain statements made by Assistant Attorney General Olson during testimony in front of the Committee during the early stages of its investigation, was sent to the Attorney General along with a formal request that he appoint an independent counsel to investigate Mr. Olson and others.

          As a general matter, the Act before us here requires the Attorney General to apply for the appointment of an independent counsel within 90 days after receiving a request to do so, unless he determines within that period that "there are no reasonable grounds to believe that further investigation or prosecution is warranted." 28 U.S.C. § 592(b)(1). As a practical matter, it would be surprising if the Attorney General had any choice (assuming this statute is constitutional) but to seek appointment of an independent counsel to pursue the charges against the principal object of the congressional

Page 702

request, Mr. Olson. Merely the political consequences (to him and the President) of seeming to break the law by refusing to do so would have been substantial. How could it not be, the public would ask, that a 3,000-page indictment drawn by our representatives over 21/2 years does not even establish "reasonable grounds to believe" that further investigation or prosecution is warranted with respect to at least the principal alleged culprit? But the Act establishes more than just practical compulsion. Although the Court's opinion asserts that the Attorney General had "no duty to comply with the [congressional] request," ante, at 695, that is not entirely accurate. He had a duty to comply unless he could conclude that there were "no reasonable grounds to believe," not that prosecution was warranted, but merely that "further investigation " was warranted, 28 U.S.C. § 592(b)(1) (1982 ed., Supp. V) (emphasis added), after a 90-day investigation in which he was prohibited from using such routine investigative techniques as grand juries, plea bargaining, grants of immunity, or even subpoenas, see § 592(a)(2). The Court also makes much of the fact that "the courts are specifically prevented from reviewing the Attorney General's decision not to seek appointment, § 592(f)." Ante, at 695. Yes,^[1] but Congress is not prevented from reviewing it. The context of this statute is acrid with the smell of threatened impeachment. Where, as here, a request for appointment of an inde-

Page 703

pendent counsel has come from the Judiciary Committee of either House of Congress, the Attorney General must, if he decides not to seek appointment, explain to that Committee why. See also 28 U.S.C. § 595(c) (1982 ed., Supp. V) (independent counsel must report to the House of Representatives information "that may constitute grounds for an impeachment").

          Thus, by the application of this statute in the present case, Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch. Mr. Olson may or may not be guilty of a crime; we do not know. But we do know that the investigation of him has been commenced, not necessarily because the President or his authorized subordinates believe it is in the interest of the United States, in the sense that it warrants the diversion of resources from other efforts, and is worth the cost in money and in possible damage to other governmental interests; and not even, leaving aside those normally considered factors, because the President or his authorized subordinates necessarily believe that an investigation is likely to unearth a violation worth prosecuting; but only because the Attorney General cannot affirm, as Congress demands, that there are no reasonable grounds to believe that further investigation is warranted. The decisions regarding the scope of that further investigation, its duration, and, finally, whether or not prosecution should ensue, are likewise beyond the control of the President and his subordinates.

          If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning. The Court devotes most of its attention to such relatively technical details as the Appointments Clause and the removal power, addressing briefly and only at the end of its opinion the separation of powers. As my prologue sug-

Page 704

gests, I think that has it backwards. Our opinions are full of the recognition that it is the principle of separation of powers, and the inseparable corollary that each department's "defense must . . . be made commensurate to the danger of attack," Federalist No. 51, p. 322 (J. Madison), which gives comprehensible content to the Appointments Clause, and determines the appropriate scope of the removal power. Thus, while I will subsequently discuss why our appointments and removal jurisprudence does not support today's holding, I begin with a consideration of the fountainhead of that jurisprudence, the separation and equilibration of powers.

          First, however, I think it well to call to mind an important and unusual premise that underlies our deliberations, a premise not expressly contradicted by the Court's opinion, but in my view not faithfully observed. It is rare in a case dealing, as this one does, with the constitutionality of a statute passed by the Congress of the United States, not to find anywhere in the Court's opinion the usual, almost formulary caution that we owe great deference to Congress' view that what it has done is constitutional, see, e.g., Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 2651, 69 L.Ed.2d 478 (1981); Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980) (opinion of Burger, C.J.); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963), and that we will decline to apply the statute only if the presumption of constitutionality can be overcome, see Fullilove, supra, 448 U.S., at 473, 100 S.Ct., at 2772; Columbia Broadcasting, supra, 412 U.S., at 103, 93 S.Ct., at 2087. That caution is not recited by the Court in the present case because it does not apply. Where a private citizen challenges action of the Government on grounds unrelated to separation of powers, harmonious functioning of the system demands that we ordinarily give some deference, or a presumption of validity, to the actions of the political branches in what is agreed, between themselves at least, to be within their respective spheres. But where the issue pertains to separation of pow-

Page 705

ers, and the political branches are (as here) in disagreement, neither can be presumed correct. The reason is stated concisely by Madison: "The several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers. . . ." Federalist No. 49, p. 314. The playing field for the present case, in other words, is a level one. As one of the interested and coordinate parties to the underlying constitutional dispute, Congress, no more than the President, is entitled to the benefit of the doubt.

          To repeat, Article II, § 1, cl. 1, of the Constitution provides:

                    "The executive Power shall be vested in a President of the United States."

          As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles if the following two questions are answered affirmatively: (1) Is the conduct of a criminal prosecution (and of an investigation to decide whether to prosecute) the exercise of purely executive power? (2) Does the statute deprive the President of the United States of exclusive control over the exercise of that power? Surprising to say, the Court appears to concede an affirmative answer to both questions, but seeks to avoid the inevitable conclusion that since the statute vests some purely executive power in a person who is not the President of the United States it is void.

          The Court concedes that "[t]here is no real dispute that the functions performed by the independent counsel are 'executive'," though it qualifies that concession by adding "in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch." Ante, at 691. The qualifier adds nothing but at-

Page 706

mosphere. In what other sense can one identify "the executive Power" that is supposed to be vested in the President (unless it includes everything the Executive Branch is given to do) except by reference to what has always and everywhere—if conducted by government at all—been conducted never by the legislature, never by the courts, and always by the executive. There is no possible doubt that the independent counsel's functions fit this description. She is vested with the "full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice [and] the Attorney General." 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis added). Governmental investigation and prosecution of crimes is a quintessentially executive function. See Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 1656, 84 L.Ed.2d 714 (1985); Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 691, 46 L.Ed.2d 659 (1976); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974).

          As for the second question, whether the statute before us deprives the President of exclusive control over that quintessentially executive activity: The Court does not, and could not possibly, assert that it does not. That is indeed the whole object of the statute. Instead, the Court points out that the President, through his Attorney General, has at least some control. That concession is alone enough to invalidate the statute, but I cannot refrain from pointing out that the Court greatly exaggerates the extent of that "some" Presidential control. "Most importan[t]" among these controls, the Court asserts, is the Attorney General's "power to remove the counsel for 'good cause.' " Ante, at 696. This is somewhat like referring to shackles as an effective means of locomotion. As we recognized in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935)—indeed, what Humphrey's Executor was all about—limiting removal power to "good cause" is an impediment to, not an effective grant of, Presidential control. We said that limitation was necessary with respect to members of the Federal Trade Commission, which we found to be "an agency of the legislative and judicial

Page 707

departments," and "wholly disconnected from the executive department," id., at 630, 55 S.Ct., at 875, because "it is quite evident that one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will." Id., at 629, 55 S.Ct., at 874. What we in Humphrey's Executor found to be a means of eliminating Presidential control, the Court today considers the "most importan[t]" means of assuring Presidential control. Congress, of course, operated under no such illusion when it enacted this statute, describing the "good cause" limitation as "protecting the independent counsel's ability to act independently of the President's direct control" since it permits removal only for "misconduct." H.R.Conf.Rep. 100-452, p. 37 (1987).

          Moving on to the presumably "less important" controls that the President retains, the Court notes that no independent counsel may be appointed without a specific request from the Attorney General. As I have discussed above, the condition that renders such a request mandatory (inability to find "no reasonable grounds to believe" that further investigation is warranted) is so insubstantial that the Attorney General's discretion is severely confined. And once the referral is made, it is for the Special Division to determine the scope and duration of the investigation. See 28 U.S.C. § 593(b) (1982 ed., Supp. V). And in any event, the limited power over referral is irrelevant to the question whether, once appointed, the independent counsel exercises executive power free from the President's control. Finally, the Court points out that the Act directs the independent counsel to abide by general Justice Department policy, except when not "possible." See 28 U.S.C. § 594(f) (1982 ed., Supp. V). The exception alone shows this to be an empty promise. Even without that, however, one would be hard put to come up with many investigative or prosecutorial "policies" (other than those imposed by the Constitution or by Congress through law) that are absolute. Almost all investigative and prosecutorial deci-

Page 708

sions including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted involve the balancing of innumerable legal and practical considerations. Indeed, even political considerations (in the nonpartisan sense) must be considered, as exemplified by the recent decision of an independent counsel to subpoena the former Ambassador of Canada, producing considerable tension in our relations with that country. See N.Y. Times, May 29, 1987, p. A12, col. 1. Another pre-eminently political decision is whether getting a conviction in a particular case is worth the disclosure of national security information that would be necessary. The Justice Department and our intelligence agencies are often in disagreement on this point, and the Justice Department does not always win. The present Act even goes so far as specifically to take the resolution of that dispute away from the President and give it to the independent counsel. 28 U.S.C. § 594(a)(6). In sum, the balancing of various legal, practical, and political considerations, none of which is absolute, is the very essence of prosecutorial discretion. To take this away is to remove the core of the prosecutorial function, and not merely "some" Presidential control.

          As I have said, however, it is ultimately irrelevant how much the statute reduces Presidential control. The case is over when the Court acknowledges, as it must, that "[i]t is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity." Ante, at 675. It effects a revolution in our constitutional jurisprudence for the Court, once it has determined that (1) purely executive functions are at issue here, and (2) those functions have been given to a person whose actions are not fully within the supervision and control of the President, nonetheless to proceed further to sit in judgment of whether "the President's need to control the exercise of [the independent counsel's]

Page 709

discretion is so central to the functioning of the Executive Branch" as to require complete control, ante, at 693 (emphasis added), whether the conferral of his powers upon someone else "sufficiently deprives the President of control over the independent counsel to interfere impermissibly with [his] constitutional obligation to ensure the faithful execution of the laws," ante, at 693 (emphasis added), and whether "the Act give[s] the Executive Branch sufficient control over the independent counsel to ensure that the President is able to perform his constitutionally assigned duties," ante, at 696 (emphasis added). It is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.

          The utter incompatibility of the Court's approach with our constitutional traditions can be made more clear, perhaps, by applying it to the powers of the other two branches. Is it conceivable that if Congress passed a statute depriving itself of less than full and entire control over some insignificant area of legislation, we would inquire whether the matter was "so central to the functioning of the Legislative Branch" as really to require complete control, or whether the statute gives Congress "sufficient control over the surrogate legislator to ensure that Congress is able to perform its constitutionally assigned duties"? Of course we would have none of that. Once we determined that a purely legislative power was at issue we would require it to be exercised, wholly and entirely, by Congress. Or to bring the point closer to home, consider a statute giving to non-Article III judges just a tiny bit of purely judicial power in a relatively insignificant field, with substantial control, though not total control, in the courts—perhaps "clear error" review, which would be a fair judicial equivalent of the Attorney General's "for cause" removal power here. Is there any doubt that we would not pause to inquire whether the matter was "so central to the

Page 710

functioning of the Judicial Branch" as really to require complete control, or whether we retained "sufficient control over the matters to be decided that we are able to perform our constitutionally assigned duties"? We would say that our "constitutionally assigned duties" include complete control over all exercises of the judicial power—or, as the plurality opinion said in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58-59, 102 S.Ct. 2858, 2865, 73 L.Ed.2d 598 (1982): "The inexorable command of [Article III] is clear and definite: The judicial power of the United States must be exercised by courts having the attributes prescribed in Art. III." We should say here that the President's constitutionally assigned duties include complete control over investigation and prosecution of violations of the law, and that the inexorable command of Article II is clear and definite: the executive power must be vested in the President of the United States.

          Is it unthinkable that the President should have such exclusive power, even when alleged crimes by him or his close associates are at issue? No more so than that Congress should have the exclusive power of legislation, even when what is at issue is its own exemption from the burdens of certain laws. See Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. (prohibiting "employers," not defined to include the United States, from discriminating on the basis of race, color, religion, sex, or national origin). No more so than that this Court should have the exclusive power to pronounce the final decision on justiciable cases and controversies, even those pertaining to the constitutionality of a statute reducing the salaries of the Justices. See United States v. Will, 449 U.S. 200, 211-217, 101 S.Ct. 471, 478-482, 66 L.Ed.2d 392 (1980). A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. As we reiterate this very day, "[i]t is a truism that constitutional protections have costs." Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, ----, 101 L.Ed.2d 857 (1988). While the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose lib-

Page 711

erty. The checks against any branch's abuse of its exclusive powers are twofold: First, retaliation by one of the other branch's use of its exclusive powers: Congress, for example, can impeach the executive who willfully fails to enforce the laws; the executive can decline to prosecute under unconstitutional statutes, cf. United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946); and the courts can dismiss malicious prosecutions. Second, and ultimately, there is the political check that the people will replace those in the political branches (the branches more "dangerous to the political rights of the Constitution," Federalist No. 78, p. 465) who are guilty of abuse. Political pressures produced special prosecutors—for Teapot Dome and for Watergate, for example—long before this statute created the independent counsel. See Act of Feb. 8, 1924, ch. 16, 43 Stat. 5-6; 38 Fed.Reg. 30738 (1973).

          The Court has, nonetheless, replaced the clear constitutional prescription that the executive power belongs to the President with a "balancing test." What are the standards to determine how the balance is to be struck, that is, how much removal of Presidential power is too much? Many countries of the world get along with an executive that is much weaker than ours—in fact, entirely dependent upon the continued support of the legislature. Once we depart from the text of the Constitution, just where short of that do we stop? The most amazing feature of the Court's opinion is that it does not even purport to give an answer. It simply announces, with no analysis, that the ability to control the decision whether to investigate and prosecute the President's closest advisers, and indeed the President himself, is not "so central to the functioning of the Executive Branch" as to be constitutionally required to be within the President's control. Apparently that is so because we say it is so. Having abandoned as the basis for our decision-making the text of Article II that "the executive Power" must be vested in the President, the Court does not even attempt to craft a substitute criterion—a "justiciable standard," see, e.g., Baker v. Carr,

Page 712

369 U.S. 186, 210, 82 S.Ct. 691, 706, 7 L.Ed.2d 663 (1962); Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 982, 83 L.Ed. 1385 (1939), however remote from the Constitution—that today governs, and in the future will govern, the decision of such questions. Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.

          In my view, moreover, even as an ad hoc, standardless judgment the Court's conclusion must be wrong. Before this statute was passed, the President, in taking action disagreeable to the Congress, or an executive officer giving advice to the President or testifying before Congress concerning one of those many matters on which the two branches are from time to time at odds, could be assured that his acts and motives would be adjudged insofar as the decision whether to conduct a criminal investigation and to prosecute is concerned—in the Executive Branch, that is, in a forum attuned to the interests and the policies of the Presidency. That was one of the natural advantages the Constitution gave to the Presidency, just as it gave Members of Congress (and their staffs) the advantage of not being prosecutable for anything said or done in their legislative capacities. See U.S. Const., Art. I, § 6, cl. 1; Gravel v. United States, 408 U.S. 606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972). It is the very object of this legislation to eliminate that assurance of a sympathetic forum. Unless it can honestly be said that there are "no reasonable grounds to believe" that further investigation is warranted, further investigation must ensue; and the conduct of the investigation, and determination of whether to prosecute, will be given to a person neither selected by nor subject to the control of the President—who will in turn assemble a staff by finding out, presumably, who is willing to put aside whatever else they are doing, for an indeterminate period of time, in order to investigate and prosecute the President or a particular named individual in his administration. The prospect is frightening (as I will dis-

Page 713

cuss at some greater length at the conclusion of this opinion) even outside the context of a bitter, interbranch political dispute. Perhaps the boldness of the President himself will not be affected—though I am not even sure of that. (How much easier it is for Congress, instead of accepting the political damage attendant to the commencement of impeachment proceedings against the President on trivial grounds—or, for that matter, how easy it is for one of the President's political foes outside of Congress simply to trigger a debilitating criminal investigation of the Chief Executive under this law.) But as for the President's high-level assistants, who typically have no political base of support, it is as utterly unrealistic to think that they will not be intimidated by this prospect, and that their advice to him and their advocacy of his interests before a hostile Congress will not be affected, as it would be to think that the Members of Congress and their staffs would be unaffected by replacing the Speech or Debate Clause with a similar provision. It deeply wounds the President, by substantially reducing the President's ability to protect himself and his staff. That is the whole object of the law, of course, and I cannot imagine why the Court believes it does not succeed.

          Besides weakening the Presidency by reducing the zeal of his staff, it must also be obvious that the institution of the independent counsel enfeebles him more directly in his constant confrontations with Congress, by eroding his public support. Nothing is so politically effective as the ability to charge that one's opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, "crooks." And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution. The present statute provides ample means for that sort of attack, assuring that massive and lengthy investigations will occur, not merely when the Justice Department in the application of its usual standards believes they are called for, but whenever it

Page 714

cannot be said that there are "no reasonable grounds to believe" they are called for. The statute's highly visible procedures assure, moreover, that unlike most investigations these will be widely known and prominently displayed. Thus, in the 10 years since the institution of the independent counsel was established by law, there have been nine highly publicized investigations, a source of constant political damage to two administrations. That they could not remotely be described as merely the application of "normal" investigatory and prosecutory standards is demonstrated by, in addition to the language of the statute ("no reasonable grounds to believe"), the following facts: Congress appropriates approximately $50 million annually for general legal activities, salaries, and expenses of the Criminal Division of the Department of Justice. See 1989 Budget Request of the Department of Justice, Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., pt. 6, pp. 284-285 (1988) (DOJ Budget Request). This money is used to support "[f]ederal appellate activity," "[o]rganized crime prosecution," "[p]ublic integrity" and "[f]raud" matters, "[n]arcotic & dangerous drug prosecution," "[i]nternal security," "[g]eneral litigation and legal advice," "special investigations," "[p]rosecution support," "[o]rganized crime drug enforcement," and "[m]anagement & administration." Id., at 284. By comparison, between May 1986 and August 1987, four independent counsel (not all of whom were operating for that entire period of time) spent almost $5 million (1/10th of the amount annually appropriated to the entire Criminal Division), spending almost $1 million in the month of August 1987 alone. See Washington Post, Oct. 21, 1987, p. A21, col. 5. For fiscal year 1989, the Department of Justice has requested $52 million for the entire Criminal Division, DOJ Budget Request 285, and $7 million to support the activities of independent counsel, id., at 25.

          In sum, this statute does deprive the President of substantial control over the prosecutory functions performed by the

Page 715

independent counsel, and it does substantially affect the balance of powers. That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system, in which the degree of reduced control and political impairment were irrelevant, since all purely executive power had to be in the President; and the folly of the new system of standardless judicial allocation of powers we adopt today.

          As I indicated earlier, the basic separation-of-powers principles I have discussed are what give life and content to our jurisprudence concerning the President's power to appoint and remove officers. The same result of unconstitutionality is therefore plainly indicated by our case law in these areas.

          Article II, § 2, cl. 2, of the Constitution provides as follows:

          "[The President] shall nominate, and by and with the Advice and Consent of the the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

          Because appellant (who all parties and the Court agree is an officer of the United States, ante, at 671, n. 12) was not appointed by the President with the advice and consent of the Senate, but rather by the Special Division of the United States Court of Appeals, her appointment is constitutional only if (1) she is an "inferior" officer within the meaning of the above Clause, and (2) Congress may vest her appointment in a court of law.

          As to the first of these inquiries, the Court does not attempt to "decide exactly" what establishes the line between

Page 716

principal and "inferior" officers, but is confident that, whatever the line may be, appellant "clearly falls on the 'inferior officer' side" of it. Ante, at 671. The Court gives three reasons: First, she "is subject to removal by a higher Executive Branch official," namely, the Attorney General. Ibid. Second, she is "empowered by the Act to perform only certain, limited duties." Ante, at Ibid. Third, her office is "limited in jurisdiction" and "limited in tenure." Ante, at 672.

          The first of these lends no support to the view that appellant is an inferior officer. Appellant is removable only for "good cause" or physical or mental incapacity. 28 U.S.C. § 596(a)(1) (1982 ed., Supp. V). By contrast, most (if not all) principal officers in the Executive Branch may be removed by the President at will. I fail to see how the fact that appellant is more difficult to remove than most principal officers helps to establish that she is an inferior officer. And I do not see how it could possibly make any difference to her superior or inferior status that the President's limited power to remove her must be exercised through the Attorney General. If she were removable at will by the Attorney General, then she would be subordinate to him and thus properly designated as inferior; but the Court essentially admits that she is not subordinate. See ante, at 671. If it were common usage to refer to someone as "inferior" who is subject to removal for cause by another, then one would say that the President is "inferior" to Congress.

          The second reason offered by the Court—that appellant performs only certain, limited duties—may be relevant to whether she is an inferior officer, but it mischaracterizes the extent of her powers. As the Court states: "Admittedly, the Act delegates to appellant [the] 'full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice.'" Ibid., quoting 28 U.S.C. § 594(a) (1982 ed., Supp. V) (emphasis

Page 717

added).^[2] Moreover, in addition to this general grant of power she is given a broad range of specifically enumerated powers, including a power not even the Attorney General possesses: to "contes[t] in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security." § 594(a)(6).^[3] Once all of this is "admitted," it seems

Page 718

to me impossible to maintain that appellant's authority is so "limited" as to render her an inferior officer. The Court seeks to brush this away by asserting that the independent counsel's power does not include any authority to "formulate policy for the Government or the Executive Branch." Ante, at 671. But the same could be said for all officers of the Government, with the single exception of the President. All of them only formulate policy within their respective spheres of responsibility—as does the independent counsel, who must comply with the policies of the Department of Justice only to the extent possible. § 594(f).

          The final set of reasons given by the Court for why the independent counsel clearly is an inferior officer emphasizes the limited nature of her jurisdiction and tenure. Taking the latter first, I find nothing unusually limited about the independent counsel's tenure. To the contrary, unlike most high-ranking Executive Branch officials, she continues to serve until she (or the Special Division) decides that her work is substantially completed. See §§ 596(b)(1), (b)(2). This particular independent prosecutor has already served more than two years, which is at least as long as many Cabinet officials. As to the scope of her jurisdiction, there can be no doubt that is small (though far from unimportant). But within it she exercises more than the full power of the Attorney General. The Ambassador to Luxembourg is not anything less than a principal officer, simply because Luxembourg is small. And the federal judge who sits in a small district is not for that reason "inferior in rank and authority." If the mere fragmentation of executive responsibilities into small compartments suffices to render the heads of each of those compartments inferior officers, then Congress could deprive the President of the right to appoint his chief law enforcement officer by dividing up the Attorney General's responsibilities among a number of "lesser" functionaries.

Page 719

          More fundamentally, however, it is not clear from the Court's opinion why the factors it discusses—even if applied correctly to the facts of this case—are determinative of the question of inferior officer status. The apparent source of these factors is a statement in United States v. Germaine, 99 U.S. (9 Otto) 508, 511 25 L.Ed. 482 (1879) (discussing United States v. Hartwell, 6 Wall. 385, 393, 18 L.Ed. 830 (1868)), that "the term [officer] embraces the ideas of tenure, duration, emolument, and duties." See ante, at 672. Besides the fact that this was dictum, it was dictum in a case where the distinguishing characteristics of inferior officers versus superior officers were in no way relevant, but rather only the distinguishing characteristics of an "officer of the United States" (to which the criminal statute at issue applied) as opposed to a mere employee. Rather than erect a theory of who is an inferior officer on the foundation of such an irrelevancy, I think it preferable to look to the text of the Constitution and the division of power that it establishes. These demonstrate, I think, that the independent counsel is not an inferior officer because she is not subordinate to any officer in the Executive Branch (indeed, not even to the President). Dictionaries in use at the time of the Constitutional Convention gave the word "inferiour" two meanings which it still bears today: (1) "[l]ower in place, . . . station, . . . rank of life, . . . value or excellency," and (2) "[s]ubordinate." S. Johnson, Dictionary of the English Language (6th ed. 1785). In a document dealing with the structure (the constitution) of a government, one would naturally expect the word to bear the latter meaning—indeed, in such a context it would be unpardonably careless to use the word unless a relationship of subordination was intended. If what was meant was merely "lower in station or rank," one would use instead a term such as "lesser officers." At the only other point in the Constitution at which the word "inferior" appears, it plainly connotes a relationship of subordination. Article III vests the judicial power of the United States in "one supreme Court, and in such inferior Courts as

Page 720

the Congress may from time to time ordain and establish." U.S. Const., Art. III, § 1 (emphasis added). In Federalist No. 81, Hamilton pauses to describe the "inferior" courts authorized by Article III as inferior in the sense that they are "subordinate" to the Supreme Court. See id., 6 Wall. at 485, n., 490, n.

          That "inferior" means "subordinate" is also consistent with what little we know about the evolution of the Appointments Clause. As originally reported to the Committee on Style, the Appointments Clause provided no "exception" from the standard manner of appointment (President with the advice and consent of the Senate) for inferior officers. 2 M. Farrand, Records of the Federal Convention of 1787, pp. 498-499, 599 (rev. ed. 1966). On September 15, 1787, the last day of the Convention before the proposed Constitution was signed, in the midst of a host of minor changes that were being considered, Gouverneur Morris moved to add the exceptions clause. Id., at 627. No great debate ensued; the only disagreement was over whether it was necessary at all. Id., at 627-628. Nobody thought that it was a fundamental change, excluding from the President's appointment power and the Senate's confirmation power a category of officers who might function on their own, outside the supervision of those appointed in the more cumbersome fashion. And it is significant that in the very brief discussion Madison mentions (as in apparent contrast to the "inferior officers" covered by the provision) "Superior Officers." Id., at 637. Of course one is not a "superior officer" without some supervisory responsibility, just as, I suggest, one is not an "inferior officer" within the meaning of the provision under discussion unless one is subject to supervision by a "superior officer." It is perfectly obvious, therefore, both from the relative brevity of the discussion this addition received, and from the content of that discussion, that it was intended merely to make clear (what Madison thought already was clear, see id., at 627) that those officers appointed by the President with Senate

Page 721

approval could on their own appoint their subordinates, who would, of course, by chain of command still be under the direct control of the President.

          This interpretation is, moreover, consistent with our admittedly sketchy precedent in this area. For example, in United States v. Eaton, 169 U.S. 331, 18 S.Ct. 374, 42 L.Ed. 767 (1898), we held that the appointment by an Executive Branch official other than the President of a "vice-consul," charged with the duty of temporarily performing the function of the consul, did not violate the Appointments Clause. In doing so, we repeatedly referred to the "vice-consul" as a "subordinate" officer. Id., at 343, 18 S.Ct., at 879. See also United States v. Germaine, supra, 9 Otto at 511 (comparing "inferior" commissioners and bureau officers to heads of department, describing the former as "mere . . . subordinates") (dicta); United States v. Hartwell, supra, 6 Wall. at 394 (describing clerk appointed by Assistant Treasurer with approval of Secretary of the Treasury as a "subordinate office[r]") (dicta). More recently, in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), we noted that the Attorney General's appointment of the Watergate Special Prosecutor was made pursuant to the Attorney General's "power to appoint subordinate officers to assist him in the discharge of his duties." Id., at 694, 94 S.Ct., at 3100 (emphasis added). The Court's citation of Nixon as support for its view that the independent counsel is an inferior officer is simply not supported by a reading of the case. We explicitly stated that the Special Prosecutor was a "subordinate office[r]," ibid., because, in the end, the President or the Attorney General could have removed him at any time, if by no other means than amending or revoking the regulation defining his authority. Id., at 696, 94 S.Ct., at 3101. Nor are any of the other cases cited by the Court in support of its view inconsistent with the natural reading that an inferior officer must at least be subordinate to another officer of the United States. In Ex parte Siebold, 100 U.S. (10 Otto) 371, 25 L.Ed. 717 (1880), we upheld the appointment by a court of federal "Judges of Election," who were charged with various duties involving the oversee-

Page 722

ing of local congressional elections. Contrary to the Court's assertion, see ante, at 673, we did not specifically find that these officials were inferior officers for purposes of the Appointments Clause, probably because no one had contended that they were principal officers. Nor can the case be said to represent even an assumption on our part that they were inferior without being subordinate. The power of assisting in the judging of elections that they were exercising was assuredly not a purely executive power, and if we entertained any assumption it was probably that they, like the marshals who assisted them, see Siebold, 100 U.S. (10 Otto), at 380, were subordinate to the courts, see id., 10 Otto at 397. Similarly, in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), where we held that United States commissioners were inferior officers, we made plain that they were subordinate to the district courts which appointed them: "The commissioner acted not as a court, or as a judge of any court, but as a mere officer of the district court in proceedings of which that court had authority to take control at any time." Id., at 354, 51 S.Ct., at 157.

          To be sure, it is not a sufficient condition for "inferior" officer status that one be subordinate to a principal officer. Even an officer who is subordinate to a department head can be a principal officer. That is clear from the brief exchange following Gouverneur Morris' suggestion of the addition of the exceptions clause for inferior officers. Madison responded:

          "It does not go far enough if it be necessary at all—Superior Officers below Heads of Departments ought in some cases to have the appointment of the lesser offices." 2 M. Farrand, Records of the Federal Convention, of 1787, p. 627 (rev. ed. 1966) (emphasis added).

          But it is surely a necessary condition for inferior officer status that the officer be subordinate to another officer.

          The independent counsel is not even subordinate to the President. The Court essentially admits as much, noting that "appellant may not be 'subordinate' to the Attorney Gen-

Page 723

eral (and the President) insofar as she possesses a degree of independent discretion to exercise the powers delegated to her under the Act." Ante, at 671. In fact, there is no doubt about it. As noted earlier, the Act specifically grants her the "full power and independent authority to exercise all investigative and prosecutorial functions of the Department of Justice," 28 U.S.C. § 594(a) (1982 ed., Supp. V), and makes her removable only for "good cause," a limitation specifically intended to ensure that she be independent of, not subordinate to, the President and the Attorney General. See H.R.Conf.Rep. No. 100-452, p. 37 (1987).

          Because appellant is not subordinate to another officer, she is not an "inferior" officer and her appointment other than by the President with the advice and consent of the Senate is unconstitutional.

          I will not discuss at any length why the restrictions upon the removal of the independent counsel also violate our established precedent dealing with that specific subject. For most of it, I simply refer the reader to the scholarly opinion of Judge Silberman for the Court of Appeals below. See In re Sealed Case, 267 U.S.App.D.C. 178, 838 F.2d 476 (1988). I cannot avoid commenting, however, about the essence of what the Court has done to our removal jurisprudence today.

          There is, of course, no provision in the Constitution stating who may remove executive officers, except the provisions for removal by impeachment. Before the present decision it was established, however, (1) that the President's power to remove principal officers who exercise purely executive powers could not be restricted, see Myers v. United States, 272 U.S. 52, 127, 47 S.Ct. 21, 28-29, 71 L.Ed. 160 (1926), and (2) that his power to remove inferior officers who exercise purely executive powers, and whose appointment Congress had removed from the usual procedure of Presidential appointment with Senate consent, could be restricted, at least where the appointment had been made by

Page 724

an officer of the Executive Branch, see ibid.; United States v. Perkins, 116 U.S. 483, 485, 6 S.Ct. 449, 450, 29 L.Ed. 700 (1886).^[4]

          The Court could have resolved the removal power issue in this case by simply relying upon its erroneous conclusion that the independent counsel was an inferior officer, and then extending our holding that the removal of inferior officers appointed by the Executive can be restricted, to a new holding that even the removal of inferior officers appointed by the courts can be restricted. That would in my view be a considerable and unjustified extension, giving the Executive full discretion in neither the selection nor the removal of a purely executive officer. The course the Court has chosen, however, is even worse.

          Since our 1935 decision in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611—which was considered by many at the time the product of an activist, anti-New Deal Court bent on reducing the power of President Franklin Roosevelt—it has been established that the line of permissible restriction upon removal of principal officers lies at the point at which the powers exercised by those officers are no longer purely executive. Thus, removal restrictions have been generally regarded as lawful for so-called "independent regulatory

Page 725

agencies," such as the Federal Trade Commission, see ibid.; 15 U.S.C. § 41, the Interstate Commerce Commission, see 49 U.S.C. § 10301(c) (1982 ed., Supp. IV), and the Consumer Product Safety Commission, see 15 U.S.C. § 2053(a), which engage substantially in what has been called the "quasi-legislative activity" of rulemaking, and for members of Article I courts, such as the Court of Military Appeals, see 10 U.S.C. § 867(a)(2), who engage in the "quasi-judicial" function of adjudication. It has often been observed, correctly in my view, that the line between "purely executive" functions and "quasi-legislative" or "quasi-judicial" functions is not a clear one or even a rational one. See ante, at 689-690; Bowsher v. Synar, 478 U.S. 714, 761, n. 3, 106 S.Ct. 3181, 3206, n. 3 (1986) (WHITE, J., dissenting); FTC v. Ruberoid Co., 343 U.S. 470, 487-488, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (Jackson, J., dissenting). But at least it permitted the identification of certain officers, and certain agencies, whose functions were entirely within the control of the President. Congress had to be aware of that restriction in its legislation. Today, however, Humphrey's Executor is swept into the dustbin of repudiated constitutional principles. "[O]ur present considered view," the Court says, "is that the determination of whether the Constitution allows Congress to impose a 'good cause'-type restriction on the President's power to remove an official cannot be made to turn on whether or not that official is classified as 'purely executive.' " Ante, at 689. What Humphrey's Executor (and presumably Myers ) really means, we are now told, is not that there are any "rigid categories of those officials who may or may not be removed at will by the President," but simply that Congress cannot "interefere with the President's exercise of the 'executive power' and his constitutionally appointed duty to 'take care that the laws be faithfully executed,' " ante, at 689-690.

          One can hardly grieve for the shoddy treatment given today to Humphrey's Executor, which, after all, accorded the same indignity (with much less justification) to Chief Justice

Page 726

Taft's opinion 10 years earlier in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926)—gutting, in six quick pages devoid of textual or historical precedent for the novel principle it set forth, a carefully researched and reasoned 70-page opinion. It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit. But one must grieve for the Constitution. Humphrey's Executor at least had the decency formally to observe the constitutional principle that the President had to be the repository of all executive power, see 295 U.S., at 627-628, 55 S.Ct., at 874, which, as Myers carefully explained, necessarily means that he must be able to discharge those who do not perform executive functions according to his liking. As we noted in Bowsher, once an officer is appointed " 'it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey.' " 478 U.S., at 726, 106 S.Ct., at 3188, quoting Synar v. United States, 626 F.Supp. 1374, 1401 (DC 1986) (Scalia, Johnson, and Gasch, JJ.). By contrast, "our present considered view" is simply that any executive officer's removal can be restricted, so long as the President remains "able to accomplish his constitutional role." Ante, at 690. There are now no lines. If the removal of a prosecutor, the virtual embodiment of the power to "take care that the laws be faithfully executed," can be restricted, what officer's removal cannot? This is an open invitation for Congress to experiment. What about a special Assistant Secretary of State, with responsibility for one very narrow area of foreign policy, who would not only have to be confirmed by the Senate but could also be removed only pursuant to certain carefully designed restrictions? Could this possibly render the President "[un]able to accomplish his constitutional role"? Or a special Assistant Secretary of Defense for Procurement? The possibilities are endless, and the Court does not understand what the separation of powers, what "[a]mbition . . . counteract[ing] ambition," Federalist No. 51, p. 322 (Madison), is all about, if it does not expect Congress to try them. As far as I can discern from the Court's opinion, it is now

Page 727

open season upon the President's removal power for all executive officers, with not even the superficially principled restriction of Humphrey's Executor as cover. The Court essentially says to the President: "Trust us. We will make sure that you are able to accomplish your constitutional role." I think the Constitution gives the President—and the people—more protection than that.

          The purpose of the separation and equilibration of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom. Those who hold or have held offices covered by the Ethics in Government Act are entitled to that protection as much as the rest of us, and I conclude my discussion by considering the effect of the Act upon the fairness of the process they receive.

          Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation. Justice Robert Jackson, when he was Attorney General under President Franklin Roosevelt, described it in a memorable speech to United States Attorneys, as follows:

                    "There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community. Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff will be inadequate. We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on

Page 728

          any given morning. What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

                    "If the prosecutor is obliged to choose his case, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself." R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys, April 1, 1940.

          Under our system of government, the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect. Moreover, when crimes are not investigated and prosecuted fairly, nonselectively, with a rea-

Page 729

sonable sense of proportion, the President pays the cost in political damage to his administration. If federal prosecutors "pick people that [they] thin[k] [they] should get, rather than cases that need to be prosecuted," if they amass many more resources against a particular prominent individual, or against a particular class of political protesters, or against members of a particular political party, than the gravity of the alleged offenses or the record of successful prosecutions seems to warrant, the unfairness will come home to roost in the Oval Office. I leave it to the reader to recall the examples of this in recent years. That result, of course, was precisely what the Founders had in mind when they provided that all executive powers would be exercised by a single Chief Executive. As Hamilton put it, "[t]he ingredients which constitute safety in the republican sense are a due dependence on the people, and a due responsibility." Federalist No. 70, p. 424. The President is directly dependent on the people, and since there is only one President, he is responsible. The people know whom to blame, whereas "one of the weightiest objections to a plurality in the executive . . . is that it tends to conceal faults and destroy responsibility." Id., at 427.

          That is the system of justice the rest of us are entitled to, but what of that select class consisting of present or former high-level Executive Branch officials? If an allegation is made against them of any violation of any federal criminal law (except Class B or C misdemeanors or infractions) the Attorney General must give it his attention. That in itself is not objectionable. But if, after a 90-day investigation without the benefit of normal investigatory tools, the Attorney General is unable to say that there are "no reasonable grounds to believe" that further investigation is warranted, a process is set in motion that is not in the full control of persons "dependent on the people," and whose flaws cannot be blamed on the President. An independent counsel is selected, and the scope of his or her authority prescribed, by a

Page 730

panel of judges. What if they are politically partisan, as judges have been known to be, and select a prosecutor antagonistic to the administration, or even to the particular individual who has been selected for this special treatment? There is no remedy for that, not even a political one. Judges, after all, have life tenure, and appointing a surefire enthusiastic prosecutor could hardly be considered an impeachable offense. So if there is anything wrong with the selection, there is effectively no one to blame. The independent counsel thus selected proceeds to assemble a staff. As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad—and should the independent counsel or his or her staff come up with something beyond that scope, nothing prevents him or her from asking the judges to expand his or her authority or, if that does not work, referring it to the Attorney General, whereupon the whole process would recommence and, if there was "reasonable basis to believe" that further investigation was warranted, that new offense would be referred to the Special Division, which would in all likelihood assign it to the same

Page 731

independent counsel. It seems to me not conducive to fairness. But even if it were entirely evident that unfairness was in fact the result—the judges hostile to the administration, the independent counsel an old foe of the President, the staff refugees from the recently defeated administration—there would be no one accountable to the public to whom the blame could be assigned.

          I do not mean to suggest that anything of this sort (other than the inevitable self-selection of the prosecutory staff) occurred in the present case. I know and have the highest regard for the judges on the Special Division, and the independent counsel herself is a woman of accomplishment, impartiality, and integrity. But the fairness of a process must be adjudged on the basis of what it permits to happen, not what it produced in a particular case. It is true, of course, that a similar list of horribles could be attributed to an ordinary Justice Department prosecution—a vindictive prosecutor, an antagonistic staff, etc. But the difference is the difference that the Founders envisioned when they established a single Chief Executive accountable to the people: the blame can be assigned to someone who can be punished.

          The above described possibilities of irresponsible conduct must, as I say, be considered in judging the constitutional acceptability of this process. But they will rarely occur, and in the average case the threat to fairness is quite different. As described in the brief filed on behalf of three ex-Attorneys General from each of the last three administrations:

          "The problem is less spectacular but much more worrisome. It is that the institutional environment of the Independent Counsel—specifically, her isolation from the Executive Branch and the internal checks and balances it supplies—is designed to heighten, not to check, all of the occupational hazards of the dedicated prosecutor; the danger of too narrow a focus, of the loss of perspective, of preoccupation with the pursuit of one alleged suspect to the exclusion of other interests." Brief for Edward

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          H. Levi, Griffin B. Bell, and William French Smith as Amici Curiae 11.

          It is, in other words, an additional advantage of the unitary Executive that it can achieve a more uniform application of the law. Perhaps that is not always achieved, but the mechanism to achieve it is there. The mini-Executive that is the independent counsel, however, operating in an area where so little is law and so much is discretion, is intentionally cut off from the unifying influence of the Justice Department, and from the perspective that multiple responsibilities provide. What would normally be regarded as a technical violation (there are no rules defining such things), may in his or her small world assume the proportions of an indictable offense. What would normally be regarded as an investigation that has reached the level of pursuing such picayune matters that it should be concluded, may to him or her be an investigation that ought to go on for another year. How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities. And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment. How admirable the constitutional system that provides the means to avoid such a distortion. And how unfortunate the judicial decision that has permitted it.

          The notion that every violation of law should be prosecuted, including—indeed, especially—every violation by those in high places, is an attractive one, and it would be risky to argue in an election campaign that that is not an absolutely overriding value. Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall. The reality is, however, that it is not an absolutely overriding value, and it

Page 733

was with the hope that we would be able to acknowledge and apply such realities that the Constitution spared us, by life tenure, the necessity of election campaigns. I cannot imagine that there are not many thoughtful men and women in Congress who realize that the benefits of this legislation are far outweighed by its harmful effect upon our system of government, and even upon the nature of justice received by those men and women who agree to serve in the Executive Branch. But it is difficult to vote not to enact, and even more difficult to vote to repeal, a statute called, appropriately enough, the Ethics in Government Act. If Congress is controlled by the party other than the one to which the President belongs, it has little incentive to repeal it; if it is controlled by the same party, it dare not. By its shortsighted action today, I fear the Court has permanently encumbered the Republic with an institution that will do it great harm.

          Worse than what it has done, however, is the manner in which it has done it. A government of laws means a government of rules. Today's decision on the basic issue of fragmentation of executive power is ungoverned by rule, and hence ungoverned by law. It extends into the very heart of our most significant constitutional function the "totality of the circumstances" mode of analysis that this Court has in recent years become fond of. Taking all things into account, we conclude that the power taken away from the President here is not really too much. The next time executive power is assigned to someone other than the President we may conclude, taking all things into account, that it is too much. That opinion, like this one, will not be confined by any rule. We will describe, as we have today (though I hope more accurately) the effects of the provision in question, and will authoritatively announce: "The President's need to control the exercise of the [subject officer's] discretion is so central to the functioning of the Executive Branch as to require complete control." This is not analysis; it is ad hoc judgment. And it fails to explain why it is not true that—as the text of

Page 734

the Constitution seems to require, as the Founders seemed to expect, and as our past cases have uniformly assumed—all purely executive power must be under the control of the President.

          The ad hoc approach to constitutional adjudication has real attraction, even apart from its work-saving potential. It is guaranteed to produce a result, in every case, that will make a majority of the Court happy with the law. The law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be. I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and of two centuries of history that have shown it to be sound. Like it or not, that judgment says, quite plainly, that "[t]he executive Power shall be vested in a President of the United States."

^{[1] The Act was first enacted by Congress in 1978, Pub.L. 95-521, 92 Stat. 1867, and has been twice reenacted, with amendments. See Pub.L. 97-409, 96 Stat. 2039; Pub.L. 100-191, 101 Stat. 1293. The current version of the statute states that, with certain exceptions, it shall "cease to be effective five years after the date of the enactment of the Independent Counsel Reauthorization Act of 1987." 28 U.S.C. § 599 (1982 ed., Supp. V).}

[2] Under 28 U.S.C. § 591(a) (1982 ed., Supp. V), the statute applies to violations of "any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction." See also § 591(c) ("any Federal criminal law other than a violation classified as a Class B or C misdemeanor or an infraction"). Section 591(b) sets forth the individuals who may be the target of an investigation by the Attorney General, including the President and Vice President, Cabinet level officials, certain high-ranking officials in the Executive Office of the President and the Justice Department, the Director and Deputy Director of Central Intelligence, the Commissioner of Internal Revenue, and certain officials involved in the President's national political campaign. Pursuant to § 591(c), the Attorney General may also conduct a preliminary investigation of persons not named in § 591(b) if an investigation by the Attorney General or other Department of Justice official "may result in a personal, financial, or political conflict of interest."

[3] The Special Division is a division of the United States Court of Appeals for the District of Columbia Circuit. 28 U.S.C. § 49 (1982 ed., Supp. V). The court consists of three circuit court judges or justices appointed by the Chief Justice of the United States. One of the judges must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges may be named to the Special Division from a particular court. The judges are appointed for 2-year terms, with any vacancy being filled only for the remainder of the 2-year period. Ibid.

[4] The Act also requires the Attorney General to apply for the appointment of an independent counsel if 90 days elapse from the receipt of the information triggering the preliminary investigation without a determination by the Attorney General that there are no reasonable grounds to believe that further investigation or prosecution is warranted. § 592(c)(1). Pursuant to § 592(f), the Attorney General's decision to apply to the Special Division for the appointment of an independent counsel is not reviewable "in any court."

[5] Upon request of the Attorney General, in lieu of appointing an independent counsel the Special Division may "expand the prosecutorial jurisdiction of an independent counsel." § 593(c). Section 593 also authorizes the Special Division to fill vacancies arising because of the death, resignation, or removal of an independent counsel. § 593(e). The court, in addition, is empowered to grant limited extensions of time for the Attorney General's preliminary investigation, § 592(a)(3), and to award attorney's fees to unindicted individuals who were the subject of an investigation by an independent counsel, § 593(f) (as amended by Pub.L. 101-191, 101 Stat. 1293).

[6] The Attorney General, however, retains "direction or control as to those matters that specifically require the Attorney General's personal action under section 2516 of title 18." § 594(a).

[7] The 1987 amendments to the Act specify that the Department of Justice "shall pay all costs relating to the establishment and operation of any office of independent counsel." The Attorney General must report to Congress regarding the amount expended on investigations and prosecutions by independent counsel. § 594(d)(2). In addition, the independent counsel must also file a report of major expenses with the Special Division every six months. § 594(h)(1)(A).

[8] Under the Act as originally enacted, an independent counsel who was removed could obtain judicial review of the Attorney General's decision in a civil action commenced before the Special Division. If the removal was "based on error of law or fact," the court could order "reinstatement or other appropriate relief." 28 U.S.C. § 596(a)(3).

[9] Sections 596(b)(1)(B) and 596(b)(2) also require that the independent counsel have filed a final report with the Special Division in compliance with § 594(h)(1)(B).

[10] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. 96-510, 94 Stat. 2767, 42 U.S.C. § 9601 et seq.

[11] The Attorney General concluded that appellees Schmults and Dinkins lacked the requisite "criminal intent" to obstruct the Committee's investigation. See Report of Attorney General Pursuant to 28 U.S.C. § 592(c)(1) Regarding Allegations Against Department of Justice Officials in United States House Judiciary Committee Report 22, 45 (Apr. 10, 1986), filed in No. 86-1 (CADC) (Attorney General Report).

[12] It is clear that appellant is an "officer" of the United States, not an "employee." See Buckley, 424 U.S., at 126, and n. 162, 96 S.Ct., at 685, and n. 162.

[13] Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors. This is not a case in which judges are given power to appoint an officer in an area in which they have no special knowledge or expertise, as in, for example, a statute authorizing the courts to appoint officials in the Department of Agriculture or the Federal Energy Regulatory Commission.

[14] We note also the longstanding judicial practice of appointing defense attorneys for individuals who are unable to afford representation, see 18 U.S.C. § 3006A(b) (1982 ed., Supp. V), notwithstanding the possibility that the appointed attorney may appear in court before the judge who appointed him.

[15] In several cases, the Court has indicated that Article III "judicial Power" does not extend to duties that are more properly performed by the Executive Branch. Hayburn's Case, for example, involved a statute empowering federal and state courts to set pensions for disabled veterans of the Revolutionary War. See Act of Mar. 23, 1792, ch. 11, 1 Stat. 243. 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." Muskrat, 219 U.S., at 352, 31 S.Ct., at 252. The court's decision was to be reported to the Secretary of War, who had the discretion to either adopt or reject the court's findings. Ibid. This Court did not reach the constitutional issue in Hayburn's Case, but the opinions of several Circuit Courts were reported in the margins of the Court's decision in that case, and have since been taken to reflect a proper understanding of the role of the Judiciary under the Constitution. See, e.g., Ferreira, 13 How., at 50-51.

In Ferreira, Congress passed a statute authorizing a federal court in Florida to hear and adjudicate claims for losses for which the United States was to be held responsible under the 1819 treaty with Spain that ceded Florida to the United States. Id., at 45. As in Hayburn's Case, the results of the court proceeding were to be reported to an executive official, the Secretary of the Treasury, who would make the final determination whether to pay the claims. 13 How., at 47. The Court recognized that the powers conferred on the judge by the statute were "judicial in their nature," in that they involved "judgment and discretion." Id., at 48. Nonetheless, they were not "judicial . . . in the sense in which judicial power is granted by the Constitution to the courts of the United States." Ibid. Because the District Court's decision in Ferreira was not an exercise of Article III judicial power, the Court ruled that it had no jurisdiction to hear the appeal. Id., at 51-52.

[16] We do not think that judicial exercise of the power to appoint, per se, is in any way inconsistent as a functional matter with the courts' exercise of their Article III powers. We note that courts have long participated in the appointment of court officials such as United States commissioners or magistrates, see Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed.2d 374 (1931); 28 U.S.C. § 631(a), without disruption of normal judicial functions. And certainly the Court in Ex parte Hennen, 13 Pet. 230, 10 L.Ed. 138 (1839), deemed it entirely appropriate that a court should have the authority to appoint its own clerk.

[17] Our conclusion that the power to define the counsel's jurisdiction is incidental to the power to appoint also applies to the Division's authority to expand the jurisdiction of the counsel upon request of the Attorney General under § 593(c)(2).

[18] > In our view, this provision does not empower the court to expand the original scope of the counsel's jurisdiction; that may be done only upon request of the Attorney General pursuant to § 593(c)(2). At most, § 594(e) authorizes the court simply to refer matters that are "relate[d] to the independent counsel's prosecutorial jurisdiction" as already defined.

[19] The Special Division must determine whether the Attorney General has shown "good cause" for his or her request for an extension of the time limit on his or her preliminary investigation, § 592(a)(3); the court must decide whether and to what extent it should release to the public the counsel's final report or the Attorney General's removal report, §§ 596(a)(2), (b)(2); and the court may consider the propriety of a request for attorney's fees, § 593(f).

[20] By way of comparison, we also note that federal courts and judges have long performed a variety of functions that, like the functions involved here, do not necessarily or directly involve adversarial proceedings within a trial or appellate court. For example, federal courts have traditionally supervised grand juries and assisted in their "investigative function" by, if necessary, compelling the testimony of witnesses. See Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 545-546, 3 L.Ed.2d 609 (1959). Federal courts also participate in the issuance of search warrants, see Fed. Rule Crim. Proc. 41, and review applications for wiretaps, see 18 U.S.C. §§ 2516, 2518 (1982 ed. and Supp. IV), both of which may require a court to consider the nature and scope of criminal investigations on the basis of evidence or affidavits submitted in an ex parte proceeding. In Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793-802, 107 S.Ct. 2124, 2130-2135, 95 L.Ed.2d 740 (1987), we recognized that federal courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, and this authority necessarily includes the ability to appoint a private attorney to prosecute the contempt.

[21] As the dissenting opinion noted below, the termination provision was "intended to serve only as a measure of last resort." See In re Sealed Case, 267 U.S.App.D.C. 178, 224, n. 13, 838 F.2d 476, 522, n. 13 (1988). The Senate Report on the provision states:

"This paragraph provides for the unlikely situation where a special prosecutor may try to remain as special prosecutor after his responsibilities under this chapter are completed. . . . The drastic remedy of terminating the office of special prosecutor without the consent of the special prosecutor should obviously be executed with caution." S.Rep. No. 95-170, p. 75 (1977).

[22] We see no impropriety in the Special Division's actions with regard to its response to appellant's request for referral of additional matters in this case. See In re Olson, 260 U.S.App.D.C. 168, 818 F.2d 34 (Special Division 1987). The Division has statutory authority to respond to appellant's request pursuant to § 594(e), and it was only proper that it first consider whether it could exercise its statutory authority without running afoul of the Constitution. As to the Division's alleged "reinterpretation" of its original grant of jurisdiction, the power to "reinterpret" or clarify the original grant may be seen as incidental to the court's referral power. After all, in order to decide whether to refer a matter to the counsel, the court must be able to determine whether the matter falls within the scope of the original grant. See n. 18, supra. We express no view on the merits of the Division's interpretation of the original grant or of its ruling in regard to its power to refer matters that the Attorney General has previously refused to refer.

[23] As noted, an independent counsel may also be removed through impeachment and conviction. In addition, the Attorney General may remove a counsel for "physical disability, mental incapacity, or any other condition that substantially impairs the performance" of his or her duties. § 596(a)(1).

[24] The Court expressly disapproved of any statements in Myers that "are out of harmony" with the views expressed in Humphrey's Executor. 295 U.S., at 626, 55 S.Ct., at 873. We recognized that the only issue actually decided in Myers was that "the President had power to remove a postmaster of the first class, without the advice and consent of the Senate as required by act of Congress." 295 U.S., at 626, 55 S.Ct., at 873.

[25] See id., at 627-628, 55 S.Ct., at 873-874. We described the FTC as "an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." Such an agency was not "an arm or an eye of the executive," and the commissioners were intended to perform their duties "without executive leave and . . . free from executive control." Id., at 628, 55 S.Ct., at 874. As we put it at the time, the powers of the FTC were not "purely" executive, but were "quasi-legislative or quasi-judicial." Ibid.

[26] This same argument was raised by the Solicitor General in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), although as Justice WHITE noted in dissent in that case, the argument was clearly not accepted by the Court at that time. Id., at 738-739, and nn. 1-3, 106 S.Ct., at 3206-3207, and nn. 1-3.

[27] Indeed, this Court has never held that the Constitution prevents Congress from imposing limitations on the President's power to remove all executive officials simply because they wield "executive" power. Myers itself expressly distinguished cases in which Congress had chosen to vest the appointment of "inferior" executive officials in the head of a department. See 272 U.S., at 161-163, 164, 47 S.Ct., at 40-41, 41. In such a situation, we saw no specific constitutional impediment to congressionally imposed restrictions on the President's removal powers. See also United States v. Perkins, 116 U.S. 483, 485, 6 S.Ct. 449, 450, 29 L.Ed. 700 (1886) (" 'The constitutional authority in Congress to thus vest the appointment [of inferior officers in the heads of departments] implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed' ") (quoting the Court of Claims' decision in the case).

[28] The difficulty of defining such categories of "executive" or "quasi-legislative" officials is illustrated by a comparison of our decisions in cases such as Humphrey's Executor, Buckley v. Valeo, 424 U.S. 1, 140-141, 96 S.Ct. 612, 692-693, 46 L.Ed.2d 659 (1976), and Bowsher, supra, 478 U.S., at 732-734, 106 S.Ct., at 3191-3192. In Buckley, we indicated that the functions of the Federal Election Commission are "administrative," and "more legislative and judicial in nature," and are "of kinds usually performed by independent regulatory agencies or by some department in the Executive Branch under the direction of an Act of Congress." 424 U.S., at 140-141, 96 S.Ct., at 692-693. In Bowsher, we found that the functions of the Comptroller General were "executive" in nature, in that he was required to "exercise judgment concerning facts that affect the application of the Act," and he must "interpret the provisions of the Act to determine precisely what budgetary calculations are required." 478 U.S., at 733, 106 S.Ct., at 3191. Compare this with the description of the FTC's powers in Humphrey's Executor, which we stated "occupie[d] no place in the executive department": "The [FTC] is an administrative body created by Congress to carry into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid." 295 U.S., at 628, 55 S.Ct., at 874. As Justice WHITE noted in his dissent in Bowsher, it is hard to dispute that the powers of the FTC at the time of Humphrey's Executor would at the present time be considered "executive," at least to some degree. See 478 U.S., at 761, n. 3, 106 S.Ct., at 3206, n. 3.

[29] The dissent says that the language of Article II vesting the executive power of the United States in the President requires that every officer of the United States exercising any part of that power must serve at the pleasure of the President and be removable by him at will. Post, at 705. This rigid demarcation—a demarcation incapable of being altered by law in the slightest degree, and applicable to tens of thousands of holders of offices neither known nor foreseen by the Framers—depends upon an extrapolation from general constitutional language which we think is more than the text will bear. It is also contrary to our holding in United States v. Perkins, supra, decided more than a century ago.

[30] The terms also may be used to describe the circumstances in which Congress might be more inclined to find that a degree of independence from the Executive, such as that afforded by a "good cause" removal standard, is necessary to the proper functioning of the agency or official. It is not difficult to imagine situations in which Congress might desire that an official performing "quasi-judicial" functions, for example, would be free of executive or political control.

[31] We note by way of comparison that various federal agencies whose officers are covered by "good cause" removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).

[32] Indeed, during the hearings on the 1982 amendments to the Act, a Justice Department official testified that the "good cause" standard contained in the amendments "would make the special prosecutor no more independent than officers of the many so-called independent agencies in the executive branch." Ethics in Government Act Amendments of 1982, Hearing before the Subcommittee on Oversight of Government Management of the Senate Committee on Governmental Affairs, 97th Cong., 2d Sess., 7 (1981) (Associate Attorney General Giuliani).

[33] We see no constitutional problem in the fact that the Act provides for judicial review of the removal decision. § 596(a)(3). The purpose of such review is to ensure that an independent counsel is removed only in accordance with the will of Congress as expressed in the Act. The possibility of judicial review does not inject the Judicial Branch into the removal decision, nor does it, by itself, put any additional burden on the President's exercise of executive authority. Indeed, we note that the legislative history of the most recent amendment to the Act indicates that the scope of review to be exercised by the courts under § 596(a)(3) is to be "the standards established by existing case law on the removal of [other] officials" who are subject to "good cause" removal. H.R.Conf.Rep. No. 100-452, p. 37 (1987).

[34] With these provisions, the degree of control exercised by the Executive Branch over an independent counsel is clearly diminished in relation to that exercised over other prosecutors, such as the United States Attorneys, who are appointed by the President and subject to termination at will.

[1] I agree with the Court on this point, but not because of the section of the statute that it cites, § 592(f). What that provides is that "[t]he Attorney General's determination . . . to apply to the division of the court for the appointment of an independent counsel shall not be reviewable in any court." Quite obviously, the determination to apply is not the same as the determination not to apply. In other contexts, we have sternly avoided "construing" a statute to mean what it plainly does not say, merely in order to avoid constitutional problems. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986). In my view, however, the Attorney General's decision not to refer would in any event be nonreviewable as the exercise of prosecutorial discretion. See Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

[2] The Court omits the further provision that the independent counsel exercises within her sphere the "full power" of "the Attorney General, [with one minor exception relating to wiretap authorizations] and any other officer or employee of the Department of Justice[.]" § 594(a). This is, of course, quite difficult to square with the Court's assertion that appellant is " 'inferior' in rank and authority" to the Attorney General. Ante, at 671.

[3] The independent counsel's specifically enumerated powers include the following:

"(1) conducting proceedings before grand juries and other investigations;

"(2) participating in court proceedings and engaging in any litigation, including civil and criminal matters, that [the] independent counsel deems necessary;

"(3) appealing any decision of a court in any case or proceeding in which [the] independent counsel participates in an official capacity;

"(4) reviewing all documentary evidence available from any source;

"(5) determining whether to contest the assertion of any testimonial privilege;

"(6) receiving appropriate national security clearances and, if necessary contesting in court . . . any claim of privilege or attempt to withhold evidence on grounds of national security;

"(7) making applications to any Federal court for a grant of immunity to any witness . . . or for warrants, subpoenas, or other court orders, and for purposes of sections 6003, 6004, and 6005 of title 18, exercising the authority vested in a United States attorney or the Attorney General;

"(8) inspecting, obtaining, or using the original or a copy of any tax return . . .;

"(9) initiating and conducting prosecutions in any court of competent jurisdiction, framing and signing indictments, filing informations, and handling all aspects of any case filed in the name of the United States; and

"(10) consulting with the United States Attorney for the district in which the violation was alleged to have occurred." §§ 594(a)(1)-(10).

In addition, the statute empowers the independent counsel to hire a staff of a size as large as she "deems necessary," § 594(c), and to enlist and receive "where necessary to perform [her] duties" the assistance, personnel and resources of the Department of Justice, § 594(d).

[4] The Court misunderstands my opinion to say that "every officer of the United States exercising any part of [the executive] power must serve at the pleasure of the President and be removable by him at will." Ante, at 690, n. 29. Of course, as my discussion here demonstrates, that has never been the law and I do not assert otherwise. What I do assert—and what the Constitution seems plainly to prescribe—is that the President must have control over all exercises of the executive power. See supra, at 705. That requires that he have plenary power to remove principal officers such as the independent counsel, but it does not require that he have plenary power to remove inferior officers. Since the latter are, as I have described, subordinate to, i.e., subject to the supervision of, principal officers who (being removable at will) have the President's complete confidence, it is enough—at least if they have been appointed by the President or by a principal officer—that they be removable for cause, which would include, of course, the failure to accept supervision. Thus, Perkins is in no way inconsistent with my views.

130 S.Ct. 3138 (2010)

[3146] Michael A. Carvin, Washington, DC, for petitioners.

Solicitor General Elena Kagan, Washington, DC, for respondent United States.

Jeffrey A. Lamken, Washington, DC, for respondents Public Company Accounting Oversight Board.

David M. Becker, General Counsel, Mark D. Cahn, Deputy General Counsel, Jacob H. Stillman, Solicitor, John W. Avery, Senior Litigation Counsel, Securities and Exchange Commission, Washington, D.C., Elena Kagan, Solicitor General, Counsel of Record, Tony West, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Curtis E. Gannon, Assistant to the Solicitor General, Mark B. Stern, Mark R. Freeman, Attorneys, Department of Justice, Washington, D.C., for respondent.

J. Gordon Seymour, Jacob N. Lesser, Mary I. Peters, Public Company Accounting Oversight Board, Washington, D.C., Jeffrey A. Lamken, Counsel of Record, Robert K. Kry, MoloLamken LLP, Washington, D.C., James R. Doty, Baker Botts LLP, Washington, D.C., for Respondents Public Company Accounting Oversight Board, Bill Gradison, Daniel L. Goelzer, and Charles D. Niemeier.

Kenneth W. Starr, Malibu, CA, Viet D. Dinh, Bancroft Associates PLLC, Washington, DC, Michael A. Carvin, Counsel of Record, Noel J. Francisco, Christian A. Vergonis, Jones Day, Washington, DC, Sam Kazman, Hans Bader, Competitive Enterprise Institute, Washington, DC, for petitioners.

Chief Justice ROBERTS delivered the opinion of the Court.

Our Constitution divided the "powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Article II vests "[t]he executive Power ... in a President of the United States of America," who must "take Care that the Laws be faithfully executed." Art. II, § 1, cl. 1; id., § 3. In light of "[t]he impossibility that one man should be able to perform all the great business of the State," the Constitution provides for executive officers to "assist the supreme Magistrate in discharging the duties of his trust." 30 Writings of George Washington 334 (J. Fitzpatrick ed.1939).

Since 1789, the Constitution has been understood to empower the President to keep these officers accountable—by removing them from office, if necessary. See generally Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). This Court has determined, however, that this authority is not without limit. In Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), we held that Congress can, under certain circumstances, create independent agencies run by principal officers appointed by the President, whom the President may not remove at will but only for good [3147] cause. Likewise, in United States v. Perkins, 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700 (1886), and Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988), the Court sustained similar restrictions on the power of principal executive officers—themselves responsible to the President—to remove their own inferiors. The parties do not ask us to reexamine any of these precedents, and we do not do so.

We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States?

We hold that such multilevel protection from removal is contrary to Article II's vesting of the executive power in the President. The President cannot "take Care that the Laws be faithfully executed" if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is instead committed to another officer, who may or may not agree with the President's determination, and whom the President cannot remove simply because that officer disagrees with him. This contravenes the President's "constitutional obligation to ensure the faithful execution of the laws." Id., at 693, 108 S.Ct. 2597.

I

A

After a series of celebrated accounting debacles, Congress enacted the Sarbanes-Oxley Act of 2002 (or Act), 116 Stat. 745. Among other measures, the Act introduced tighter regulation of the accounting industry under a new Public Company Accounting Oversight Board. The Board is composed of five members, appointed to staggered 5-year terms by the Securities and Exchange Commission. It was modeled on private self-regulatory organizations in the securities industry—such as the New York Stock Exchange—that investigate and discipline their own members subject to Commission oversight. Congress created the Board as a private "nonprofit corporation," and Board members and employees are not considered Government "officer[s] or employee[s]" for statutory purposes. 15 U.S.C. §§ 7211(a), (b). The Board can thus recruit its members and employees from the private sector by paying salaries far above the standard Government pay scale. See §§ 7211(f)(4), 7219.^[1]

Unlike the self-regulatory organizations, however, the Board is a Government-created, Government-appointed entity, with expansive powers to govern an entire industry. Every accounting firm—both foreign and domestic—that participates in auditing public companies under the securities laws must register with the Board, pay it an annual fee, and comply with its rules and oversight. §§ 7211(a), 7212(a), (f), 7213, 7216(a)(1). The Board is charged with enforcing the Sarbanes-Oxley Act, the securities laws, the Commission's rules, its own rules, and professional accounting standards. §§ 7215(b)(1), (c)(4). To this [3148] end, the Board may regulate every detail of an accounting firm's practice, including hiring and professional development, promotion, supervision of audit work, the acceptance of new business and the continuation of old, internal inspection procedures, professional ethics rules, and "such other requirements as the Board may prescribe." § 7213(a)(2)(B).

The Board promulgates auditing and ethics standards, performs routine inspections of all accounting firms, demands documents and testimony, and initiates formal investigations and disciplinary proceedings. §§ 7213-7215 (2006 ed. and Supp. II). The willful violation of any Board rule is treated as a willful violation of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U.S.C. § 78a et seq.—a federal crime punishable by up to 20 years' imprisonment or $25 million in fines ($5 million for a natural person). §§ 78ff(a), 7202(b)(1) (2006 ed.). And the Board itself can issue severe sanctions in its disciplinary proceedings, up to and including the permanent revocation of a firm's registration, a permanent ban on a person's associating with any registered firm, and money penalties of $15 million ($750,000 for a natural person). § 7215(c)(4). Despite the provisions specifying that Board members are not Government officials for statutory purposes, the parties agree that the Board is "part of the Government" for constitutional purposes, Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 397, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995), and that its members are "`Officers of the United States'" who "exercis[e] significant authority pursuant to the laws of the United States,"  Buckley v. Valeo, 424 U.S. 1, 125-126, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (quoting Art. II, § 2, cl. 2); cf. Brief for Petitioners 9, n. 1; Brief for United States 29, n. 8.

The Act places the Board under the SEC's oversight, particularly with respect to the issuance of rules or the imposition of sanctions (both of which are subject to Commission approval and alteration). §§ 7217(b)-(c). But the individual members of the Board—like the officers and directors of the self-regulatory organizations—are substantially insulated from the Commission's control. The Commission cannot remove Board members at will, but only "for good cause shown," "in accordance with" certain procedures. § 7211(e)(6).

Those procedures require a Commission finding, "on the record" and "after notice and opportunity for a hearing," that the Board member

"(A) has willfully violated any provision of th[e] Act, the rules of the Board, or the securities laws;

"(B) has willfully abused the authority of that member; or

"(C) without reasonable justification or excuse, has failed to enforce compliance with any such provision or rule, or any professional standard by any registered public accounting firm or any associated person thereof." § 7217(d)(3).

Removal of a Board member requires a formal Commission order and is subject to judicial review. See 5 U.S.C. §§ 554(a), 556(a), 557(a), (c)(B); 15 U.S.C. § 78y(a)(1). Similar procedures govern the Commission's removal of officers and directors of the private self-regulatory organizations. See § 78s(h)(4). The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey's Executor standard of "inefficiency, neglect of duty, or malfeasance in office," 295 U.S., at 620, 55 S.Ct. 869 (internal quotation marks omitted); see Brief for Petitioners 31; Brief for United States 43; Brief for Respondent Public Company Accounting [3149] Oversight Board 31 (hereinafter PCAOB Brief); Tr. of Oral Arg. 47, and we decide the case with that understanding.

B

Beckstead and Watts, LLP, is a Nevada accounting firm registered with the Board. The Board inspected the firm, released a report critical of its auditing procedures, and began a formal investigation. Beckstead and Watts and the Free Enterprise Fund, a nonprofit organization of which the firm is a member, then sued the Board and its members, seeking (among other things) a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. App. 71.

Before the District Court, petitioners argued that the Sarbanes-Oxley Act contravened the separation of powers by conferring wide-ranging executive power on Board members without subjecting them to Presidential control. Id., at 67-68. Petitioners also challenged the Act under the Appointments Clause, which requires "Officers of the United States" to be appointed by the President with the Senate's advice and consent. Art. II, § 2, cl. 2. The Clause provides an exception for "inferior Officers," whose appointment Congress may choose to vest "in the President alone, in the Courts of Law, or in the Heads of Departments." Ibid. Because the Board is appointed by the SEC, petitioners argued that (1) Board members are not "inferior Officers" who may be appointed by "Heads of Departments"; (2) even if they are, the Commission is not a "Departmen[t]"; and (3) even if it is, the several Commissioners (as opposed to the Chairman) are not its "Hea[d]." See App. 68-70. The United States intervened to defend the Act's constitutionality. Both sides moved for summary judgment; the District Court determined that it had jurisdiction and granted summary judgment to respondents. App. to Pet. for Cert. 110a-117a.

A divided Court of Appeals affirmed. 537 F.3d 667 (C.A.D.C.2008). It agreed that the District Court had jurisdiction over petitioners' claims. Id., at 671. On the merits, the Court of Appeals recognized that the removal issue was "a question of first impression," as neither that court nor this one "ha[d] considered a situation where a restriction on removal passes through two levels of control." Id., at 679. It ruled that the dual restraints on Board members' removal are permissible because they do not "render the President unable to perform his constitutional duties." Id., at 683. The majority reasoned that although the President "does not directly select or supervise the Board's members," id., at 681, the Board is subject to the comprehensive control of the Commission, and thus the President's influence over the Commission implies a constitutionally sufficient influence over the Board as well. Id., at 682-683. The majority also held that Board members are inferior officers subject to the Commission's direction and supervision, id., at 672-676, and that their appointment is otherwise consistent with the Appointments Clause, id., at 676-678.

Judge Kavanaugh dissented. He agreed that the case was one of first impression, id., at 698, but argued that "the double for-cause removal provisions in the [Act] ... combine to eliminate any meaningful Presidential control over the [Board]," id., at 697. Judge Kavanaugh also argued that Board members are not effectively supervised by the Commission and thus cannot be inferior officers under the Appointments Clause. Id., at 709-712.

We granted certiorari. 556 U.S. ___, 129 S.Ct. 2378, 173 L.Ed.2d 1291 (2009).

[3150] II

We first consider whether the District Court had jurisdiction. We agree with both courts below that the statutes providing for judicial review of Commission action did not prevent the District Court from considering petitioners' claims.

The Sarbanes-Oxley Act empowers the Commission to review any Board rule or sanction. See 15 U.S.C. §§ 7217(b)(2)-(4), (c)(2). Once the Commission has acted, aggrieved parties may challenge "a final order of the Commission" or "a rule of the Commission" in a court of appeals under § 78y, and "[n]o objection ... may be considered by the court unless it was urged before the Commission or there was reasonable ground for failure to do so." §§ 78y(a)(1), (b)(1), (c)(1).

The Government reads § 78y as an exclusive route to review. But the text does not expressly limit the jurisdiction that other statutes confer on district courts. See, e.g., 28 U.S.C. §§ 1331, 2201. Nor does it do so implicitly. Provisions for agency review do not restrict judicial review unless the "statutory scheme" displays a "fairly discernible" intent to limit jurisdiction, and the claims at issue "are of the type Congress intended to be reviewed within th[e] statutory structure." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (internal quotation marks omitted). Generally, when Congress creates procedures "designed to permit agency expertise to be brought to bear on particular problems," those procedures "are to be exclusive." Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 420, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965). But we presume that Congress does not intend to limit jurisdiction if "a finding of preclusion could foreclose all meaningful judicial review"; if the suit is "wholly collateral to a statute's review provisions"; and if the claims are "outside the agency's expertise." Thunder Basin, supra, at 212-213, 114 S.Ct. 771 (internal quotation marks omitted). These considerations point against any limitation on review here.

We do not see how petitioners could meaningfully pursue their constitutional claims under the Government's theory. Section 78y provides only for judicial review of Commission action, and not every Board action is encapsulated in a final Commission order or rule.

The Government suggests that petitioners could first have sought Commission review of the Board's "auditing standards, registration requirements, or other rules." Brief for United States 16. But petitioners object to the Board's existence, not to any of its auditing standards. Petitioners' general challenge to the Board is "collateral" to any Commission orders or rules from which review might be sought. Cf. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 491-492, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991). Requiring petitioners to select and challenge a Board rule at random is an odd procedure for Congress to choose, especially because only new rules, and not existing ones, are subject to challenge. See 15 U.S.C. §§ 78s(b)(2), 78y(a)(1), 7217(b)(4).

Alternatively, the Government advises petitioners to raise their claims by appealing a Board sanction. Brief for United States 16-17. But the investigation of Beckstead and Watts produced no sanction, see id., at 7, n. 5; Reply Brief for Petitioners 29, n. 11 (hereinafter Reply Brief), and an uncomplimentary inspection report is not subject to judicial review, see § 7214(h)(2). So the Government proposes that Beckstead and Watts incur a sanction (such as a sizable fine) by ignoring Board requests for documents and testimony. [3151] Brief for United States 17. If the Commission then affirms, the firm will win access to a court of appeals—and severe punishment should its challenge fail. We normally do not require plaintiffs to "bet the farm ... by taking the violative action" before "testing the validity of the law," MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007); accord, Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and we do not consider this a "meaningful" avenue of relief. Thunder Basin, 510 U.S., at 212, 114 S.Ct. 771.

Petitioners' constitutional claims are also outside the Commission's competence and expertise. In Thunder Basin, the petitioner's primary claims were statutory; "at root ... [they] ar[o]se under the Mine Act and f[e]ll squarely within the [agency's] expertise," given that the agency had "extensive experience" on the issue and had "recently addressed the precise ... claims presented." Id., at 214-215, 114 S.Ct. 771. Likewise, in United States v. Ruzicka, 329 U.S. 287, 67 S.Ct. 207, 91 L.Ed. 290 (1946), on which the Government relies, we reserved for the agency fact-bound inquiries that, even if "formulated in constitutional terms," rested ultimately on "factors that call for [an] understanding of the milk industry," to which the Court made no pretensions. Id., at 294, 67 S.Ct. 207. No similar expertise is required here, and the statutory questions involved do not require "technical considerations of [agency] policy." Johnson v. Robison, 415 U.S. 361, 373, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). They are instead standard questions of administrative law, which the courts are at no disadvantage in answering.

We therefore conclude that § 78y did not strip the District Court of jurisdiction over these claims, which are properly presented for our review.^[2]

III

We hold that the dual for-cause limitations on the removal of Board members contravene the Constitution's separation of powers.

A

The Constitution provides that "[t]he executive Power shall be vested in a President of the United States of America." Art. II, § 1, cl. 1. As Madison stated on the floor of the First Congress, "if any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws." 1 Annals of Cong. 463 (1789).

The removal of executive officers was discussed extensively in Congress when the first executive departments were created. The view that "prevailed, as most [3152] consonant to the text of the Constitution" and "to the requisite responsibility and harmony in the Executive Department," was that the executive power included a power to oversee executive officers through removal; because that traditional executive power was not "expressly taken away, it remained with the President." Letter from James Madison to Thomas Jefferson (June 30, 1789), 16 Documentary History of the First Federal Congress 893 (2004). "This Decision of 1789 provides contemporaneous and weighty evidence of the Constitution's meaning since many of the Members of the First Congress had taken part in framing that instrument." Bowsher v. Synar, 478 U.S. 714, 723-724, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (internal quotation marks omitted). And it soon became the "settled and well understood construction of the Constitution." Ex parte Hennen, 38 U.S. 230, 13 Pet. 230, 259, 10 L.Ed. 138 (1839).

The landmark case of Myers v. United States reaffirmed the principle that Article II confers on the President "the general administrative control of those executing the laws." 272 U.S., at 164, 47 S.Ct. 21. It is his responsibility to take care that the laws be faithfully executed. The buck stops with the President, in Harry Truman's famous phrase. As we explained in Myers, the President therefore must have some "power of removing those for whom he can not continue to be responsible." Id., at 117, 47 S.Ct. 21.

Nearly a decade later in Humphrey's Executor, this Court held that Myers did not prevent Congress from conferring good-cause tenure on the principal officers of certain independent agencies. That case concerned the members of the Federal Trade Commission, who held 7-year terms and could not be removed by the President except for "`inefficiency, neglect of duty, or malfeasance in office.'" 295 U.S., at 620, 55 S.Ct. 869 (quoting 15 U.S.C. § 41). The Court distinguished Myers on the ground that Myers concerned "an officer [who] is merely one of the units in the executive department and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is." 295 U.S., at 627, 55 S.Ct. 869. By contrast, the Court characterized the FTC as "quasi-legislative and quasi-judicial" rather than "purely executive," and held that Congress could require it "to act... independently of executive control." Id., at 627-629, 55 S.Ct. 869. Because "one who holds his office only during the pleasure of another, cannot be depended upon to maintain an attitude of independence against the latter's will," the Court held that Congress had power to "fix the period during which [the Commissioners] shall continue in office, and to forbid their removal except for cause in the meantime." Id., at 629, 55 S.Ct. 869.

Humphrey's Executor did not address the removal of inferior officers, whose appointment Congress may vest in heads of departments. If Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal. See Myers, supra, at 119, 127, 47 S.Ct. 21; Hennen, supra, at 259-260, 38 U.S. 230. This Court has upheld for-cause limitations on that power as well.

In Perkins, a naval cadet-engineer was honorably discharged from the Navy because his services were no longer required. 116 U.S. 483, 21 Ct.Cl. 499, 6 S.Ct. 449, 29 L.Ed. 700. He brought a claim for his salary under statutes barring his peacetime discharge except by a court-martial or by the Secretary of the Navy "for misconduct." Rev. Stat. §§ 1229, 1525. This Court adopted verbatim the reasoning of the Court of Claims, which had held that when Congress "`vests the appointment of [3153] inferior officers in the heads of Departments[,] it may limit and restrict the power of removal as it deems best for the public interest.'" 116 U.S., at 485, 6 S.Ct. 449. Because Perkins had not been "`dismissed for misconduct ... [or upon] the sentence of a court-martial,'" the Court agreed that he was "`still in office and ... entitled to [his] pay.'" Ibid.^[3]

We again considered the status of inferior officers in Morrison. That case concerned the Ethics in Government Act, which provided for an independent counsel to investigate allegations of crime by high executive officers. The counsel was appointed by a special court, wielded the full powers of a prosecutor, and was removable by the Attorney General only "`for good cause.'" 487 U.S., at 663, 108 S.Ct. 2597 (quoting 28 U.S.C. § 596(a)(1)). We recognized that the independent counsel was undoubtedly an executive officer, rather than "`quasi-legislative'" or "`quasi-judicial,'" but we stated as "our present considered view" that Congress had power to impose good-cause restrictions on her removal. 487 U.S., at 689-691, 108 S.Ct. 2597. The Court noted that the statute "g[a]ve the Attorney General," an officer directly responsible to the President and "through [whom]" the President could act, "several means of supervising or controlling" the independent counsel—"[m]ost importantly... the power to remove the counsel for good cause." Id., at 695-696, 108 S.Ct. 2597 (internal quotation marks omitted). Under those circumstances, the Court sustained the statute. Morrison did not, however, address the consequences of more than one level of good-cause tenure—leaving the issue, as both the court and dissent below recognized, "a question of first impression" in this Court. 537 F.3d, at 679; see id., at 698, 108 S.Ct. 2597 (dissenting opinion).

B

As explained, we have previously upheld limited restrictions on the President's removal power. In those cases, however, only one level of protected tenure separated the President from an officer exercising executive power. It was the President— or a subordinate he could remove at will— who decided whether the officer's conduct merited removal under the good-cause standard.

The Act before us does something quite different. It not only protects Board members from removal except for good cause, but withdraws from the President any decision on whether that good cause exists. That decision is vested instead in other tenured officers—the Commissioners—none of whom is subject to the President's direct control. The result is a Board that is not accountable to the President, and a President who is not responsible for the Board.

The added layer of tenure protection makes a difference. Without a layer of insulation between the Commission and the Board, the Commission could remove a [3154] Board member at any time, and therefore would be fully responsible for what the Board does. The President could then hold the Commission to account for its supervision of the Board, to the same extent that he may hold the Commission to account for everything else it does.

A second level of tenure protection changes the nature of the President's review. Now the Commission cannot remove a Board member at will. The President therefore cannot hold the Commission fully accountable for the Board's conduct, to the same extent that he may hold the Commission accountable for everything else that it does. The Commissioners are not responsible for the Board's actions. They are only responsible for their own determination of whether the Act's rigorous good-cause standard is met. And even if the President disagrees with their determination, he is powerless to intervene— unless that determination is so unreasonable as to constitute "inefficiency, neglect of duty, or malfeasance in office." Humphrey's Executor, 295 U.S., at 620, 55 S.Ct. 869 (internal quotation marks omitted).

This novel structure does not merely add to the Board's independence, but transforms it. Neither the President, nor anyone directly responsible to him, nor even an officer whose conduct he may review only for good cause, has full control over the Board. The President is stripped of the power our precedents have preserved, and his ability to execute the laws—by holding his subordinates accountable for their conduct—is impaired.

That arrangement is contrary to Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. This violates the basic principle that the President "cannot delegate ultimate responsibility or the active obligation to supervise that goes with it," because Article II "makes a single President responsible for the actions of the Executive Branch." Clinton v. Jones, 520 U.S. 681, 712-713, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997) (BREYER, J., concurring in judgment).^[4]

Indeed, if allowed to stand, this dispersion of responsibility could be multiplied. If Congress can shelter the bureaucracy behind two layers of good-cause tenure, why not a third? At oral argument, the Government was unwilling to concede that even five layers between the President and the Board would be too many. Tr. of Oral Arg. 47-48. The officers of such an agency—safely encased within a Matryoshka doll of tenure protections—would be immune from Presidential oversight, even as they exercised power in the people's name.

[3155] Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, 501 U.S. 868, 879-880, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), nor on whether "the encroached-upon branch approves the encroachment," New York v. United States, 505 U.S. 144, 182, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own.

The diffusion of power carries with it a diffusion of accountability. The people do not vote for the "Officers of the United States." Art. II, § 2, cl. 2. They instead look to the President to guide the "assistants or deputies ... subject to his superintendence." The Federalist No. 72, p. 487 (J. Cooke ed.1961) (A. Hamilton). Without a clear and effective chain of command, the public cannot "determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures ought really to fall." Id., No. 70, at 476 (same). That is why the Framers sought to ensure that "those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community." 1 Annals of Cong., at 499 (J. Madison).

By granting the Board executive power without the Executive's oversight, this Act subverts the President's ability to ensure that the laws are faithfully executed—as well as the public's ability to pass judgment on his efforts. The Act's restrictions are incompatible with the Constitution's separation of powers.

C

Respondents and the dissent resist this conclusion, portraying the Board as "the kind of practical accommodation between the Legislature and the Executive that should be permitted in a `workable government.'" Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (MWAA) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring)); see, e.g., post, at 6 (opinion of BREYER, J.). According to the dissent, Congress may impose multiple levels of for-cause tenure between the President and his subordinates when it "rests agency independence upon the need for technical expertise." Post, at 18. The Board's mission is said to demand both "technical competence" and "apolitical expertise," and its powers may only be exercised by "technical professional experts." Post, at 18 (internal quotation marks omitted). In this respect the statute creating the Board is, we are told, simply one example of the "vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different problems, [that] provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives." Post, at 8.

No one doubts Congress's power to create a vast and varied federal bureaucracy. But where, in all this, is the role for oversight by an elected President? The Constitution requires that a President chosen [3156] by the entire Nation oversee the execution of the laws. And the "`fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution,'" for "`[c]onvenience and efficiency are not the primary objectives—or the hallmarks—of democratic government.'" Bowsher, 478 U.S., at 736, 106 S.Ct. 3181 (quoting Chadha, 462 U.S., at 944, 103 S.Ct. 2764).

One can have a government that functions without being ruled by functionaries, and a government that benefits from expertise without being ruled by experts. Our Constitution was adopted to enable the people to govern themselves, through their elected leaders. The growth of the Executive Branch, which now wields vast power and touches almost every aspect of daily life, heightens the concern that it may slip from the Executive's control, and thus from that of the people. This concern is largely absent from the dissent's paean to the administrative state.

For example, the dissent dismisses the importance of removal as a tool of supervision, concluding that the President's "power to get something done" more often depends on "who controls the agency's budget requests and funding, the relationships between one agency or department and another, ... purely political factors (including Congress' ability to assert influence)," and indeed whether particular unelected officials support or "resist" the President's policies. Post, at 11, 13 (emphasis deleted). The Framers did not rest our liberties on such bureaucratic minutiae. As we said in Bowsher, supra, at 730, 106 S.Ct. 3181, "[t]he separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress."

In fact, the multilevel protection that the dissent endorses "provides a blueprint for extensive expansion of the legislative power." MWAA, supra, at 277, 111 S.Ct. 2298. In a system of checks and balances, "[p]ower abhors a vacuum," and one branch's handicap is another's strength. 537 F.3d, at 695, n. 4 (Kavanaugh, J., dissenting) (internal quotation marks omitted). "Even when a branch does not arrogate power to itself," therefore, it must not "impair another in the performance of its constitutional duties." Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996).^[5] Congress has plenary control over the salary, duties, and even existence of executive offices. Only Presidential oversight can counter its influence. That is why the Constitution vests certain powers in the President that "the Legislature has no right to diminish or modify." 1 Annals of Cong., at 463 (J. Madison).^[6]

[3157] The Framers created a structure in which "[a] dependence on the people" would be the "primary control on the government." The Federalist No. 51, at 349 (J. Madison). That dependence is maintained, not just by "parchment barriers," id., No. 48, at 333 (same), but by letting "[a]mbition ... counteract ambition," giving each branch "the necessary constitutional means, and personal motives, to resist encroachments of the others," id., No. 51, at 349. A key "constitutional means" vested in the President—perhaps the key means—was "the power of appointing, overseeing, and controlling those who execute the laws." 1 Annals of Cong., at 463. And while a government of "opposite and rival interests" may sometimes inhibit the smooth functioning of administration, The Federalist No. 51, at 349, "[t]he Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty." Bowsher, supra, at 730, 106 S.Ct. 3181.

Calls to abandon those protections in light of "the era's perceived necessity," New York, 505 U.S., at 187, 112 S.Ct. 2408, are not unusual. Nor is the argument from bureaucratic expertise limited only to the field of accounting. The failures of accounting regulation may be a "pressing national problem," but "a judiciary that licensed extraconstitutional government with each issue of comparable gravity would, in the long run, be far worse." Id., at 187-188, 112 S.Ct. 2408. Neither respondents nor the dissent explains why the Board's task, unlike so many others, requires more than one layer of insulation from the President—or, for that matter, why only two. The point is not to take issue with for-cause limitations in general; we do not do that. The question here is far more modest. We deal with the unusual situation, never before addressed by the Court, of two layers of for-cause tenure. And though it may be criticized as "elementary arithmetical logic," post, at 23, two layers are not the same as one.

The President has been given the power to oversee executive officers; he is not limited, as in Harry Truman's lament, to "persuad[ing]" his unelected subordinates "to do what they ought to do without persuasion." Post, at 11 (internal quotation marks omitted). In its pursuit of a "workable government," Congress cannot reduce the Chief Magistrate to a cajoler-in-chief.

D

The United States concedes that some constraints on the removal of inferior executive officers might violate the Constitution. See Brief for United States 47. It contends, however, that the removal restrictions at issue here do not.

To begin with, the Government argues that the Commission's removal power over the Board is "broad," and could be construed as broader still, if necessary to avoid invalidation. See, e.g., id., at 51, and n. 19; cf. PCAOB Brief 22-23. But the Government does not contend that simple disagreement with the Board's policies or priorities could constitute "good cause" for its removal. See Tr. of Oral Arg. 41-43, 45-46. Nor do our precedents suggest as much. Humphrey's Executor, for example, rejected a removal premised on a lack of agreement "`on either the policies or the administering of the Federal Trade Commission,'" because the FTC was designed to be "`independent in character,'" "free from `political domination or control,'" and not "`subject to anybody in the [3158] government'" or "`to the orders of the President.'" 295 U.S., at 619, 625, 55 S.Ct. 869. Accord, Morrison, 487 U.S., at 693, 108 S.Ct. 2597 (noting that "the congressional determination to limit the removal power of the Attorney General was essential... to establish the necessary independence of the office"); Wiener v. United States, 357 U.S. 349, 356, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (describing for-cause removal as "involving the rectitude" of an officer). And here there is judicial review of any effort to remove Board members, see 15 U.S.C. § 78y(a)(1), so the Commission will not have the final word on the propriety of its own removal orders. The removal restrictions set forth in the statute mean what they say.

Indeed, this case presents an even more serious threat to executive control than an "ordinary" dual for-cause standard. Congress enacted an unusually high standard that must be met before Board members may be removed. A Board member cannot be removed except for willful violations of the Act, Board rules, or the securities laws; willful abuse of authority; or unreasonable failure to enforce compliance—as determined in a formal Commission order, rendered on the record and after notice and an opportunity for a hearing. § 7217(d)(3); see § 78y(a). The Act does not even give the Commission power to fire Board members for violations of other laws that do not relate to the Act, the securities laws, or the Board's authority. The President might have less than full confidence in, say, a Board member who cheats on his taxes; but that discovery is not listed among the grounds for removal under § 7217(d)(3).^[7]

The rigorous standard that must be met before a Board member may be removed was drawn from statutes concerning private organizations like the New York Stock Exchange. Cf. §§ 78s(h)(4), 7217(d)(3). While we need not decide the question here, a removal standard appropriate for limiting Government control over private bodies may be inappropriate for officers wielding the executive power of the United States.

Alternatively, respondents portray the Act's limitations on removal as irrelevant, because—as the Court of Appeals held— the Commission wields "at-will removal power over Board functions if not Board members." 537 F.3d, at 683 (emphasis added); accord, Brief for United States 27-28; PCAOB Brief 48. The Commission's general "oversight and enforcement authority over the Board," § 7217(a), is said to "blun[t] the constitutional impact of for-cause removal," 537 F.3d, at 683, and to leave the President no worse off than "if Congress had lodged the Board's functions in the SEC's own staff," PCAOB Brief 15.

Broad power over Board functions is not equivalent to the power to remove Board members. The Commission may, for example, approve the Board's budget, § 7219(b), issue binding regulations, §§ 7202(a), 7217(b)(5), relieve the Board of authority, § 7217(d)(1), amend Board sanctions, § 7217(c), or enforce Board rules on its own, §§ 7202(b)(1), (c). But altering the budget or powers of an agency as a whole is a problematic way to control an [3159] inferior officer. The Commission cannot wield a free hand to supervise individual members if it must destroy the Board in order to fix it.

Even if Commission power over Board activities could substitute for authority over its members, we would still reject respondents' premise that the Commission's power in this regard is plenary. As described above, the Board is empowered to take significant enforcement actions, and does so largely independently of the Commission. See supra, at 3-4. Its powers are, of course, subject to some latent Commission control. See supra, at 4-5. But the Act nowhere gives the Commission effective power to start, stop, or alter individual Board investigations, executive activities typically carried out by officials within the Executive Branch.

The Government and the dissent suggest that the Commission could govern and direct the Board's daily exercise of prosecutorial discretion by promulgating new SEC rules, or by amending those of the Board. Brief for United States 27; post, at 15. Enacting general rules through the required notice and comment procedures is obviously a poor means of micromanaging the Board's affairs. See §§ 78s(c), 7215(b)(1), 7217(b)(5); cf. 5 U.S.C. § 553, 15 U.S.C. § 7202(a), PCAOB Brief 24, n. 6.^[8] So the Government offers another proposal, that the Commission require the Board by rule to "secure SEC approval for any actions that it now may take itself." Brief for United States 27. That would surely constitute one of the "limitations upon the activities, functions, and operations of the Board" that the Act forbids, at least without Commission findings equivalent to those required to fire the Board instead. § 7217(d)(2). The Board thus has significant independence in determining its priorities and intervening in the affairs of regulated firms (and the lives of their associated persons) without Commission preapproval or direction.

Finally, respondents suggest that our conclusion is contradicted by the past practice of Congress. But the Sarbanes-Oxley Act is highly unusual in committing substantial executive authority to officers protected by two layers of for-cause removal—including at one level a sharply circumscribed definition of what constitutes "good cause," and rigorous procedures that must be followed prior to removal.

The parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure. See, e.g., PCAOB Brief 43. As Judge Kavanaugh noted in dissent below:

"Perhaps the most telling indication of the severe constitutional problem with the PCAOB is the lack of historical precedent for this entity. Neither the majority opinion nor the PCAOB nor the United States as intervenor has located any historical analogues for this novel structure. They have not identified any independent agency other than the PCAOB that is appointed by and removable only for cause by another independent agency." 537 F.3d, at 669.

The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23-31. The dissent itself, however, stresses the very size and [3160] variety of the Federal Government, see post, at 7-8, and those features discourage general pronouncements on matters neither briefed nor argued here. In any event, the dissent fails to support its premonitions of doom; none of the positions it identifies are similarly situated to the Board. See post, at 28-31.

For example, many civil servants within independent agencies would not qualify as "Officers of the United States," who "exercis[e] significant authority pursuant to the laws of the United States," Buckley, 424 U.S., at 126, 96 S.Ct. 612.^[9] The parties here concede that Board members are executive "Officers," as that term is used in the Constitution. See supra, at 4; see also Art. II, § 2, cl. 2. We do not decide the status of other Government employees, nor do we decide whether "lesser functionaries subordinate to officers of the United States" must be subject to the same sort of control as those who exercise "significant authority pursuant to the laws." Buckley, supra, at 126, and n. 162, 96 S.Ct. 612.

Nor do the employees referenced by the dissent enjoy the same significant and unusual protections from Presidential oversight as members of the Board. Senior or policymaking positions in government may be excepted from the competitive service to ensure Presidential control, see 5 U.S.C. §§ 2302(a)(2)(B), 3302, 7511(b)(2), and members of the Senior Executive Service may be reassigned or reviewed by agency heads (and entire agencies may be excluded from that Service by the President), see, e.g., §§ 3132(c), 3395(a), 4312(d), 4314(b)(3), (c)(3); cf. § 2302(a)(2)(B)(ii). While the full extent of that authority is not before us, any such authority is of course wholly absent with respect to the Board. Nothing in our opinion, therefore, should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.^[10]

Finally, the dissent wanders far afield when it suggests that today's opinion might increase the President's authority to remove military officers. Without expressing any view whatever on the scope of that authority, it is enough to note that we see little analogy between our Nation's armed services and the Public Company Accounting Oversight Board. Military officers are broadly subject to Presidential control through the chain of command and through the President's powers as Commander in Chief. Art. II, § 2, cl. 1; see, e.g., 10 U.S.C. §§ 162, 164(g). The President and his subordinates may also convene boards of inquiry or courts-martial to hear claims of misconduct or poor performance by those officers. See, e.g., §§ 822(a)(1), 823(a)(1), 892(3), 933-934, [3161] 1181-1185. Here, by contrast, the President has no authority to initiate a Board member's removal for cause.

There is no reason for us to address whether these positions identified by the dissent, or any others not at issue in this case, are so structured as to infringe the President's constitutional authority. Nor is there any substance to the dissent's concern that the "work of all these various officials" will "be put on hold." Post, at 31. As the judgment in this case demonstrates, restricting certain officers to a single level of insulation from the President affects the conditions under which those officers might some day be removed, and would have no effect, absent a congressional determination to the contrary, on the validity of any officer's continuance in office. The only issue in this case is whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy. We hold that it cannot.

IV

Petitioners' complaint argued that the Board's "freedom from Presidential oversight and control" rendered it "and all power and authority exercised by it" in violation of the Constitution. App. 46. We reject such a broad holding. Instead, we agree with the Government that the unconstitutional tenure provisions are severable from the remainder of the statute.

"Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem," severing any "problematic portions while leaving the remainder intact." Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328-329, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). Because "[t]he unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions," Champlin Refining Co. v. Corporation Comm'n of Okla., 286 U.S. 210, 234, 52 S.Ct. 559, 76 L.Ed. 1062 (1932), the "normal rule" is "that partial, rather than facial, invalidation is the required course," Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). Putting to one side petitioners' Appointments Clause challenges (addressed below), the existence of the Board does not violate the separation of powers, but the substantive removal restrictions imposed by §§ 7211(e)(6) and 7217(d)(3) do. Under the traditional default rule, removal is incident to the power of appointment. See, e.g., Sampson v. Murray, 415 U.S. 61, 70, n. 17, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Myers, 272 U.S., at 119, 47 S.Ct. 21; Ex parte Hennen, 13 Pet., at 259-260. Concluding that the removal restrictions are invalid leaves the Board removable by the Commission at will, and leaves the President separated from Board members by only a single level of good-cause tenure. The Commission is then fully responsible for the Board's actions, which are no less subject than the Commission's own functions to Presidential oversight.

The Sarbanes-Oxley Act remains "`fully operative as a law'" with these tenure restrictions excised. New York, 505 U.S., at 186, 112 S.Ct. 2408 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987)). We therefore must sustain its remaining provisions "[u]nless it is evident that the Legislature would not have enacted those provisions . . . independently of that which is [invalid]." Ibid. (internal quotation marks omitted). Though this inquiry can sometimes be "elusive," Chadha, 462 U.S., at 932, 103 S.Ct. 2764, the answer here seems clear: The remaining [3162] provisions are not "incapable of functioning independently," Alaska Airlines, 480 U.S., at 684, 107 S.Ct. 1476, and nothing in the statute's text or historical context makes it "evident" that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will. Ibid.; see also Ayotte, supra, at 330, 126 S.Ct. 961.

It is true that the language providing for good-cause removal is only one of a number of statutory provisions that, working together, produce a constitutional violation. In theory, perhaps, the Court might blue-pencil a sufficient number of the Board's responsibilities so that its members would no longer be "Officers of the United States." Or we could restrict the Board's enforcement powers, so that it would be a purely recommendatory panel. Or the Board members could in future be made removable by the President, for good cause or at will. But such editorial freedom—far more extensive than our holding today—belongs to the Legislature, not the Judiciary. Congress of course remains free to pursue any of these options going forward.

V

Petitioners raise three more challenges to the Board under the Appointments Clause. None has merit.

First, petitioners argue that Board members are principal officers requiring Presidential appointment with the Senate's advice and consent. We held in Edmond v. United States, 520 U.S. 651, 662-663, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997), that "[w]hether one is an `inferior' officer depends on whether he has a superior," and that "`inferior officers' are officers whose work is directed and supervised at some level" by other officers appointed by the President with the Senate's consent. In particular, we noted that "[t]he power to remove officers" at will and without cause "is a powerful tool for control" of an inferior. Id., at 664, 117 S.Ct. 1573. As explained above, the statutory restrictions on the Commission's power to remove Board members are unconstitutional and void. Given that the Commission is properly viewed, under the Constitution, as possessing the power to remove Board members at will, and given the Commission's other oversight authority, we have no hesitation in concluding that under Edmond the Board members are inferior officers whose appointment Congress may permissibly vest in a "Hea[d] of Departmen[t]."

But, petitioners argue, the Commission is not a "Departmen[t]" like the "Executive departments" (e.g., State, Treasury, Defense) listed in 5 U.S.C. § 101. In Freytag, 501 U.S., at 887, n. 4, 111 S.Ct. 2631, we specifically reserved the question whether a "principal agenc[y], such as . . . the Securities and Exchange Commission," is a "Departmen[t]" under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a "Departmen[t]," see id., at 918, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment), because it is a "free-standing, self-contained entity in the Executive Branch," id., at 915, 111 S.Ct. 2631.

Respondents urge us to adopt this reasoning as to those entities not addressed by our opinion in Freytag, see Brief for United States 37-39; PCAOB Brief 30-33, and we do. Respondents' reading of the Appointments Clause is consistent with the common, near-contemporary definition of a "department" as a "separate allotment or part of business; a distinct province, in which a class of duties are allotted to a particular person." 1 N. Webster, American Dictionary of the English Language [3163] (1828) (def.2) (1995 facsimile ed.). It is also consistent with the early practice of Congress, which in 1792 authorized the Postmaster General to appoint "an assistant, and deputy postmasters, at all places where such shall be found necessary," § 3, 1 Stat. 234—thus treating him as the "Hea[d] of [a] Departmen[t]" without the title of Secretary or any role in the President's Cabinet. And it is consistent with our prior cases, which have never invalidated an appointment made by the head of such an establishment. See Freytag, supra, at 917, 111 S.Ct. 2631; cf. Burnap v. United States, 252 U.S. 512, 515, 40 S.Ct. 374, 64 L.Ed. 692 (1920); United States v. Germaine, 99 U.S. 508, 511, 25 L.Ed. 482 (1879). Because the Commission is a freestanding component of the Executive Branch, not subordinate to or contained within any other such component, it constitutes a "Departmen[t]" for the purposes of the Appointments Clause.^[11]

But petitioners are not done yet. They argue that the full Commission cannot constitutionally appoint Board members, because only the Chairman of the Commission is the Commission's "Hea[d]."^[12] The Commission's powers, however, are generally vested in the Commissioners jointly, not the Chairman alone. See, e.g., 15 U.S.C. §§ 77s, 77t, 78u, 78w. The Commissioners do not report to the Chairman, who exercises administrative and executive functions subject to the full Commission's policies. See Reorg. Plan No. 10 of 1950, § 1(b)(1), 64 Stat. 1265. The Chairman is also appointed from among the Commissioners by the President alone, id., § 3, at 1266, which means that he cannot be regarded as "the head of an agency" for purposes of the Reorganization Act. See 5 U.S.C. § 904. (The Commission as a whole, on the other hand, does meet the requirements of the Act, including its provision that "the head of an agency [may] be an individual or a commission or board with more than one member.")^[13]

As a constitutional matter, we see no reason why a multimember body may not be the "Hea[d]" of a "Departmen[t]" that it governs. The Appointments Clause necessarily contemplates collective appointments by the "Courts of Law," Art. II, [3164] § 2, cl. 2, and each House of Congress, too, appoints its officers collectively, see Art. I, § 2, cl. 5; id., § 3, cl. 5. Petitioners argue that the Framers vested the nomination of principal officers in the President to avoid the perceived evils of collective appointments, but they reveal no similar concern with respect to inferior officers, whose appointments may be vested elsewhere, including in multimember bodies. Practice has also sanctioned the appointment of inferior officers by multimember agencies. See Freytag, supra, at 918, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment); see also Classification Act of 1923, ch. 265, § 2, 42 Stat. 1488 (defining "the head of the department" to mean "the officer or group of officers . . . who are not subordinate or responsible to any other officer of the department" (emphasis added)); 37 Op. Atty. Gen. 227, 231 (1933) (endorsing collective appointment by the Civil Service Commission). We conclude that the Board members have been validly appointed by the full Commission.

In light of the foregoing, petitioners are not entitled to broad injunctive relief against the Board's continued operations. But they are entitled to declaratory relief sufficient to ensure that the reporting requirements and auditing standards to which they are subject will be enforced only by a constitutional agency accountable to the Executive. See Bowsher, 478 U.S., at 727, n. 5, 106 S.Ct. 3181 (concluding that a separation of powers violation may create a "here-and-now" injury that can be remedied by a court (internal quotation marks omitted)).

* * *

The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else. Such diffusion of authority "would greatly diminish the intended and necessary responsibility of the chief magistrate himself." The Federalist No. 70, at 478.

While we have sustained in certain cases limits on the President's removal power, the Act before us imposes a new type of restriction—two levels of protection from removal for those who nonetheless exercise significant executive power. Congress cannot limit the President's authority in this way.

The judgment of the United States Court of Appeals for the District of Columbia Circuit is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice BREYER, with whom Justice STEVENS, Justice GINSBURG, and Justice SOTOMAYOR join, dissenting.

The Court holds unconstitutional a statute providing that the Securities and Exchange Commission can remove members of the Public Company Accounting Oversight Board from office only for cause. It argues that granting the "inferior officer[s]" on the Accounting Board "more than one level of good-cause protection . . . contravenes the President's `constitutional obligation to ensure the faithful execution of the laws.'" Ante, at 3147. I agree that the Accounting Board members are inferior officers. See ante, at 3179-3180. But in my view the statute does not significantly interfere with the President's "executive Power." Art. II, § 1. It violates no separation-of-powers principle. And the [3165] Court's contrary holding threatens to disrupt severely the fair and efficient administration of the laws. I consequently dissent.

I

A

The legal question before us arises at the intersection of two general constitutional principles. On the one hand, Congress has broad power to enact statutes "necessary and proper" to the exercise of its specifically enumerated constitutional authority. Art. I, § 8, cl. 18. As Chief Justice Marshall wrote for the Court nearly 200 years ago, the Necessary and Proper Clause reflects the Framers' efforts to create a Constitution that would "endure for ages to come." McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 415, 4 L.Ed. 579 (1819). It embodies their recognition that it would be "unwise" to prescribe "the means by which government should, in all future time, execute its powers." Ibid. Such "immutable rules" would deprive the Government of the needed flexibility to respond to future "exigencies which, if foreseen at all, must have been seen dimly." Ibid. Thus the Necessary and Proper Clause affords Congress broad authority to "create" governmental "`offices'" and to structure those offices "as it chooses." Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); cf. Lottery Case, 188 U.S. 321, 355, 23 S.Ct. 321, 47 L.Ed. 492 (1903). And Congress has drawn on that power over the past century to create numerous federal agencies in response to "various crises of human affairs" as they have arisen. McCulloch, supra, at 415 (emphasis deleted). Cf. Wong Yang Sung v. McGrath, 339 U.S. 33, 36-37, 70 S.Ct. 445, 94 L.Ed. 616 (1950).

On the other hand, the opening sections of Articles I, II, and III of the Constitution separately and respectively vest "all legislative Powers" in Congress, the "executive Power" in the President, and the "judicial Power" in the Supreme Court (and such "inferior Courts as Congress may from time to time ordain and establish"). In doing so, these provisions imply a structural separation-of-powers principle. See, e.g., Miller v. French, 530 U.S. 327, 341-342, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000). And that principle, along with the instruction in Article II, § 3 that the President "shall take Care that the Laws be faithfully executed," limits Congress' power to structure the Federal Government. See, e.g., INS v. Chadha, 462 U.S. 919, 946, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983); Freytag v. Commissioner, 501 U.S. 868, 878, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 859-860, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986). Indeed, this Court has held that the separation-of-powers principle guarantees the President the authority to dismiss certain Executive Branch officials at will. Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926).

But neither of these two principles is absolute in its application to removal cases. The Necessary and Proper Clause does not grant Congress power to free all Executive Branch officials from dismissal at the will of the President. Ibid. Nor does the separation-of-powers principle grant the President an absolute authority to remove any and all Executive Branch officials at will. Rather, depending on, say, the nature of the office, its function, or its subject matter, Congress sometimes may, consistent with the Constitution, limit the President's authority to remove an officer from his post. See Humphrey's Executor [3166] v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), overruling in part Myers, supra; Morrison v. Olson, 487 U.S. 654, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988). And we must here decide whether the circumstances surrounding the statute at issue justify such a limitation.

In answering the question presented, we cannot look to more specific constitutional text, such as the text of the Appointments Clause or the Presentment Clause, upon which the Court has relied in other separation-of-powers cases. See, e.g., Chadha, supra, at 946, 103 S.Ct. 2764; Buckley, supra, at 124-125, 96 S.Ct. 612. That is because, with the exception of the general "vesting" and "take care" language, the Constitution is completely "silent with respect to the power of removal from office." Ex parte Hennen, 13 Pet. 230, 258 (1839); see also Morrison, supra, at 723, 108 S.Ct. 2597 (SCALIA, J., dissenting) ("There is, of course, no provision in the Constitution stating who may remove executive officers. . .").

Nor does history offer significant help. The President's power to remove Executive Branch officers "was not discussed in the Constitutional Convention." Myers, supra, at 109-110, 47 S.Ct. 21. The First Congress enacted federal statutes that limited the President's ability to oversee Executive Branch officials, including the Comptroller of the United States, federal district attorneys (precursors to today's United States Attorneys), and, to a lesser extent, the Secretary of the Treasury. See, e.g., Lessig, Readings By Our Unitary Executive, 15 Cardozo L.Rev. 175, 183-184 (1993); Teifer, The Constitutionality of Independent Officers as Checks on Abuses of Executive Power, 63 B.U.L.Rev. 59, 74-75 (1983); Casper, An Essay in Separation of Powers: Some Early Versions and Practices, 30 Wm. & Mary L.Rev. 211, 240-241 (1989) (hereinafter Casper); H. Bruff, Balance of Forces: Separation of Powers in the Administrative State 414-417 (2006). But those statutes did not directly limit the President's authority to remove any of those officials—"a subject" that was "much disputed" during "the early history of this government," "and upon which a great diversity of opinion was entertained." Hennen, supra, at 259, 38 U.S. 230; see also United States ex rel. Goodrich v. Guthrie, 17 How. 284, 306, 15 L.Ed. 102 (1855) (McLean, J., dissenting); Casper 233-237 (recounting the Debate of 1789). Scholars, like Members of this Court, have continued to disagree, not only about the inferences that should be drawn from the inconclusive historical record, but also about the nature of the original disagreement. Compare ante, at 3151-3152; Myers, supra, at 114, 47 S.Ct. 21 (majority opinion of Taft, C. J.); and Prakash, New Light on the Decision of 1789, 91 Cornell L.Rev. 1021 (2006), with, e.g., Myers, supra, at 194, 47 S.Ct. 21 (McReynolds, J., dissenting); Corwin, Tenure of Office and the Removal Power Under the Constitution, 27 Colum. L.Rev. 353, 369 (1927); Lessig & Sunstein, The President and the Administration, 94 Colum. L.Rev. 1, 25-26 (1994) (hereinafter Lessig & Sunstein); and L. Fisher, President and Congress: Power and Policy 86-89 (1972).

Nor does this Court's precedent fully answer the question presented. At least it does not clearly invalidate the provision in dispute. See Part II-C, infra. In Myers, supra, the Court invalidated—for the first and only time—a congressional statute on the ground that it unduly limited the President's authority to remove an Executive Branch official. But soon thereafter the Court expressly disapproved most of Myers' broad reasoning. See Humphrey's Executor, 295 U.S., at 626-627, 55 S.Ct. 869, overruling in part Myers, supra; Wiener v. United States, 357 U.S. 349, 352, [3167] 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958) (stating that Humphrey's Executor "explicitly `disapproved'" of much of the reasoning in Myers). Moreover, the Court has since said that "the essence of the decision in Myers was the judgment that the Constitution prevents Congress from `draw[ing] to itself . . . the power to remove or the right to participate in the exercise of that power.'" Morrison, supra, at 686, 108 S.Ct. 2597 (emphasis added). And that feature of the statute—a feature that would aggrandize the power of Congress— is not present here. Congress has not granted itself any role in removing the members of the Accounting Board. Cf. Freytag, 501 U.S., at 878, 111 S.Ct. 2631 ("separation-of-powers jurisprudence generally focuses on the danger of one branch's aggrandizing its power at the expense of another branch" (emphasis added)); Buckley, 424 U.S., at 129, 96 S.Ct. 612 (same); Schor, 478 U.S., at 856, 106 S.Ct. 3245 (same); Bowsher v. Synar, 478 U.S. 714, 727, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986) (same). Compare Myers, supra, (striking down statute where Congress granted itself removal authority over Executive Branch official), with Humphrey's Executor, supra, (upholding statute where such aggrandizing was absent); Wiener, supra (same); Morrison, supra (same).

In short, the question presented lies at the intersection of two sets of conflicting, broadly framed constitutional principles. And no text, no history, perhaps no precedent provides any clear answer. Cf. Chicago v. Morales, 527 U.S. 41, 106, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (THOMAS, J., joined by Rehnquist, C.J., and SCALIA, J., dissenting) (expressing the view that "this Court" is "most vulnerable" when "it deals with judge-made constitutional law" that lacks "roots in the language" of the Constitution (internal quotation marks omitted)).

B

When previously deciding this kind of nontextual question, the Court has emphasized the importance of examining how a particular provision, taken in context, is likely to function. Thus, in Crowell v. Benson, 285 U.S. 22, 53, 52 S.Ct. 285, 76 L.Ed. 598 (1932), a foundational separation-of-powers case, the Court said that "regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form, but to the substance of what is required." The Court repeated this injunction in Schor and again in Morrison. See Schor, supra, at 854, 106 S.Ct. 3245 (stating that the Court must look "`beyond form to the substance of what' Congress has done"); Morrison, 487 U.S., at 689-690, 108 S.Ct. 2597 ("The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President," but rather asks whether, given the "functions of the officials in question," a removal provision "interfere[s] with the President's exercise of the `executive power'" (emphasis added)). The Court has thereby written into law Justice Jackson's wise perception that "the Constitution . . . contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (opinion concurring in judgment) (emphasis added). See also ibid. ("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").

It is not surprising that the Court in these circumstances has looked to function and context, and not to bright-line rules. For one thing, that approach embodies the [3168] intent of the Framers. As Chief Justice Marshall long ago observed, our Constitution is fashioned so as to allow the three coordinate branches, including this Court, to exercise practical judgment in response to changing conditions and "exigencies," which at the time of the founding could be seen only "dimly," and perhaps not at all. McCulloch, 4 Wheat., at 415.

For another, a functional approach permits Congress and the President the flexibility needed to adapt statutory law to changing circumstances. That is why the "powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role" over time. New York v. United States, 505 U.S. 144, 157, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). Indeed, the Federal Government at the time of the founding consisted of about 2,000 employees and served a population of about 4 million. See Kaufman, The Growth of the Federal Personnel System, in The Federal Government Service 7, 8 (W. Sayre 2d ed.1965); Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975). Today, however, the Federal Government employs about 4.4 million workers who serve a Nation of more than 310 million people living in a society characterized by rapid technological, economic, and social change. See Office of Management and Budget, Analytical Perspectives, Budget of the U.S. Government, Fiscal Year 2010, p. 368 (2009).

Federal statutes now require or permit Government officials to provide, regulate, or otherwise administer, not only foreign affairs and defense, but also a wide variety of such subjects as taxes, welfare, social security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas, nuclear power, financial instruments, banking, medical care, public health and safety, the environment, fair employment practices, consumer protection and much else besides. Those statutes create a host of different organizational structures. Sometimes they delegate administrative authority to the President directly, e.g., 10 U.S.C. § 2031(a)(1); 42 U.S.C. § 5192(c); sometimes they place authority in a long-established Cabinet department, e.g., 7 U.S.C. § 1637b(c)(1); 12 U.S.C. § 5221(b)(2) (2006 ed., Supp. II); sometimes they delegate authority to an independent commission or board, e.g., 15 U.S.C. § 4404(b); 28 U.S.C. § 994; sometimes they place authority directly in the hands of a single senior administrator, e.g., 15 U.S.C. § 657d(c)(4); 42 U.S.C. § 421; sometimes they place it in a sub-cabinet bureau, office, division or other agency, e.g., 18 U.S.C. § 4048; sometimes they vest it in multimember or multiagency task groups, e.g. 5 U.S.C. §§ 593-594; 50 U.S.C. § 402 (2006 ed. and Supp. II); sometimes they vest it in commissions or advisory committees made up of members of more than one branch, e.g., 20 U.S.C. § 42(a); 28 U.S.C. § 991(a) (2006 ed., Supp. II); 42 U.S.C. § 1975; sometimes they divide it among groups of departments, commissions, bureaus, divisions, and administrators, e.g., 5 U.S.C. § 9902(a) (2006 ed., Supp. II); 7 U.S.C. § 136i-1(g); and sometimes they permit state or local governments to participate as well, e.g., 7 U.S.C. § 2009aa-1(a). Statutes similarly grant administrators a wide variety of powers—for example, the power to make rules, develop informal practices, investigate, adjudicate, impose sanctions, grant licenses, and provide goods, services, advice, and so forth. See generally 5 U.S.C. § 500 et seq.

The upshot is that today vast numbers of statutes governing vast numbers of subjects, concerned with vast numbers of different [3169] problems, provide for, or foresee, their execution or administration through the work of administrators organized within many different kinds of administrative structures, exercising different kinds of administrative authority, to achieve their legislatively mandated objectives. And, given the nature of the Government's work, it is not surprising that administrative units come in many different shapes and sizes.

The functional approach required by our precedents recognizes this administrative complexity and, more importantly, recognizes the various ways presidential power operates within this context—and the various ways in which a removal provision might affect that power. As human beings have known ever since Ulysses tied himself to the mast so as safely to hear the Sirens' song, sometimes it is necessary to disable oneself in order to achieve a broader objective. Thus, legally enforceable commitments—such as contracts, statutes that cannot instantly be changed, and, as in the case before us, the establishment of independent administrative institutions— hold the potential to empower precisely because of their ability to constrain. If the President seeks to regulate through impartial adjudication, then insulation of the adjudicator from removal at will can help him achieve that goal. And to free a technical decisionmaker from the fear of removal without cause can similarly help create legitimacy with respect to that official's regulatory actions by helping to insulate his technical decisions from nontechnical political pressure.

Neither is power always susceptible to the equations of elementary arithmetic. A rule that takes power from a President's friends and allies may weaken him. But a rule that takes power from the President's opponents may strengthen him. And what if the rule takes power from a functionally neutral independent authority? In that case, it is difficult to predict how the President's power is affected in the abstract.

These practical reasons not only support our precedents' determination that cases such as this should examine the specific functions and context at issue; they also indicate that judges should hesitate before second-guessing a "for cause" decision made by the other branches. See, e.g., Chadha, 462 U.S., at 944, 103 S.Ct. 2764 (applying a "presumption that the challenged statute is valid"); Bowsher, 478 U.S., at 736, 106 S.Ct. 3181 (STEVENS, J., concurring in judgment). Compared to Congress and the President, the Judiciary possesses an inferior understanding of the realities of administration, and the manner in which power, including and most especially political power, operates in context.

There is no indication that the two comparatively more expert branches were divided in their support for the "for cause" provision at issue here. In this case, the Act embodying the provision was passed by a vote of 423 to 3 in the House of Representatives and a by vote of 99 to 0 in the Senate. 148 Cong. Rec. 14458, 14505 (2002). The creation of the Accounting Board was discussed at great length in both bodies without anyone finding in its structure any constitutional problem. See id., at 12035-12037, 12112-12132, 12315-12323, 12372-12377, 12488-12508, 12529-12534, 12612-12618, 12673-12680, 12734-12751, 12915-12960, 13347-13354, 14439-14458, 14487-14506. The President signed the Act. And, when he did so, he issued a signing statement that critiqued multiple provisions of the Act but did not express any separation-of-powers concerns. See President's Statement on Signing the Sarbanes-Oxley Act of 2002, 30 Weekly Comp. of Pres. Doc. 1286 (2002). Cf. ABA, Report of Task Force on Presidential Signing Statements and the Separation of Powers [3170] Doctrine 15 (2006), online at http://www. signingstatementsaba_final_signing_ statements_recommendations-report_7-24-06.pdf (all Internet materials as visited June 24, 2010, and available in Clerk of Court's case file) (noting that President Bush asserted "over 500" "constitutional objections" through signing statements "in his first term," including 82 "related to his theory of the `unitary executive'").

Thus, here, as in similar cases, we should decide the constitutional question in light of the provision's practical functioning in context. And our decision should take account of the Judiciary's comparative lack of institutional expertise.

II

A

To what extent then is the Act's "for cause" provision likely, as a practical matter, to limit the President's exercise of executive authority? In practical terms no "for cause" provision can, in isolation, define the full measure of executive power. This is because a legislative decision to place ultimate administrative authority in, say, the Secretary of Agriculture rather than the President, the way in which the statute defines the scope of the power the relevant administrator can exercise, the decision as to who controls the agency's budget requests and funding, the relationships between one agency or department and another, as well as more purely political factors (including Congress' ability to assert influence) are more likely to affect the President's power to get something done. That is why President Truman complained that "`the powers of the President amount to'" bringing "`people in and try[ing] to persuade them to do what they ought to do without persuasion.'" C. Rossiter, The American Presidency 154 (2d rev. ed.1960). And that is why scholars have written that the President "is neither dominant nor powerless" in his relationships with many Government entities, "whether denominated executive or independent." Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L.Rev. 573, 583 (1984) (hereinafter Strauss). Those entities "are all subject to presidential direction in significant aspects of their functioning, and [are each] able to resist presidential direction in others." Ibid. (emphasis added).

Indeed, notwithstanding the majority's assertion that the removal authority is "the key" mechanism by which the President oversees inferior officers in the independent agencies, ante, at 3157, it appears that no President has ever actually sought to exercise that power by testing the scope of a "for cause" provision. See Bruff, Bringing the Independent Agencies in from the Cold, 62 Vanderbilt L.Rev. En Banc 63, 68 (2009), online at http:// vanderbiltlawreview. org/articles/2009/11/Bruff-62-Vand-L-Rev-En-Banc-63.pdf (noting that "Presidents do not test the limits of their power by removing commissioners . . ."); Lessig & Sunstein 110-112 (noting that courts have not had occasion to define what constitutes "cause" because Presidents rarely test removal provisions).

But even if we put all these other matters to the side, we should still conclude that the "for cause" restriction before us will not restrict presidential power significantly. For one thing, the restriction directly limits, not the President's power, but the power of an already independent agency. The Court seems to have forgotten that fact when it identifies its central constitutional problem: According to the Court, the President "is powerless to intervene" if he has determined that the Board members'"conduct merit[s] removal" because "[t]hat decision is vested instead in [3171] other tenured officers—the Commissioners—none of whom is subject to the President's direct control." Ante, at 3153. But so long as the President is legitimately foreclosed from removing the Commissioners except for cause (as the majority assumes), nullifying the Commission's power to remove Board members only for cause will not resolve the problem the Court has identified: The President will still be "powerless to intervene" by removing the Board members if the Commission reasonably decides not to do so.

In other words, the Court fails to show why two layers of "for cause" protection— Layer One insulating the Commissioners from the President, and Layer Two insulating the Board from the Commissioners—impose any more serious limitation upon the President's powers than one layer. Consider the four scenarios that might arise:

1. The President and the Commission both want to keep a Board member in office. Neither layer is relevant.

2. The President and the Commission both want to dismiss a Board member. Layer Two stops them both from doing so without cause. The President's ability to remove the Commission (Layer One) is irrelevant, for he and the Commission are in agreement.

3. The President wants to dismiss a Board member, but the Commission wants to keep the member. Layer One allows the Commission to make that determination notwithstanding the President's contrary view. Layer Two is irrelevant because the Commission does not seek to remove the Board member.

4. The President wants to keep a Board member, but the Commission wants to dismiss the Board member. Here, Layer Two helps the President, for it hinders the Commission's ability to dismiss a Board member whom the President wants to keep in place.

Thus, the majority's decision to eliminate only Layer Two accomplishes virtually nothing. And that is because a removal restriction's effect upon presidential power depends not on the presence of a "double-layer" of for-cause removal, as the majority pretends, but rather on the real-world nature of the President's relationship with the Commission. If the President confronts a Commission that seeks to resist his policy preferences—a distinct possibility when, as here, a Commission's membership must reflect both political parties, 15 U.S.C. § 78d(a)—the restriction on the Commission's ability to remove a Board member is either irrelevant (as in scenario 3) or may actually help the President (as in scenario 4). And if the President faces a Commission that seeks to implement his policy preferences, Layer One is irrelevant, for the President and Commission see eye to eye.

In order to avoid this elementary logic, the Court creates two alternative scenarios. In the first, the Commission and the President both want to remove a Board member, but have varying judgments as to whether they have good "cause" to do so— i.e., the President and the Commission both conclude that a Board member should be removed, but disagree as to whether that conclusion (which they have both reached) is reasonable. Ante, at 3153-3154. In the second, the President wants to remove a Board member and the Commission disagrees; but, notwithstanding its freedom to make reasonable decisions independent of the President (afforded by Layer One), the Commission (while apparently telling the President that it agrees with him and would like to remove the Board member) uses Layer Two as an [3172] "excuse" to pursue its actual aims—an excuse which, given Layer One, it does not need. Ante, at 3154, n. 4.

Both of these circumstances seem unusual. I do not know if they have ever occurred. But I do not deny their logical possibility. I simply doubt their importance. And the fact that, with respect to the President's power, the double layer of for-cause removal sometimes might help, sometimes might hurt, leads me to conclude that its overall effect is at most indeterminate.

But once we leave the realm of hypothetical logic and view the removal provision at issue in the context of the entire Act, its lack of practical effect becomes readily apparent. That is because the statute provides the Commission with full authority and virtually comprehensive control over all of the Board's functions. Those who created the Accounting Board modeled it, in terms of structure and authority, upon the semiprivate regulatory bodies prevalent in the area of financial regulation, such as the New York Stock Exchange and other similar self-regulating organizations. See generally Brief for Former Chairmen of the SEC as Amici Curiae (hereinafter Brief for Former SEC Chairmen). And those organizations— which rely on private financing and on officers drawn from the private sector— exercise rulemaking and adjudicatory authority that is pervasively controlled by, and is indeed "entirely derivative" of, the SEC. See National Assn. of Securities Dealers, Inc. v. SEC, 431 F.3d 803, 806 (C.A.D.C.2005).

Adhering to that model, the statute here gives the Accounting Board the power to adopt rules and standards "relating to the preparation of audit reports"; to adjudicate disciplinary proceedings involving accounting firms that fail to follow these rules; to impose sanctions; and to engage in other related activities, such as conducting inspections of accounting firms registered as the law requires and investigations to monitor compliance with the rules and related legal obligations. See 15 U.S.C. §§ 7211-7216. But, at the same time,

• No Accounting Board rule takes effect unless and until the Commission approves it, § 7217(b)(2);

• The Commission may "abrogat[e], delet[e] or ad[d] to" any rule or any portion of a rule promulgated by the Accounting Board whenever, in the Commission's view, doing so "further[s] the purposes" of the securities and accounting-oversight laws, § 7217(b)(5);

• The Commission may review any sanction the Board imposes and "enhance, modify, cancel, reduce, or require the remission of" that sanction if it find's the Board's action not "appropriate," §§ 7215(e), 7217(c)(3);

• The Commission may promulgate rules restricting or directing the Accounting Board's conduct of all inspections and investigations, §§ 7211(c)(3), 7214(h), 7215(b)(1)-(4);

• The Commission may itself initiate any investigation or promulgate any rule within the Accounting Board's purview, § 7202, and may also remove any Accounting Board member who has unreasonably "failed to enforce compliance with" the relevant "rule[s], or any professional standard," § 7217(d)(3)(C) (emphasis added);

• The Commission may at any time "relieve the Board of any responsibility to enforce compliance with any provision" of the Act, the rules, or professional standards if, in the Commission's view, doing so is in [3173] "the public interest," § 7217(d)(1) (emphasis added).

As these statutory provisions make clear, the Court is simply wrong when it says that "the Act nowhere gives the Commission effective power to start, stop, or alter" Board investigations. Ante, at 3158-3159. On the contrary, the Commission's control over the Board's investigatory and legal functions is virtually absolute. Moreover, the Commission has general supervisory powers over the Accounting Board itself: It controls the Board's budget, §§ 7219(b), (d)(1); it can assign to the Board any "duties or functions" that it "determines are necessary or appropriate," § 7211(c)(5); it has full "oversight and enforcement authority over the Board," § 7217(a), including the authority to inspect the Board's activities whenever it believes it "appropriate" to do so, § 7217(d)(2) (emphasis added). And it can censure the Board or its members, as well as remove the members from office, if the members, for example, fail to enforce the Act, violate any provisions of the Act, or abuse the authority granted to them under the Act, § 7217(d)(3). Cf. Shurtleff v. United States, 189 U.S. 311, 314-319, 23 S.Ct. 535, 47 L.Ed. 828 (1903) (holding that removal authority is not always "restricted to a removal for th[e] causes" set forth by statute); Bowsher, 478 U.S., at 729, 106 S.Ct. 3181 (rejecting the "arguable premis[e]" "that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes"). Contra, ante, at 3158, n. 7. See generally Pildes, Putting Power Back into Separation of Powers Analysis: Why the SEC-PCAOB Structure is Constitutional, 62 Vand. L.Rev. En Banc 85 (2009), online at http://vanderbiltlawreview.org1/articles/ 2009/11/Pildes-62-Vand-L-Rev-En-Banc-85.pdf (explaining further the comprehensive nature of the Commission's powers).

What is left? The Commission's inability to remove a Board member whose perfectly reasonable actions cause the Commission to overrule him with great frequency? What is the practical likelihood of that occurring, or, if it does, of the President's serious concern about such a matter? Everyone concedes that the President's control over the Commission is constitutionally sufficient. See Humphrey's Executor, 295 U.S. 602, 55 S.Ct. 869; Wiener, 357 U.S. 349, 78 S.Ct. 1275; ante, at 3143-3144. And if the President's control over the Commission is sufficient, and the Commission's control over the Board is virtually absolute, then, as a practical matter, the President's control over the Board should prove sufficient as well.

B

At the same time, Congress and the President had good reason for enacting the challenged "for cause" provision. First and foremost, the Board adjudicates cases. See 15 U.S.C. § 7215. This Court has long recognized the appropriateness of using "for cause" provisions to protect the personal independence of those who even only sometimes engage in adjudicatory functions. Humphrey's Executor, supra, at 623-628, 55 S.Ct. 869; see also Wiener, supra, at 355-356, 78 S.Ct. 1275; Morrison, 487 U.S., at 690-691, and n. 30, 108 S.Ct. 2597; McAllister v. United States, 141 U.S. 174, 191-201, 11 S.Ct. 949, 35 L.Ed. 693 (1891) (Field, J., dissenting). Indeed, as early as 1789 James Madison stated that "there may be strong reasons why an" executive "officer" such as the Comptroller of the United States "should not hold his office at the pleasure of the Executive branch" if one of his "principal dut[ies]" "partakes strongly of the judicial character." 1 Annals of Congress 611-612; cf. ante, at 3156, n. 6 (noting that the statute Congress ultimately enacted limited [3174] Presidential control over the Comptroller in a different fashion); see supra, at 3148. The Court, however, all but ignores the Board's adjudicatory functions when conducting its analysis. See, e.g., ante, at 3155. And when it finally does address that central function (in a footnote), it simply asserts that the Board does not "perform adjudicative . . . functions," ante, at 3160, n. 10 (emphasis added), an assertion that is inconsistent with the terms of the statute. See § 7215(c)(1) (governing "proceeding[s] by the Board to determine whether a registered public accounting firm, or an associated person thereof, should be disciplined").

Moreover, in addition to their adjudicative functions, the Accounting Board members supervise, and are themselves, technical professional experts. See § 7211(e)(1) (requiring that Board members "have a demonstrated" technical "understanding of the responsibilities" and "obligations of accountants with respect to the preparation and issuance of audit reports"). This Court has recognized that the "difficulties involved in the preparation of" sound auditing reports require the application of "scientific accounting principles." United States v. Anderson, 269 U.S. 422, 440, 46 S.Ct. 131, 70 L.Ed. 347 (1926). And this Court has recognized the constitutional legitimacy of a justification that rests agency independence upon the need for technical expertise. See Humphrey's Executor, supra, at 624-626, 55 S.Ct. 869; see also Breger & Edles, Established by Practice: The Theory and Operation of Independent Federal Agencies, 52 Admin. L.Rev. 1111, 1131-1133 (2000) (explaining how the need for administrators with "technical competence," "apolitical expertise," and skill in "scientific management" led to original creation of independent agencies) (hereinafter Breger & Edles); J. Landis, The Administrative Process 23 (1938) (similar); Woodrow Wilson, Democracy and Efficiency, 87 Atlantic Monthly 289, 299 (1901) (describing need for insulation of experts from political influences).

Here, the justification for insulating the "technical experts" on the Board from fear of losing their jobs due to political influence is particularly strong. Congress deliberately sought to provide that kind of protection. See, e.g., 148 Cong. Rec. 12036, 12115, 13352-13355. It did so for good reason. See ante, at 3147 (noting that the Accounting Board was created in response to "a series of celebrated accounting debacles"); H.R.Rep. No. 107-414, pp. 18-19 (2002) (same); Brief for Former SEC Chairmen 8-9. And historically, this regulatory subject matter—financial regulation—has been thought to exhibit a particular need for independence. See e.g., 51 Cong. Rec. 8857 (1914) (remarks of Sen. Morgan upon creation of the Federal Trade Commission) ("[I]t is unsafe for an . . . administrative officer representing a great political party . . . to hold the power of life and death over the great business interests of this country . . . . That is . . . why I believe in . . . taking these business matters out of politics"). And Congress, by, for example, providing the Board with a revenue stream independent of the congressional appropriations process, § 7219, helped insulate the Board from congressional, as well as other, political influences. See, e.g., 148 Cong. Rec. 12036 (statement of Sen. Stabenow).

In sum, Congress and the President could reasonably have thought it prudent to insulate the adjudicative Board members from fear of purely politically based removal. Cf. Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) ("[I]t is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if [3175] confidence in the system of representative Government is not to be eroded to a disastrous extent"). And in a world in which we count on the Federal Government to regulate matters as complex as, say, nuclear-power production, the Court's assertion that we should simply learn to get by "without being" regulated "by experts" is, at best, unrealistic—at worst, dangerously so. Ante, at 3155-3156.

C

Where a "for cause" provision is so unlikely to restrict presidential power and so likely to further a legitimate institutional need, precedent strongly supports its constitutionality. First, in considering a related issue in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), the Court made clear that when "determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions." Id., at 443, 97 S.Ct. 2777. The Court said the same in Morrison, where it upheld a restriction on the President's removal power. 487 U.S., at 691, 108 S.Ct. 2597 ("[T]he real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light"). Here, the removal restriction may somewhat diminish the Commission's ability to control the Board, but it will have little, if any, negative effect in respect to the President's ability to control the Board, let alone to coordinate the Executive Branch. See Part II-A, supra. Indeed, given Morrison, where the Court upheld a restriction that significantly interfered with the President's important historic power to control criminal prosecutions, a "`purely executive'" function, 487 U.S., at 687-689, 108 S.Ct. 2597, the constitutionality of the present restriction would seem to follow a fortiori.

Second, as previously pointed out, this Court has repeatedly upheld "for cause" provisions where they restrict the President's power to remove an officer with adjudicatory responsibilities. Compare Humphrey's Executor, 295 U.S., at 623-628, 55 S.Ct. 869; Wiener, 357 U.S., at 355, 78 S.Ct. 1275; Schor, 478 U.S., at 854, 106 S.Ct. 3245; Morrison, supra, at 691, n. 30, 108 S.Ct. 2597, with ante, at 3155-3156 (ignoring these precedents). And we have also upheld such restrictions when they relate to officials with technical responsibilities that warrant a degree of special independence. E.g., Humphrey's Executor, supra, at 624, 55 S.Ct. 869. The Accounting Board's functions involve both kinds of responsibility. And, accordingly, the Accounting Board's adjudicatory responsibilities, the technical nature of its job, the need to attract experts to that job, and the importance of demonstrating the nonpolitical nature of the job to the public strongly justify a statute that assures that Board members need not fear for their jobs when competently carrying out their tasks, while still maintaining the Commission as the ultimate authority over Board policies and actions. See Part II-B, supra.

Third, consider how several cases fit together in a way that logically compels a holding of constitutionality here. In Perkins, 116 U.S., at 483, 484, 6 S.Ct. 449— which was reaffirmed in Myers, 272 U.S., at 127, 47 S.Ct. 21 and in Morrison, supra, at 689, n. 27, 108 S.Ct. 2597—the Court upheld a removal restriction limiting the authority of the Secretary of the Navy to remove a "cadet-engineer," whom the Court explicitly defined as an "inferior officer." The Court said,

[3176] "We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed." Perkins, supra, at 485, 6 S.Ct. 449 (emphasis added; internal quotation marks omitted).

See also Morrison, supra, at 723-724, 108 S.Ct. 2597 (SCALIA, J., dissenting) (agreeing that the power to remove an "inferior officer" who is appointed by a department head can be restricted). Cf. ante, at 3162-3164 (holding that SEC Commissioners are "Heads of Departments").

In Humphrey's Executor, the Court held that Congress may constitutionally limit the President's authority to remove certain principal officers, including heads of departments. 295 U.S., at 627-629, 55 S.Ct. 869. And the Court has consistently recognized the validity of that holding. See Wiener, supra; United States v. Nixon, 418 U.S. 683, 706, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Buckley, 424 U.S., at 133-136, 96 S.Ct. 612; Chadha, 462 U.S., at 953, n. 16, 103 S.Ct. 2764; Bowsher, 478 U.S., at 725-726, 106 S.Ct. 3181; Morrison, supra, at 686-693, 108 S.Ct. 2597; Mistretta v. United States, 488 U.S. 361, 410-411, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

And in Freytag, 501 U.S., at 878, 111 S.Ct. 2631, Justice SCALIA stated in a concurring opinion written for four Justices, including Justice KENNEDY, that "adjusting the remainder of the Constitution to compensate for Humphrey's Executor is a fruitless endeavor." In these Justices' view, the Court should not create a separate constitutional jurisprudence for the "independent agencies." That being so, the law should treat their heads as it treats other Executive Branch heads of departments. Consequently, as the Court held in Perkins, Congress may constitutionally "limit and restrict" the Commission's power to remove those whom they appoint (e.g., the Accounting Board members).

Fourth, the Court has said that "[o]ur separation-of-powers jurisprudence generally focuses on the danger of one branch's aggrandizing its power at the expense of another branch." Freytag, supra, at 878, 111 S.Ct. 2631 (emphasis added); accord, Buckley, supra, at 124-125, 96 S.Ct. 612; Schor, supra, at 856, 106 S.Ct. 3245; Morrison, supra, at 686, 108 S.Ct. 2597; cf. Bowsher, supra. Indeed, it has added that "the essence of the decision in Myers," which is the only one of our cases to have struck down a "for cause" removal restriction, "was the judgment that the Constitution prevents Congress from `draw[ing] to itself . . . the power to remove.'" Morrison, supra, at 686, 108 S.Ct. 2597 (quoting Myers, supra, at 161, 47 S.Ct. 21; emphasis added). Congress here has "drawn" no power to itself to remove the Board members. It has instead sought to limit its own power, by, for example, providing the Accounting Board with a revenue stream independent of the congressional appropriations process. See supra, at 19; see also Brief for Former SEC Chairmen 16. And this case thereby falls outside the ambit of the Court's most serious constitutional concern.

In sum, the Court's prior cases impose functional criteria that are readily met here. Once one goes beyond the Court's elementary arithmetical logic (i.e., "one plus one is greater than one") our precedent virtually dictates a holding that the [3177] challenged "for cause" provision is constitutional.

D

We should ask one further question. Even if the "for cause" provision before us does not itself significantly interfere with the President's authority or aggrandize Congress' power, is it nonetheless necessary to adopt a bright-line rule forbidding the provision lest, through a series of such provisions, each itself upheld as reasonable, Congress might undercut the President's central constitutional role? Cf. Strauss 625-626. The answer to this question is that no such need has been shown. Moreover, insofar as the Court seeks to create such a rule, it fails. And in failing it threatens a harm that is far more serious than any imaginable harm this "for cause" provision might bring about.

The Court fails to create a bright-line rule because of considerable uncertainty about the scope of its holding—an uncertainty that the Court's opinion both reflects and generates. The Court suggests, for example, that its rule may not apply where an inferior officer "perform[s] adjudicative. . . functions." Cf. ante, at 3160, n. 10. But the Accounting Board performs adjudicative functions. See supra, at 3155-3156. What, then, are we to make of the Court's potential exception? And would such an exception apply to an administrative law judge who also has important administrative duties beyond pure adjudication? See, e.g., 8 CFR § 1003.9, 34 CFR § 81.4 (2009). The Court elsewhere suggests that its rule may be limited to removal statutes that provide for "judicial review of a[n] effort to remove" an official for cause. Ante, at 3158; ante, at 3159. But we have previously stated that all officers protected by a for-cause removal provision and later subject to termination are entitled to "notice and [a] hearing" in the "courts," as without such review "the appointing power" otherwise "could remove at pleasure or for such cause as [only] it deemed sufficient." Reagan v. United States, 182 U.S. 419, 425, 21 S.Ct. 842, 45 L.Ed. 1162 (1901); Shurtleff, 189 U.S., at 314, 23 S.Ct. 535; cf. Humphrey's Executor, supra (entertaining civil suit challenging removal). But cf. Bowsher, supra, at 729, 106 S.Ct. 3181. What weight, then, should be given to this hint of an exception?

The Court further seems to suggest that its holding may not apply to inferior officers who have a different relationship to their appointing agents than the relationship between the Commission and the Board. See ante, at 3158, 3159-3160. But the only characteristic of the "relationship" between the Commission and the Board that the Court apparently deems relevant is that the relationship includes two layers of for-cause removal. See, e.g., ante, at 3158 ("Broad power over Board functions is not equivalent to the power to remove Board members"). Why then would any different relationship that also includes two layers of for-cause removal survive where this one has not? Cf. Part II-A, supra (describing the Commission's near absolute control over the Board). In a word, what differences are relevant? If the Court means to state that its holding in fact applies only where Congress has "enacted an unusually high standard" of for-cause removal—and does not otherwise render two layers of "`ordinary'" for-cause removal unconstitutional—I should welcome the statement. Ante, at 3158 (emphasis added); see also ante, at 3159-3160, 3154, 3158, (underscoring this statute's "sharply circumscribed definition of what constitutes `good cause'" and its "rigorous," "significant and unusual [removal] protections"). But much of the majority's opinion appears to avoid so narrow a holding in favor of a broad, basically mechanical [3178] rule—a rule that, as I have said, is divorced from the context of the case at hand. Compare Parts III-A, III-B, III-C, ante, with Parts II-A, II-B, II-C, supra. And such a mechanical rule cannot be cabined simply by saying that, perhaps, the rule does not apply to instances that, at least at first blush, seem highly similar. A judicial holding by its very nature is not "a restricted railroad ticket, good for" one "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 begins to reveal the practical problems inherent in its double for-cause rule when it suggests that its rule may not apply to "the civil service." Ante, at 3160. The "civil service" is defined by statute to include "all appointive positions in . . . the Government of the United States," excluding the military, but including all civil "officer[s]" up to and including those who are subject to Senate confirmation. 5 U.S.C. §§ 2101, 2102(a)(1)(B), 2104. The civil service thus includes many officers indistinguishable from the members of both the Commission and the Accounting Board. Indeed, as this Court recognized in Myers, the "competitive service"—the class within the broader civil service that enjoys the most robust career protection— "includes a vast majority of all the civil officers" in the United States. 272 U.S., at 173, 47 S.Ct. 21 (emphasis added); 5 U.S.C. § 2102(c).

But even if I assume that the majority categorically excludes the competitive service from the scope of its new rule, cf. ante, at 3160 (leaving this question open), the exclusion would be insufficient. This is because the Court's "double for-cause" rule applies to appointees who are "inferior officer[s]." Ante, at 3147. And who are they? Courts and scholars have struggled for more than a century to define the constitutional term "inferior officers," without much success. See 2 J. Story, Commentaries on the Constitution § 1536, pp. 397-398 (3d ed.1858) ("[T]here does not seem to have been any exact line drawn, who are and who are not to be deemed inferior officers, in the sense of the constitution"); Edmond v. United States, 520 U.S. 651, 661, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) ("Our cases have not set forth an exclusive criterion for [defining] inferior officers"); Memorandum from Steven G. Bradbury, Acting Assistant Attorney General, Office of Legal Counsel, to the General Counsels of the Executive Branch: Officers of the United States Within the Meaning of the Appointments Clause, p. 3 (Apr. 16, 2007) (hereinafter OLC Memo), online at http://www.justice.gov/olc/2007/ appointmentsclausev10.pdf ("[T]he Supreme Court has not articulated the precise scope and application of the [Inferior Officer] Clause's requirements"); Konecke, The Appointments Clause and Military Judges: Inferior Appointment to a Principal Office, 5 Seton Hall Const. L. J. 489, 492 (1995) (same); Burkoff, Appointment and Removal Under the Federal Constitution: The Impact of Buckley v. Valeo, 22 Wayne L.Rev. 1335, 1347, 1364 (1976) (describing our early precedent as "circular" and our later law as "not particularly useful"). The Court does not clarify the concept. But without defining who is an inferior officer, to whom the majority's new rule applies, we cannot know the scope or the coherence of the legal rule that the Court creates. I understand the virtues of a common-law case-by-case approach. But here that kind of approach (when applied without more specificity than I can find in the Court's opinion) threatens serious harm.

The problem is not simply that the term "inferior officer" is indefinite but also that efforts to define it inevitably conclude that the term's sweep is unusually broad. Consider the Court's definitions: Inferior officers [3179] are, inter alia, (1) those charged with "the administration and enforcement of the public law," Buckley, 424 U.S., at 139, 96 S.Ct. 612; ante, at 3147; (2) those granted "significant authority," 424 U.S., at 126, 96 S.Ct. 612; ante, at 3159-3160; (3) those with "responsibility for conducting civil litigation in the courts of the United States," 424 U.S., at 140, 96 S.Ct. 612; and (4) those "who can be said to hold an office," United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879), that has been created either by "regulations" or by "statute," United States v. Mouat, 124 U.S. 303, 307-308, 23 Ct.Cl. 490, 8 S.Ct. 505, 31 L.Ed. 463 (1888).

Consider the definitional conclusion that the Department of Justice more recently reached: An "inferior officer" is anyone who holds a "continuing" position and who is "invested by legal authority with a portion of the sovereign powers of the federal Government," including, inter alia, the power to "arrest criminals," "seize persons or property," "issue regulations," "issue. . . authoritative legal opinions," "conduc[t] civil litigation," "collec[t] revenue," represent "the United States to foreign nations," "command" military force, or enter into "contracts" on behalf "of the nation." OLC Memo 1, 4, 12-13, 15-16 (internal quotation marks omitted; emphasis added).

And consider the fact that those whom this Court has held to be "officers" include: (1) a district court clerk, Hennen, 13 Pet., at 258; (2) "thousands of clerks in the Departments of the Treasury, Interior and the othe[r]" departments, Germaine, supra, at 511, who are responsible for "the records, books, and papers appertaining to the office," Hennen, supra, at 259; (3) a clerk to "the assistant treasurer" stationed "at Boston," United States v. Hartwell, 73 U.S. 385, 6 Wall. 385, 392, 18 L.Ed. 830 (1868); (4 & 5) an "assistant-surgeon" and a "cadet-engineer" appointed by the Secretary of the Navy, United States v. Moore, 95 U.S. 760, 762, 24 L.Ed. 588 (1878); Perkins, 116 U.S., at 484, 6 S.Ct. 449; (6) election monitors, Ex parte Siebold, 100 U.S. 371, 397-399, 25 L.Ed. 717 (1880); (7) United States attorneys, Myers, supra, at 159, 47 S.Ct. 21; (8) federal marshals, Siebold, supra, at 397; Morrison, 487 U.S., at 676, 108 S.Ct. 2597; (9) military judges, Weiss v. United States, 510 U.S., 163, 170, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994); (10) judges in Article I courts, Freytag, 501 U.S., at 878, 111 S.Ct. 2631; and (11) the general counsel of the Department of Transportation, Edmond v. United States, 520 U.S. 651, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997). Individual Members of the Court would add to the list the Federal Communication Commission's managing director, the Federal Trade Commission's "secretary," the general counsel of the Commodity Futures Trading Commission, and more generally, bureau chiefs, general counsels, and administrative law judges, see Freytag, supra, at 918-920, 111 S.Ct. 2631 (SCALIA, J., concurring in part and concurring in judgment), as well as "ordinary commissioned military officers," Weiss, supra, at 182, 114 S.Ct. 752 (Souter, J., concurring).

Reading the criteria above as stringently as possible, I still see no way to avoid sweeping hundreds, perhaps thousands of high level government officials within the scope of the Court's holding, putting their job security and their administrative actions and decisions constitutionally at risk. To make even a conservative estimate, one would have to begin by listing federal departments, offices, bureaus and other agencies whose heads are by statute removable only "for cause." I have found 48 such agencies, which I have listed in Appendix A, infra. Then it would be necessary to identify the senior officials in those agencies (just below the top) who themselves [3180] are removable only "for cause." I have identified 573 such high-ranking officials, whom I have listed in Appendix B, infra. They include most of the leadership of the Nuclear Regulatory Commission (including that agency's executive director as well as the directors of its Office of Nuclear Reactor Regulation and Office of Enforcement), virtually all of the leadership of the Social Security Administration, the executive directors of the Federal Energy Regulatory Commission and the Federal Trade Commission, as well as the general counsels of the Chemical Safety Board, the Federal Mine Safety and Health Review Commission, and the National Mediation Board.

This list is a conservative estimate because it consists only of career appointees in the Senior Executive Service (SES), see 5 U.S.C. §§ 2101a, 3132(a)(2), a group of high-ranking officials distinct from the "competitive service," see § 2101(a)(1)(C), who "serve in the key positions just below the top Presidential appointees," Office of Personnel Management, About the Senior Executive Service, online at http://www. opm.gov/ses/about_ses/index.asp; § 2102(a)(1)(C), and who are, without exception, subject to "removal" only for cause. §§ 7542-7543; see also § 2302(a)(2) (substantially limiting conditions under which "a career appointee in the Senior Executive Service" may be "transfer[red], or reassign[ed]"). SES officials include, for example, the Director of the Bureau of Prisons, the Director of the National Drug Intelligence Center, and the Director of the Office of International Monetary Policy in the Treasury Department. See Senate Committee on Homeland Security and Government Affairs, United States Government Policy and Supporting Positions (2008), pp. 99, 103, 129 (hereinafter Plum Book). And by virtually any definition, essentially all SES officials qualify as "inferior officers," for their duties, as defined by statute, require them to "direc[t] the work of an organizational unit," carry out high-level managerial functions, or "otherwise exercis[e] important policy-making, policy-determining, or other executive functions." § 3132(a)(2) (emphasis added). Cf. ante, at 3147 (describing an "inferior officer" as someone who "determines the policy and enforces the laws of the United States"); ante, at 3160 (acknowledging that career SES appointees in independent agencies may be rendered unconstitutional in future cases). Is the SES exempt from today's rule or is it not? The Court, after listing reasons why the SES may be different, simply says that it will not "addres[s]" the matter. Ante, at 3160-3161. Perhaps it does not do so because it cannot do so without revealing the difficulty of distinguishing the SES from the Accounting Board and thereby also revealing the inherent instability of the legal rule it creates.

The potential list of those whom today's decision affects is yet larger. As Justice SCALIA has observed, administrative law judges (ALJs) "are all executive officers." Freytag, 501 U.S., at 878, 111 S.Ct. 2631 (opinion concurring in part and concurring in judgment) (emphasis deleted); see also, e.g., id., at 881, 111 S.Ct. 2631 (majority opinion) ("[A] [tax-court] special trial judge is an `inferior Officer'"); Edmond, supra, at 654, 117 S.Ct. 1573 ("[M]ilitary trial and appellate judges are [inferior] officers"). But cf. ante, at 3160, n. 10. And ALJs are each removable "only for good cause established and determined by the Merit Systems Protection Board," 5 U.S.C. §§ 7521(a)-(b). But the members of the Merit Systems Protection Board are themselves protected from removal by the President absent good cause. § 1202(d).

My research reflects that the Federal Government relies on 1,584 ALJs to adjudicate administrative matters in over 25 [3181] agencies. See Appendix C, infra; see also Memorandum of Juanita Love, Office of Personnel Management, to Supreme Court Library (May 28, 2010) (available in Clerk of Court's case file). These ALJs adjudicate Social Security benefits, employment disputes, and other matters highly important to individuals. Does every losing party before an ALJ now have grounds to appeal on the basis that the decision entered against him is unconstitutional? Cf. ante, at 3160, n. 10 ("[O]ur holding also does not address" this question).

And what about the military? Commissioned military officers "are `inferior officers.'" Weiss, 510 U.S., at 182, 114 S.Ct. 752 (Souter, J., concurring); id., at 169-170, 114 S.Ct. 752 (majority opinion). There are over 210,000 active-duty commissioned officers currently serving in the armed forces. See Dept. of Defense, Active Duty Military Personnel by Rank (Apr. 30, 2010), online at http://siadapp. dmdc.osd.mil/personnel/MILITARY/ rg1004.pdf. Numerous statutory provisions provide that such officers may not be removed from office except for cause (at least in peacetime). See, e.g., 10 U.S.C. §§ 629-632, 804, 1161, 1181-1185. And such officers can generally be so removed only by other commissioned officers, see §§ 612, 825, 1187, who themselves enjoy the same career protections.

The majority might simply say that the military is different. But it will have to explain how it is different. It is difficult to see why the Constitution would provide a President who is the military's "commander-in-chief," Art. II, § 2, cl. 1, with less authority to remove "inferior" military "officers" than to remove comparable civil officials. See Barron & Lederman, The Commander in Chief at the Lowest Ebb— A Constitutional History, 121 Harv. L.Rev. 941, 1102-1106 (2008) (describing President's "superintendence prerogative" over the military). Cf. ante, at 3160-3161 (not "expressing any view whatever" as to whether military officers' authority is now unconstitutional).

The majority sees "no reason . . . to address whether" any of "these positions," "or any others," might be deemed unconstitutional under its new rule, preferring instead to leave these matters for a future case. Ante, at 3160-3161. But what is to happen in the meantime? Is the work of all these various officials to be put on hold while the courts of appeals determine whether today's ruling applies to them? Will Congress have to act to remove the "for cause" provisions? Cf. Buckley, 424 U.S., at 142-143, 96 S.Ct. 612. Can the President then restore them via executive order? And, still, what about the military? A clearer line would help avoid these practical difficulties.

The majority asserts that its opinion will not affect the Government's ability to function while these many questions are litigated in the lower courts because the Court's holding concerns only "the conditions under which th[e]se officers might some day be removed." Ante, at 3161. But this case was not brought by federal officials challenging their potential removal. It was brought by private individuals who were subject to regulation "`here-and-now'" and who "object to the" very "existence" of the regulators themselves. Ante, at 3164, 3150 (emphasis added). And those private individuals have prevailed. Thus, any person similarly regulated by a federal official who is potentially subject to the Court's amorphous new rule will be able to bring an "implied private right of action directly under the Constitution" "seeking . . . a declaratory judgment that" the official's actions are "unconstitutional and an injunction preventing the" official "from exercising [his] powers." Ante, at 3151, n. 2, 3088-3089; cf., e.g., Legal Services [3182] Corporation v. Velazquez, 531 U.S. 533, 546, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001) (affirming grant of preliminary injunction to cure, inter alia, a separation-of-powers violation); Youngstown Sheet & Tube Co., 343 U.S. 579, 72 S.Ct. 863 (same). Such a plaintiff need not even first exhaust his administrative remedies. Ante, at 3149-3151.

Nor is it clear that courts will always be able to cure such a constitutional defect merely by severing an offending removal provision. For a court's "ability to devise [such] a judicial remedy . . . often depends on how clearly" the "background constitutional rules at issue" have been "articulated"; severance will be unavailable "in a murky constitutional context," which is precisely the context that the Court's new rule creates. Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329, 330, 126 S.Ct. 961, 163 L.Ed.2d 812 (2006). Moreover, "the touchstone" of the severability analysis "is legislative intent," id., at 330, 126 S.Ct. 961, and Congress has repeatedly expressed its judgment "over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service," Civil Service Comm'n, 413 U.S., at 557, 93 S.Ct. 2880; see also Bush v. Lucas, 462 U.S. 367, 380-388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (describing the history of "Congressional attention to the problem of politically-motivated removals"). And so it may well be that courts called upon to resolve the many questions the majority's opinion raises will not only apply the Court's new rule to its logical conclusion, but will also determine that the only available remedy to certain double for-cause problems is to invalidate entire agencies.

Thus, notwithstanding the majority's assertions to the contrary, the potential consequences of today's holding are worrying. The upshot, I believe, is a legal dilemma. To interpret the Court's decision as applicable only in a few circumstances will make the rule less harmful but arbitrary. To interpret the rule more broadly will make the rule more rational, but destructive.

III

One last question: How can the Court simply assume without deciding that the SEC Commissioners themselves are removable only "for cause?" See ante, at 3148-3149 ("[W]e decide the case with th[e] understanding" "that the Commissioners cannot themselves be removed by the President except" for cause (emphasis added)). Unless the Commissioners themselves are in fact protected by a "for cause" requirement, the Accounting Board statute, on the Court's own reasoning, is not constitutionally defective. I am not aware of any other instance in which the Court has similarly (on its own or through stipulation) created a constitutional defect in a statute and then relied on that defect to strike a statute down as unconstitutional. Cf. Alabama v. North Carolina, 560 U.S. ___, ___, 130 S.Ct. 2295, ___, ___ L.Ed.2d ___ (slip Op., at 20) (2010) (opinion for the Court by SCALIA, J.) ("We do not—we cannot—add provisions to a federal statute . . . especially [if] . . . separation-of-powers concerns . . . would [thereby] arise"); The Anaconda v. American Sugar Refining Co., 322 U.S. 42, 46, 64 S.Ct. 863, 88 L.Ed. 1117 (1944) (describing parties' inability to "stipulate away" what "the legislation declares").

It is certainly not obvious that the SEC Commissioners enjoy "for cause" protection. Unlike the statutes establishing the 48 federal agencies listed in Appendix A, infra, the statue that established the Commission says nothing about removal. It is [3183] silent on the question. As far as its text is concerned, the President's authority to remove the Commissioners is no different from his authority to remove the Secretary of State or the Attorney General. See Shurtleff, 189 U.S., at 315, 23 S.Ct. 535 ("To take away th[e] power of removal . . . would require very clear and explicit language. It should not be held to be taken away by mere inference or implication"); see also Memorandum from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, to the Principal Deputy Counsel to the President: Removability of the Federal Coordinator for Alaska Natural Gas Transportation Projects, p. 2 (Oct. 23, 2009), online at http:// justice.gov/olc/2009/gas-transportproject. pdf ("[Where] Congress did not explicitly provide tenure protection . . . the President, consistent with . . . settled principles, may remove . . . without cause"); The Constitutional Separation of Powers Between the President and Congress, 20 Op. Legal Counsel 124, 170 (1996) (same).

Nor is the absence of a "for cause" provision in the statute that created the Commission likely to have been inadvertent. Congress created the Commission during the 9-year period after this Court decided Myers, and thereby cast serious doubt on the constitutionality of all "for cause" removal provisions, but before it decided Humphrey's Executor, which removed any doubt in respect to the constitutionality of making commissioners of independent agencies removable only for cause. In other words, Congress created the SEC at a time when, under this Court's precedents, it would have been unconstitutional to make the Commissioners removable only for cause. And, during that 9-year period, Congress created at least three major federal agencies without making any of their officers removable for cause. See 48 Stat. 885, 15 U.S.C. § 78d (Securities and Exchange Commission), 48 Stat. 1066, 47 U.S.C. § 154 (Federal Communications Commission); 46 Stat. 797 (Federal Power Commission) (reformed post-Humphrey's Executor as the Federal Energy Regulatory Commission with "for cause" protection, 91 Stat. 582, 42 U.S.C. § 7171). By way of contrast, only one month after Humphrey's Executor was decided, Congress returned to its pre-Myers practice of including such provisions in statutes creating independent commissions. See § 3, 49 Stat. 451, 29 U.S.C. § 153 (establishing National Labor Relations Board with an explicit removal limitation).

The fact that Congress did not make the SEC Commissioners removable "for cause" does not mean it intended to create a dependent, rather than an independent agency. Agency independence is a function of several different factors, of which "for cause" protection is only one. Those factors include, inter alia, an agency's separate (rather than presidentially dependent) budgeting authority, its separate litigating authority, its composition as a multimember bipartisan board, the use of the word "independent" in its authorizing statute, and, above all, a political environment, reflecting tradition and function, that would impose a heavy political cost upon any President who tried to remove a commissioner of the agency without cause. See generally Breger & Edles 1135-1155.

The absence of a "for cause" provision is thus not fatal to agency independence. Indeed, a "Congressional Research Service official suggests that there are at least 13 `independent' agencies without a removal provision in their statutes." Id., at 1143, n. 161 (emphasis added) (citing congressional testimony). But it does draw the majority's rule into further confusion. For not only are we left without a definition of an "inferior officer," but we are also left to guess which department heads will be [3184] deemed by the majority to be subject to for-cause removal notwithstanding statutes containing no such provision. If any agency deemed "independent" will be similarly treated, the scope of the majority's holding is even broader still. See Appendix D, infra (listing agencies potentially affected).

The Court then, by assumption, reads into the statute books a "for cause removal" phrase that does not appear in the relevant statute and which Congress probably did not intend to write. And it does so in order to strike down, not to uphold, another statute. This is not a statutory construction that seeks to avoid a constitutional question, but its opposite. See Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) ("It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case" (internal quotation marks omitted)); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979) ("[A]n Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available").

I do not need to decide whether the Commissioners are in fact removable only "for cause" because I would uphold the Accounting Board's removal provision as constitutional regardless. But were that not so, a determination that the silent SEC statute means no more than it says would properly avoid the determination of unconstitutionality that the Court now makes.

* * *

In my view the Court's decision is wrong—very wrong. As Parts II-A, II-B, and II-C of this opinion make clear, if the Court were to look to the proper functional and contextual considerations, it would find the Accounting Board provision constitutional. As Part II-D shows, insofar as the Court instead tries to create a bright-line rule, it fails to do so. Its rule of decision is both imprecise and overly broad. In light of the present imprecision, it must either narrow its rule arbitrarily, leaving it to apply virtually alone to the Accounting Board, or it will have to leave in place a broader rule of decision applicable to many other "inferior officers" as well. In doing the latter, it will undermine the President's authority. And it will create an obstacle, indeed pose a serious threat, to the proper functioning of that workable Government that the Constitution seeks to create—in provisions this Court is sworn to uphold.

With respect I dissent.

APPENDIXES

A

There are 24 stand-alone federal agencies (i.e., "departments") whose heads are, by statute, removable by the President only "for cause." Moreover, there are at least 24 additional offices, boards, or bureaus situated within departments that are similarly subject, by statute, to for-cause removal provisions. The chart below first lists the 24 departments and then lists the 24 additional offices, boards, and bureaus. I have highlighted those instances in which a "for-cause" office is situated within a "for-cause" department—i.e., instances of "double for-cause" removal that are essentially indistinguishable from this case (with the notable exception that the Accounting Board may not be statutorily subject to two layers of for-cause removal, cf. Part III, supra). This list does not include instances of "double for-cause" removal that arise in Article I courts, although such instances might also be affected by the majority's holding, cf. ante, at ___, n. 10. Compare 48 U.S.C. §§ 1424(a), 1614(a), [3185] with 28 U.S.C. §§ 631(a), (i), and 18 U.S.C. §§ 23, 3602(a).

---------------------------------------------------------------------------
     |    Department        |   Statutory Removal Provision
-----|----------------------|----------------------------------------------
     |                      | Any member of the Board, including the
  1  |  Chemical Safety     | Chairperson, may be removed for
     |      Board           | inefficiency, neglect of duty, or malfeasance
     |                      | in office." 42 U. S. C. §7412(r)(6)(B)
-----|----------------------|----------------------------------------------
     |                      | "The President may remove a member of
     |  Commission on Civil | the Commission only for neglect of duty or
  2  |        Rights        | malfeasance in office." 42 U. S. C. §1975(e)
-----|----------------------|----------------------------------------------
     |                      | "Any member of the Commission may be
  3  |  Consumer Product    | removed by the President for neglect of
     |  Safety Commission   | duty or malfeasance in office but for no
     |                      | other cause." 15 U. S. C. §2053(a)
---------------------------------------------------------------------------

 [3186] 
---------------------------------------------------------------------------
     |                      | "Members shall hold office for a term of
     |  Federal Energy      | 5 years and may be removed by the
  4  |    Regulatory        | President only for inefficiency, neglect
     |    Commission        | of duty, or malfeasance in office." 42
     |                      | U. S. C. §7171(b)(1)
-----|----------------------|----------------------------------------------
     |                      | "Members of the Authority shall be
     |                      | appointed by the President by and with the
     |                      | advice and consent of the Senate, and may
     |     Federal Labor    | be removed by the President only upon
  5  |  Relations Authority | notice and hearing and only for
     |                      | inefficiency, neglect of duty, or malfeasance
     |                      | in office." 5 U. S. C. §7104(b)
-----|----------------------|----------------------------------------------
     |                      | "The President may remove a Commissioner
     |  Federal Maritime    | for inefficiency, neglect of duty, or
  6  |    Commission        | malfeasance in office." 46 U. S. C. §301(b)(3)
-----|----------------------|----------------------------------------------
     |  Federal Mine Safety | "Any member of the Commission may be
  7  |  and Health Review   | removed by the President for inefficiency,
     |    Commission        | neglect of duty, or malfeasance in office."
     |                      | 30 U. S. C. §823(b)(1)
-----|----------------------|----------------------------------------------
     |                      | "[E]ach member shall hold office for a
     |                      | term of fourteen years from the
  8  |  Federal Reserve     | expiration of the term of his
     |      Board           | predecessor, unless sooner removed for
     |                      | cause by the President." 12 U. S. C.
     |                      | §242
-----|----------------------|----------------------------------------------
     |  Federal Trade       | "Any commissioner may be removed by the
     |   Commission         | President for inefficiency, neglect of duty, or
  9  |                      | malfeasance in office." 15 U. S. C. §41
-----|----------------------|----------------------------------------------
     |                      | "Any appointed member may be removed
     |    Independent       | by the President for neglect of duty or
  10 |  Medicare Advisory   | malfeasance in office, but for no other
     |       Board          | cause." Pub. L. 111-148, §3403.
-----|----------------------|----------------------------------------------
     |                      | "Any member may be removed by the
  11 |   Merit Systems      | President only for inefficiency, neglect
     |  Protection Board    | of duty, or malfeasance in office." 5
     |                      | U. S. C. §1202(d)
---------------------------------------------------------------------------

 [3187] 
---------------------------------------------------------------------------
     |                      | "Any member of the Board may be
     |                      | removed by the President, upon notice
  12 |  National Labor      | and hearing, for neglect of duty or
     |  Relations Board     | malfeasance in office, but for no other
     |                      | cause." 29 U. S. C. §153(a)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be
     |                      | removed by the President for
  13 |  National Mediation  | inefficiency, neglect of duty,
     |        Board         | malfeasance in office, or ineligibility,
     |                      | but for no other cause." 45 U. S. C. §154
-----|----------------------|----------------------------------------------
     |       National       | "The President may remove a member for
  14 |    Transportation    | inefficiency, neglect of duty, or malfeasance
     |     Safety Board     | in office." 49 U. S. C. §1111(c)
-----|----------------------|----------------------------------------------
     |                      | "Any member of the Commission may be
     |      Nuclear         | removed by the President for
  15 |     Regulatory       | inefficiency, neglect of duty, or
     |     Commission       | malfeasance in office." 42 U. S. C.
     |                      | §5841(e)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Commission may be
     |  Occupational Safety | removed by the President for
  16 |  and Health Review   | inefficiency, neglect of duty, or
     |      Commission      | malfeasance in office." 29 U. S. C.
     |                      | §661(b)
-----|----------------------|----------------------------------------------
     |                      | "The Special Counsel may be removed
  17 |  Office of Special   | by the President only for inefficiency,
     |      Counsel         | neglect of duty, or malfeasance in
     |                      | office." 5 U. S. C. §1211(b)
-----|----------------------|----------------------------------------------
     |                      | "The Commissioners shall be chosen
     |                      | solely on the basis of their technical
     |                      | qualifications, professional standing, and
  18 |  Postal Regulatory   | demonstrated expertise in economics,
     |     Commission       | accounting, law, or public administration,
     |                      | and may be removed by the President
     |                      | only for cause." 39 U. S. C. §502(a)
---------------------------------------------------------------------------

 [3188] 
---------------------------------------------------------------------------
     |                      | "The exercise of the power of the Postal
     |                      | Service shall be directed by a Board of
     |                      | Governors composed of 11 members . . . .
  19 |  Postal Service*     | The Governors shall not be
     |                      | representatives of specific interests using
     |                      | the Postal Service, and may be removed
     |                      | only for cause." 39 U. S. C. §202
-----|----------------------|-----------------------------------------------
     |                      | "[The] Commissioner may be removed from
     |   Social Security    | office only pursuant to a finding by the
  20 |   Administration     | President of neglect of duty or malfeasance
     |                      | in office." 42 U. S. C. §902(a)(3)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board appointed under
     |                      | subsection (b)(5) . . . may be removed by
     |  United States       | the President . . . in consultation with
  21 |  Institute of Peace* | the Board, for conviction of a felony,
     |                      | malfeasance in office, persistent neglect
     |                      | of duties, or inability to discharge
     |                      | duties." 22 U. S. C. §4605(f)
-----|----------------------|----------------------------------------------
     |                      | "The Chair, Vice Chairs, and members
     |                      | of the Commission shall be subject to
     |  United States       | removal from the Commission by the
  22 |   Sentencing         | President only for neglect of duty or
     |   Commission         | malfeasance in office or for other good
     |                      | cause shown." 28 U. S. C. §991(a)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be removed
     |                      | by a vote of seven members for
     |                      | malfeasance in office or for persistent
     |  Legal Services      | neglect of or inability to discharge duties,
  23 |   Corporation*       | or for offenses involving moral turpitude,
     |                      | and for no other cause." 42 U. S. C.
     |                      | §2996c(e)
-----|----------------------|----------------------------------------------
     |                      | "A member of the Board may be removed
     |                      | by a vote of seven members for
     |  State Justice       | malfeasance in office, persistent neglect of,
  24 |  Institute*          | or inability to discharge duties, or for any
     |                      | offense involving moral turpitude, but for
     |                      | no other cause." 42 U. S. C. §10703(h)
---------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[14].

 [3189] 
-------------------------------------------------------------------------------
     |   Office Within        |     Statutory Removal Provision
     |    Department          |
-----|-------------------------------------------------------------------------
     |                        | "The Division shall be headed by a
     |                        | Director, appointed by the Secretary
     |   Department of        | from among persons who have substantial
     |    Agriculture:        | experience in practicing administrative
  25 |                        | law. . . . The Director shall not be
     |  National Appeals      | subject to removal during the term of
     |     Division           | office, except for cause established in
     |                        | accordance with law." 7  U. S. C.
     |                        | §§6992(b)(1)-(2)
-----|------------------------|------------------------------------------------
     |    Department of       | "The Secretary may remove for cause
     |     Agriculture:       | any member of a Council required to be
  26 |                        | appointed by the Secretary . . . ." 16
     |   Regional Fishery     | U. S. C. §1852(b)(6)
     |  Management Councils   |
-----|------------------------|------------------------------------------------
     |     Department of      | "The Secretary of Commerce may
     |       Commerce:        | remove any member of the board [of the
  27 |                        | Corporation] for good cause." 124 Stat.
     | Corporation for Travel | 57
     |      Promotion†        |
-----|------------------------|------------------------------------------------
     |     Department of      | "The Chief of Navy Reserve is appointed
     |       Defense:         | for a term determined by the Chief of
  28 |                        | Naval Operations, normally four years,
     |      Office of         | but may be removed for cause at any
     |     Navy Reserve       | time." 10 U. S. C. §5143(c)(1)
-----|------------------------|------------------------------------------------
     |                        | "The Commander, Marine Forces
     |    Department of       | Reserve, is appointed for a term determined
     |      Defense:          | by the Commandant of the
  29 |                        | Marine Corps, normally four years, but
     |   Office of Marine     | may be removed for cause at any time."
     |   Forces Reserve       | 10 U. S. C. §5144(c)(1)
-----|------------------------|------------------------------------------------
     |     Department of      | "The Chief of Air Force Reserve is
     |       Defense:         | appointed for a period of four years, but
  30 |                        | may be removed for cause at any time."
     |  Office of Air Force   | 10 U. S. C. §8038(c)(1)
     |       Reserve          |
-----|------------------------|------------------------------------------------
     |    Department of       | "[A]n officer appointed as Director of the
     |      Defense:          | Joint Staff of the National Guard Bureau
     |                        | serves for a term of four years, but may
  31 |  Joint Staff of the    | be removed from office at any time for
     |  National Guard        | cause." 10 U. S. C. §10505(a)(3)(A)
     |       Bureau           |
-------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[15]

 [3190] 
-------------------------------------------------------------------------------
     |                        | "A member of the Board may be removed
     |    Department of       | by the Secretary of Defense only
  32 |      Defense:          | for misconduct or failure to perform
     |                        | functions vested in the Board." 10
     |  Board of Actuaries    | U. S. C. A. §183(b)(3) (2010)
-----|------------------------|------------------------------------------------
     |   Department of        | "A member of the Board may be removed
     |     Defense:           | by the Secretary of Defense for misconduct
     |                        | or failure to perform functions
  33 |  Medicare-Eligible     | vested in the Board, and for no other
     | Retiree Health Care    | reason." 10 U. S. C. §1114(a)(2)(A)
     | Board of Actuaries     |
-----|------------------------|------------------------------------------------
     |    Department of       |
     |     Education:         | "The Chief Operating Officer may be
     |                        | removed by . . . the President; or . . . the
     |  Performance-Based     | Secretary, for misconduct or failure to
  34 | Organization for the   | meet performance goals set forth in the
     | Delivery of Federal    | performance agreement in paragraph
     |  Student Financial     | (4)." 20 U. S. C. §1018(d)(3)
     |     Assistance         |
-----|------------------------|------------------------------------------------
     |    Federal Labor       | "The Chairperson [of the FLRA, who
     |  Relations Authority:  | also chairs the Board] may remove any
     |                        | other Board member . . . for corruption,
  35 |  Foreign Service Labor | neglect of duty, malfeasance, or demonstrated
     |    Relations Board     | incapacity to perform his or her
     |  (see supra, row 5)    | functions . . . ." 22 U. S. C. §4106(e)
-----|------------------------|------------------------------------------------
     |   General Services     | "Members of the Civilian Board shall be
     |   Administration:      | subject to removal in the same manner as
     |                        | administrative law judges, [i.e., `only for
  36 |   Civilian Board of    | good cause established and determined by
     |   Contract Appeals     | the Merit Systems Protection Board.']" 41
     |  (see supra, row 11)   | U. S. C. §438(b)(2) (emphasis added)
-----|------------------------|------------------------------------------------
     |  Department of Health  |
     |  and Human Services:   |
     |                        |
     |  National Advisory     | "No member shall be removed, except
  37 |     Council on         | for cause." 42 U. S. C. §254j(b)
     |   National Health      |
     |    Service Corps       |
-------------------------------------------------------------------------------

 [3191] 
-------------------------------------------------------------------------------
     | Department of Health   |
     | and Human Services:    |
     |                        |
  38 | Medicare & Medicaid    | "The Chief Actuary may be removed
     | Office of the Chief    | only for cause." 42 U. S. C. §1317(b)(1)
     |      Actuary           |
-----|------------------------|------------------------------------------------
     |    Department of       |
     |  Homeland Security:    | "An officer may be removed from the
     |                        | position of Director for cause at any
  39 |  Office of the Coast   | time." 14 U. S. C. §53(c)(1)
     |    Guard Reserve       |
-----|------------------------|------------------------------------------------
     |                        | "A Commissioner may only be removed from
     |   Department of the    | office before the expiration of the term of
     |      Interior:         | office of the member by the President (or, in
  40 |                        | the case of associate member, by the Secretary)
     |   National Indian      | for neglect of duty, or malfeasance in
     |  Gaming Commission     | office, or for other good cause shown." 25
     |                        | U. S. C. §2704(b)(6)
-----|------------------------|------------------------------------------------
     |                        | "The Librarian of Congress may sanction
     |  Library of Congress:  | or remove a Copyright Royalty
     |                        | Judge for violation of the standards of
  41 |  Copyright Royalty     | conduct adopted under subsection (h),
     |     Judgeships         | misconduct, neglect of duty, or any
     |                        | disqualifying physical or mental disability."
     |                        | 17 U. S. C. §802(i)
-----|------------------------|------------------------------------------------
     |    Postal Service:     | "The Inspector General may at any time
     |                        | be removed upon the written concurrence
  42 |   Inspector General    | of at least 7 Governors, but only
     |  (see supra, row 19)   | for cause." 39 U. S. C. §202(e)(3)
-----|------------------------|------------------------------------------------
     |      Securities        |
     |     and Exchange       | "A member of the Board may be removed
     |      Commission:       | by the Commission from office . . . for
     |                        | good cause shown . . . ." 15 U. S. C.
  43 |     Public Company     | §7211(e)(6)
     |  Accounting Oversight  |
     |        Board           |
-----|------------------------|------------------------------------------------
     |    Social Security     |
     |    Administration:     |
     |                        | "The Chief Actuary may be removed
  44 |  Office of the Chief   | only for cause." 42 U. S. C. §902(c)(1)
     |       Actuary          |
     |  (see supra, row 20)   |
-------------------------------------------------------------------------------

 [3192] 
-------------------------------------------------------------------------------
     |                        | "The Secretary of State may, upon
     |                        | written notice, remove a Board member
     |  Department of State:  | for corruption, neglect of duty, malfeasance,
     |                        | or demonstrated incapacity to
  45 |    Foreign Service     | perform his or her functions, established
     |    Grievance Board     | at a hearing (unless the right to a
     |                        | hearing is waived in writing by the
     |                        | Board member)." 22 U. S. C. §4135(d)
-----|------------------------|------------------------------------------------
     |     Department of      |
     |    Transportation:     | "Any member of the Committee may be
  46 |                        | removed for cause by the Secretary." 49
     |  Air Traffic Services  | U. S. C. §106(p)(6)(G)
     |      Committee         |
-----|------------------------|------------------------------------------------
     |     Department of      |
     |    Transportation:     | "The President may remove a member for
  47 |                        | inefficiency, neglect of duty, or malfeasance
     |       Surface          | in office." 49 U. S. C. §701(b)(3)
     |  Transportation Board  |
-----|------------------------|------------------------------------------------
     |                        | "The Chairman may be removed by the
     |                        | President for misconduct, inefficiency,
     |                        | neglect of duty, or engaging in the
     |    Department of       | practice of law or for physical or mental
  48 |  Veterans Affairs:     | disability which, in the opinion of the
     |                        | President, prevents the proper execution
     |      Board of          | of the Chairman's duties. The
     |  Veterans Appeals      | Chairman may not be removed from
     |                        | office by the President on any other
     |                        | grounds." 38 U. S. C. §7101(b)(2)
-------------------------------------------------------------------------------

B

The table that follows lists the 573 career appointees in the Senior Executive Service (SES) who constitute the upper level management of the independent agencies listed in Appendix A, supra. Each of these officials is, under any definition—including the Court's—an inferior officer, and is, by statute, subject to two layers of for-cause removal. See supra, at 25-30.

The data are organized into three columns: The first column lists the "office" to which the corresponding official is assigned within the respective agency and, where available, the provision of law establishing that office. Cf. supra, at 27 (citing Mouat, 124 U.S., at 307-308, 8 S.Ct. 505; Germaine, 99 U.S., at 510). The second and third columns respectively list the career appointees in each agency who occupy "general" and "reserved" SES positions. A "general" position is one that could be filled by either a career appointee or by a noncareer appointee were the current (career) occupant to be replaced. See 5 U.S.C. § 3132(b)(1). Because 90% of all SES positions must be filled by career appointees, § 3134(b), "most General positions are filled by career appointees," Plum Book 200. A "reserved" position, by contrast, must always be filled by a career appointee. § 3132(b)(1). The data for the "general position" column come from the 2008 Plum Book, a quadrennial manual prepared by the congressional committees responsible for government oversight. [3193] See supra, at 29. Positions listed as vacant in that source are not included. The data for the "reserved position" column come from a list periodically published by the Office of Personnel Management and last published in 2006. See 72 Fed.Reg. 16154-16251 (2007); § 3132(b)(4). Given the Federal Government's size and the temporal lag between the underlying sources, the list that follows is intended to be illustrative, not exact.

----------------------------------------------------------------------------------------------
                          Nuclear Regulatory Commission (192)
----------------------------------------------------------------------------------------------
       Office           |         General Position          |       Reserved Position
------------------------|-----------------------------------|---------------------------------
                        |       Executive Director          |  Director of Nuclear Security
                        |                                   |             Projects
                        |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
                        |     Reactor and Preparedness      |
                        |             Programs              |
                        |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
    Office of the       |    Materials, Waste, Research,    |
Executive Director for  |       State, Tribal, and          |
     Operations         |      Compliance, Programs         |
10 CFR § 1.32 (2009)    |-----------------------------------|---------------------------------
                        |   Deputy Executive Director for   |
                        |        Corporate Management       |
                        |-----------------------------------|---------------------------------
                        |     Assistant for Operations      |
                        |-----------------------------------|---------------------------------
                        |       Director for Strategic      |
                        |     Organizational Planning and   |
                        |            Optimization           |
------------------------|-----------------------------------|---------------------------------
    Office of the       |                                   |
      Secretary         |              Secretary            |
    10 CFR § 1.25       |                                   |
------------------------|-----------------------------------|---------------------------------
                        |                                   | Director, Division of Planning,
                        |       Chief Financial Officer     |       Budget and Analysis
                        |-----------------------------------|---------------------------------
 Office of the Chief    |                                   | Director, Division of Financial
  Financial Officer     |                                   |             Services
   10 CFR § 1.31        |-----------------------------------|---------------------------------
                        |                                   |     Deputy Chief Financial
                        |                                   |              Officer
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Financial
                        |                                   |            Management
------------------------|-----------------------------------|---------------------------------
                        |                                   |     Deputy Inspector General
                        |-----------------------------------|---------------------------------
Office of the Inspector |                                   |    Assistant Inspector General
      General           |                                   |             for Audits
  10 CFR § 1.12         |-----------------------------------|---------------------------------
                        |                                   |    Assistant Inspector General
                        |                                   |         for Investigations
------------------------|-----------------------------------|---------------------------------
                        |                                   |        Director, Commission
                        |         General Counsel           |       Adjudicatory Technical
                        |                                   |                Support
                        |-----------------------------------|---------------------------------
                        |                                   |       Deputy Assistant General
 Office of the General  |      Deputy General Counsel       |      Counsel for Rulemaking and
       Counsel          |                                   |              Fuel Cycle
   10 CFR § 1.23        |-----------------------------------|---------------------------------
                        |            Solicitor              |       Deputy Assistant General
                        |                                   |      Counsel for Administration
                        |-----------------------------------|---------------------------------
                        |   Associate General Counsel for   |  Assistant General Counsel for
                        |      Licensing and Regulation     |       Operating Reactors
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |     Rulemaking and Fuel Cycle     |
----------------------------------------------------------------------------------------------

 [3194] 
----------------------------------------------------------------------------------------------
                        |   Assistant General Counsel for   |
                        |     Legal Counsel, Legislation,   |
                        |        and Special Projects       |
                        |-----------------------------------|---------------------------------
                        |   Associate General Counsel for   |
                        |     Hearings, Enforcement, and    |
 Office of the General  |          Administration           |
       Counsel          |-----------------------------------|---------------------------------
     (Continued)        |   Assistant General Counsel for   |
                        |       New Reactor Programs        |
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |        Operating Reactors         |
                        |-----------------------------------|---------------------------------
                        |   Assistant General Counsel for   |
                        |       the High-Level Waste        |
                        |       Repository Programs         |
------------------------|-----------------------------------|---------------------------------
 Office of Commission   |                                   |
      Appellate         |                                   |
    Adjudication        |                                   |            Director
   10 CFR § 1.24        |                                   |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
 Congressional Affairs  |            Director               |
     10 CFR § 1.27      |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of Public     |                                   |
        Affairs         |            Director               |
    10 CFR § 1.28       |                                   |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
    International       |            Director               |
       Programs         |-----------------------------------|---------------------------------
    10 CFR § 1.29       |         Deputy Director           |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
    Investigations      |            Director               |       Deputy Director
    10 CFR § 1.36       |                                   |
------------------------|-----------------------------------|---------------------------------
 Office of Enforcement  |                                   |
    10 CFR § 1.33       |            Director               |
------------------------|-----------------------------------|---------------------------------
                        |            Director               |       Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Contracts
      Office of         |-----------------------------------|---------------------------------
   Administration       |                                   |       Director, Division of
   10 CFR § 1.34        |                                   |      Administrative Services
                        |-----------------------------------|---------------------------------
                        |                                   | Director, Division of Facilities
                        |                                   |         and Security
------------------------|-----------------------------------|---------------------------------
                        |            Director               |
   Office of Human      |-----------------------------------|---------------------------------
     Resources          |        Deputy Director            |
   10 CFR § 1.39        |-----------------------------------|---------------------------------
                        |      Associate Director for       |
                        |     Training and Development      |
----------------------------------------------------------------------------------------------

 [3195] 
----------------------------------------------------------------------------------------------
                        |             Director              |          Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, Information and
                        |                                   |    Records Services Division
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, High-Level Waste
                        |                                   |       Business and Program
                        |                                   |        Integration Staff
                        |-----------------------------------|---------------------------------
 Office of Information  |                                   |    Director, Business Process
       Services         |                                   |         Improvement and
    10 CFR § 1.35       |                                   |           Applications
                        |-----------------------------------|---------------------------------
                        |                                   |         Director, Program
                        |                                   |         Management, Policy
                        |                                   |      Development and Analysis
                        |                                   |               Staff
                        |-----------------------------------|---------------------------------
                        |                                   |    Director, Infrastructure and
                        |                                   |         Computer Operations
------------------------|-----------------------------------|---------------------------------
   Office of Nuclear    |            Director               |         Deputy Director (2)
 Security and Incident  |-----------------------------------|---------------------------------
        Response        |                                   |          Director, Program
     10 CFR § 1.46      |                                   |         Management, Policy
                        |                                   |             Development
------------------------|-----------------------------------|---------------------------------
                        |                                   |               Director
                        |-----------------------------------|---------------------------------
                        |                                   |            Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |      Project Director, Nuclear
                        |                                   |          Security Policy
                        |-----------------------------------|---------------------------------
 (Division of Security  |                                   |     Project Director, Nuclear
        Policy)         |                                   |         Security Operations
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Material
                        |                                   |              Security
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Reactor
                        |                                   |     Security and Rulemaking
------------------------|-----------------------------------|---------------------------------
                        |                                   |            Director
     (Division of       |-----------------------------------|---------------------------------
   Preparedness and     |                                   |         Deputy Director (2)
       Response)        |-----------------------------------|---------------------------------
                        |                                   |        Deputy Director for
                        |                                   |      Emergency Preparedness
------------------------|-----------------------------------|---------------------------------
                        |                                   |             Director
                        |-----------------------------------|---------------------------------
 (Division of Security  |                                   |    Deputy Director for Security
     Operations)        |                                   |             Oversight
                        |-----------------------------------|---------------------------------
                        |                                   |   Deputy Director for Security
                        |                                   |             Programs
------------------------|-----------------------------------|---------------------------------
                        |            Director               |         Director, Program
   Office of Nuclear    |                                   |          Management, etc.
  Reactor Regulation    |-----------------------------------|---------------------------------
    10 CFR § 1.43       |         Deputy Director           |      Deputy Director Program
                        |                                   |               Management etc.
----------------------------------------------------------------------------------------------

 [3196] 
----------------------------------------------------------------------------------------------
                        |                                   |  Associate Director, Operating
                        |                                   |       Reactor Oversight and
                        |                                   |           Licensing
   Office of Nuclear    |-----------------------------------|---------------------------------
  Reactor Regulation    |                                   |   Associate Director, Risk
     (Continued)        |                                   |  Assessment and New Projects
                        |-----------------------------------|---------------------------------
                        |                                   |    Associate Director,
                        |                                   |   Engineering and Safety
                        |                                   |          Systems
------------------------|-----------------------------------|---------------------------------
 (Division of Safety    |                                   |         Director
      Systems)          |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
 (Division of License   |                                   |         Director
      Renewal)          |-----------------------------------|---------------------------------
                        |                                   |     Deputy Director
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
  Operating Reactor     |-----------------------------------|---------------------------------
      Licensing)        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
   Inspection and       |-----------------------------------|---------------------------------
  Regional Support)     |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
   (Division of New     |                                   |         Director
  Reactor Licensing)    |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |         Director
    Engineering)        |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (3)
------------------------|-----------------------------------|---------------------------------
  (Division of Risk     |                                   |         Director
     Assessment)        |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
  (Division of Policy   |                                   |          Director
    and Rulemaking)     |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director (2)
------------------------|-----------------------------------|---------------------------------
     (Division of       |                                   |          Director
  Component Integrity)  |-----------------------------------|---------------------------------
                        |                                   |       Deputy Director
------------------------|-----------------------------------|---------------------------------
    Office of New       |                                   |
       Reactors         |            Director               |  Assistant to the Director for
    10 CFR § 1.44       |                                   |    Transition Management
------------------------|-----------------------------------|---------------------------------
   Office of Nuclear    |                                   |  Director, Program Planning,
  Material Safety and   |            Director               |             etc.
      Safeguards        |-----------------------------------|---------------------------------
    10 CFR § 1.42       |         Deputy Director           |
------------------------|-----------------------------------|---------------------------------
                        |                                   | Chief, Special Projects Branch
                        |-----------------------------------|---------------------------------
   (Division of Fuel    |                                   |  Chief, Safety and Safeguards
   Cycle Safety and     |                                   |         Support Branch
     Safeguards)        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Fuel Cycle Facilities
                        |                                   |              Branch
----------------------------------------------------------------------------------------------

 [3197] 
----------------------------------------------------------------------------------------------
                        |                                   |     Chief, Rulemaking and
(Division of Industrial |                                   |        Guidance Branch
  and Medical Nuclear   |-----------------------------------|---------------------------------
       Safety)          |                                   |  Chief, Materials Safety and
                        |                                   |        Inspection Branch
------------------------|-----------------------------------|---------------------------------
                        |                                   |   Deputy Director, Licensing
  (Division of High     |                                   |         and Inspection
     Level Waste        |-----------------------------------|---------------------------------
  Repository Safety)    |                                   |   Deputy Director, Technical
                        |                                   |      Review Directorate (2)
------------------------|-----------------------------------|---------------------------------
 (Spent Fuel Project    |                                   |   Deputy Director, Technical
       Office)          |                                   |        Reveiw Directorate
                        |-----------------------------------|----------------------------------
                        |                                   |    Deputy Director, Licensing
                        |                                   |          and Inspection
------------------------|-----------------------------------|---------------------------------
 Office of Federal and  |            Director               |         Deputy Director
  State Materials and   |-----------------------------------|---------------------------------
     Environmental      |                                   |
      Management        |                                   |    Director, Program Planning,
       Programs         |                                   |               etc.
    10 CFR § 1.41       |                                   |
------------------------|-----------------------------------|---------------------------------
                        |                                   |            Director
                        |-----------------------------------|---------------------------------
                        |                                   |        Deputy Director,
  (Division of Waste    |                                   |       Decommissioning (2)
    Management and      |-----------------------------------|---------------------------------
    Environmental       |                                   |        Deputy Director,
     Protection)        |                                   |    Environmental Protection (2)
                        |-----------------------------------|---------------------------------
                        |                                   |      Chief, Environmental and
                        |                                   |       Performance Assessment
------------------------|-----------------------------------|---------------------------------
(Division of Materials  |                                   |             Director
   Safety and State     |-----------------------------------|---------------------------------
     Agreements)        |                                   |          Deputy Director
------------------------|-----------------------------------|---------------------------------
    (Division of        |                                   |
 Intergovernmental      |                                   |             Director
    Liaison and         |-----------------------------------|---------------------------------
    Rule making)        |                                   |          Deputy Director
------------------------|-----------------------------------|---------------------------------
                        |                                   |       Director, Program
                        |            Director               |         Management, etc.
                        |-----------------------------------|---------------------------------
                        |         Deputy Director           |  Deputy Director for Materials
                        |                                   |         Engineering
                        |-----------------------------------|---------------------------------
                        |                                   |     Deputy Director for
  Office of Nuclear     |    Regional Administrator (4)     |     Engineering Research
 Regulatory Research    |                                   |         Applications
    10 CFR § 1.45       |-----------------------------------|---------------------------------
                        |                                   |    Deputy Director for New
                        |                                   |   Reactors and Computational
                        |                                   |           Analysis
                        |-----------------------------------|---------------------------------
                        |                                   |      Deputy Director for
                        |                                   |     Probabilistic Risk and
                        |                                   |          Applications
----------------------------------------------------------------------------------------------

 [3198] 
----------------------------------------------------------------------------------------------
                        |                                   |      Deputy Director for
                        |                                   |    Operating Experience and
  Office of Nuclear     |                                   |          Risk Analysis
 Regulatory Research    |-----------------------------------|---------------------------------
    (Continued)         |                                   |     Deputy Director for
                        |                                   |    Radiation Protection,
                        |                                   |   Environmental Risk and
                        |                                   |       Waste Management
------------------------|-----------------------------------|---------------------------------
                        |                                   |  Chief, Generic Safety Issues
                        |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Electrical, Mechanical,
                        |                                   |     and Materials Branch
                        |-----------------------------------|---------------------------------
   (Division of         |                                   |    Chief, Structural and
   Engineering          |                                   |    Geological Engineering
   Technology)          |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |  Chief, Materials Engineering
                        |                                   |            Branch
                        |-----------------------------------|---------------------------------
                        |                                   |   Chief, Engineering Research
                        |                                   |       Applications Branch
------------------------|-----------------------------------|---------------------------------
                        |                                   |         Deputy Director
                        |-----------------------------------|---------------------------------
                        |                                   |   Chief, Advanced Reactors
                        |                                   |  and Regulatory Effectiveness
 (Division of Systems   |-----------------------------------|---------------------------------
     Analysis and       |                                   |   Chief, Safety Margins and
      Regulatory        |                                   |    Systems Analysis Branch
    Effectiveness)      |-----------------------------------|---------------------------------
                        |                                   |  Chief, Radiation Protection,
                        |                                   |             etc.
------------------------|-----------------------------------|---------------------------------
                        |                                   |        Deputy Director
                        |-----------------------------------|---------------------------------
  (Division of Risk     |                                   |   Chief, Operating Experience
    Analysis and        |                                   |      Risk Analysis Branch
    Application)        |-----------------------------------|---------------------------------
                        |                                   |    Chief, Probabilistic Risk
                        |                                   |         Analysis Branch
------------------------|-----------------------------------|---------------------------------
  (Division of Risk     |                                   |            Director
   Assessment and       |-----------------------------------|---------------------------------
  Special Projects)     |                                   |      Assistant Director(2)
------------------------|-----------------------------------|---------------------------------
  (Division of Fuel,    |                                   |
   Engineering and      |                                   |            Director
    Radiological        |-----------------------------------|---------------------------------
      Research)         |                                   |        Assistant Director
------------------------|-----------------------------------|---------------------------------
   Office of Small      |                                   |
 Business and Civil     |                                   |             Director
       Rights           |                                   |
   10 CFR § 1.37        |                                   |
------------------------|-----------------------------------|---------------------------------
 Advisory Committee     |                                   |
    on Reactor          |         Executive Director        |    Deputy Executive Director
    Safeguards          |                                   |
  10 CFR § 1.13         |                                   |
----------------------------------------------------------------------------------------------

 [3199] 
----------------------------------------------------------------------------------------------
                        |                                   |       Deputy Regional
                        |                                   |      Administrator (5)
                        |-----------------------------------|---------------------------------
                        |                                   |   Director, Division of Fuel
                        |                                   |      Facility Inspection (1)
                        |-----------------------------------|---------------------------------
                        |                                   |  Director, Division of Reactor
                        |                                   |          Projects (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |      Reactor Projects (5)
                        |-----------------------------------|---------------------------------
  Regional Offices      |                                   |  Director, Division of Reactor
   10 CFR § 1.47        |                                   |      Safety (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |       Reactor Safety (4)
                        |-----------------------------------|---------------------------------
                        |                                   |  Director, Division of Nuclear
                        |                                   |      Materials Safety (3)
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |    Nuclear Materials Safety
                        |-----------------------------------|---------------------------------
                        |                                   |  Deputy Director, Division of
                        |                                   |      Radiation Safety, etc.
----------------------------------------------------------------------------------------------
                         Social Security Administration (143)
----------------------------------------------------------------------------------------------
       Office           |         General Position          |       Reserved Position
------------------------|-----------------------------------|---------------------------------
                        |     Executive Counselor to the    |
                        |           Commissioner            |
                        |-----------------------------------|---------------------------------
                        |       Deputy Chief of Staff       |
     Office of the      |-----------------------------------|---------------------------------
     Commissioner       |      Director for Regulations     |
  33 Fed. Reg. 5828     |-----------------------------------|---------------------------------
        (1968)          |     Senior Advisor to the Deputy  |
                        |            Commissioner           |
                        |-----------------------------------|---------------------------------
                        |        Senior Advisor to the      |
                        |            Commissioner           |
------------------------|-----------------------------------|---------------------------------
       Office of        |                                   |
     International      |      Associate Commissioner for   |
       Programs         |        International Programs     |
  63 Fed. Reg. 41888    |                                   |
        (1998)          |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Executive   |                                   |
      Operations        |                                   |   Assistant Inspector General
  56 Fed. Reg. 15888    |                                   |
        (1991)          |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of the Chief  |            Chief Actuary          |
       Actuary          |-----------------------------------|---------------------------------
42 U.S.C. § 902(c)(1)   | Deputy Chief Actuary, Long-Range  |
   33 Fed. Reg. 5828    |-----------------------------------|---------------------------------
                        | Deputy Chief Actuary, Short-Range |
----------------------------------------------------------------------------------------------

 [3200] 
----------------------------------------------------------------------------------------------
 Office of the Chief    |     Deputy Chief Information      |       Director, Office of
 Information Officer    |            Officer                |      Information Technology
  33 Fed. Reg. 5829     |                                   |          Systems Review
------------------------|-----------------------------------|---------------------------------
 Office of Information  |                                   |
      Technology        |    Associate Chief Information    |
      Investment        |            Officer                |
      Management        |                                   |
------------------------|-----------------------------------|---------------------------------
   Office of Budget,    |       Deputy Commissioner         |
      Finance and       |-----------------------------------|---------------------------------
      Management        |        Assistant Deputy           |
  60 Fed. Reg. 22099    |          Commissioner             |
        (1995)          |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Acquisition |                                   |
      and Grants        |      Associate Commissioner       |
   60 Fed. Reg. 22099   |                                   |
------------------------|-----------------------------------|---------------------------------
                        |      Associate Commissioner       |
    Office of Budget    |-----------------------------------|---------------------------------
   60 Fed. Reg. 22099   |         Deputy Associate          |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
  Office of Facilities  |      Associate Commissioner       |
       Management       |-----------------------------------|---------------------------------
   60 Fed. Reg. 22099   |        Deputy Associate           |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
  Office of Financial   |      Associate Commissioner       |
 Policy and Operations  |-----------------------------------|---------------------------------
  56 Fed. Reg. 15888    |        Deputy Associate           |
                        |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
Office of Publications  |      Associate Commissioner       |
    and Logistics       |-----------------------------------|---------------------------------
     Management         |         Deputy Associate          |
 60 Fed. Reg. 22099     |          Commissioner             |
------------------------|-----------------------------------|---------------------------------
     Office of          |         Assistant Deputy          |
  Communications        |          Commissioner             |
 62 Fed. Reg. 9476      |-----------------------------------|---------------------------------
      (1997)            |          Press Officer            |
------------------------|-----------------------------------|---------------------------------
    Office of           |                                   |
  Communications        |                                   |
   Planning and         |      Associate Commissioner       |
   Technology           |                                   |
 63 Fed. Reg. 15476     |                                   |
------------------------|-----------------------------------|---------------------------------
  Office of Public      |                                   |
      Inquiries         |      Associate Commissioner       |
  62 Fed. Reg. 9477     |                                   |
----------------------------------------------------------------------------------------------

 [3201] 
---------------------------------------------------------------------------------------------
 Office of Disability    |       Deputy Commissioner       |
    Adjudication and     |---------------------------------|---------------------------------
       Review            |         Assistant Deputy        |
                         |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
 Office of Appellate     |                                 |
      Operations         |        Executive Director       |
 53 Fed. Rag. 29778      |                                 |
        (1988)           |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the General   |                                 |
  Counsel 65 Fed. Reg.   |      Deputy General Counsel     |
     39218 (2000)        |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of General Law   |    Associate General Counsel    |
   65 Fed. Reg. 39218    |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |                                 |
       Disclosure        |       Executive Director        |
   67 Fed. Reg. 63186    |                                 |
         (2002)          |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Regional    |                                 |
    Chief Counsels       |    Regional Chief Counsel (7)   |
   65 Fed. Reg. 39219    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of Human     |       Deputy Commissioner       |
                         |---------------------------------|---------------------------------
        Resources        |         Assistant Deputy        |
   60 Fed. Reg. 22128    |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
 Office of Civil Rights  |                                 |
       and Equal         |                                 |
      Opportunity        |      Associate Commissioner     |
   60 Fed. Reg. 22128    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of Labor     |      Associate Commissioner     |
                         |---------------------------------|---------------------------------
     Management and      |         Deputy Associate        |
   Employee Relations    |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
   Office of Personnel   |      Associate Commissioner     |
                         |---------------------------------|---------------------------------
    60 Fed. Reg. 22128   |         Deputy Associate        |
                         |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
    Office of Training   |      Associate Commissioner     |
    60 Fed. Reg. 22128   |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the Inspector |    Deputy Inspector General     |
         General         |---------------------------------|---------------------------------
   42 U. S. C. § 902(e)  |   Counsel to the Inspector      |
    60 Fed. Reg. 22133   |           General               |
-------------------------|---------------------------------|---------------------------------

 [3202] 
-------------------------|---------------------------------|---------------------------------
                         |  Assistant Inspector General    |
   Office of Audits      |          for Audit              |
  60 Fed. Reg. 22133     |---------------------------------|---------------------------------
                         |  Deputy Assistant Inspector     |
                         |      General for Audit          |
-------------------------|---------------------------------|---------------------------------
                         |  Assistant Inspector General    |
                         |---------------------------------|---------------------------------
                         |   Deputy Assistant Inspector    |
        Office of        |       General for Field         |
     Investigations      |         Investigations          |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22133    |   Deputy Assistant Inspector    |
                         |      General for National       |
                         |   Investigative Operations      |
-------------------------|---------------------------------|---------------------------------
  Office of Legislation  |                                 |
     and Congressional   |  Senior Advisor to the Deputy   |
         Affairs         |         Commissioner            |
   60 Fed. Reg. 22152    |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Legislative  |                                 |
       Development       |    Associate Commissioner       |
   65 Fed. Reg. 10846    |                                 |
-------------------------|---------------------------------|---------------------------------
                         |      Deputy Commissioner        |
                         |---------------------------------|---------------------------------
  Office of Operations   |       Assistant Deputy          |
   60 Fed. Reg. 22107    |         Commissioner            |
-------------------------|---------------------------------|---------------------------------
  Office of Automation   |                                 |
         Support         |    Associate Commissioner       |
    60 Fed. Reg. 22108   |                                 |
-------------------------|---------------------------------|---------------------------------
                         |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
                         |       Deputy Associate          |
                         |         Commissioner            |
                         |---------------------------------|---------------------------------
    Office of Central    |     Assistant Associate         |
        Operations       |         Commissioner            |
                         |---------------------------------|---------------------------------
    63 Fed. Reg. 32275   |     Assistant Associate         |
                         |        Commissioner for         |
                         |   Management and Operations     |
                         |           Support               |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
     Determinations      |       Deputy Associate          |
   67 Fed. Reg. 69288    |         Commissioner            |
-------------------------|---------------------------------|---------------------------------
  Office of Electronic   |                                 |
       Services          |    Associate Commissioner       |
   66 Fed. Reg. 29618    |                                 |
        (2001)           |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |    Associate Commissioner       |
      Service and        |---------------------------------|---------------------------------
  Operations Support     |       Deputy Associate          |
   59 Fed. Reg. 56511    |          Commissioner           |
        (1994)           |                                 |
-------------------------|---------------------------------|---------------------------------

 [3203] 
-------------------------|---------------------------------|---------------------------------
                         |                                 |
  Office of Telephone    |    Associate Commissioner       |
                         |---------------------------------|---------------------------------
        Services         |      Deputy Associate           |
   60 Fed. Reg. 22108    |        Commissioner             |
-------------------------|---------------------------------|---------------------------------
                         |   Regional Commissioners (10)   |
                         |---------------------------------|---------------------------------
   Office of Regional    |        Deputy Regional          |
     Commissioners       |       Commissioner (10)         |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22108    |      Assistant Regional         |
                         |      Commissioner (15)          |
-------------------------|---------------------------------|---------------------------------
                         |     Deputy Commissioner         |
                         |---------------------------------|---------------------------------
                         |      Assistant Deputy           |
  Office of Retirement   |      Commissioner (2)           |
 and Disability Policy   |---------------------------------|---------------------------------
                         |  Senior Advisor for Program     |
                         |           Outreach              |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |                                 |
        Programs         |     Associate Commissioner      |
  67 Fed. Reg. 69289     |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Employment   |                                 |
     Support Programs    |     Associate Commissioner      |
   64 Fed. Reg. 19397    |                                 |
         (1999)          |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Income     |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
   Security Programs     |        Deputy Associate         |
   67 Fed. Reg. 69288    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Medical and  |     Associate Commissioner      |
  Vocational Expertise   |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Research,   |                                 |
     Evaluation and      |                                 |
       Statistics        |     Associate Commissioner      |
   61 Fed. Reg. 35847    |                                 |
        (1996)           |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Systems     |      Deputy Commissioner        |
                         |---------------------------------|---------------------------------
   60 Fed. Reg. 22116    |        Assistant Deputy         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Disability   |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
       Systems           |        Deputy Associate         |
   61 Fed. Reg. 35849    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
       Office of         |                                 |
     Supplemental        |     Associate Commissioner      |
    Security Income      |---------------------------------|---------------------------------
        Systems          |        Deputy Associate         |
   67 Fed. Reg. 37892    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------

 [3204] 
-------------------------|---------------------------------|---------------------------------
   Office of Earnings,   |                                 |
     Enumeration and     |     Associate Commissioner      |
     Administrative      |---------------------------------|---------------------------------
         Systems         |        Deputy Associate         |
   67 Fed. Reg. 37892    |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
  Office of Enterprise   |     Associate Commissioner      |
  Support, Architecture  |---------------------------------|---------------------------------
     and Engineering     |        Deputy Associate         |
  67 Fed. Reg. 37892     |        Commissioner (2)         |
-------------------------|---------------------------------|---------------------------------
  Office of Retirement   |                                 |
     and Survivors       |     Associate Commissioner      |
                         |---------------------------------|---------------------------------
    Insurance Systems    |        Deputy Associate         |
    67 Fed. Reg. 37892   |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
   Office of Systems     |     Associate Commissioner      |
  Electronic Service     |---------------------------------|---------------------------------
  66 Fed. Reg. 10766     |        Deputy Associate         |
         (2001)          |           Commissioner          |
-------------------------|---------------------------------|---------------------------------
                         |       Deputy Commissioner       |     Chief Quality Officer
                         |---------------------------------|---------------------------------
   Office of Quality     |        Assistant Deputy         |   Deputy Chief Quality Office
      Performance        |          Commissioner           |
  63 Fed. Red. 32035     |---------------------------------|---------------------------------
                         |                                 |        Deputy Associate
                         |                                 |          Commissioner
-------------------------|---------------------------------|---------------------------------
 Office of Quality Data  |      Associate Commissioner     |
      Management         |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Quality     |      Associate Commissioner     |
      Improvement        |---------------------------------|---------------------------------
                         |        Deputy Associate         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
                         |      Associate Commissioner     |
   Office of Quality     |---------------------------------|---------------------------------
         Review          |        Deputy Associate         |
                         |          Commissioner           |
-------------------------|---------------------------------|---------------------------------
   Office of the Chief   |                                 |
    Strategic Officer    |                                 |     Chief Strategic Officer
   67 Red. Reg. 79950    |                                 |
-------------------------|---------------------------------|---------------------------------
                     National Labor Relations Board (60)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |      Director, Office of        |
                         |   Representation Appeals and    |       Executive Secretary
                         |            Advice               |
  Office of the Board    |---------------------------------|---------------------------------
  29 U. S. C. § 153(a)   |           Solicitor             |   Deputy Executive Secretary
                         |---------------------------------|---------------------------------
                         |     Deputy Chief Counsel to     |
                         |        Board Member (4)         |       Inspector General
                         |---------------------------------|---------------------------------
                         |                                 |     Chief Information Office
-------------------------|---------------------------------|---------------------------------

 [3205] 
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |     Deputy General Counsel      |
   29 U. S. C. § 153(d)  |                                 |
-------------------------|---------------------------------|---------------------------------
                         |                                 |    Deputy Associate General
                         |    Associate General Counsel    |            Counsel
                         |---------------------------------|---------------------------------
      (Division of       |                                 |    Deputy Associate General
      Enforcement        |                                 |     Counsel Appellate Court
      Litigation)        |                                 |             Branch
                         |---------------------------------|---------------------------------
                         |                                 |   Director, Office of Appeals
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Associate General Counsel
                         |---------------------------------|---------------------------------
  (Division of Advice)   |                                 |    Deputy Associate General
                         |                                 |             Counsel
-------------------------|---------------------------------|---------------------------------
      (Division of       |                                 |             Director
     Administration)     |---------------------------------|---------------------------------
                         |                                 |         Deputy Director
-------------------------|---------------------------------|---------------------------------
      (Division of       |                                 |    Associate General Counsel
      Operations         |---------------------------------|---------------------------------
      Management)        |                                 |     Deputy Associate General
                         |---------------------------------|---------------------------------
                         |                                 |  Assistant General Counsel (6)
-------------------------|---------------------------------|---------------------------------
   Regional Offices      |                                 |      Regional Director (33)
  29 U. S. C. § 153(b)   |                                 |
-------------------------|---------------------------------|---------------------------------
                         Federal Energy Regulatory Commission (44)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |       Executive Director        |
                         |---------------------------------|---------------------------------
     Office of the       |    Deputy Executive Director    |
   Executive Director    |---------------------------------|---------------------------------
   18 CFR § 1.101(e)     |    Deputy Chief Information     |
         (2009)          |            Officer              |
-------------------------|---------------------------------|---------------------------------
                         |        General Counsel          |
                         |---------------------------------|---------------------------------
                         |     Deputy General Counsel      |
    Office of General    |---------------------------------|---------------------------------
         Counsel         |  Associate General Counsel (3)  |
                         |---------------------------------|---------------------------------
    18 CFR § 1.101(f)    |     Deputy Associate General    |
                         |            Counsel (4)          |
                         |---------------------------------|---------------------------------
                         |            Solicitor            |
-------------------------|---------------------------------|---------------------------------
                         |             Director            |
                         |---------------------------------|---------------------------------
                         |         Deputy Director         |
                         |---------------------------------|---------------------------------
    Office of Energy     |  Director, Tariffs and Market   |
   Market Regulation     |         Development (3)         |
        18 CFR           |---------------------------------|---------------------------------
   § 376.204(b)(2)(ii)   |  Director, Policy Analysis and  |
                         |           Rulemaking            |
                         |---------------------------------|---------------------------------
                         |    Director, Administration,    |
                         |      Case Management, and       |
                         |        Strategic Planning       |
-------------------------|---------------------------------|---------------------------------

 [3206] 
-------------------------|---------------------------------|---------------------------------
                         |           Director              |    Director, Dam Safety and
                         |                                 |          Inspections
                         |---------------------------------|---------------------------------
                         |    Principal Deputy Director    |
                         |---------------------------------|---------------------------------
                         |         Deputy Director         |
    Office of Energy     |---------------------------------|---------------------------------
       Projects          |            Licensing            |
        18 CFR           |---------------------------------|---------------------------------
  § 376.204(b)(2)(iii)   | Director, Pipeline Certificates |
                         |---------------------------------|---------------------------------
                         |    Director, Gas Environment    |
                         |         and Engineering         |
                         |---------------------------------|---------------------------------
                         |      Director, Hydropower       |
                         |       Administration and        |
                         |           Compliance            |
-------------------------|---------------------------------|---------------------------------
                         |                                 |      Chief Accountant and
                         |           Director              |      Director, Division of
                         |                                 |      Financial Regulations
                         |---------------------------------|---------------------------------
                         |        Deputy Director          |        Chief, Regulatory
                         |                                 |         Accounting Branch
  Office of Enforcement  |---------------------------------|---------------------------------
        18 CFR           |    Director, Investigations     |
   § 376.204(b)(2)(vi)   |---------------------------------|---------------------------------
                         |         Deputy Director,        |
                         |          Investigations         |
                         |---------------------------------|---------------------------------
                         |         Director, Audits        |
                         |---------------------------------|---------------------------------
                         |      Director, Energy Market    |
                         |            Oversight            |
-------------------------|---------------------------------|---------------------------------
                         |            Director             |
   Office of Electric    |---------------------------------|---------------------------------
      Reliability        |         Deputy Director         |
        18 CFR           |---------------------------------|---------------------------------
   § 376.204(b)(2)(iv)   |       Director, Compliance      |
                         |---------------------------------|---------------------------------
                         |     Director, Logistics and     |
                         |             Security            |
-------------------------|---------------------------------|---------------------------------
       Office of         |             Director            |                                 
    Administrative       |---------------------------------|---------------------------------
      Litigation         |  Director, Technical Division   |
   64 Fed. Reg. 51226    |---------------------------------|---------------------------------
        (1999)           |     Director, Legal Division    |
                         |---------------------------------|---------------------------------
   68 Fed. Reg. 27056    |                                 |
        (2003)           |  Senior Counsel for Litigation  |
-------------------------|---------------------------------|---------------------------------
                               Federal Trade Commission (31)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |
        Chairman         |           Secretary             |
  16 CFR § 0.8 (2010)    |                                 |
-------------------------|---------------------------------|---------------------------------
     Office of the       |       Executive Director        |    Deputy Executive Director
   Executive Director    |---------------------------------|---------------------------------
     16 CFR § 0.01       |     Chief Financial Officer     |    Chief Information Officer
-------------------------|---------------------------------|---------------------------------

 [3207] 
-------------------------|---------------------------------|---------------------------------
                         |     Principal Deputy General    |    Deputy General Counsel for
                         |              Counsel            |          Policy Studies
                         |---------------------------------|---------------------------------
  Office of the General  |   Deputy General Counsel for    |
        Counsel          |            Litigation           |
     16 CFR § 0.11       |---------------------------------|---------------------------------
                         |   Deputy General Counsel for    |
                         |          Legal Counsel          |
-------------------------|---------------------------------|---------------------------------
      Office of          |            Director             |
 International Affairs   |---------------------------------|---------------------------------
     16 CFR § 0.20       |         Deputy Director         |
-------------------------|---------------------------------|---------------------------------
                         |        Associate Director       |
                         |---------------------------------|---------------------------------
      Bureau of          |   Associate Director, Policy    |
     Competition         |---------------------------------|---------------------------------
     16 CFR § 0.16       |   Assistant Director, Mergers   |
                         |              (2)                |
                         |---------------------------------|---------------------------------
                         |        Assistant Director,      |
                         |           Compliance            |
-------------------------|---------------------------------|---------------------------------
                         |                                 |      Associate Director for
                         |            Director             |      International Division
-------------------------|---------------------------------|---------------------------------
                         |       Deputy Director (2)       |
                         |---------------------------------|---------------------------------
                         |  Associate Director for Privacy |
                         |     and Identity Protection     |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |       Advertising Practices     |
                         |---------------------------------|---------------------------------
   Bureau of Consumer    |      Associate Director for     |
        Protection       |        Marketing Practices      |
      16 CFR § 0.17      |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |        Financial Practices      |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |       Consumer and Business     |
                         |             Education           |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |     Planning and Information    |
                         |---------------------------------|---------------------------------
                         |      Associate Director for     |
                         |             Enforcement         |
-------------------------|---------------------------------|---------------------------------
                         |   Deputy Director for Research  |
                         |       and Development and       |
                         |           Operations            |
  Bureau of Economics    |---------------------------------|---------------------------------
      16 CFR § 0.18      |  Deputy Director for Antitrust  |
                         |---------------------------------|---------------------------------
                         |     Associate Director for      |
                         |     Consumer Protection and     |
                         |             Research            |
-------------------------|---------------------------------|---------------------------------
 Office of the Inspector |                                 |
        General          |                                 |         Inspector General
    16 CFR § 0.13        |                                 |
-------------------------|---------------------------------|---------------------------------

 [3208] 
-------------------------|---------------------------------|---------------------------------
                          Consumer Product Safety Commission (16)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Assistant Executive Director
      Office of the      |     Deputy Executive Director   |        for Compliance and
   Executive Director    |                                 |    Administrative Litigation
    16 CFR § 1000.18     |---------------------------------|---------------------------------
        (2010)           |                                 |   Associate Executive Director
                         |      Chief Financial Officer    |        for Field Operations
                         |---------------------------------|---------------------------------
                         |                                 |         Executive Assistant
-------------------------|---------------------------------|---------------------------------
  Office of Compliance   |                                 |
  and Field Operations   |          Deputy Director        |
   16 CFR § 1000.21      |                                 |
-------------------------|---------------------------------|---------------------------------
                         |                                 |   Assistant Executive Director
                         |---------------------------------|---------------------------------
                         |                                 |    Deputy Assistant Executive
    Office of Hazard     |                                 |              Director
  Identification and     |---------------------------------|---------------------------------
       Reduction         |                                 |   Associate Executive Director
   16 CFR § 1000.25      |                                 |       for Economic Analysis
                         |---------------------------------|---------------------------------
                         |                                 |   Associate Executive Director
                         |                                 |     for Engineering Sciences
                         |---------------------------------|---------------------------------
                         |                                 |   Associate Executive Director
                         |                                 |         for Epidemiology
-------------------------|---------------------------------|---------------------------------
 Directorate for Health  |                                 |
       Sciences          |   Associate Executive Director  |
    16 CFR § 1000.27     |                                 |
-------------------------|---------------------------------|---------------------------------
     Directorate for     |                                 |
  Laboratory Sciences    |   Associate Executive Director  |
  16 CFR § 1000.30       |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of International |                                 |
      Programs and       |                                 |
   Intergovernmental     |                                 |            Director
        Affairs          |                                 |
   16 CFR § 1000.24      |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of Information   |                                 |
     and Technology      |                                 |   Assistant Executive Director
        Services         |                                 |
   16 CFR § 000.23       |                                 |
-------------------------|---------------------------------|---------------------------------
 Office of the General   |                                 |
        Counsel          |         General Counsel         |
   16 CFR § 1000.14      |                                 |
-------------------------|---------------------------------|---------------------------------
                          Federal Labor Relations Authority (14)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |    Director, Human Resources,
     Office of the       |                                 |      Policy and Performance
       Chairman          |                                 |             Management
   5 CFR § 2411.10(a)    |---------------------------------|---------------------------------
        (2010)           |                                 |           Chief Counsel
                         |---------------------------------|---------------------------------
                         |                                 |          Senior Advisor
-------------------------|---------------------------------|---------------------------------

 [3209] 
-------------------------|---------------------------------|---------------------------------
 Office of the Solicitor |                                 |            Solicitor
   5 CFR § 2417.203(a)   |                                 |
-------------------------|---------------------------------|---------------------------------
   Offices of Members    |                                 |
  5 U. S. C. § 7104(b)   |                                 |         Chief Counsel (2)
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |
   Executive Director    |                                 |        Executive Director
  5 U. S. C. § 7105(d)   |                                 |
     5 CFR § 2421.7      |                                 |
-------------------------|---------------------------------|---------------------------------
    Federal Services     |                                 |
     Impasses Panel      |                                 |        Executive Director
  5 U. S. C. § 7119(c)   |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |                                 |      Deputy General Counsel
  5 U. S. C. § 7104(f)   |                                 |
-------------------------|---------------------------------|---------------------------------
    Regional Offices     |                                 |
  5 U. S. C. § 7105(d)   |                                 |      Regional Director (5)
    5 CFR § 2421.6       |                                 |
-------------------------|---------------------------------|---------------------------------
                         National Transportation Safety Board (14)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
     Office of the       |                                 |        Managing Director
   Managing Director     |---------------------------------|---------------------------------
    49 CFR § 800.2(c)    |                                 |   Associate Managing Director
         (2009)          |                                 |      for Quality Assurance
-------------------------|---------------------------------|---------------------------------
  Office of the General  |                                 |
        Counsel          |         General Counsel         |
   49 CFR § 800.2(c)     |                                 |
-------------------------|---------------------------------|---------------------------------
       Office of         |                                 |             Director
     Administration      |---------------------------------|---------------------------------
   60 Fed. Reg. 61488    |                                 |   Director, Bureau of Accident
                         |                                 |          Investigation
-------------------------|---------------------------------|---------------------------------
   Office of Aviation    |                                 |   Deputy Director, Technology
        Safety           |                                 |    and Investment Operations
  49 CFR § 800.2(e)      |---------------------------------|---------------------------------
                         |                                 |    Deputy Director, Regional
                         |                                 |            Operations
-------------------------|---------------------------------|---------------------------------
   Office of Research    |                                 |             Director
    and Engineering      |---------------------------------|---------------------------------
   49 CFR § 800.2(j)     |                                 |         Deputy Director
-------------------------|---------------------------------|---------------------------------
    Office of Chief      |                                 |
   Financial Officer     |                                 |      Chief Financial Officer
 49 U. S. C. § 1111(h)   |                                 |
    49 CFR § 800.28      |                                 |
-------------------------|---------------------------------|---------------------------------
    Office of Safety     |                                 |
    Recommendations      |                                 |             Director
  and Accomplishments    |                                 |
  49 CFR § 800.2(k)      |                                 |
-------------------------|---------------------------------|---------------------------------

 [3210] 
-------------------------|---------------------------------|---------------------------------
   Office of Railroad,   |                                 |
      Pipeline and       |                                 |
   Hazardous Materials   |                                 |            Director
     Investigations      |                                 |
49 CFR §§ 800.2(f), (i)  |                                 |
-------------------------|---------------------------------|---------------------------------
        National         |                                 |            Director
  Transportation Safety  |---------------------------------|---------------------------------
     Board Academy       |                                 |     President and Academic
   49 U. S. C. § 1117    |                                 |              Dean
-------------------------|---------------------------------|---------------------------------
            Performance-Based Organization for the Delivery of Federal Student
                                  Financial Assistance (13)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |     Deputy Chief Operating      |      Director, Student Aid
                         |            Officer              |            Awareness
-------------------------|---------------------------------|---------------------------------
                         |     Chief Financial Officer     |
                         |---------------------------------|---------------------------------
                         |    Chief Compliance Officer     |
                         |---------------------------------|---------------------------------
                         |   Director, Policy Liaison and  |
                         |       Implementation Staff      |
                         |---------------------------------|---------------------------------
                         |          Audit Officer          |
                         |---------------------------------|---------------------------------
   Office of the Chief   |       Director, Financial       |
    Operating Officer    |         Management Group        |
       20 U. S. C.       |---------------------------------|---------------------------------
     §§ 1018(d)-(e)      |      Director, Budget Group     |
                         |---------------------------------|---------------------------------
                         |    Deputy Chief Information     |
                         |            Officer              |
                         |---------------------------------|---------------------------------
                         |     Director, Application       |
                         |       Development Group         |
                         |---------------------------------|---------------------------------
                         |    Internal Review Officer      |
                         |---------------------------------|---------------------------------
                         |   Director, Strategic Planning  |
                         |      and Reporting Group        |
                         |---------------------------------|---------------------------------
                         |         Senior Adviser          |
-------------------------|---------------------------------|---------------------------------
                            Merit Systems Protection Board (11)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
 Office of the Clerk of  |                                 |
       the Board         |                                 |        Clerk of the Board
 5 CFR § 1200.10(a)(4)   |                                 |
        (2010)           |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Financial   |                                 |
   and Administrative    |                                 |             Director
      Management         |                                 |
 5 CFR § 1200.10(a)(8)   |                                 |
-------------------------|---------------------------------|---------------------------------
  Office of Policy and   |                                 |
      Evaluation         |                                 |             Director
 5 CFR § 1200.10(a)(6)   |                                 |
-------------------------|---------------------------------|---------------------------------

 [3211] 
-------------------------|---------------------------------|---------------------------------
  Office of Information  |                                 |
       Resources         |                                 |             Director
      Management         |                                 |
  5 CFR § 1200.10(a)(9)  |                                 |
-------------------------|---------------------------------|---------------------------------
   Office of Regional    |                                 |             Director
       Operations        |---------------------------------|---------------------------------
  5 CFR § 1200.10(a)(1)  |                                 |      Regional Director (6)
-------------------------|---------------------------------|---------------------------------
                               Office of Special Counsel (8)
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
                         |                                 |  Associate Special Counsel for
                         |     Deputy Special Counsel      |        Investigation and
                         |                                 |         Prosecution (3)
                         |---------------------------------|---------------------------------
                         |                                 |     Senior Associate Special
                         |                                 |    Counsel for Investigation
    Office of Special    |                                 |          and Prosecution
      Counsel            |---------------------------------|---------------------------------
   5 U. S. C. § 1211     |                                 |    Associate Special Counsel,
                         |                                 |      Planning and Oversight
                         |---------------------------------|---------------------------------
                         |                                 |  Associate Special Counsel for
                         |                                 |     Legal Counsel and Policy.
                         |---------------------------------|---------------------------------
                         |                                 |    Director of Management and
                         |                                 |              Budget
-------------------------|---------------------------------|---------------------------------
                           Postal Regulatory Commission (10)*
-------------------------|---------------------------------|---------------------------------
        Office           |         General Position        |        Reserved Position
-------------------------|---------------------------------|---------------------------------
  Office of the General  |         General Counsel         |
        Counsel          |---------------------------------|---------------------------------
    39 CFR § 3002.13     |    Assistant General Counsel    |
        (2009)           |                                 |
-------------------------|---------------------------------|---------------------------------
                         |            Director             |
                         |---------------------------------|---------------------------------
        Office of        |   Assistant Director, Analysis  |
   Accountability and    |      and Pricing Division       |
       Compliance        |---------------------------------|---------------------------------
                         |   Assistant Director, Auditing  |
                         |      and Costing Division       |
-------------------------|---------------------------------|---------------------------------
    Office of Public     |                                 |
      Affairs and        |                                 |
     Governmental        |            Director             |
       Relations         |                                 |
    39 CFR § 3002.15     |                                 |
----------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[16].

 [3212] 
----------------------------------------------------------------------------------------------
                          |      Secretary and Director     |
  Office of the Secretary |---------------------------------|---------------------------------
    and Administration    |    Assistant Director, Human    |
     48 Fed. Reg. 13167   |   Resources and Infrastructure  |
          (1983)          |---------------------------------|---------------------------------
                          |  Assistant Director, Strategic  |
                          |          Planning, etc.         |
--------------------------|---------------------------------|---------------------------------
  Office of the Inspector |                                 |
        General           |        Inspector General        |
    39 CFR § 3002.16      |                                 |
--------------------------|---------------------------------|---------------------------------
                               Federal Maritime Commission (8)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
       Office of the      |                                 |
     Managing Director    |                                 |
     46 CFR § 501.3(h)    |             Director            |
          (2010)          |                                 |
    75 Fed. Reg. 29452    |                                 |
--------------------------|---------------------------------|---------------------------------
 Office of the Secretary  |                                 |
     46 CFR § 501.3(c)    |                                 |            Secretary
--------------------------|---------------------------------|---------------------------------
  Office of the General   |                                 |   Deputy General Counsel for
        Counsel           |                                 |     Reports, Opinions and
    46 CFR § 501.3(d)     |                                 |            Decisions
--------------------------|---------------------------------|---------------------------------
        Bureau of         |                                 |
    Certification and     |                                 |
        Licensing         |                                 |            Director
   46 CFR § 501.3(h)(5)   |                                 |
--------------------------|---------------------------------|---------------------------------
     Bureau of Trade      |                                 |
         Analysis         |                                 |            Director
   46 CFR § 501.3(h)(6)   |                                 |
--------------------------|---------------------------------|---------------------------------
         Bureau of        |                                 |            Director
        Enforcement       |---------------------------------|---------------------------------
   46 CFR § 501.3(h)(7)   |                                 |         Deputy Director
--------------------------|---------------------------------|---------------------------------
         Office of        |                                 |
      Administration      |                                 |
    70 Fed. Reg. 7660     |                                 |            Director
          (2005)          |                                 |
--------------------------|---------------------------------|---------------------------------
                              Surface Transportation Board (4)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
  Office of the Chairman  |  Director of Public Assistance, |
     49 CFR § 1011.3      |    Governmental Affairs and     |
          (2009)          |            Compliance           |
--------------------------|---------------------------------|---------------------------------
   Office of the General  |         General Counsel         |
         Counsel          |---------------------------------|---------------------------------
   49 CFR § 1011.6(c)(3)  |      Deputy General Counsel     |
--------------------------|---------------------------------|---------------------------------
   Office of Proceedings  |             Director            |
     49 CFR § 1011.6(h)   |                                 |
--------------------------|---------------------------------|---------------------------------

 [3213] 
--------------------------|---------------------------------|---------------------------------
                     Federal Mine Safety and Health Review Commission (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position        
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
      Counsel 29 CFR      |                                 |
     § 2706.170(c)        |         General Counsel         |
        (2009)            |                                 |
--------------------------|---------------------------------|---------------------------------
                     Chemical Safety and Hazard Investigation Board (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
         Counsel          |                                 |
  40 CFR § 1600.2 (b)(3)  |         General Counsel         |
         (2009)           |                                 |
--------------------------|---------------------------------|---------------------------------
                                National Mediation Board (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
   Office of the General  |                                 |
         Counsel          |                                 |
    29 CFR § 1209.06(e)   |         General Counsel         |
          (2009)          |                                 |
--------------------------|---------------------------------|---------------------------------
                               Commission on Civil Rights (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
    Office of the Staff   |                                 |
        Director          |      Associate Deputy Staff     |
      42 U. S. C.         |            Director             |
     § 1975b(a)(2)(A)     |                                 |
--------------------------|---------------------------------|---------------------------------
                                Board of Veterans Appeals (1)
--------------------------|---------------------------------|---------------------------------
         Office           |         General Position        |        Reserved Position
--------------------------|---------------------------------|---------------------------------
    Office of the Vice    |                                 |
        Chairman          |                                 |          Vice Chairman
  38 U. S. C. § 7101(a)   |                                 |
----------------------------------------------------------------------------------------------

C

According to data provided by the Office of Personnel Management, reprinted below, there are 1,584 administrative law judges (ALJs) in the Federal Government. Each of these ALJs is an inferior officer and each is subject, by statute, to two layers of for-cause removal. See supra, at ___. The table below lists the 28 federal agencies that rely on ALJs to adjudicate individual administrative cases. The source is available in the Clerk of Court's case file. See ibid.

 [3214] 
-----------------------------------------------------------------
                   AGENCY                       |  TOTAL NUMBER
                                                |     OF ALJs
------------------------------------------------|----------------
     Commodity Futures Trading Commission       |        2
------------------------------------------------|----------------
            Department of Agriculture           |        4
------------------------------------------------|----------------
            Department of Education             |        1
------------------------------------------------|----------------
     Department of Health and Human Services    |
          (Departmental Appeals Board)          |        7
------------------------------------------------|----------------
    Department of Health and Human Services     |
         (Food and Drug Administration)         |        1
------------------------------------------------|----------------
    Department of Health and Human Services     |
   (Office of Medicare Hearings and Appeals)    |       65
------------------------------------------------|----------------
        Department of Homeland Security         |
          (United States Coast Guard)           |        6
------------------------------------------------|----------------
           Department of Housing and            |        2
               Urban Development                |
------------------------------------------------|----------------
          Department of the Interior            |        9
------------------------------------------------|----------------
              Department of Justice             |
        (Drug Enforcement Administration)       |        3
------------------------------------------------|----------------
              Department of Justice             |        1
   (Executive Office for Immigration Review)    |
------------------------------------------------|----------------
                Department of Labor             |       44
            (Office of the Secretary)           |
------------------------------------------------|----------------
          Department of Transportation          |        3
------------------------------------------------|----------------
        Environmental Protection Agency         |        4
------------------------------------------------|----------------
       Federal Communications Commission        |        1
------------------------------------------------|----------------

------------------------------------------------|----------------
                   AGENCY                       |  TOTAL NUMBER
                                                |     OF ALJs
------------------------------------------------|----------------
     Federal Energy Regulatory Commission       |       14
------------------------------------------------|----------------
      Federal Labor Relations Authority         |        3
------------------------------------------------|----------------
          Federal Maritime Commission           |        1
------------------------------------------------|----------------
           Federal Mine Safety and              |
           Health Review Commission             |       11
------------------------------------------------|----------------
           Federal Trade Commission             |        1
------------------------------------------------|----------------
        International Trade Commission          |        6
------------------------------------------------|----------------
        National Labor Relations Board          |       39
------------------------------------------------|----------------
     National Transportation Safety Board       |        4
------------------------------------------------|----------------
        Occupational Safety and Health          |
            Review Commission                   |       12
------------------------------------------------|----------------
  Office of Financial Institution Adjudication  |        1
------------------------------------------------|----------------
       Securities and Exchange Commission       |        4
------------------------------------------------|----------------
         Social Security Administration         |      1,334
------------------------------------------------|----------------
          United States Postal Service          |        1
------------------------------------------------|----------------
                 TOTAL                          |      1,584
-----------------------------------------------------------------

[3215] D

The table below lists 29 departments and other agencies the heads of which are not subject to any statutory for-cause removal provision, but that do bear certain other indicia of independence.

The table identifies six criteria that may suggest independence: (1) whether the agency consists of a multi-member commission; (2) whether its members are required, by statute, to be bipartisan (or nonpartisan); (3) whether eligibility to serve as the agency's head depends on statutorily defined qualifications; (4) whether the agency has independence in submitting budgetary and other proposals to Congress (thereby bypassing the Office of Management and Budget); (5) whether the agency has authority to appear in court independent of the Department of Justice, cf. 28 U. S. C. §§ 516-519; and (6) whether the agency is explicitly classified as "independent" by statute. See generally Breger § Edles 1135-1155; supra, at 35-36. Unless otherwise noted, all information refers to the relevant agency's organic statute, which is cited in the first column. The list of agencies is nonexhaustive.

------------------------------------------------------------------------------|------------|------------------------------
                             |                |               |   Statutory   |            |               |
           Department        |  Multi-Member  |  Bipartisan   |  Eligibility  |     OMB    |  Litigation   |   Explicit
           or Agency         |                |               |    Criteria   |   Bypass   |   Authority   |   Statement
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Securities and       |                |               |               |    Yes     |               |
           Exchange          |      Yes       |     Yes       |               |    12      |      Yes      |
          Commission         |                |               |               |  U. S. C.  |  15 U. S. C.  |
       15 U. S. C. § 78d     |                |               |               |    § 250   |     § 78u     |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Architectural       |                |               |               |            |               |
      and Transportation     |                |               |     Yes       |            |               |
            Barriers         |      Yes       |               |   (related    |            |      Yes      |
           Compliance        |                |               |  experience)  |            |               |
             Board           |                |               |               |            |               |
      29 U. S. C. § 792      |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Arctic Research      |                |               |     Yes       |            |               |
           Commission        |      Yes       |               |   (related    |            |               |
           15 U. S. C.       |                |               |  knowledge,   |            |               |
             § 4102          |                |               |  experience)  |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------

 [3216] 
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Broadcasting        |                |               |      Yes      |            |               |
           Board of          |                |               | (citizenship; |            |               |
          Governors          |      Yes       |     Yes       |   related     |            |               |     Yes
         22 U. S. C.         |                |               |   knowledge)  |            |               |
           § 6203            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Central          |                |               |               |            |               |     Cf.
         Intelligence        |                |               |               |            |               |   Freytag
            Agency           |                |               |               |            |               |  501 U. S.,
          50 U. S. C.        |                |               |               |            |               | at 887, n. 4
            § 403-4          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Commission of        |                |               |      Yes      |            |               |
          Fine Arts          |      Yes       |               |   (related    |            |               |
         40 U. S. C.         |                |               |  knowledge)   |            |               |
           § 9101            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
           Commodity         |                |               |               |            |               |
        Futures Trading      |                |               |      Yes      |            |               |
          Commission         |      Yes       |     Yes       |   (related    |            |     Yes       |     Yes
          7 U. S. C.         |                |               |  knowledge)   |            |   § 2(a)(4)   |
          § 2(a)(2)          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Defense Nuclear       |                |               |      Yes      |            |               |
      Facilities Safety      |                |               | (citizenship; |            |               |
             Board           |      Yes       |     Yes       |     expert    |            |               |     Yes
          42 U. S. C.        |                |               |   knowledge)  |            |               |
            § 2286           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Equal Employment      |                |               |               |            |               |
          Opportunity        |                |               |               |            |     Yes       |
           Commission        |      Yes       |     Yes       |               |            |  § 2000e-5(f) |
          42 U. S. C.        |                |               |               |            |               |
           § 2000e-4         |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Export-Import       |                |               |               |            |               |
          Bank of the        |                |               |               |            |     Yes       |     Yes
        United States*       |      Yes       |     Yes       |               |            |  § 635(a)(1)  |
          12 U. S. C.        |                |               |               |            |               |
            § 635a           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Farm Credit        |                |               |               |            |               |
         Administration      |      Yes       |     Yes       |      Yes      |            |     Yes       |     Yes
           12 U. S. C.       |                |               | (citizenship) |            |   § 2244(c)   |
         §§ 2241, 2242       |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Federal          |                |               |               |            |               |
        Communications       |                |               |      Yes      |            |     Yes       |
          Commission         |     Yes        |     Yes       | (citizenship) |            |   § 401(b)    |
          47 S. U. C.        |                |               |               |            |               |
        §§ 151, 154          |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Federal Deposit      |                |               |      Yes      |            |               |
           Insurance         |                |               | (citizenship; |    Yes     |     Yes       |
          Corporation        |     Yes        |     Yes       |    related    |   § 250    |   § 1819(a)   |
          12 S. U. C.        |                |               |  experience)  |            |               |
        §§ 1811, 1812        |                |               |               |            |               |
------------------------------------------------------------------------------|------------|------------------------------

Editor's Note: The preceding image contains the reference for footnote^[17].

 [3217] 
--------------------------------------------------------------------------------------------------------------------------
      Federal Election       |                |               |      Yes      |    Yes     |     Yes       |
          Commission         |     Yes        |     Yes       |   (general)   | § 437d(d)  |    § 437d     |
      2 U. S. C. § 437c      |                |               |               |            |    (a)(6)     |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Federal Housing       |                |               |               |            |               |
        Finance Agency       |                |               |               |    Yes     |               |      Yes
        12 U. S. C. A.       |                |               |               |   § 250    |               |
        § 4511 (Supp.        |                |               |               |            |               |
           2010)             |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            Federal          |                |               |               |            |               |
          Retirement         |                |      Cf.      |      Yes      |            |               |
       Thrift Investment     |     Yes        |   § 8472(b)   |   (related    |            |               |
            Board            |                |      (2)      |   knowledge)  |            |               |
       5 U. S. C. § 8472     |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        International        |                |               |      Yes      |            |               |
            Trade            |                |               | (citizenship; |     Yes    |      Yes      |      Yes
         Commission          |     Yes        |     Yes       |     expert    |   § 2232   |   § 1333(g)   |
         19 U. S. C.         |                |               |  knowledge)   |            |               |
           § 1330            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
        Marine Mammal        |                |               |               |            |               |
          Commission         |                |               |      Yes      |            |               |
          16 U. S. C.        |     Yes        |               |    (related   |            |               |
           § 1401            |                |               |   knowledge)  |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
         Millennium          |                |               |               |            |               |
         Challenge           |                |     Cf.       |      Yes      |            |               |
        Corporation †        |     Yes        |   § 7703(c)   |   (related    |            |               |
          22 U. S. C.        |                |    (3)(B)     |  experience)  |            |               |
            § 7703           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
           National          |                |               |               |            |               |
         Credit Union        |                |               |      Yes      |            |               |
        Administration       |     Yes        |     Yes       |   (related    |     Yes    |               |      Yes
          12 U. S. C.        |                |               |  experience)  |   § 250    |               |
           § 1752a           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            National         |                |               |               |            |               |
         Archives and        |                |     Yes       |      Yes      |            |               |
            Records          |                |               |   (related    |            |               |      Yes
        Administration       |                |               |   knowledge)  |            |               |
          44 U. S. C.        |                |               |               |            |               |
        §§ 2102, 2103        |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
            National         |                |               |      Yes      |            |               |
           Council on        |     Yes        |               |   (related    |            |               |
           Disability        |                |               |  experience)  |            |               |
       29 U. S. C. § 780     |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
  National Labor-Management  |                |               |      Yes      |            |               |
            Panel            |     Yes        |               |   (related    |            |               |
       29 U. S. C. § 175     |                |               |   knowledge)  |            |               |
--------------------------------------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[18].

 [3218] 
--------------------------------------------------------------------------------------------------------------------------
       National Science      |                |               |               |            |               |
           Foundation        |                |               |      Yes      |            |               |
           42 U. S. C.       |     Yes        |               |   (related    |            |               |      Yes
       §§ 1861, 1863,        |                |               |   expertise)  |            |               |
             1864            |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Peace Corps        |                |               |               |            |               |
           22 U. S. C.       |                |               |               |            |               |      Yes
            § 2501-1         |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
       Pension Benefit       |                |               |               |            |               |
           Guaranty          |                |               |               |            |               |
        Corporation †        |     Yes        |               |               |            |      Yes      |
          29 U. S. C.        |                |               |               |            |               |
            § 1302           |                |               |               |            |               |
-----------------------------|----------------|---------------|---------------|------------|---------------|--------------
          Railroad           |                |               |               |            |               |
         Retirement          |                |               |               |            |               |
           Board             |     Yes        |               |               |            |      Yes      |      Yes
      45 U. S. C. § 231f     |                |               |               |            |               |
--------------------------------------------------------------------------------------------------------------------------

Editor's Note: The preceding image contains the reference for footnote^[19].

[1] The current salary for the Chairman is $673,000. Other Board members receive $547,000. Brief for Petitioners 3.

[2] The Government asserts that "petitioners have not pointed to any case in which this Court has recognized an implied private right of action directly under the Constitution to challenge governmental action under the Appointments Clause or separation-of-powers principles." Brief for United States 22. The Government does not appear to dispute such a right to relief as a general matter, without regard to the particular constitutional provisions at issue here. See, e.g., Correctional Services Corp. v. Malesko, 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (equitable relief "has long been recognized as the proper means for preventing entities from acting unconstitutionally"); Bell v. Hood, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946) ("[I]t is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution"); see also Ex parte Young, 209 U.S. 123, 149, 165, 167, 28 S.Ct. 441, 52 L.Ed. 714 (1908). If the Government's point is that an Appointments Clause or separation-of-powers claim should be treated differently than every other constitutional claim, it offers no reason and cites no authority why that might be so.

[3] When Perkins was decided in 1886, the Secretary of the Navy was a principal officer and the head of a department, see Rev. Stat. § 415, and the Tenure of Office Act purported to require Senate consent for his removal. Ch. 154, 14 Stat. 430, Rev. Stat. § 1767. This requirement was widely regarded as unconstitutional and void (as it is universally regarded today), and it was repealed the next year. See Act of Mar. 3, 1887, ch. 353, 24 Stat. 500; Myers v. United States, 272 U.S. 52, 167-168, 47 S.Ct. 21, 71 L.Ed. 160 (1926); see also Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Perkins cannot be read to endorse any such restriction, much less in combination with further restrictions on the removal of inferiors. The Court of Claims opinion adopted verbatim by this Court addressed only the authority of the Secretary of the Navy to remove inferior officers.

[4] Contrary to the dissent's suggestion, post, at 12-14 (opinion of BREYER, J.), the second layer of tenure protection does compromise the President's ability to remove a Board member the Commission wants to retain. Without a second layer of protection, the Commission has no excuse for retaining an officer who is not faithfully executing the law. With the second layer in place, the Commission can shield its decision from Presidential review by finding that good cause is absent— a finding that, given the Commission's own protected tenure, the President cannot easily overturn. The dissent describes this conflict merely as one of four possible "scenarios," see post, at 3170-3172, but it is the central issue in this case: The second layer matters precisely when the President finds it necessary to have a subordinate officer removed, and a statute prevents him from doing so.

[5] The dissent quotes Buckley v. Valeo, 424 U.S. 1, 138, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), for the proposition that Congress has "broad authority to `create' governmental `"offices"' and to structure those offices `as it chooses.'" Post, at 3165. The Buckley Court put "`offices'" in quotes because it was actually describing legislative positions that are not really offices at all (at least not under Article II). That is why the very next sentence of Buckley said, "But Congress' power ... is inevitably bounded by the express language" of the Constitution. 424 U.S., at 138-139, 96 S.Ct. 612 (emphasis added).

[6] The dissent attributes to Madison a belief that some executive officers, such as the Comptroller, could be made independent of the President. See post, at 3173-3174. But Madison's actual proposal, consistent with his view of the Constitution, was that the Comptroller hold office for a term of "years, unless sooner removed by the President"; he would thus be "dependent upon the President, because he can be removed by him," and also "dependent upon the Senate, because they must consent to his [reappointment] for every term of years." 1 Annals of Cong. 612 (1789).

[7] The Government implausibly argues that § 7217(d)(3) "does not expressly make its three specified grounds of removal exclusive," and that "the Act could be construed to permit other grounds." Brief for United States 51, n. 19. But having provided in § 7211(e)(6) that Board members are to be removed "in accordance with [§ 7217(d)(3)], for good cause shown," Congress would not have specified the necessary Commission finding in § 7217(d)(3)—including formal procedures and detailed conditions—if Board members could also be removed without any finding at all. Cf. PCAOB Brief 6 ("Cause exists where" the § 7217(d)(3) conditions are met).

[8] Contrary to the dissent's assertions, see post, at ___ _ ___, the Commission's powers to conduct its own investigations (with its own resources), to remove particular provisions of law from the Board's bailiwick, or to require the Board to perform functions "other" than inspections and investigations, § 7211(c)(5), are no more useful in directing individual enforcement actions.

[9] One "may be an agent or employee working for the government and paid by it, as nine-tenths of the persons rendering service to the government undoubtedly are, without thereby becoming its office[r]." United States v. Germaine, 99 U.S. 508, 509 (1879). The applicable proportion has of course increased dramatically since 1879.

[10] For similar reasons, our holding also does not address that subset of independent agency employees who serve as administrative law judges. See, e.g., 5 U.S.C. §§ 556(c), 3105. Whether administrative law judges are necessarily "Officers of the United States" is disputed. See, e.g., Landry v. FDIC, 204 F.3d 1125 (C.A.D.C.2000). And unlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions, see §§ 554(d), 3105, or possess purely recommendatory powers. The Government below refused to identify either "civil service tenure-protected employees in independent agencies" or administrative law judges as "precedent for the PCAOB." 537 F.3d 667, 699, n. 8 (C.A.D.C.2008) (Kavanaugh, J., dissenting); see Tr. of Oral Arg. in No. 07-5127 (CADC), pp. 32, 37-38, 42.

[11] We express no view on whether the Commission is thus an "executive Departmen[t]" under the Opinions Clause, Art. II, § 2, cl. 1, or under Section 4 of the Twenty-Fifth Amendment. See Freytag v. Commissioner, 501 U.S. 868, 886-887, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991).

[12] The Board argued below that petitioners lack standing to raise this claim, because no member of the Board has been appointed over the Chairman's objection, and so petitioners' injuries are not fairly traceable to an invalid appointment. See Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss the Complaint in Civil Action No. 1:06-cv-00217-JR (DC), Doc. 17, pp. 42-43; Brief for Appellees PCAOB et al. in No. 07-5127 (CADC), pp. 32-33. We cannot assume, however, that the Chairman would have made the same appointments acting alone; and petitioners' standing does not require precise proof of what the Board's policies might have been in that counterfactual world. See Glidden Co. v. Zdanok, 370 U.S. 530, 533, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion).

[13] Petitioners contend that finding the Commission to be the head will invalidate numerous appointments made directly by the Chairman, such as those of the "heads of major [SEC] administrative units." Reorg. Plan No. 10, § 1(b)(2), at 1266. Assuming, however, that these individuals are officers of the United States, their appointment is still made "subject to the approval of the Commission." Ibid. We have previously found that the department head's approval satisfies the Appointments Clause, in precedents that petitioners do not ask us to revisit. See, e.g., United States v. Smith, 124 U.S. 525, 532, 8 S.Ct. 595, 31 L.Ed. 534 (1888); Germaine, 99 U.S., at 511; United States v. Hartwell, 6 Wall. 385, 393-394, 18 L.Ed. 830 (1868).

[14] See Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995).

[15] See Lebron, supra.

[16] The officers in this agency are part of the "excepted service," but enjoy tenure protection similar to that enjoyed by career SES appointees. See 5 U. S. C. § 2302(a)(2)(B); Plum Book, p. v (distinguishing "excepted service" from "Schedule C"); id., at 202 (describing schedule C |positions).

[17] See Lebron, 513 U.S. 374.

[18] See Lebron, supra

[19] See Lebron, supra.

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

[685] Leon Jaworski and Philip A. Lacovara argued the cause and filed briefs for the United States in both cases.

James D. St. Clair argued the cause for the President [686] in both cases. With him on the briefs were Charles Alan Wright, Leonard Garment, Michael A. Sterlacci, Jerome J. Murphy, Loren A. Smith, James R. Prochnow, Theodore J. Garrish, James J. Tansey, and Larry G. Gutterridge. William Snow Frates, Andrew C. Hall, Spencer H. Boyer, and Henry H. Jones filed a brief for respondent Ehrlichman in No. 73-1766. John M. Bray filed a brief for respondent Strachan in No. 73-1766.^[2]

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

This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell (D. C. Crim. No. 74-110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed. Rule Crim. Proc. 17 (c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President's claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17 (c). The President appealed to the Court of Appeals. We granted both the United States' petition for certiorari before judgment (No. 73-1766),^[3] and also the President's cross-petition for certiorari [687] before judgment (No. 73-1834),^[4] because of the public importance of the issues presented and the need for their prompt resolution. 417 U. S. 927 and 960 (1974).

On March 1, 1974, a grand jury of the United States District Court for the District of Columbia returned an indictment charging seven named individuals^[5] with various offenses, including conspiracy to defraud the United States and to obstruct justice. Although he was not designated as such in the indictment, the grand jury named the President, among others, as an unindicted coconspirator.^[6] On April 18, 1974, upon motion of the Special [688] Prosecutor, see n. 8, infra, a subpoena duces tecum was issued pursuant to Rule 17 (c) to the President by the United States District Court and made returnable on May 2, 1974. This subpoena required the production, in advance of the September 9 trial date, of certain tapes, memoranda, papers, transcripts, or other writings relating to certain precisely identified meetings between the President and others.^[7] The Special Prosecutor was able to fix the time, place, and persons present at these discussions because the White House daily logs and appointment records had been delivered to him. On April 30, the President publicly released edited transcripts of 43 conversations; portions of 20 conversations subject to subpoena in the present case were included. On May 1, 1974, the President's counsel filed a "special appearance" and a motion to quash the subpoena under Rule 17 (c). This motion was accompanied by a formal claim of privilege. At a subsequent hearing,^[8] further motions to expunge the grand jury's action naming the President as an unindicted coconspirator and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President.

On May 20, 1974, the District Court denied the motion to quash and the motions to expunge and for protective orders. 377 F. Supp. 1326. It further ordered "the President or any subordinate officer, official, or employee with custody or control of the documents or [689] objects subpoenaed," id., at 1331, to deliver to the District Court, on or before May 31, 1974, the originals of all subpoenaed items, as well as an index and analysis of those items, together with tape copies of those portions of the subpoenaed recordings for which transcripts had been released to the public by the President on April 30. The District Court rejected jurisdictional challenges based on a contention that the dispute was nonjusticiable because it was between the Special Prosecutor and the Chief Executive and hence "intra-executive" in character; it also rejected the contention that the Judiciary was without authority to review an assertion of executive privilege by the President. The court's rejection of the first challenge was based on the authority and powers vested in the Special Prosecutor by the regulation promulgated by the Attorney General; the court concluded that a justiciable controversy was presented. The second challenge was held to be foreclosed by the decision in Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F. 2d 700 (1973).

The District Court held that the judiciary, not the President, was the final arbiter of a claim of executive privilege. The court concluded that, under the circumstances of this case, the presumptive privilege was overcome by the Special Prosecutor's prima facie "demonstration of need sufficiently compelling to warrant judicial examination in chambers . . . ." 377 F. Supp., at 1330. The court held, finally, that the Special Prosecutor had satisfied the requirements of Rule 17 (c). The District Court stayed its order pending appellate review on condition that review was sought before 4 p. m., May 24. The court further provided that matters filed under seal remain under seal when transmitted as part of the record.

On May 24, 1974, the President filed a timely notice of appeal from the District Court order, and the certified record from the District Court was docketed in the United [690] States Court of Appeals for the District of Columbia Circuit. On the same day, the President also filed a petition for writ of mandamus in the Court of Appeals seeking review of the District Court order.

Later on May 24, the Special Prosecutor also filed, in this Court, a petition for a writ of certiorari before judgment. On May 31, the petition was granted with an expedited briefing schedule. 417 U. S. 927. On June 6, the President filed, under seal, a cross-petition for writ of certiorari before judgment. This cross-petition was granted June 15, 1974, 417 U. S. 960, and the case was set for argument on July 8, 1974.

I

JURISDICTION

The threshold question presented is whether the May 20, 1974, order of the District Court was an appealable order and whether this case was properly "in" the Court of Appeals when the petition for certiorari was filed in this Court. 28 U. S. C. § 1254. The Court of Appeals' jurisdiction under 28 U. S. C. § 1291 encompasses only "final decisions of the district courts." Since the appeal was timely filed and all other procedural requirements were met, the petition is properly before this Court for consideration if the District Court order was final. 28 U. S. C. §§ 1254 (1), 2101 (e).

The finality requirements of 28 U. S. C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. See, e. g., Cobbledick v. United States, 309 U. S. 323, 324-326 (1940). This requirement ordinarily promotes judicial efficiency and hastens the ultimate termination of litigation. In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant [691] to a subpoena duces tecum, it has been repeatedly held that the order is not final and hence not appealable. United States v. Ryan, 402 U. S. 530, 532 (1971); Cobbledick v. United States, supra; Alexander v. United States, 201 U. S. 117 (1906). This Court has

"consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal." United States v. Ryan, supra, at 533.

The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 U. S. 7 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. Id., at 12-13. That case fell within the "limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims." United States v. Ryan, supra, at 533.

Here too, the traditional contempt avenue to immediate appeal is peculiarly inappropriate due to the unique setting in which the question arises. To require a President of the United States to place himself in the posture of disobeying an order of a court merely to trigger the procedural mechanism for review of the ruling would be [692] unseemly, and would present an unnecessary occasion for constitutional confrontation between two branches of the Government. Similarly, a federal judge should not be placed in the posture of issuing a citation to a President simply in order to invoke review. The issue whether a President can be cited for contempt could itself engender protracted litigation, and would further delay both review on the merits of his claim of privilege and the ultimate termination of the underlying criminal action for which his evidence is sought. These considerations lead us to conclude that the order of the District Court was an appealable order. The appeal from that order was therefore properly "in" the Court of Appeals, and the case is now properly before this Court on the writ of certiorari before judgment. 28 U. S. C. § 1254; 28 U. S. C. § 2101 (e). Gay v. Ruff, 292 U. S. 25, 30 (1934).^[9]

II

JUSTICIABILITY

In the District Court, the President's counsel argued that the court lacked jurisdiction to issue the subpoena because the matter was an intra-branch dispute between a subordinate and superior officer of the Executive Branch and hence not subject to judicial resolution. That argument has been renewed in this Court with emphasis on the contention that the dispute does not present a "case" or "controversy" which can be adjudicated in the federal courts. The President's counsel argues that the federal courts should not intrude into areas committed to the other branches of Government. [693] He views the present dispute as essentially a "jurisdictional" dispute within the Executive Branch which he analogizes to a dispute between two congressional committees. Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, Confiscation Cases, 7 Wall. 454 (1869); United States v. Cox, 342 F. 2d 167, 171 (CA5), cert. denied sub nom. Cox v. Hauberg, 381 U. S. 935 (1965), it is contended that a President's decision is final in determining what evidence is to be used in a given criminal case. Although his counsel concedes that the President has delegated certain specific powers to the Special Prosecutor, he has not "waived nor delegated to the Special Prosecutor the President's duty to claim privilege as to all materials . . . which fall within the President's inherent authority to refuse to disclose to any executive officer." Brief for the President 42. The Special Prosecutor's demand for the items therefore presents, in the view of the President's counsel, a political question under Baker v. Carr, 369 U. S. 186 (1962), since it involves a "textually demonstrable" grant of power under Art. II.

The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. In United States v. ICC, 337 U. S. 426 (1949), the Court observed, "courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented." Id., at 430. See also Powell v. McCormack, 395 U. S. 486 (1969); ICC v. Jersey City, 322 U. S. 503 (1944); United States ex rel. Chapman v. FPC, 345 U. S. 153 (1953); Secretary of Agriculture v. United States, 347 U. S. 645 (1954); FMB v. Isbrandtsen Co., 356 U. S. 481, 483 n. 2 (1958); United States v. Marine Bancorporation, ante, p. 602; and United States v. Connecticut National Bank, ante, p. 656.

[694] Our starting point is the nature of the proceeding for which the evidence is sought—here a pending criminal prosecution. It is a judicial proceeding in a federal court alleging violation of federal laws and is brought in the name of the United States as sovereign. Berger v. United States, 295 U. S. 78, 88 (1935). Under the authority of Art. II, § 2, Congress has vested in the Attorney General the power to conduct the criminal litigation of the United States Government. 28 U. S. C. § 516. It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties. 28 U. S. C. §§ 509, 510, 515, 533. Acting pursuant to those statutes, the Attorney General has delegated the authority to represent the United States in these particular matters to a Special Prosecutor with unique authority and tenure.^[10] The regulation gives the [695] Special Prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties.^[11] 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805.

So long as this regulation is extant it has the force of law. In United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954), regulations of the Attorney General delegated certain of his discretionary powers to the Board [696] of Immigration Appeals and required that Board to exercise its own discretion on appeals in deportation cases. The Court held that so long as the Attorney General's regulations remained operative, he denied himself the authority to exercise the discretion delegated to the Board even though the original authority was his and he could reassert it by amending the regulations. Service v. Dulles, 354 U. S. 363, 388 (1957), and Vitarelli v. Seaton, 359 U. S. 535 (1959), reaffirmed the basic holding of Accardi.

Here, as in Accardi, it is theoretically possible for the Attorney General to amend or revoke the regulation defining the Special Prosecutor's authority. But he has not done so.^[12] So long as this regulation remains in force the Executive Branch is bound by it, and indeed the United States as the sovereign composed of the three branches is bound to respect and to enforce it. Moreover, the delegation of authority to the Special Prosecutor in this case is not an ordinary delegation by the Attorney General to a subordinate officer: with the authorization of the President, the Acting Attorney General provided in the regulation that the Special Prosecutor was not to be removed without the "consensus" of eight designated leaders of Congress. N. 8, supra.

The demands of and the resistance to the subpoena present an obvious controversy in the ordinary sense, but that alone is not sufficient to meet constitutional standards. In the constitutional sense, controversy means more than disagreement and conflict; rather it means the kind of controversy courts traditionally resolve. Here [697] at issue is the production or nonproduction of specified evidence deemed by the Special Prosecutor to be relevant and admissible in a pending criminal case. It is sought by one official of the Executive Branch within the scope of his express authority; it is resisted by the Chief Executive on the ground of his duty to preserve the confidentiality of the communications of the President. Whatever the correct answer on the merits, these issues are "of a type which are traditionally justiciable." United States v. ICC, 337 U. S., at 430. The independent Special Prosecutor with his asserted need for the subpoenaed material in the underlying criminal prosecution is opposed by the President with his steadfast assertion of privilege against disclosure of the material. This setting assures there is "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., at 204. Moreover, since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power. Id., at 198.

In light of the uniqueness of the setting in which the conflict arises, the fact that both parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability. It would be inconsistent with the applicable law and regulation, and the unique facts of this case to conclude other than that the Special Prosecutor has standing to bring this action and that a justiciable controversy is presented for decision.

III

RULE 17 (c)

The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed. Rule Crim. Proc. 17 (c), which governs [698] the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17 (c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U. S. 61, 64 (1938); Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring).

Rule 17 (c) provides:

"A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."

A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U. S. 214 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of [699] subpoenaed materials,^[13]ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F. R. D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary^[14] and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that [700] the application is made in good faith and is not intended as a general "fishing expedition."

Against this background, the Special Prosecutor, in order to carry his burden, must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity. Our own review of the record necessarily affords a less comprehensive view of the total situation than was available to the trial judge and we are unwilling to conclude that the District Court erred in the evaluation of the Special Prosecutor's showing under Rule 17 (c). Our conclusion is based on the record before us, much of which is under seal. Of course, the contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment. United States v. Gross, 24 F. R. D. 138 (SDNY 1959). With respect to many of the tapes, the Special Prosecutor offered the sworn testimony or statements of one or more of the participants in the conversations as to what was said at the time. As for the remainder of the tapes, the identity of the participants and the time and place of the conversations, taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses charged in the indictment.

We also conclude there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment. The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out-of-court statements by declarants who will not be subject to cross-examination and that the statements are therefore inadmissible hearsay. Here, however, most of the tapes apparently contain conversations [701] to which one or more of the defendants named in the indictment were party. The hearsay rule does not automatically bar all out-of-court statements by a defendant in a criminal case.^[15] Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence,^[16] of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy. The same is true of declarations of coconspirators who are not defendants in the case on trial. Dutton v. Evans, 400 U. S. 74, 81 (1970). Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who testifies or any other coconspirator who testifies. Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial. See, e. g., United States v. Carter, 15 F. R. D. 367, [702] 371 (DC 1954). Here, however, there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of the tapes may take a significant period of time. Accordingly, we cannot conclude that the District Court erred in authorizing the issuance of the subpoena duces tecum.

Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with Rule 17 (c). See, e. g., Sue v. Chicago Transit Authority, 279 F. 2d 416, 419 (CA7 1960); Shotkin v. Nelson, 146 F. 2d 402 (CA10 1944).

In a case such as this, however, where a subpoena is directed to a President of the United States, appellate review, in deference to a coordinate branch of Government, should be particularly meticulous to ensure that the standards of Rule 17 (c) have been correctly applied. United States v. Burr, 25 F. Cas. 30, 34 (No. 14,692d) (CC Va. 1807). From our examination of the materials submitted by the Special Prosecutor to the District Court in support of his motion for the subpoena, we are persuaded that the District Court's denial of the President's motion to quash the subpoena was consistent with Rule 17 (c). We also conclude that the Special Prosecutor has made a sufficient showing to justify a subpoena for production before trial. The subpoenaed materials are not available from any other source, and their examination and processing should not await trial in the circumstances shown. Bowman Dairy Co. v. United States, 341 U. S. 214 (1951); United States v. Iozia, 13 F. R. D. 335 (SDNY 1952).

[703] IV

THE CLAIM OF PRIVILEGE

A

Having determined that the requirements of Rule 17 (c) were satisfied, we turn to the claim that the subpoena should be quashed because it demands "confidential conversations between a President and his close advisors that it would be inconsistent with the public interest to produce." App. 48a. The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena duces tecum.

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others. The President's counsel, as we have noted, reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. Many decisions of this Court, however, have unequivocally reaffirmed the holding of 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.

No holding of the Court has defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution, but other exercises of power by the Executive Branch and the Legislative Branch have been found invalid as in conflict with the Constitution. Powell v. McCormack, 395 U. S. 486 (1969); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In a [704] series of cases, the Court interpreted the explicit immunity conferred by express provisions of the Constitution on Members of the House and Senate by the Speech or Debate Clause, U. S. Const. Art. I, § 6. Doe v. McMillan, 412 U. S. 306 (1973); Gravel v. United States, 408 U. S. 606 (1972); United States v. Brewster, 408 U. S. 501 (1972); United States v. Johnson, 383 U. S. 169 (1966). Since this Court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers.

Our system of government "requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch." Powell v. McCormack, supra, at 549. And in Baker v. Carr, 369 U. S., at 211, the Court stated:

"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."

Notwithstanding the deference each branch must accord the others, the "judicial Power of the United States" vested in the federal courts by Art. III, § 1, of the Constitution can no more be shared with the Executive 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. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. [705] 1938). We therefore reaffirm that it is the province and duty of this Court "to say what the law is" with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177.

B

In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.^[17] Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers;^[18] the protection of the confidentiality of [706] Presidential communications has similar constitutional underpinnings.

The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U. S. 602, 629-630 (1935); Kilbourn v. Thompson, 103 U. S. 168, 190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.

However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

[707] The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

"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., at 635 (Jackson, J., concurring).

To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III.

C

Since we conclude that the legitimate needs of the judicial process may outweigh Presidential privilege, it is necessary to resolve those competing interests in a manner that preserves the essential functions of each branch. The right and indeed the duty to resolve that question does not free the Judiciary from according high respect to the representations made on behalf of the President. United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694) (CC Va. 1807).

[708] The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.^[19] In Nixon v. Sirica, 159 U. S. App. D. C. 58, 487 F. 2d 700 (1973), the Court of Appeals held that such Presidential communications are "presumptively privileged," id., at 75, 487 F. 2d, at 717, and this position is accepted by both parties in the present litigation. We agree with Mr. Chief Justice Marshall's observation, therefore, that "[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F. Cas., at 192.

But this presumptive privilege must be considered in light of our historic commitment to the rule of law. This [709] is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer." Berger v. United States, 295 U. S., at 88. We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.

Only recently the Court restated the ancient proposition of law, albeit in the context of a grand jury inquiry rather than a trial,

"that `the public . . . has a right to every man's evidence,' except for those persons protected by a constitutional, common-law, or statutory privilege, United States v. Bryan, 339 U. S. [323, 331 (1950)]; Blackmer v. United States, 284 U. S. 421, 438 (1932) . . . ." Branzburg v. Hayes, 408 U. S. 665, 688 (1972).

The privileges referred to by the Court are designed to protect weighty and legitimate competing interests. Thus, the Fifth Amendment to the Constitution provides that no man "shall be compelled in any criminal case to be a witness against himself." And, generally, an attorney or a priest may not be required to disclose what has been revealed in professional confidence. These and other interests are recognized in law by privileges [710] against forced disclosure, established in the Constitution, by statute, or at common law. Whatever their origins, these exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.^[20]

In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution; he does so on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities. In C. & S. Air Lines v. Waterman S. S. Crop., 333 U. S. 103, 111 (1948), dealing with Presidential authority involving foreign policy considerations, the Court said:

"The President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret."

In United States v. Reynolds, 345 U. S. 1 (1953), dealing [711] with a claimant's demand for evidence in a Tort Claims Act case against the Government, the Court said:

"It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers." Id., at 10.

No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial the right "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." Moreover, the Fifth Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential communications in performance of the President's responsibilities against the inroads of such a privilege on the fair [712] administration of criminal justice.^[21] The interest in preserving confidentiality is weighty indeed and entitled to great respect. However, we cannot conclude that advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.^[22]

On the other hand, the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts. A President's acknowledged need for confidentiality [713] in the communications of his office is general in nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific and central to the fair adjudication of a particular criminal case in the administration of justice. Without access to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality of communications will not be vitiated by disclosure of a limited number of conversations preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.

D

We have earlier determined that the District Court did not err in authorizing the issuance of the subpoena. If a President concludes that compliance with a subpoena would be injurious to the public interest he may properly, as was done here, invoke a claim of privilege on the return of the subpoena. Upon receiving a claim of privilege from the Chief Executive, it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material was "essential to the justice of the [pending criminal] case." United States v. Burr, 25 F. Cas., at 192. Here the District Court treated the material as presumptively privileged, proceeded to find that the Special [714] Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in camera examination of the subpoenaed material. On the basis of our examination of the record we are unable to conclude that the District Court erred in ordering the inspection. Accordingly we affirm the order of the District Court that subpoenaed materials be transmitted to that court. We now turn to the important question of the District Court's responsibilities in conducting the in camera examination of Presidential materials or communications delivered under the compulsion of the subpoena duces tecum.

E

Enforcement of the subpoena duces tecum was stayed pending this Court's resolution of the issues raised by the petitions for certiorari. Those issues now having been disposed of, the matter of implementation will rest with the District Court. "[T]he guard, furnished to [the President] to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of a [district] court after those subpoenas have issued; not in any circumstance which is to precede their being issued." United States v. Burr, 25 F. Cas., at 34. Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has [715] a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that

"[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." 25 F. Cas., at 192.

Marshall's statement cannot be read to mean in any sense that a President is above the law, but relates to the singularly unique role under Art. II of a President's communications and activities, related to the performance of duties under that Article. Moreover, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any "ordinary individual." It is therefore necessary^[23] in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice. The need for confidentiality even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen is too obvious to call for further treatment. We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, supra, and will discharge his responsibility to see to [716] it that until released to the Special Prosecutor no in camera material is revealed to anyone. This burden applies with even greater force to excised material; once the decision is made to excise, the material is restored to its privileged status and should be returned under seal to its lawful custodian.

Since this matter came before the Court during the pendency of a criminal prosecution, and on representations that time is of the essence, the mandate shall issue forthwith.

Affirmed.

MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.

[1] Together with No. 73-1834, Nixon, President of the United States v. United States, also on certiorari before judgment to the same court.

[2] Norman Dorsen and Melvin L Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance of the District Court judgment.

[3] See 28 U. S. C. §§ 1254 (1) and 2101 (e) and our Rule 20. See, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952); United States v. United Mine Workers, 330 U. S. 258 (1947); Carter v. Carter Coal Co, 298 U. S. 238 (1936); Rickert Rice Mills v. Fontenot, 297 U. S. 110 (1936); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Norman v. Baltimore & Ohio R. Co, 294 U. S. 240 (1935).

[4] The cross-petition in No. 73-1834 raised the issue whether the grand jury acted within its authority in naming the President as an unindicted coconspirator. Since we find resolution of this issue unnecessary to resolution of the question whether the claim of privilege is to prevail, the cross-petition for certiorari is dismissed as improvidently granted and the remainder of this opinion is concerned with the issues raised in No. 73-1766. On June 19, 1974, the President's counsel moved for disclosure and transmittal to this Court of all evidence presented to the grand jury relating to its action in naming the President as an unindicted coconspirator. Action on this motion was deferred pending oral argument of the case and is now denied.

[5] The seven defendants were John N. Mitchell, H. R. Haldeman, John D. Ehrlichman, Charles W. Colson, Robert C. Mardian, Kenneth W. Parkinson, and Gordon Strachan. Each had occupied either a position of responsibility on the White House staff or a position with the Committee for the Re-election of the President. Colson entered a guilty plea on another charge and is no longer a defendant.

[6] The President entered a special appearance in the District Court on June 6 and requested that court to lift its protective order regarding the naming of certain individuals as coconspirators and to any additional extent deemed appropriate by the Court. This motion of the President was based on the ground that the disclosures to the news media made the reasons for continuance of the protective order no longer meaningful. On June 7, the District Court removed its protective order and, on June 10, counsel for both parties jointly moved this Court to unseal those parts of the record which related to the action of the grand jury regarding the President. After receiving a statement in opposition from the defendants, this Court denied that motion on June 15, 1974, except for the grand jury's immediate finding relating to the status of the President as an unindicted coconspirator. 417 U. S. 960.

[7] The specific meetings and conversations are enumerated in a schedule attached to the subpoena. App. 42a-46a.

[8] At the joint suggestion of the Special Prosecutor and counsel for the President, and with the approval of counsel for the defendants, further proceedings in the District Court were held in camera.

[9] The parties have suggested that this Court has jurisdiction on other grounds. In view of our conclusion that there is jurisdiction under 28 U. S. C. § 1254 (1) because the District Court's order was appealable, we need not decide whether other jurisdictional vehicles are available.

[10] The regulation issued by the Attorney General pursuant to his statutory authority, vests in the Special Prosecutor plenary authority to control the course of investigations and litigation related to "all offenses arising out of the 1972 Presidential Election for which the Special Prosecutor deems it necessary and appropriate to assume responsibility, allegations involving the President, members of the White House staff, or Presidential appointees, and any other matters which he consents to have assigned to him by the Attorney General." 38 Fed. Reg. 30739, as amended by 38 Fed. Reg. 32805. In particular, the Special Prosecutor was given full authority, inter alia, "to contest the assertion of `Executive Privilege' . . . and handl[e] all aspects of any cases within his jurisdiction." Id.,at 30739. The regulation then goes on to provide:

"In exercising this authority, the Special Prosecutor will have the greatest degree of independence that is consistent with the Attorney General's statutory accountability for all matters falling within the jurisdiction of the Department of Justice. The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action."

[11]That this was the understanding of Acting Attorney General Robert Bork, the author of the regulation establishing the independence of the Special Prosecutor, is shown by his testimony before the Senate Judiciary Committee:

"Although it is anticipated that Mr. Jaworski will receive cooperation from the White House in getting any evidence he feels he needs to conduct investigations and prosecutions, it is clear and understood on all sides that he has the power to use judicial processes to pursue evidence if disagreement should develop."

Hearings on the Special Prosecutor before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., pt. 2, p. 450 (1973). Acting Attorney General Bork gave similar assurances to the House Subcommittee on Criminal Justice. Hearings on H. J. Res. 784 and H. R. 10937 before the Subcommittee on Criminal Justice of the House Committee on the Judiciary, 93d Cong., 1st Sess., 266 (1973). At his confirmation hearings, Attorney General William Saxbe testified that he shared Acting Attorney General Bork's views concerning the Special Prosecutor's authority to test any claim of executive privilege in the courts. Hearings on the Nomination of William B. Saxbe to be Attorney General before the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 9 (1973).

[12] At his confirmation hearings, Attorney General William Saxbe testified that he agreed with the regulation adopted by Acting Attorney General Bork and would not remove the Special Prosecutor except for "gross impropriety." Id., at 5-6, 8-10. There is no contention here that the Special Prosecutor is guilty of any such impropriety.

[13] The Court quoted a statement of a member of the advisory committee that the purpose of the Rule was to bring documents into court "in advance of the time that they are offered in evidence, so that they may then be inspected in advance, for the purpose . . . of enabling the party to see whether he can use [them] or whether he wants to use [them]." 341 U. S., at 220 n. 5. The Manual for Complex and Multidistrict Litigation published by the Federal Judicial Center recommends that use of Rule 17 (c) be encouraged in complex criminal cases in order that each party may be compelled to produce its documentary evidence well in advance of trial and in advance of the time it is to be offered. P. 150.

[14] The District Court found here that it was faced with "the more unusual situation . . . where the subpoena, rather than being directed to the government by defendants, issues to what, as a practical matter, is a third party." United States v. Mitchell, 377 F. Supp. 1326, 1330 (DC 1974). The Special Prosecutor suggests that the evidentiary requirement of Bowman Dairy Co. and Iozia does not apply in its full vigor when the subpoena duces tecum is issued to third parties rather than to government prosecutors. Brief for United States 128-129. We need not decide whether a lower standard exists because we are satisfied that the relevance and evidentiary nature of the subpoenaed tapes were sufficiently shown as a preliminary matter to warrant the District Court's refusal to quash the subpoena.

[15] Such statements are declarations by a party defendant that "would surmount all objections based on the hearsay rule . . ." and, at least as to the declarant himself, "would be admissible for whatever inferences" might be reasonably drawn. United States v. Matlock, 415 U. S. 164, 172 (1974). On Lee v. United States, 343 U. S. 747, 757 (1952). See also C. McCormick, Evidence § 270, pp. 651-652 (2d ed. 1972).

[16] As a preliminary matter, there must be substantial, independent evidence of the conspiracy, at least enough to take the question to the jury. United States v. Vaught, 485 F. 2d 320, 323 (CA4 1973); United States v. Hoffa, 349 F. 2d 20, 41-42 (CA6 1965), aff'd on other grounds, 385 U. S. 293 (1966); United States v. Santos, 385 F. 2d 43, 45 (CA7 1967), cert. denied, 390 U. S. 954 (1968); United States v. Morton, 483 F. 2d 573, 576 (CA8 1973); United States v. Spanos, 462 F. 2d 1012, 1014 (CA9 1972); Carbo v. United States, 314 F. 2d 718, 737 (CA9 1963), cert. denied, 377 U. S. 953 (1964). Whether the standard has been satisfied is a question of admissibility of evidence to be decided by the trial judge.

[17] There is nothing novel about governmental confidentiality. The meetings of the Constitutional Convention in 1787 were conducted in complete privacy. 1 M. Farrand, The Records of the Federal Convention of 1787, pp. xi-xxv (1911). Moreover, all records of those meetings were sealed for more than 30 years after the Convention. See 3 Stat. 475, 15th Cong., 1st Sess., Res. 8 (1818). Most of the Framers acknowledged that without secrecy no constitution of the kind that was developed could have been written. C. Warren, The Making of the Constitution 134-139 (1937).

[18] The Special Prosecutor argues that there is no provision in the Constitution for a Presidential privilege as to the President's communications corresponding to the privilege of Members of Congress under the Speech or Debate Clause. But the silence of the Constitution on this score is not dispositive. "The rule of constitutional interpretation announced in McCulloch v. Maryland, 4 Wheat. 316, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it." Marshall v. Gordon, 243 U. S. 521, 537 (1917).

[19] "Freedom of communication vital to fulfillment of the aims of wholesome relationships is obtained only by removing the specter of compelled disclosure. . . . [G]overnment . . . needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, Jena, 40 F. R. D. 318, 325 (DC 1966). See Nixon v. Sirica, 159 U. S. App. D. C. 58, 71, 487 F. 2d 700, 713 (1973); Kaiser Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958) (Reed, J.); The Federalist, No. 64 (S. Mittell ed. 1938).

[20] Because of the key role of the testimony of witnesses in the judicial process, courts have historically been cautious about privileges. Mr. Justice Frankfurter, dissenting in Elkins v. United States, 364 U. S. 206, 234 (1960), said of this: "Limitations are properly placed upon the operation of this general principle only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth."

[21] We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials.

[22] Mr. Justice Cardozo made this point in an analogous context. Speaking for a unanimous Court in Clark v. United States, 289 U. S. 1 (1933), he emphasized the importance of maintaining the secrecy of the deliberations of a petit jury in a criminal case. "Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world." Id.,at 13. Nonetheless, the Court also recognized that isolated inroads on confidentiality designed to serve the paramount need of the criminal law would not vitiate the interests served by secrecy:

"A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence or malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice." Id., at 16.

[23] When the subpoenaed material is delivered to the District Judge in camera, questions may arise as to the excising of parts, and it lies within the discretion of that court to seek the aid of the Special Prosecutor and the President's counsel for in camera consideration of the validity of particular excisions, whether the basis of excision is relevancy or admissibility or under such cases as United States v. Reynolds, 345 U. S. 1 (1953), or C. & S. Air Lines v. Waterman S. S. Corp., 333 U. S. 103 (1948).

Respondent sued under 42 U.S.C. §§1983 and 1985 and Arkansas law to recover damages from petitioner, the current President of the United States, alleging, inter alia, that while he was Governor of Arkansas, petitioner made "abhorrent'' sexual advances to her, and that her rejection of those advances led to punishment by her supervisors in the state job she held at the time. Petitioner promptly advised the Federal District Court that he would file a motion to dismiss on Presidential immunity grounds, and requested that all other pleadings and motions be deferred until the immunity issue was resolved. After the court granted that request, petitioner filed a motion to dismiss without prejudice and to toll any applicable statutes of limitation during his Presidency. The District Judge denied dismissal on immunity grounds and ruled that discovery could go forward, but ordered any trial stayed until petitioner's Presidency ended. The Eighth Circuit affirmed the dismissal denial, but reversed the trial postponement as the "functional equivalent'' of a grant of temporary immunity to which petitioner was not constitutionally entitled. The court explained that the President, like other officials, is subject to the same laws that apply to all citizens, that no case had been found in which an official was granted immunity from suit for his unofficial acts, and that the rationale for official immunity is inapposite where only personal, private conduct by a President is at issue. The court also rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch would violate separation of powers.

Held:

1.This Court need not address two important constitutional issues not encompassed within the questions presented by the certiorari petition: (1) whether a claim comparable to petitioner's assertion of immunity might succeed in a state tribunal, and (2) whether a court may compel the President's attendance at any specific time or place. Pp. ____-____.

2.Deferral of this litigation until petitioner's Presidency ends is not constitutionally required. Pp. ____-____.

(a) Petitioner's principal submission-that in all but the most exceptional cases, the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office-cannot be sustained on the basis of precedent. The principal rationale for affording Presidents immunity from damages actions based on their official acts-i.e., to enable them to perform their designated functions effectively without fear that a particular decision may give rise to personal liability, see, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 749, 752, and n. 32, 102 S.Ct. 2690, 2701, 2702, and n. 32, 73 L.Ed.2d 349-provides no support for an immunity for unofficial conduct. Moreover, immunities for acts clearly within official capacity are grounded in the nature of the function performed, not the identity of the actor who performed it. Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555. The Court is also unpersuaded by petitioner's historical evidence, which sheds little light on the question at issue, and is largely canceled by conflicting evidence that is itself consistent with both the doctrine of presidential immunity as set forth in Fitzgerald, and rejection of the immunity claim in this case. Pp. ____-____.

(b) The separation-of-powers doctrine does not require federal courts to stay all private actions against the President until he leaves office. Even accepting the unique importance of the Presidency in the constitutional scheme, it does not follow that that doctrine would be violated by allowing this action to proceed. The doctrine provides a self-executing safeguard against the encroachment or aggrandizement of one of the three co-equal branches of Government at the expense of another. Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 683-684, 46 L.Ed.2d 659. But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as "executive.'' Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies, and, whatever the outcome, there is no possibility that the decision here will curtail the scope of the Executive Branch's official powers. The Court rejects petitioner's contention that this case-as well as the potential additional litigation that an affirmance of the Eighth Circuit's judgment might spawn-may place unacceptable burdens on the President that will hamper the performance of his official duties. That assertion finds little support either in history, as evidenced by the paucity of suits against sitting Presidents for their private actions, or in the relatively narrow compass of the issues raised in this particular case. Of greater significance, it is settled that the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, and may direct appropriate process to the President himself, see e.g., United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039. It must follow that the federal courts have power to determine the legality of the President's unofficial conduct. The reasons for rejecting a categorical rule requiring federal courts to stay private actions during the President's term apply as well to a rule that would, in petitioner's words, require a stay "in all but the most exceptional cases.'' Pp. ____-____.

(c) Contrary to the Eighth Circuit's ruling, the District Court's stay order was not the "functional equivalent'' of an unconstitutional grant of temporary immunity. Rather, the District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e.g., Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165-166, 81 L.Ed. 153. Moreover, the potential burdens on the President posed by this litigation are appropriate matters for that court to evaluate in its management of the case, and the high respect owed the Presidency is a matter that should inform the conduct of the entire proceeding. Nevertheless, the District Court's stay decision was an abuse of discretion because it took no account of the importance of respondent's interest in bringing the case to trial, and because it was premature in that there was nothing in the record to enable a judge to assess whether postponement of trial after the completion of discovery would be warranted. Pp. ____-____.

(d) The Court is not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, and has confidence in the ability of federal judges to deal with both concerns. If Congress deems it appropriate to afford the President stronger protection, it may respond with legislation. Pp. ____-____.

72 F.3d 1354, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., filed an opinion concurring in the judgment.

          Robert S. Bennett, for petitioner.

          Walter Dellinger, Durham, NC, for the United States, as amicus curiae by special leave of the Court.

          Gilbert K. Davis, Fairfax, VA, for respondent.

           Justice STEVENS delivered the opinion of the Court.

          This case raises a constitutional and a prudential question concerning the Office of the President of the United States. Respondent, a private citizen, seeks to recover damages from the current occupant of that office based on actions allegedly taken before his term began. The President submits that in all but the most exceptional cases the Constitution requires federal courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of the arguments supporting the President's submissions, we conclude that they must be rejected.

          Petitioner, William Jefferson Clinton, was elected to the Presidency in 1992, and re-elected in 1996. His term of office expires on January 20, 2001. In 1991 he was the Governor of the State of Arkansas. Respondent, Paula Corbin Jones, is a resident of California. In 1991 she lived in Arkansas, and was an employee of the Arkansas Industrial Development Commission.

          On May 6, 1994, she commenced this action in the United States District Court for the Eastern District of Arkansas by filing a complaint naming petitioner and Danny Ferguson, a former Arkansas State Police officer, as defendants. The complaint alleges two federal claims, and two state law claims over which the federal court has jurisdiction because of the diverse citizenship of the parties. ¹ As the case comes to us, we are required to assume the truth of the detailed-but as yet untested- factual allegations in the complaint.

          Those allegations principally describe events that are said to have occurred on the afternoon of May 8, 1991, during an official conference held at the Excelsior Hotel in Little Rock, Arkansas. The Governor delivered a speech at the conference; respondent-working as a state employee-staffed the registration desk. She alleges that Ferguson persuaded her to leave her desk and to visit the Governor in a business suite at the hotel, where he made "abhorrent''² sexual advances that she vehemently rejected. She further claims that her superiors at work subsequently dealt with her in a hostile and rude manner, and changed her duties to punish her for rejecting those advances. Finally, she alleges that after petitioner was elected President, Ferguson defamed her by making a statement to a reporter that implied she had accepted petitioner's alleged overtures, and that various persons authorized to speak for the President publicly branded her a liar by denying that the incident had occurred.

          Respondent seeks actual damages of $75,000, and punitive damages of $100,000. Her complaint contains four counts. The first charges that petitioner, acting under color of state law, deprived her of rights protected by the Constitution, in violation of Rev. Stat. §1979, 42 U.S.C. §1983. The second charges that petitioner and Ferguson engaged in a conspiracy to violate her federal rights, also actionable under federal law. See Rev. Stat. §1980, 42 U.S.C. §1985. The third is a state common law claim for intentional infliction of emotional distress, grounded primarily on the incident at the hotel. The fourth count, also based on state law, is for defamation, embracing both the comments allegedly made to the press by Ferguson and the statements of petitioner's agents. Inasmuch as the legal sufficiency of the claims has not yet been challenged, we assume, without deciding, that each of the four counts states a cause of action as a matter of law. With the exception of the last charge, which arguably may involve conduct within the outer perimeter of the President's official responsibilities, it is perfectly clear that the alleged misconduct of petitioner was unrelated to any of his official duties as President of the United States and, indeed, occurred before he was elected to that office. ³

          In response to the complaint, petitioner promptly advised the District Court that he intended to file a motion to dismiss on grounds of Presidential immunity, and requested the court to defer all other pleadings and motions until after the immunity issue was resolved. ⁴ Relying on our cases holding that immunity questions should be decided at the earliest possible stage of the litigation, 858 F.Supp. 902, 905 (E.D.Ark.1994), our recognition of the ""singular importance of the President's duties,''' id., at 904 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 751, 102 S.Ct. 2690, 2702, 73 L.Ed.2d 349 (1982)), and the fact that the question did not require any analysis of the allegations of the complaint, 858 F.Supp., at 905, the court granted the request. Petitioner thereupon filed a motion "to dismiss . . . without prejudice and to toll any statutes of limitation [that may be applicable] until he is no longer President, at which time the plaintiff may refile the instant suit.'' Record, Doc. No. 17. Extensive submissions were made to the District Court by the parties and the Department of Justice. ⁵

          The District Judge denied the motion to dismiss on immunity grounds and ruled that discovery in the case could go forward, but ordered any trial stayed until the end of petitioner's Presidency. 869 F.Supp. 690 (E.D.Ark.1994). Although she recognized that a "thin majority'' in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), had held that "the President has absolute immunity from civil damage actions arising out of the execution of official duties of office,'' she was not convinced that "a President has absolute immunity from civil causes of action arising prior to assuming the office.''⁶ She was, however, persuaded by some of the reasoning in our opinion in Fitzgerald that deferring the trial if one were required would be appropriate. ⁷ 869 F.Supp., at 699-700. Relying in part on the fact that respondent had failed to bring her complaint until two days before the 3-year period of limitations expired, she concluded that the public interest in avoiding litigation that might hamper the President in conducting the duties of his office outweighed any demonstrated need for an immediate trial. Id., at 698-699.

          Both parties appealed. A divided panel of the Court of Appeals affirmed the denial of the motion to dismiss, but because it regarded the order postponing the trial until the President leaves office as the "functional equivalent'' of a grant of temporary immunity, it reversed that order. 72 F.3d 1354, 1361, n. 9, 1363 (C.A.8 1996). Writing for the majority, Judge Bowman explained that "the President, like all other government officials, is subject to the same laws that apply to all other members of our society,'' id., at 1358, that he could find no "case in which any public official ever has been granted any immunity from suit for his unofficial acts,'' ibid., and that the rationale for official immunity "is inapposite where only personal, private conduct by a President is at issue,'' id., at 1360. The majority specifically rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch through scheduling orders, potential contempt citations, and sanctions would violate separation of powers principles. Judge Bowman suggested that "judicial case management sensitive to the burdens of the presidency and the demands of the President's schedule,'' would avoid the perceived danger. Id., at 1361.

          In dissent, Judge Ross submitted that even though the holding in Fitzgerald involved official acts, the logic of the opinion, which "placed primary reliance on the prospect that the President's discharge of his constitutional powers and duties would be impaired if he were subject to suits for damages,'' applies with equal force to this case. 72 F.3d, at 1367. In his view, "unless exigent circumstances can be shown,'' all private actions for damages against a sitting President must be stayed until the completion of his term. Ibid. In this case, Judge Ross saw no reason why the stay would prevent respondent from ultimately obtaining an adjudication of her claims.

          In response to the dissent, Judge Beam wrote a separate concurrence. He suggested that a prolonged delay may well create a significant risk of irreparable harm to respondent because of an unforeseeable loss of evidence or the possible death of a party. Id., at 1363-1364. Moreover, he argued that in civil rights cases brought under §1983 there is a "public interest in an ordinary citizen's timely vindication of . . . her most fundamental rights against alleged abuse of power by government officials.'' Id., at 1365. In his view, the dissent's concern about judicial interference with the functioning of the Presidency was "greatly overstated.'' Ibid. Neither the involvement of prior presidents in litigation, either as parties or as witnesses, nor the character of this "relatively uncomplicated civil litigation,'' indicated that the threat was serious. Id., at 1365-1366. Finally, he saw "no basis for staying discovery or trial of the claims against Trooper Ferguson.'' Id., at 1366. ⁸

          The President, represented by private counsel, filed a petition for certiorari. The Solicitor General, representing the United States, supported the petition, arguing that the decision of the Court of Appeals was "fundamentally mistaken'' and created "serious risks for the institution of the Presidency.''⁹ In her brief in opposition to certiorari, respondent argued that this "one-of-a-kind case is singularly inappropriate'' for the exercise of our certiorari jurisdiction because it did not create any conflict among the Courts of Appeals, it "does not pose any conceivable threat to the functioning of the Executive Branch,'' and there is no precedent supporting the President's position.¹⁰

          While our decision to grant the petition expressed no judgment concerning the merits of the case, it does reflect our appraisal of its importance. The representations made on behalf of the Executive Branch as to the potential impact of the precedent established by the Court of Appeals merit our respectful and deliberate consideration.

          It is true that we have often stressed the importance of avoiding the premature adjudication of constitutional questions.¹¹ That doctrine of avoidance, however, is applicable to the entire Federal Judiciary, not just to this Court, cf. Arizonans for Official English v. Arizona, 520 U.S. ----, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), and comes into play after the court has acquired jurisdiction of a case. It does not dictate a discretionary denial of every certiorari petition raising a novel constitutional question. It does, however, make it appropriate to identify two important constitutional issues not encompassed within the questions presented by the petition for certiorari that we need not address today. ¹²

          First, because the claim of immunity is asserted in a federal court and relies heavily on the doctrine of separation of powers that restrains each of the three branches of the Federal Government from encroaching on the domain of the other two, see, e.g., Buckley v. Valeo, 424 U.S. 1, 122, 96 S.Ct. 612, 683-684, 46 L.Ed.2d 659 (1976), it is not necessary to consider or decide whether a comparable claim might succeed in a state tribunal. If this case were being heard in a state forum, instead of advancing a separation of powers argument, petitioner would presumably rely on federalism and comity concerns, ¹³ as well as the interest in protecting federal officials from possible local prejudice that underlies the authority to remove certain cases brought against federal officers from a state to a federal court, see 28 U.S.C. §1442(a); Mesa v. California, 489 U.S. 121, 125-126, 109 S.Ct. 959, 962-963, 103 L.Ed.2d 99 (1989). Whether those concerns would present a more compelling case for immunity is a question that is not before us.

          Second, our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place. We assume that the testimony of the President, both for discovery and for use at trial, may be taken at the White House at a time that will accommodate his busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in person, though he could elect to do so. ¹⁴

          Petitioner's principal submission-that "in all but the most exceptional cases,'' Brief for Petitioner i, the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office-cannot be sustained on the basis of precedent.

          Only three sitting Presidents have been defendants in civil litigation involving their actions prior to taking office. Complaints against Theodore Roosevelt and Harry Truman had been dismissed before they took office; the dismissals were affirmed after their respective inaugurations. ¹⁵ Two companion cases arising out of an automobile accident were filed against John F. Kennedy in 1960 during the Presidential campaign. ¹⁶ After taking office, he unsuccessfully argued that his status as Commander in Chief gave him a right to a stay under the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. §§501-525. The motion for a stay was denied by the District Court, and the matter was settled out of court. ¹⁷ Thus, none of those cases sheds any light on the constitutional issue before us.

          The principal rationale for affording certain public servants immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. In cases involving prosecutors, legislators, and judges we have repeatedly explained that the immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability. ¹⁸ We explained in Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979):

          "As public servants, the prosecutor and the judge represent the interest of society as a whole. The conduct of their official duties may adversely affect a wide variety of different individuals, each of whom may be a potential source of future controversy. The societal interest in providing such public officials with the maximum ability to deal fearlessly and impartially with the public at large has long been recognized as an acceptable justification for official immunity. The point of immunity for such officials is to forestall an atmosphere of intimidation that would conflict with their resolve to perform their designated functions in a principled fashion.'' Id., at 202-204, 100 S.Ct., at 408-409.

That rationale provided the principal basis for our holding that a former President of the United States was "entitled to absolute immunity from damages liability predicated on his official acts,'' Fitzgerald, 457 U.S., at 749, 102 S.Ct., at 2701. See id., at 752, 102 S.Ct., at 2702 (citing Ferri v. Ackerman). Our central concern was to avoid rendering the President "unduly cautious in the discharge of his official duties.'' 457 U.S., at 752, n. 32, 102 S.Ct., at 2702, n. 32. ¹⁹

          This reasoning provides no support for an immunity for unofficial conduct. As we explained in Fitzgerald, "the sphere of protected action must be related closely to the immunity's justifying purposes.'' Id., at 755, 102 S.Ct., at 2704. Because of the President's broad responsibilities, we recognized in that case an immunity from damages claims arising out of official acts extending to the "outer perimeter of his authority.'' Id., at 757, 102 S.Ct., at 2705. But we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. See id., at 759, 102 S.Ct., at 2706 (Burger, C. J., concurring) (noting that "a President, like Members of Congress, judges, prosecutors, or congressional aides-all having absolute immunity- are not immune for acts outside official duties''); see also id., at 761, n. 4, 102 S.Ct., at 2707, n. 4.

          Moreover, when defining the scope of an immunity for acts clearly taken within an official capacity, we have applied a functional approach. "Frequently our decisions have held that an official's absolute immunity should extend only to acts in performance of particular functions of his office.'' Id., at 755, 102 S.Ct., at 2704. Hence, for example, a judge's absolute immunity does not extend to actions performed in a purely administrative capacity. See Forrester v. White, 484 U.S. 219, 229-230, 108 S.Ct. 538, 545-546, 98 L.Ed.2d 555 (1988). As our opinions have made clear, immunities are grounded in "the nature of the function performed, not the identity of the actor who performed it.'' Id., at 229, 108 S.Ct., at 545.

          Petitioner's effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.

          We are also unpersuaded by the evidence from the historical record to which petitioner has called our attention. He points to a comment by Thomas Jefferson protesting the subpoena duces tecum Chief Justice Marshall directed to him in the Burr trial, ²⁰ a statement in the diaries kept by Senator William Maclay of the first Senate debates, in which then Vice-President John Adams and Senator Oliver Ellsworth are recorded as having said that "the President personally [is] not . . . subject to any process whatever,'' lest it be "put . . . in the power of a common Justice to exercise any Authority over him and Stop the Whole Machine of Government,''²¹ and to a quotation from Justice Story's Commentaries on the Constitution. ²² None of these sources sheds much light on the question at hand. ²³

          Respondent, in turn, has called our attention to conflicting historical evidence. Speaking in favor of the Constitution's adoption at the Pennsylvania Convention, James Wilson-who had participated in the Philadelphia Convention at which the document was drafted-explained that, although the President "is placed [on] high,'' "not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.'' 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis omitted). This description is consistent with both the doctrine of presidential immunity as set forth in Fitzgerald, and rejection of the immunity claim in this case. With respect to acts taken in his "public character''-that is official acts-the President may be disciplined principally by impeachment, not by private lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.

          In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President's power. "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . . They largely cancel each other.'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635, 72 S.Ct. 863, 869-870, 96 L.Ed. 1153 (1952) (concurring opinion).

          Petitioner's strongest argument supporting his immunity claim is based on the text and structure of the Constitution. He does not contend that the occupant of the Office of the President is "above the law,'' in the sense that his conduct is entirely immune from judicial scrutiny. ²⁴ The President argues merely for a postponement of the judicial proceedings that will determine whether he violated any law. His argument is grounded in the character of the office that was created by Article II of the Constitution, and relies on separation of powers principles that have structured our constitutional arrangement since the founding.

          As a starting premise, petitioner contends that he occupies a unique office with powers and responsibilities so vast and important that the public interest demands that he devote his undivided time and attention to his public duties. He submits that-given the nature of the office-the doctrine of separation of powers places limits on the authority of the Federal Judiciary to interfere with the Executive Branch that would be transgressed by allowing this action to proceed.

          We have no dispute with the initial premise of the argument. Former presidents, from George Washington to George Bush, have consistently endorsed petitioner's characterization of the office.²⁵ After serving his term, Lyndon Johnson observed: "Of all the 1,886 nights I was President, there were not many when I got to sleep before 1 or 2 a. m., and there were few mornings when I didn't wake up by 6 or 6:30.''²⁶ In 1967, the Twenty-fifth Amendment to the Constitution was adopted to ensure continuity in the performance of the powers and duties of the office; ²⁷ one of the sponsors of that Amendment stressed the importance of providing that "at all times'' there be a President "who has complete control and will be able to perform'' those duties. ²⁸ As Justice Jackson has pointed out, the Presidency concentrates executive authority "in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.'' Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 653, 72 S.Ct., at 879 (Jackson, J., concurring). We have, in short, long recognized the "unique position in the constitutional scheme'' that this office occupies. Fitzgerald, 457 U.S., at 749, 102 S.Ct., at 2701. ²⁹ Thus, while we suspect that even in our modern era there remains some truth to Chief Justice Marshall's suggestion that the duties of the Presidency are not entirely "unremitting,'' United States v. Burr, 25 F. Cas. 30, 34 (C.C.Va.1807), we accept the initial premise of the Executive's argument.

          It does not follow, however, that separation of powers principles would be violated by allowing this action to proceed. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of our Government. The Framers "built into the tripartite Federal Government . . . a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.'' Buckley v. Valeo, 424 U.S., at 122, 96 S.Ct., at 684. ³⁰ Thus, for example, the Congress may not exercise the judicial power to revise final judgments, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995), ³¹ or the executive power to manage an airport, see Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276, 111 S.Ct. 2298, 2312, 115 L.Ed.2d 236 (1991) (holding that " [i]f the power is executive, the Constitution does not permit an agent of Congress to exercise it''). ³² See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928) (Congress may not "invest itself or its members with either executive power or judicial power''). Similarly, the President may not exercise the legislative power to authorize the seizure of private property for public use. Youngstown, 343 U.S., at 588, 72 S.Ct., at 867. And, the judicial power to decide cases and controversies does not include the provision of purely advisory opinions to the Executive, ³³ or permit the federal courts to resolve non justiciable questions. ³⁴

          Of course the lines between the powers of the three branches are not always neatly defined. See Mistretta v. United States, 488 U.S. 361, 380-381, 109 S.Ct. 647, 659-660, 102 L.Ed.2d 714 (1989). ³⁵ But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as "executive.'' Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies. Whatever the outcome of this case, there is no possibility that the decision will curtail the scope of the official powers of the Executive Branch. The litigation of questions that relate entirely to the unofficial conduct of the individual who happens to be the President poses no perceptible risk of misallocation of either judicial power or executive power.

          Rather than arguing that the decision of the case will produce either an aggrandizement of judicial power or a narrowing of executive power, petitioner contends that-as a by-product of an otherwise traditional exercise of judicial power-burdens will be placed on the President that will hamper the performance of his official duties. We have recognized that " [e]ven when a branch does not arrogate power to itself . . . the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.'' Loving v. United States, 517 U.S. ----, ----, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36 (1996); see also Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). As a factual matter, petitioner contends that this particular case-as well as the potential additional litigation that an affirmance of the Court of Appeals judgment might spawn-may impose an unacceptable burden on the President's time and energy, and thereby impair the effective performance of his office.

          Petitioner's predictive judgment finds little support in either history or the relatively narrow compass of the issues raised in this particular case. As we have already noted, in the more than 200-year history of the Republic, only three sitting Presidents have been subjected to suits for their private actions.³⁶ See supra, at __. If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner's time.

          Of greater significance, petitioner errs by presuming that interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions. " [O]ur . . . system imposes upon the Branches a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which "would preclude the establishment of a Nation capable of governing itself effectively.''' Mistretta, 488 U.S., at 381, 109 S.Ct., at 659 (quoting Buckley, 424 U.S., at 121, 96 S.Ct., at 683). As Madison explained, separation of powers does not mean that the branches "ought to have no partial agency in, or no controul over the acts of each other.''³⁷ The fact that a federal court's exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution. Two long-settled propositions, first announced by Chief Justice Marshall, support that conclusion.

          First, we have long held that when the President takes official action, the Court has the authority to determine whether he has acted within the law. Perhaps the most dramatic example of such a case is our holding that President Truman exceeded his constitutional authority when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills in order to avert a national catastrophe. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Despite the serious impact of that decision on the ability of the Executive Branch to accomplish its assigned mission, and the substantial time that the President must necessarily have devoted to the matter as a result of judicial involvement, we exercised our Article III jurisdiction to decide whether his official conduct conformed to the law. Our holding was an application of the principle established in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), that " [i]t is emphatically the province and duty of the judicial department to say what the law is.'' Id., at 177.

          Second, it is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed to the President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (C.C.Va. 1807). ³⁸ We unequivocally and emphatically endorsed Marshall's position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). As we explained, "neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.'' Id., at 706, 94 S.Ct., at 3106. ³⁹

          Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L.F. 1, 5-6, President Nixon-as noted above-produced tapes in response to a subpoena duces tecum, see United States v. Nixon, President Ford complied with an order to give a deposition in a criminal trial, United States v. Fromme, 405 F.Supp. 578 (E.D.Cal.1975), and President Clinton has twice given videotaped testimony in criminal proceedings, see United States v. McDougal, 934 F.Supp. 296 (E.D.Ark.1996); United States v. Branscum, No., LRP-CR-96-49 (E.D. Ark., June 7, 1996). Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, R. Rotunda & J. Nowak, Treatise on Constitutional Law §7.1 (2d ed.1992), and President Carter similarly gave videotaped testimony for use at a criminal trial, ibid.

          In sum, " [i]t is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.'' Fitzgerald, 457 U.S., at 753-754, 102 S.Ct., at 2703. If the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, and if it may direct appropriate process to the President himself, it must follow that the federal courts have power to determine the legality of his unofficial conduct. The burden on the President's time and energy that is a mere by-product of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions. ⁴⁰ We therefore hold that the doctrine of separation of powers does not require federal courts to stay all private actions against the President until he leaves office.

          The reasons for rejecting such a categorical rule apply as well to a rule that would require a stay "in all but the most exceptional cases.'' Brief for Petitioner i. Indeed, if the Framers of the Constitution had thought it necessary to protect the President from the burdens of private litigation, we think it far more likely that they would have adopted a categorical rule than a rule that required the President to litigate the question whether a specific case belonged in the "exceptional case'' subcategory. In all events, the question whether a specific case should receive exceptional treatment is more appropriately the subject of the exercise of judicial discretion than an interpretation of the Constitution. Accordingly, we turn to the question whether the District Court's decision to stay the trial until after petitioner leaves office was an abuse of discretion.

          The Court of Appeals described the District Court's discretionary decision to stay the trial as the "functional equivalent'' of a grant of temporary immunity. 72 F.3d, at 1361, n. 9. Concluding that petitioner was not constitutionally entitled to such an immunity, the court held that it was error to grant the stay. Ibid. Although we ultimately conclude that the stay should not have been granted, we think the issue is more difficult than the opinion of the Court of Appeals suggests.

          Strictly speaking the stay was not the functional equivalent of the constitutional immunity that petitioner claimed, because the District Court ordered discovery to proceed. Moreover, a stay of either the trial or discovery might be justified by considerations that do not require the recognition of any constitutional immunity. The District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e.g., Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165-166, 81 L.Ed. 153 (1936). As we have explained, " [e]specially in cases of extraordinary public moment, [a plaintiff] may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted.'' Id., at 256, 57 S.Ct., at 166. Although we have rejected the argument that the potential burdens on the President violate separation of powers principles, those burdens are appropriate matters for the District Court to evaluate in its management of the case. The high respect that is owed to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery. ⁴¹

          Nevertheless, we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period-albeit near the end of that period-and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

          The decision to postpone the trial was, furthermore, premature. The proponent of a stay bears the burden of establishing its need. Id., at 255, 57 S.Ct., at 166. In this case, at the stage at which the District Court made its ruling, there was no way to assess whether a stay of trial after the completion of discovery would be warranted. Other than the fact that a trial may consume some of the President's time and attention, there is nothing in the record to enable a judge to assess the potential harm that may ensue from scheduling the trial promptly after discovery is concluded. We think the District Court may have given undue weight to the concern that a trial might generate unrelated civil actions that could conceivably hamper the President in conducting the duties of his office. If and when that should occur, the court's discretion would permit it to manage those actions in such fashion (including deferral of trial) that interference with the President's duties would not occur. But no such impingement upon the President's conduct of his office was shown here.

          We add a final comment on two matters that are discussed at length in the briefs: the risk that our decision will generate a large volume of politically motivated harassing and frivolous litigation, and the danger that national security concerns might prevent the President from explaining a legitimate need for a continuance.

          We are not persuaded that either of these risks is serious. Most frivolous and vexatious litigation is terminated at the pleading stage or on summary judgment, with little if any personal involvement by the defendant. See Fed. Rules Civ. Proc. 12, 56. Moreover, the availability of sanctions provides a significant deterrent to litigation directed at the President in his unofficial capacity for purposes of political gain or harassment.⁴² History indicates that the likelihood that a significant number of such cases will be filed is remote. Although scheduling problems may arise, there is no reason to assume that the District Courts will be either unable to accommodate the President's needs or unfaithful to the tradition- especially in matters involving national security-of giving "the utmost deference to Presidential responsibilities.''⁴³ Several Presidents, including petitioner, have given testimony without jeopardizing the Nation's security. See supra, at __. In short, we have confidence in the ability of our federal judges to deal with both of these concerns.

          If Congress deems it appropriate to afford the President stronger protection, it may respond with appropriate legislation. As petitioner notes in his brief, Congress has enacted more than one statute providing for the deferral of civil litigation to accommodate important public interests. Brief for Petitioner 34-36. See, e.g., 11 U.S.C. §362 (litigation against debtor stayed upon filing of bankruptcy petition); Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. §§501-525 (provisions governing, inter alia, tolling or stay of civil claims by or against military personnel during course of active duty). If the Constitution embodied the rule that the President advocates, Congress, of course, could not repeal it. But our holding today raises no barrier to a statutory response to these concerns.

          The Federal District Court has jurisdiction to decide this case. Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims. Accordingly, the judgment of the Court of Appeals is affirmed.

          It is so ordered.

           Justice BREYER, concurring in the judgment.

          I agree with the majority that the Constitution does not automatically grant the President an immunity from civil lawsuits based upon his private conduct. Nor does the "doctrine of separation of powers . . . require federal courts to stay'' virtually "all private actions against the President until he leaves office.'' Ante, at __. Rather, as the Court of Appeals stated, the President cannot simply rest upon the claim that a private civil lawsuit for damages will "interfere with the constitutionally assigned duties of the Executive Branch . . . without detailing any specific responsibilities or explaining how or the degree to which they are affected by the suit.'' 72 F.3d 1354, 1361 (C.A.8 1996). To obtain a postponement the President must "bea[r] the burden of establishing its need.'' Ante, at __.

          In my view, however, once the President sets forth and explains a conflict between judicial proceeding and public duties, the matter changes. At that point, the Constitution permits a judge to schedule a trial in an ordinary civil damages action (where postponement normally is possible without overwhelming damage to a plaintiff) only within the constraints of a constitutional principle-a principle that forbids a federal judge in such a case to interfere with the President's discharge of his public duties. I have no doubt that the Constitution contains such a principle applicable to civil suits, based upon Article II's vesting of the entire "executive Power'' in a single individual, implemented through the Constitution's structural separation of powers, and revealed both by history and case precedent.

          I recognize that this case does not require us now to apply the principle specifically, thereby delineating its contours; nor need we now decide whether lower courts are to apply it directly or categorically through the use of presumptions or rules of administration. Yet I fear that to disregard it now may appear to deny it. I also fear that the majority's description of the relevant precedents de-emphasizes the extent to which they support a principle of the President's independent authority to control his own time and energy, see, e.g., ante, at __ (describing the "central concern'' of Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), as "to avoid rendering the President "unduly cautious'''); ante, at __, and n. 23 (describing statements by Story, Jefferson, Adams, and Ellsworth as providing "little'' or "no substantial support'' for the President's position). Further, if the majority is wrong in predicting the future infrequency of private civil litigation against sitting Presidents, ante, at __, acknowledgement and future delineation of the constitutional principle will prove a practically necessary institutional safeguard. For these reasons, I think it important to explain how the Constitution's text, history, and precedent support this principle of judicial noninterference with Presidential functions in ordinary civil damages actions.

          The Constitution states that the "executive Power shall be vested in a President.'' U.S. Const., Art. II, §1. This constitutional delegation means that a sitting President is unusually busy, that his activities have an unusually important impact upon the lives of others, and that his conduct embodies an authority bestowed by the entire American electorate. He (along with his constitutionally subordinate Vice President) is the only official for whom the entire Nation votes, and is the only elected officer to represent the entire Nation both domestically and abroad.

          This constitutional delegation means still more. Article II makes a single President responsible for the actions of the Executive Branch in much the same way that the entire Congress is responsible for the actions of the Legislative Branch, or the entire Judiciary for those of the Judicial Branch. It thereby creates a constitutional equivalence between a single President, on the one hand, and many legislators, or judges, on the other.

          The Founders created this equivalence by consciously deciding to vest Executive authority in one person rather than several. They did so in order to focus, rather than to spread, Executive responsibility thereby facilitating accountability. They also sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many. Compare U.S. Const., Art. II, §1 (vesting power in "a President'') with U.S. Const., Art. I, §1 (vesting power in "a Congress'' that "consist[s] of a Senate and House of Representatives'') and U.S. Const., Art. III, §1 (vesting power in a "supreme Court'' and "inferior Courts'').

          The authority explaining the nature and importance of this decision is legion. See, e.g., J. Locke, Second Treatise of Civil Government §144 (J. Gough ed.1947) (desirability of a perpetual Executive); W. Blackstone, Commentaries *242-243 (need for single Executive); The Federalist No. 70, p. 423 (C. Rossiter ed. 1961) (A.Hamilton) (Executive " [e]nergy'' needed for security, "steady administration of the laws,'' "protection of property,'' "justice,'' and protection of "liberty''); Oliver Ellworth, The Landholder, VI, in Essays on the Constitution 163 (P. Ford ed. 1892) ("supreme executive should be one person, and unfettered otherwise than by the laws he is to execute''); Morrison v. Olson, 487 U.S. 654, 698-699, 108 S.Ct. 2597, 2623, 101 L.Ed.2d 569 (1988) (SCALIA, J., dissenting) (describing history); id., at 705, 108 S.Ct., at 2626-2627 (describing textual basis); id., at 729, 108 S.Ct., at 2638-2639 (describing policy arguments). See also The Federalist No. 71, at 431 (A.Hamilton); P. Kurland, Watergate and the Constitution 135 (1978) (President is "sole indispensable man in government'' and "should not be called'' from his duties "at the instance of any other . . . branch of government''); Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L.Rev. 23, 37-47 (1995). Cf. T. Roosevelt, An Autobiography 372 (1913).

          For present purposes, this constitutional structure means that the President is not like Congress, for Congress can function as if it were whole, even when up to half of its members are absent, see U.S. Const., Art. I, §5, cl. 1. It means that the President is not like the Judiciary, for judges often can designate other judges, e.g., from other judicial circuits, to sit even should an entire court be detained by personal litigation. It means that, unlike Congress, which is regularly out of session, U.S. Const., Art. I, §§4, 5, 7, the President never adjourns.

          More importantly, these constitutional objectives explain why a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it. And the related constitutional equivalence between President, Congress, and the Judiciary, means that judicial scheduling orders in a private civil case must not only take reasonable account of, say, a particularly busy schedule, or a job on which others critically depend, or an underlying electoral mandate. They must also reflect the fact that interference with a President's ability to carry out his public responsibilities is constitutionally equivalent to interference with the ability of the entirety of Congress, or the Judicial Branch, to carry out their public obligations.

          The leading case regarding Presidential immunity from suit is Nixon v. Fitzgerald. Before discussing Fitzgerald, it is helpful to understand the historical precedent on which it relies. While later events have called into question some of the more extreme views on Presidential immunity, the essence of the Constitutional principle remains true today. The historical sources, while not in themselves fully determinative, in conjunction with this Court's precedent inform my judgment that the Constitution protects the President from judicial orders in private civil cases to the extent that those orders could significantly interfere with his efforts to carry out his ongoing public responsibilities.

          Three of the historical sources this Court cited in Fitzgerald, 457 U.S., at 749, 750-752, n. 31, 102 S.Ct., at 2701, 2701-2703, n. 32-a commentary by Joseph Story, an argument attributed to John Adams and Oliver Ellsworth, and a letter written by Thomas Jefferson-each make clear that this is so.

          First, Joseph Story wrote in his Commentaries:

          "There are . . . incidental powers, belonging to the executive department, which are necessarily implied from the nature of the functions, which are confided to it. Among those, must necessarily be included the power to perform them, without any obstruction or impediment whatsoever. The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.'' 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1833) (emphasis added), quoted in Fitzgerald, supra, at 749, 102 S.Ct., at 2701.

As interpreted by this Court in Nixon v. Fitzgerald, the words "for this purpose'' would seem to refer to the President's need for "official inviolability'' in order to "perform'' the duties of his office without "obstruction or impediment.'' As so read, Story's commentary does not explicitly define the contours of "official inviolability.'' But it does suggest that the "inviolability'' is time bound ("while . . . in the discharge of the duties of his office''); that it applies in private lawsuits (for it attaches to the President's "person'' in "civil cases''); and that it is functional ("necessarily implied from the nature of the [President's] functions'').

          Since Nixon did not involve a physical constraint, the Court's reliance upon Justice Story's commentary makes clear, in the Court's view, that the commentary does not limit the scope of "inviolability'' to an immunity from a physical imprisonment, physical detention, or physical "arrest''-a now abandoned procedure that permitted the arrest of certain civil case defendants (e.g., those threatened by bankruptcy) during a civil proceeding.

          I would therefore read Story's commentary to mean what it says, namely that Article II implicitly grants an "official inviolability'' to the President "while he is in the discharge of the duties of his office,'' and that this inviolability must be broad enough to permit him "to perform'' his official duties without "obstruction or impediment.'' As this Court has previously held, the Constitution may grant this kind of protection implicitly; it need not do so explicitly. See Fitzgerald, supra, at 750, n. 31, 102 S.Ct., at 2701, n. 31; United States v. Nixon, 418 U.S. 683, 705-706, n. 16, 94 S.Ct. 3090, 3106, n. 16, 41 L.Ed.2d 1039 (1974); cf. McCulloch v. Maryland, 4 Wheat. 316, 406, 4 L.Ed. 579 (1819).

          Second, during the first Congress, then-Vice President John Adams and then-Senator Oliver Ellsworth expressed a view of an applicable immunity far broader than any currently asserted. Speaking of a sitting President, they said that the ""President, personally, was not the subject to any process whatever . . . . For [that] would . . . put it in the power of a common justice to exercise any authority over him and stop the whole machine of Government.''' 457 U.S., at 751, n. 31, 102 S.Ct., at 2702, n. 31 (quoting Journal of William Maclay 167 (E. Maclay ed. 1890) (Sept. 26 journal entry reporting exchange between Senator Maclay, Adams, and Ellsworth)). They included in their claim a kind of immunity from criminal, as well as civil, process. They responded to a counterargument-that the President "was not above the laws,'' and would have to be arrested if guilty of crimes-by stating that the President would first have to be impeached, and could then be prosecuted. 9 Documentary History of First Federal Congress of United States 168 (K. Bowling & H. Veit eds. 1988) (Diary of William Maclay). This court's rejection of Adams' and Ellsworth's views in the context of criminal proceedings, see ante, at __, does not deprive those views of authority here. See Fitzgerald, supra, at 751-752, n. 31, 102 S.Ct., at 2702, n. 31. Nor does the fact that Senator William Maclay, who reported the views of Adams and Ellsworth, "went on to point out in his diary that he virulently disagreed with them.'' Ante, at __, n. 23. Maclay, unlike Adams and Ellsworth, was not an important political figure at the time of the constitutional debates. See Diary of William Maclay xi-xiii.

          Third, in 1807, a sitting President, Thomas Jefferson, during a dispute about whether the federal courts could subpoena his presence in a criminal case, wrote the following to United States Attorney George Hay:

          "The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?'' 10 Works of Thomas Jefferson 404, n. (P. Ford ed.1905) (letter of June 20, 1807, from President Thomas Jefferson to United States Attorney George Hay), quoted in Fitzgerald, 457 U.S., at 751, n. 31, 102 S.Ct., at 2702, n. 31.

Three days earlier Jefferson had written to the same correspondent:

          "To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function. It could not then mean that it should be withdrawn from its station by any co-ordinate authority.'' 10 Works of Thomas Jefferson, at 401 (letter of June 17, 1807, from Thomas Jefferson to George Hay).

Jefferson, like Adams and Ellsworth, argued strongly for an immunity from both criminal and civil judicial process-an immunity greater in scope than any immunity, or any special scheduling factor, now at issue in the civil case before us. The significance of his views for present purposes lies in his conviction that the Constitution protected a sitting President from litigation that would "withdraw'' a President from his current "constitutional duties.'' That concern may not have applied to Mr. Fitzgerald's 1982 case against a former President, but it is at issue in the current litigation.

          Precedent that suggests to the contrary-that the Constitution does not offer a sitting President significant protections from potentially distracting civil litigation-consists of the following: (1) In several instances sitting Presidents have given depositions or testified at criminal trials, and (2) this Court has twice authorized the enforcement of subpoenas seeking documents from a sitting President for use in a criminal case.

          I agree with the majority that these precedents reject any absolute Presidential immunity from all court process. But they do not cast doubt upon Justice Story's basic conclusion that "in civil cases,'' a sitting President "possess[es] an official inviolability'' as necessary to permit him to "perform'' the duties of his office without "obstruction or impediment.''

          The first set of precedents tells us little about what the Constitution commands, for they amount to voluntary actions on the part of a sitting President. The second set of precedents amounts to a search for documents, rather than a direct call upon Presidential time. More important, both sets of precedents involve criminal proceedings in which the President participated as a witness. Criminal proceedings, unlike private civil proceedings, are public acts initiated and controlled by the Executive Branch; see United States v. Nixon, 418 U.S., at 693-696, 94 S.Ct., at 3100-3102; they are not normally subject to postponement, see U.S. Const., Amdt. 6; and ordinarily they put at risk, not a private citizen's hope for monetary compensation, but a private citizen's freedom from enforced confinement, 418 U.S., at 711-712, and n. 19, 94 S.Ct., at 3109-3110, and n. 19; Fitzgerald, supra, at 754, n. 37, 102 S.Ct., at 2703, n. 37. See also id., at 758, n. 41, 102 S.Ct., at 2705, n. 41. Nor is it normally possible in a criminal case, unlike many civil cases, to provide the plaintiff with interest to compensate for scheduling delay. See, e.g., Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069, 1073 (C.A.8 1991); Foley v. Lowell, 948 F.2d 10, 17-18 (C.A.1 1991); Wooten v. McClendon, 272 Ark. 61, 62-63, 612 S.W.2d 105, 106 (1981).

          The remaining precedent to which the majority refers does not seem relevant in this case. That precedent, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 865-866, 96 L.Ed. 1153 (1952), concerns official action. And any Presidential time spent dealing with, or action taken in response to, that kind of case is part of a President's official duties. Hence court review in such circumstances could not interfere with, or distract from, official duties. Insofar as a court orders a President, in any such a proceeding, to act or to refrain from action, it defines, or determines, or clarifies, the legal scope of an official duty. By definition (if the order itself is lawful), it cannot impede, or obstruct, or interfere with, the President's basic task-the lawful exercise of his Executive authority. Indeed, if constitutional principles counsel caution when judges consider an order that directly requires the President properly to carry out his official duties, see Franklin v. Massachusetts, 505 U.S. 788, 827, 112 S.Ct. 2767, 2789, 120 L.Ed.2d 636 (1992) (SCALIA, J., concurring in part and concurring in judgment) (describing the "apparently unbroken historical tradition . . . implicit in the separation of powers'' that a President may not be ordered by the Judiciary to perform particular Executive acts); id., at 802-803, 112 S.Ct., at 2776-2777 (plurality opinion of O'CONNOR, J.), so much the more must those principles counsel caution when such an order threatens to interfere with the President's properly carrying out those duties.

          Case law, particularly, Nixon v. Fitzgerald, strongly supports the principle that judges hearing a private civil damages action against a sitting President may not issue orders that could significantly distract a President from his official duties. In Fitzgerald, the Court held that former President Nixon was absolutely immune from civil damage lawsuits based upon any conduct within the "outer perimeter'' of his official responsibilities. 457 U.S., at 756, 102 S.Ct., at 2704. The holding rested upon six determinations that are relevant here.

          First, the Court found that the Constitution assigns the President singularly important duties (thus warranting an "absolute,'' rather than a "qualified,'' immunity). Id., at 750-751, 102 S.Ct., at 2701-2702. Second, the Court held that "recognition of immunity'' does not require a "specific textual basis'' in the Constitution. Id., at 750, n. 31, 102 S.Ct., at 2701, n. 31. Third, although physical constraint of the President was not at issue, the Court nevertheless considered Justice Story's constitutional analysis, discussed supra, at __, "persuasive.'' 457 U.S., at 749, 102 S.Ct., at 2701. Fourth, the Court distinguished contrary precedent on the ground that it involved criminal, not civil, proceedings. Id., at 754, and n. 37, 102 S.Ct., at 2703, and n. 37. Fifth, the Court's concerns encompassed the fact that "the sheer prominence of the President's office'' could make him "an easily identifiable target for suits for civil damages.'' Id., at 752-753, 102 S.Ct., at 2702-2703. Sixth, and most important, the Court rested its conclusion in important part upon the fact that civil lawsuits "could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.'' Id., at 753, 102 S.Ct., at 2703.

          The majority argues that this critical, last-mentioned, feature of the case is dicta. Ante, at __, n. 19. In the majority's view, since the defendant was a former President, the lawsuit could not have distracted him from his official duties; hence the case must rest entirely upon an alternative concern, namely that a President's fear of civil lawsuits based upon his official duties could distort his official decisionmaking. The majority, however, overlooks the fact that Fitzgerald set forth a single immunity (an absolute immunity) applicable both to sitting and former Presidents. Its reasoning focused upon both. Its key paragraph, explaining why the President enjoys an absolute immunity rather than a qualified immunity, contains seven sentences, four of which focus primarily upon time and energy distraction and three of which focus primarily upon official decision distortion. Indeed, that key paragraph begins by stating:

          "Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.'' 457 U.S., at 751, 102 S.Ct., at 2702.

          Moreover, the Court, in numerous other cases, has found the problem of time and energy distraction a critically important consideration militating in favor of a grant of immunity. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 817-818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (qualified immunity for Presidential assistants based in part on "costs of trial'' and "burdens of broad-reaching discovery'' that are "peculiarly disruptive of effective government''); Imbler v. Pachtman, 424 U.S. 409, 423, 96 S.Ct. 984, 991, 47 L.Ed.2d 128 (1976) (absolute immunity of prosecutors based in part upon concern about "deflection of the prosecutor's energies from his public duties''); Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (absolute immunity for legislators avoids danger they will "be subjected to the cost and inconvenience and distractions of a trial''). Indeed, cases that provide public officials, not with immunity, but with special protective procedures such as interlocutory appeals, rest entirely upon a "time and energy distraction'' rationale. See Behrens v. Pelletier, 516 U.S. ----, 116 S.Ct. 834, 839, 133 L.Ed.2d 773 (1996) (" [G]overnment official['s] right . . . to avoid standing trial [and] to avoid the burdens of such pretrial matters as discovery'' are sufficient to support an immediate appeal from "denial of a claim of qualified immunity'') (citations and internal quotation marks omitted); Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (" [E]ntitlement not to stand trial or face the other burdens of litigation . . . is effectively lost if a case is erroneously permitted to go to trial'') (citing Harlow, supra, at 818, 102 S.Ct., at 2738).

          It is not surprising that the Court's immunity-related case law should rely on both distraction and distortion, for the ultimate rationale underlying those cases embodies both concerns. See Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (absolute judicial immunity is needed because of "burden'' of litigation, which leads to "intimidation''); Bradley v. Fisher, 13 Wall. 335, 349, 20 L.Ed. 646 (1872) (without absolute immunity a judge's "office [would] be degraded and his usefulness destroyed'' and he would be forced to shoulder "burden'' of keeping full records for use in defending against suits). The cases ultimately turn on an assessment that the threat that a civil damage lawsuit poses to a public official's ability to perform his job properly. And, whether they provide an absolute immunity, a qualified immunity, or merely a special procedure, they ultimately balance consequent potential public harm against private need. Distraction and distortion are equally important ingredients of that potential public harm. Indeed, a lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability. If the latter concern can justify an "absolute'' immunity in the case of a President no longer in office, where distraction is no longer a consideration, so can the former justify, not immunity, but a postponement, in the case of a sitting President.

          The majority points to the fact that private plaintiffs have brought civil damage lawsuits against a sitting President only three times in our Nation's history; and it relies upon the threat of sanctions to discourage, and "the court's discretion'' to manage, such actions so that "interference with the President's duties would not occur.'' Ante, at __. I am less sanguine. Since 1960, when the last such suit was filed, the number of civil lawsuits filed annually in Federal District Courts has increased from under 60,000 to about 240,000, see Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary 27 (1995); Annual Report of the Director of the Administrative Office of the United States Courts-1960, at p. 224 (1961); the number of federal district judges has increased from 233 to about 650, see Administrative Office of United States Courts, Judicial Business of United States Courts 7 (1994); Annual Report of the Director of the Administrative Office of the United States Courts-1960, supra, at p. 205; the time and expense associated with both discovery and trial have increased, see, e.g., Bell, Varner & Gottschalk, Automatic Disclosure in Discovery-The Rush To Reform, 27 Ga. L.Rev. 1, 9-11 (1992); see also S.Rep. No. 101-416, p. 1 (1990); Judicial Improvements Act of 1990, Pub.L. 101-650, 104 Stat. 5089; an increasingly complex economy has led to increasingly complex sets of statutes, rules and regulations, that often create potential liability, with or without fault. And this Court has now made clear that such lawsuits may proceed against a sitting President. The consequence, as the Court warned in Fitzgerald, is that a sitting President, given "the visibility of his office,'' could well become "an easily identifiable target for suits for civil damages,'' 457 U.S., at 753, 102 S.Ct., at 2703. The threat of sanctions could well discourage much unneeded litigation, ante, at __, but some lawsuits (including highly intricate and complicated ones) could resist ready evaluation and disposition; and individual district court procedural rulings could pose a significant threat to the President's official functions.

          I concede the possibility that district courts, supervised by the Courts of Appeals and perhaps this Court, might prove able to manage private civil damage actions against sitting Presidents without significantly interfering with the discharge of Presidential duties-at least if they manage those actions with the constitutional problem in mind. Nonetheless, predicting the future is difficult, and I am skeptical. Should the majority's optimism turn out to be misplaced, then, in my view, courts will have to develop administrative rules applicable to such cases (including postponement rules of the sort at issue in this case) in order to implement the basic constitutional directive. A Constitution that separates powers in order to prevent one branch of Government from significantly threatening the workings of another could not grant a single judge more than a very limited power to second guess a President's reasonable determination (announced in open court) of his scheduling needs, nor could it permit the issuance of a trial scheduling order that would significantly interfere with the President's discharge of his duties-in a private civil damage action the trial of which might be postponed without the plaintiff suffering enormous harm. As Madison pointed out in The Federalist No. 51, " [t]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. '' Id., at 321-322 (emphasis added). I agree with the majority's determination that a constitutional defense must await a more specific showing of need; I do not agree with what I believe to be an understatement of the "danger.'' And I believe that ordinary case-management principles are unlikely to prove sufficient to deal with private civil lawsuits for damages unless supplemented with a constitutionally based requirement that district courts schedule proceedings so as to avoid significant interference with the President's ongoing discharge of his official responsibilities.

          This case is a private action for civil damages in which, as the District Court here found, it is possible to preserve evidence and in which later payment of interest can compensate for delay. The District Court in this case determined that the Constitution required the postponement of trial during the sitting President's term. It may well be that the trial of this case cannot take place without significantly interfering with the President's ability to carry out his official duties. Yet, I agree with the majority that there is no automatic temporary immunity and that the President should have to provide the District Court with a reasoned explanation of why the immunity is needed; and I also agree that, in the absence of that explanation, the court's postponement of the trial date was premature. For those reasons, I concur in the result.

^{* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.}

^1. See 28 U.S.C. §1332. Jurisdiction over the federal claims is authorized by 28 U.S.C. §§1331 and 1343.

^2. Complaint ¶26.

^3. As the matter is not before us, see Jones v. Clinton, 72 F.3d 1354, 1359, n. 7 (C.A.8 1996), we do not address the question whether the President's immunity from damages liability for acts taken within the "outer perimeter'' of his official responsibilities provides a defense to the fourth count of the complaint. See Nixon v. Fitzgerald, 457 U.S. 731, 756, 102 S.Ct. 2690, 2704, 73 L.Ed.2d 349 (1982).

^4. Record, Doc. No. 9; see 858 F.Supp. 902, 904 (E.D.Ark.1994).

^5. See App. to Pet. for Cert. 53.

^6. 869 F.Supp., at 698. She explained: "Nowhere in the Constitution, congressional acts, or the writings of any judge or scholar, may any credible support for such a proposition be found. It is contrary to our form of government, which asserts as did the English in the Magna Carta and the Petition of Right, that even the sovereign is subject to God and the law.'' Ibid.

^7. Although, as noted above, the District Court's initial order permitted discovery to go forward, the court later stayed discovery pending the outcome of the appeals on the immunity issue. 879 F.Supp. 86 (E.D.Ark.1995).

^8. Over the dissent of Judge McMillian, the Court of Appeals denied a suggestion for rehearing en banc. 81 F.3d 78 (C.A.8 1996).

^9. Brief for United States in Support of Petition 5.

^10. Brief in Opposition 8, 10, 23.

^11. As we have explained: ""If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.' Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 [65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)]. It has long been the Court's "considered practice not to decide abstract, hypothetical or contingent questions . . . or to decide any constitutional question in advance of the necessity for its decision . . . or to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied . . . or to decide any constitutional question except with reference to the particular facts to which it is to be applied . . . . ' Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 [65 S.Ct. 1384, 1389-1390, 89 L.Ed. 1725 (1945)]. "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U.S. 283, 295 [25 S.Ct. 243, 245, 49 L.Ed. 482 (1905)].'' Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 570, n. 34, 67 S.Ct. 1409, 1420, n. 34, 91 L.Ed. 1666 (1947).

^12. The two questions presented in the certiorari petition are: "1. Whether the litigation of a private civil damages action against an incumbent President must in all but the most exceptional cases be deferred until the President leaves office''; and "2. Whether a district court, as a proper exercise of judicial discretion, may stay such litigation until the President leaves office.'' Our review is confined to these issues. See this Court's Rule 14.1(a).

^13. Because the Supremacy Clause makes federal law "the supreme Law of the Land,'' Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are "faithfully executed,'' Art. II, §3, may implicate concerns that are quite different from the interbranch separation of powers questions addressed here. Cf., e.g., Hancock v. Train, 426 U.S. 167, 178-179, 96 S.Ct. 2006, 2012-2013, 48 L.Ed.2d 555 (1976); Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139-1140, 87 L.Ed. 1504 (1943). See L. Tribe, American Constitutional Law 513 (2d ed.1988) ("absent explicit congressional consent no state may command federal officials . . . to take action in derogation of their . . . federal responsibilities'').

^14. Although Presidents have responded to written interrogatories, given depositions, and provided videotaped trial testimony, see infra, at __, no sitting President has ever testified, or been ordered to testify, in open court.

^15. See People ex rel. Hurley v. Roosevelt, 179 N.Y. 544, 71 N.E. 1137 (1904); DeVault v. Truman, 354 Mo. 1193, 194 S.W.2d 29 (1946).

^16. See Bailey v. Kennedy, No. 757,200 (Cal.Super.Ct.1960); Hills v. Kennedy, No. 757,201 (Cal.Super.Ct.1960).

^17. See 72 F.3d, at 1362, n. 10.

^18. Some of these cases defined the immunities of state and local officials in actions filed under 42 U.S.C. §1983. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 422-423, 96 S.Ct. 984, 991-992, 47 L.Ed.2d 128 (1976) (prosecutorial immunity); Tenney v. Brandhove, 341 U.S. 367, 376-377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951) (legislative immunity); Pierson v. Ray, 386 U.S. 547, 554-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288 (1967) (judicial immunity). The rationale underlying our official immunity jurisprudence in cases alleging constitutional violations brought against federal officials is similar. See, e.g., Butz v. Economou, 438 U.S. 478, 500-501, 98 S.Ct. 2894, 2907-2908, 57 L.Ed.2d 895 (1978).

^19. Petitioner draws our attention to dicta in Fitzgerald, which he suggests are helpful to his cause. We noted there that " [b]ecause of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,'' 457 U.S., at 751, 102 S.Ct., at 2702, and suggested further that " [c]ognizance of . . . personal vulnerability frequently could distract a President from his public duties,'' id., at 753, 102 S.Ct., at 2703. Petitioner argues that in this aspect the Court's concern was parallel to the issue he suggests is of great importance in this case, the possibility that a sitting President might be distracted by the need to participate in litigation during the pendency of his office. In context, however, it is clear that our dominant concern was with the diversion of the President's attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision. Moreover, Fitzgerald did not present the issue raised in this case because that decision involved claims against a former President.

^20. In Jefferson's view, the subpoena jeopardized the separation of powers by subjecting the Executive Branch to judicial command. See 10 Works of Thomas Jefferson 404, n. (P. Ford ed.1905); Fitzgerald, 457 U.S., at 751, n. 31, 102 S.Ct., at 2702, n. 31 (quoting Jefferson's comments).

^21. 9 Documentary History of First Federal Congress of the United States 168 (K. Bowling & H. Veit eds., 1988) (Diary of William Maclay).

^22. See 3 J. Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1833).

^23. Jefferson's argument provides little support for respondent's position. As we explain later, the prerogative Jefferson claimed was denied him by the Chief Justice in the very decision Jefferson was protesting, and this Court has subsequently reaffirmed that holding. See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). The statements supporting a similar proposition recorded in Senator Maclay's diary are inconclusive of the issue before us here for the same reason. In addition, this material is hardly proof of the unequivocal common understanding at the time of the founding. Immediately after mentioning the positions of Adams and Ellsworth, Maclay went on to point out in his diary that he virulently disagreed with them, concluding that his opponents' view " [s]hows clearly how amazingly fond of the old leven many People are.'' Diary of Maclay 168.

Finally, Justice Story's comments in his constitutional law treatise provide no substantial support for respondent's position. Story wrote that because the President's "incidental powers'' must include "the power to perform [his duties], without any obstruction,'' he "cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.'' 3 Story, §1563, at 418-419 (emphasis added). Story said only that "an official inviolability,'' ibid. (emphasis added), was necessary to preserve the President's ability to perform the functions of the office; he did not specify the dimensions of the necessary immunity. While we have held that an immunity from suits grounded on official acts is necessary to serve this purpose, see Fitzgerald, 457 U.S., at 749, 102 S.Ct., at 2701, it does not follow that the broad immunity from all civil damages suits that petitioner seeks is also necessary.

^24. For that reason, the argument does not place any reliance on the English ancestry that informs our common-law jurisprudence; he does not claim the prerogatives of the monarchs who asserted that " [t]he King can do no wrong.'' See 1 W. Blackstone, Commentaries *246. Although w e have adopted the related doctrine of sovereign immunity, the common-law fiction that " [t]he king . . . is not only incapable of doing wrong, but even of thinking wrong,'' ibid., was rejected at the birth of the Republic. See, e.g., Nevada v. Hall, 440 U.S. 410, 415, and nn. 7-8, 99 S.Ct. 1182, 1185, and nn. 7-8, 59 L.Ed.2d 416 (1970); Langford v. United States, 101 U.S. 341, 342-343, 25 L.Ed. 1010 (1880).

^25. See, e.g., A. Tourtellot, The Presidents on the Presidency 346-374 (1964) (citing comments of, among others, George Washington, John Quincy Adams, Benjamin Harrison, Theodore Roosevelt, William Howard Taft, and Woodrow Wilson); H. Finer, The Presidency: Crisis and Regeneration 35-37 (1960) (citing similar remarks by a number of Presidents, including James Monroe, James K. Polk, and Harry Truman).

^26. L. Johnson, The Vantage Point 425 (1971).

^27. The Amendment sets forth, inter alia, an elaborate procedure for Presidential succession in the event that the Chief Executive becomes incapacitated. See U.S. Const., Amdt. 25, §§3-4.

^28. 111 Cong. Rec. 15595 (1965) (remarks of Sen. Bayh).

^29. We noted in Fitzgerald: "Article II, §1, of the Constitution provides that "[t]he executive Power shall be vested in a President of the United States . . . . ' This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity. These include the enforcement of federal law-it is the President who is charged constitutionally to "take Care that the Laws be faithfully executed'; the conduct of foreign affairs-a realm in which the Court has recognized that "[i]t would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret'; and management of the Executive Branch-a task for which "imperative reasons requir[e] an unrestricted power [in the President] to remove the most important of his subordinates in their most important duties.''' 457 U.S., at 749-750, 102 S.Ct., at 2701 (footnotes omitted).

^30. See Loving v. United States, 517 U.S. ----, ----, 116 S.Ct. 1737, 1742-1743, 135 L.Ed.2d 36 (1996); Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714 (1989) ("concern of encroachment and aggrandizement . . . has animated our separation-of-powers jurisprudence''); The Federalist No. 51, p. 349 (J. Cooke ed.1961) ("the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others'').

^31. See also United States v. Klein, 13 Wall. 128, 147, 20 L.Ed. 519 (1872) (noting that Congress had "inadvertently passed the limit which separates the legislative from the judicial power'').

^32. See also Bowsher v. Synar, 478 U.S. 714, 726, 106 S.Ct. 3181, 3188, 92 L.Ed.2d 583 (1986) ("structure of the Constitution does not permit Congress to execute the laws''). Cf. INS v. Chadha, 462 U.S. 919, 958, 103 S.Ct. 2764, 2787-2788, 77 L.Ed.2d 317 (1983); Springer v. Philippine Islands, 277 U.S. 189, 202-203, 48 S.Ct. 480, 482-483, 72 L.Ed. 845 (1928).

^33. See United States v. Ferreira, 13 How. 40, 14 L.Ed. 40 (1852); Hayburn's Case, 2 Dall. 408, 1 L.Ed. 436 (1792). As we explained in Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 437, 92 L.Ed. 568 (1948), " [t]his Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive.'' More generally, "we have broadly stated that "executive or administrative duties of a nonjudicial nature may not be imposed on judges holding office under Art. III of the Constitution.''' Morrison v. Olson, 487 U.S. 654, 677, 108 S.Ct. 2597, 2612, 101 L.Ed.2d 569 (1988) (quoting Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976)). These restrictions on judicial activities "help ensure the independence of the Judicial Branch and to prevent the Judiciary from encroaching into areas reserved for the other branches.'' 487 U.S., at 678, 108 S.Ct., at 2612; see also Mistretta v. United States, 488 U.S. 361, 385, 109 S.Ct. 647, 662, 102 L.Ed.2d 714 (1989).

^34. We have long held that the federal courts may not resolve such matters. See, e.g., Luther v. Borden, 7 How. 1, 12 L.Ed. 581 (1849). As we explained in Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993), " [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 [82 S.Ct. 691, 710, 7 L.Ed.2d 663] (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. See ibid.; Powell v. McCormack, 395 U.S. 486, 519 [89 S.Ct. 1944, 1962-1963, 23 L.Ed.2d 491] (1969).'' Id., at 228, 113 S.Ct., at 735.

^35. See also Olson, 487 U.S., at 693-694, 108 S.Ct., at 2620-2621; Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977); United States v. Nixon, 418 U.S. 683, 707, 94 S.Ct. 3090, 3107, 41 L.Ed.2d 1039 (1974); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

^36. In Fitzgerald, we were able to discount the lack of historical support for the proposition that official-capacity actions against the President posed a serious threat to the office on the ground that a right to sue federal officials for damages as a result of constitutional violations had only recently been recognized. See Fitzgerald, 457 U.S., at 753, n. 33, 102 S.Ct., at 2703, n. 33; Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The situation with respect to suits against the President for actions taken in his private capacity is quite different because such suits may be grounded on legal theories that have always been applicable to any potential defendant. Moreover, because the President has contact with far fewer people in his private life than in his official capacity, the class of potential plaintiffs is considerably smaller and the risk of litigation less intense.

^37. The Federalist No. 47, Pp. ___-___ (J. Cooke ed.1961) (emphasis in original). See Mistretta, 488 U.S., at 381, 109 S.Ct., at 659-660; Nixon v. Administrator of General Services, 433 U.S., at 442, n. 5, 97 S.Ct., at 2789, n. 5.

^38. After the decision was rendered, Jefferson expressed his distress in a letter to a prosecutor at the trial, noting that " [t]he Constitution enjoins [the President's] constant agency in the concerns of 6. millions of people.'' 10 Works of Thomas Jefferson 404, n. (P. Ford ed.1905). He asked, " [i]s the law paramount to this, which calls on him on behalf of a single one?'' Ibid.; see also Fitzgerald, 457 U.S., at 751-752, n. 31, 102 S.Ct., at 2702, n. 31 (quoting Jefferson's comments at length). For Chief Justice Marshall, the answer-quite plainly-was yes.

^39. Of course, it does not follow that a court may ""proceed against the president as against an ordinary individual,''' United States v. Nixon, 418 U.S., at 715, 94 S.Ct., at 3111 (quoting United States v. Burr, 25 F.Cas. 187, 192 (No. 14,694) (C.C.Va. 1807)). Special caution is appropriate if the materials or testimony sought by the court relate to a President's official activities, with respect to which " [t]he interest in preserving confidentiality is weighty indeed and entitled to great respect.'' 418 U.S., at 712, 94 S.Ct., at 3109. We have made clear that in a criminal case the powerful interest in the "fair administration of criminal justice'' requires that the evidence be given under appropriate circumstances lest the "very integrity of the judicial system'' be eroded. Id., at 709, 711-712, 94 S.Ct., at 3108, 3109.

^40. There is, no doubt, some truth to Learned Hand's comment that a lawsuit should be "dread[ed] . . . beyond almost anything else short of sickness and death.'' 3 Association of the Bar of the City of New York, Lectures on Legal Topics 105 (1926). We recognize that a President, like any other official or private citizen, may become distracted or preoccupied by pending litigation. Presidents and other officials face a variety of demands on their time, however, some private, some political, and some as a result of official duty. While such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional separation of powers concerns.

^41. Although these claims are in fact analytically distinct, the District Court does not appear to have drawn that distinction. Rather than basing its decision on particular factual findings that might have buttressed an exercise of discretion, the District Court instead suggested that a discretionary stay was supported by the legal conclusion that such a stay was required by Fitzgerald. See 869 F.Supp., at 699. We therefore reject petitioner's argument that we lack jurisdiction over respondent's cross-appeal from the District Court's alternative holding that its decision was "also permitted,'' inter alia, "under the equity powers of the Court.'' Ibid. The Court of Appeals correctly found that pendant appellate jurisdiction over this issue was proper. See 72 F.3d, at 1357, n. 4. The District Court's legal ruling that the President was protected by a temporary immunity from trial-but not discovery-was "inextricably intertwined,'' Swint v. Chambers County Comm'n, 514 U.S. 35, 51, 115 S.Ct. 1203, 1212, 131 L.Ed.2d 60 (1995), with its suggestion that a discretionary stay having the same effect might be proper; indeed, "review of the [latter] decision [is] necessary to ensure meaningful review of the [former],'' ibid.

^42. See, e.g., Fed. Rule Civ. Proc. 11; 28 U.S.C. §1927; Chambers v. NASCO, Inc., 501 U.S. 32, 50, 111 S.Ct. 2123, 2136, 115 L.Ed.2d 27 (1991) (noting that "if in the informed discretion of the court, neither the statute nor the Rules are up to the task, the court may safely rely on its inherent power'' in imposing appropriate sanctions). Those sanctions may be set at a level "sufficient to deter repetition of such conduct or comparable conduct by others similarly situated.'' Fed. Rule Civ. Proc. 11(c)(2). As Rule 11 indicates, sanctions may be appropriate where a claim is "presented for any improper purpose, such as to harass,'' including any claim based on "allegations and other factual contentions [lacking] evidentiary support'' or unlikely to prove well-grounded after reasonable investigation. Rules 11(b)(1), (3).

^43.United States v. Nixon, 418 U.S., at 710-711, 94 S.Ct., at 3108-3109; see also Fitzgerald, 457 U.S., at 753, 102 S.Ct., at 2703 ("Courts traditionally have recognized the President's constitutional responsibilities and status as factors counseling judicial deference and restraint'').

          Section 244(c)(2) of the Immigration and Nationality Act (Act) authorizes either House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General, to allow a particular deportable alien to remain in the United States. Appellee-respondent Chadha, an alien who had been lawfully admitted to the United States on a nonimmigrant student visa, remained in the United States after his visa had expired and was ordered by the Immigration and Naturalization Service (INS) to show cause why he should not be deported. He then applied for suspension of the deportation, and, after a hearing, an Immigration Judge, acting pursuant to § 244(a)(1) of the Act, which authorizes the Attorney General, in his discretion, to suspend deportation, ordered the suspension, and reported the suspension to Congress as required by § 244(c)(1). Thereafter, the House of Representatives passed a Resolution pursuant to § 244(c)(2) vetoing the suspension, and the Immigration Judge reopened the deportation proceedings. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional, but the judge held that he had no authority to rule on its constitutionality and ordered Chadha deported pursuant to the House Resolution. Chadha's appeal to the Board of Immigration Appeals was dismissed, the Board also holding that it had no power to declare § 244(c)(2) unconstitutional. Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional. The Court of Appeals held that § 244(c)(2) violates the constitutional doctrine of separation of powers, and accordingly directed the Attorney General to cease taking any steps to deport Chadha based upon the House Resolution.

Page 920

          Held:

          1. This Court has jurisdiction to entertain the INS's appeal in No. 80-1832 under 28 U.S.C. § 1252, which provides that "[a]ny party" may appeal to the Supreme Court from a judgment of "any court of the United States" holding an Act of Congress unconstitutional in "any civil action, suit or proceeding" to which the United States or any of its agencies is a party. A court of appeals is "a court of the United States" for purposes of § 1252, the proceeding below was a "civil action, suit or proceeding," the INS is an agency of the United States and was a party to the proceeding below, and the judgment below held an Act of Congress unconstitutional. Moreover, for purposes of deciding whether the INS was "any party" within the grant of appellate jurisdiction in § 1252, the INS was sufficiently aggrieved by the Court of Appeals' decision prohibiting it from taking action it would otherwise take. An agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. Pp. 929-931.

          2. Section 244(c)(2) is severable from the remainder of § 244. Section 406 of the Act provides that if any particular provision of the Act is held invalid, the remainder of the Act shall not be affected. This gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or any part thereof, to depend upon whether the veto clause of § 244(c)(2) was invalid. This presumption is supported by § 244's legislative history. Moreover, a provision is further presumed severable if what remains after severance is fully operative as a law. Here, § 244 can survive as a "fully operative" and workable administrative mechanism without the one-house veto. Pp. 931-935.

          3. Chadha has standing to challenge the constitutionality of § 244(c)(2) since he has demonstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595. Pp.935-936

          4. The fact that Chadha may have other statutory relief available to him does not preclude him from challenging the constitutionality of § 244(c)(2), especially where the other avenues of relief are at most speculative. Pp. 936-937.

          5. The Court of Appeals had jurisdiction under § 106(a) of the Act, which provides that a petition for review in a court of appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings" under § 242(b) of the Act. Section 106(a) includes all matters on which the final deportation order is contingent, rather than only those determinations made at the deportation

Page 921

hearing. Here, Chadha's deportation stands or falls on the validity of the challenged veto, the final deportation order having been entered only to implement that veto. Pp. 937-939.

          6. A case or controversy is presented by these cases. From the time of the House's formal intervention, there was concrete adverseness, and prior to such intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. The INS's agreement with Chadha's position does not alter the fact that the INS would have deported him absent the Court of Appeals' judgment. Moreover, Congress is the proper party to defend the validity of a statute when a Government agency, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is unconstitutional. Pp.939-940

          7. These cases do not present a nonjusticiable political question on the asserted ground that Chadha is merely challenging Congress' authority under the Naturalization and Necessary and Proper Clauses of the Constitution. The presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by the courts simply because the issues have political implications. Pp. 940-943.

          8. The congressional veto provision in § 244(c)(2) is unconstitutional. Pp. 944-959.

          (a) The prescription for legislative action in Art. I, § 1 requiring all legislative powers to be vested in a Congress consisting of a Senate and a House of Representatives—and § 7 requiring every bill passed by the House and Senate, before becoming law, to be presented to the President, and, if he disapproves, to be repassed by two-thirds of the Senate and House represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered procedure. This procedure is an integral part of the constitutional design for the separation of powers. Pp. 944-951.

          (b) Here, the action taken by the House pursuant to § 244(c)(2) was essentially legislative in purpose and effect and thus was subject to the procedural requirements of Art. I, § 7, for legislative action: passage by a majority of both Houses and presentation to the President. The one-House veto operated to overrule the Attorney General and mandate Chadha's deportation. The veto's legislative character is confirmed by the character of the congressional action it supplants; i.e., absent the veto provision of § 244(c)(2), neither the House nor the Senate, or both acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legislatively

Page 922

delegated authority, had determined that the alien should remain in the United States. Without the veto provision, this could have been achieved only by legislation requiring deportation. A veto by one House under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. The nature of the decision implemented by the one-House veto further manifests its legislative character. Congress must abide by its delegation of authority to the Attorney General until that delegation is legislatively altered or revoked. Finally, the veto's legislative character is confirmed by the fact that when the Framers intended to authorize either House of Congress to act alon and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action in the Constitution. Pp. 951- 959.

          634 F.2d 408, affirmed.

          Eugene Gressman, Chapel Hill, N.C., for U.S. House of Representatives, Michael Davidson, Washington, D.C., for U.S. Senate.

          Rex Lee, Sol. Gen., Washington, D.C., for I.N.S.

          Alan B. Morrison, Washington, D.C., for Chadha.

Page 923

           Chief Justice BURGER delivered the opinion of the Court.

          We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of the question of jurisdiction in No. 80-1832. Each presents a challenge to the constitutionality of the provision in § 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(c)(2), authorizing one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States.

          Chadha is an East Indian who was born in Kenya and holds a British passport. He was lawfully admitted to the United States in 1966 on a nonimmigrant student visa. His visa expired on June 30, 1972. On October 11, 1973, the District Director of the Immigration and Naturalization Service ordered Chadha to show cause why he should not be deported for having "remained in the United States for a longer time than permitted." App. 6. Pursuant to § 242(b) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1252(b), a deportation hearing was held before an immigration judge on January 11, 1974. Chadha conceded that he was deportable for overstaying his visa and the hearing was adjourned to enable him to file an application for suspension of deportation under § 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1). Section 244(a)(1) provides:

          "(a) As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien who applies to the Attorney General for suspension of deportation and—

                    (1) is deportable under any law of the United States except the provisions specified in paragraph (2) of this subsection; has been physically present in the United

Page 924

          States for a continuous period of not less than seven years immediately preceding the date of such application, and proves that during all of such period he was and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." ¹

          After Chadha submitted his application for suspension of deportation, the deportation hearing was resumed on February 7, 1974. On the basis of evidence adduced at the hearing, affidavits submitted with the application, and the results of a character investigation conducted by the INS, the immigration judge, on June 25, 1974, ordered that Chadha's deportation be suspended. The immigration judge found that Chadha met the requirements of § 244(a)(1): he had resided continuously in the United States for over seven years, was of good moral character, and would suffer "extreme hardship" if deported.

          Pursuant to § 244(c)(1) of the Act, 8 U.S.C. § 1254(c)(1), the immigration judge suspended Chadha's deportation and a report of the suspension was transmitted to Congress. Section 244(c)(1) provides:

          "Upon application by any alien who is found by the Attorney General to meet the require ents of subsection (a) of this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended under the provisions of this subsection, a complete and detailed statement of the

Page 925

          facts and pertinent provisions of law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session."

          Once the Attorney General's recommendation for suspension of Chadha's deportation was conveyed to Congress, Congress had the power under § 244(c)(2) of the Act, 8 U.S.C. § 1254(c)(2), to veto ² the Attorney General's determination that Chadha should not be deported. Section 244(c)(2) provides:

          "(2) In the case of an alien specified in paragraph (1) of subsection (a) of this subsection—

          if during the session of the Congress at which a case is reported, or prior to the close of the session of the Congress next following the session at which a case is reported, either the Senate or the House of Representatives passes a resolution stating in substance that it does not favor the suspension of such deportation, the Attorney General shall thereupon deport such alien or authorize the alien's voluntary departure at his own expense under the order of deportation in the manner provided by law. If, within the time above specified, neither the Senate nor the House of Representatives shall pass such a resolution, the Attorney General shall cancel deportation proceedings."

Page 926

          The June 25, 1974 order of the immigration judge suspending Chadha's deportation remained outstanding as a valid order for a year and a half. For reasons not disclosed by the record, Congress did not exercise the veto authority reserved to it under § 244(c)(2) until the first session of the 94th Congress. This was the final session in which Congress, pursuant to § 244(c)(2), could act to veto the Attorney General's determination that Chadha should not be deported. The session ended on December 19, 1975. 121 Cong.Rec. 42014, 42277 (1975). Absent Congressional action, Chadha's deportation proceedings would have been cancelled after this date and his status adjusted to that of a permanent resident alien. See 8 U.S.C. § 1254(d).

          On December 12, 1975, Representative Eilberg, Chairman of the Judiciary Subcommittee on Immigration, Citizenship, and International Law, introduced a resolution opposing "the granting of permanent residence in the United States to [six] aliens", including Chadha. H.R.Res. 926, 94th Cong., 1st Sess.; 121 Cong.Rec. 40247 (1975). The resolution was referred to the House Committee on the Judiciary. On December 16, 1975, the resolution was discharged from further consideration by the House Committee on the Judiciary and submitted to the House of Representatives for a vote. 121 Cong.Rec. 40800. The resolution had not been printed and was not made available to other Members of the House prior to or at the time it was voted on. Ibid. So far as the record before us shows, the House consideration of the resolution was based on Representative Eilberg's statement from the floor that

          "[i]t was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution [Chadha and five others] did not meet these statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." Ibid.

Page 927

          The resolution was passed without debate or recorded vote.³ Since the House action was pursuant to § 244(c)(2), the resolution was not treated as an Article I legislative act; it was not

Page 928

submitted to the Senate or presented to the President for his action.

          After the House veto of the Attorney General's decision to allow Chadha to remain in the United States, the immigration judge reopened the deportation proceedings to implement the House order deporting Chadha. Chadha moved to terminate the proceedings on the ground that § 244(c)(2) is unconstitutional. The immigration judge held that he had no authority to rule on the constitutional validity of § 244(c)(2). On November 8, 1976, Chadha was ordered deported pursuant to the House action.

          Chadha appealed the deportation order to the Board of Immigration Appeals again contending that § 244(c)(2) is unconstitutional. The Board held that it had "no power to declare unconstitutional an act of Congress" and Chadha's appeal was dismissed. App. 55-56.

          Pursuant to § 106(a) of the Act, 8 U.S.C. § 1105a(a), Chadha filed a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit. The Immigration and Naturalization Service agreed with Chadha's position before the Court of Appeals and joined him in arguing that § 244(c)(2) is unconsti utional. In light of the importance of the question, the Court of Appeals invited both the Senate and the House of Representatives to file briefs amici curiae.

          After full briefing and oral argument, the Court of Appeals held that the House was without constitutional authority to order Chadha's deportation; accordingly it directed the Attorney General "to cease and desist from taking any steps to deport this alien based upon the resolution enacted by the House of Representatives." Chadha v. INS, 634 F.2d 408, 436 (CA9 1980). The essence of its holding was that § 244(c)(2) violates the constitutional doctrine of separation of powers.

          We granted certiorari in Nos. 80-2170 and 80-2171, and postponed consideration of our jurisdiction over the appeal in No. 80-1832, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80 (1981), and we now affirm.

Page 929

          Before we address the important question of the constitutionality of the one-House veto provision of § 244(c)(2), we first consider several challenges to the authority of this Court to resolve the issue raised.

          Both Houses of Congress ⁴ contend that we are without jurisdiction under 28 U.S.C. § 1252 to entertain the INS appeal in No. 80-1832. Section 1252 provides:

          "Any party may appeal to the Supreme Court from an interlocutory or final judgment, decree or order of any court of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam and the District Court of the Virgin Islands and any court of record of Puerto Rico, holding an Act of Congress unconstitutional in any civil action, suit, or proceeding to which the United States or any of its agencies, or any officer or employee thereof, as such officer or employee, is a party."

          Parker v. Levy, 417 U.S. 733, 742, n. 10, 94 S.Ct. 2547, 2555, n. 10, 41 L.Ed.2d 439 (1974), makes clear that a court of appeals is a "court of the United States" for purposes of § 1252. It is likewise clear that the proceeding below was a "civil action, suit or proceeding," that the INS is an agency of the United States and was a party to the proceeding below, and that that proceeding held an Act of Congress—namely, the one-House veto provision in § 244(c)(2)—unconstitutional. The express requisites for an appeal under § 1252, therefore, have been met.

Page 930

          In motions to dismiss the INS appeal, the Congressional parties ⁵ direct attention, however, to our statement that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording relief and cannot appeal from it." Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166, 1171, 63 L.Ed.2d 427 (1980). Here, the INS sought the invalidation of § 244(c)(2) and the Court of Appeals granted that relief. Both Houses contend that the INS has already received what it sought from the Court of Appeals, is not an aggrieved party, and therefore cannot appeal from the decision of the Court of Appeals. We cannot agree.

          The INS was ordered by one House of Congress to deport Chadha. As we have set out more fully, ante at 928, the INS concluded that it had no power to rule on the constitutionality of that order and accor ingly proceeded to implement it. Chadha's appeal challenged that decision and the INS presented the Executive's views on the constitutionality of the House action to the Court of Appeals. But the INS brief to the Court of Appeals did not alter the agency's decision to comply with the House action ordering deportation of Chadha. The Court of Appeals set aside the deportation proceedings and ordered the Attorney General to cease and desist from taking any steps to deport Chadha; steps that the Attorney General would have taken were it not for that decision.

          At least for purposes of deciding whether the INS is "any party" within the grant of appellate jurisdiction in § 1252, we hold that the INS was sufficiently aggrieved by the Court of Appeals decision prohibiting it from taking action it would otherwise take. It is apparent that Congress intended that

Page 931

this Court take notice of cases that meet the technical prerequisites of § 1252; in other cases where an Act of Congress is held unconstitutional by a federal court, review in this Court is available only by writ of certiorari. When an agency of the United States is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal under § 1252. The agency's status as an aggrieved party under § 1252 is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional. The appeal in No. 80-1832 is therefore properly before us.⁶

          Congress also contends that the provision for the one-House veto in § 244(c)(2) cannot be severed from § 244. Congress argues that if the provision for the one-House veto is held unconstitutional, all of § 244 must fall. If § 244 in its entirety is violative of the Constitution, it follows that the Attorney General has no authority to suspend Chadha's deportation under § 244(a)(1) and Chadha would be deported. From this, Congress argues that Chadha lacks standing to challenge the constitutionality of the one-House veto provision because he could receive no relief even if his constitutional challenge proves successful.⁷

          Only recently this Court reaffirmed that the invalid portions of a statute are to be severed " '[u]nless it is evident that

Page 932

the Legislature would not have enacted those provisions which are within its power, independently of that which is not.' " Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976), quoting Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 234, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1932). Here, however, we need not embark on that elusive inquiry since Congress itself has provided the answer to the question of severability in § 406 of the Immigration and Nationality Act, 8 U.S.C. § 1101 note, which provides:

          "If any particular provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act and the application of such provision to other persons or circumstances shall not be affected thereby." (Emphasis added.)

          This language is unambiguous and gives rise to a presumption that Congress did not intend the validity of the Act as a whole, or of any part of the Act, to depend upon whether the veto clause of § 244(c)(2) was invalid. The one-House veto provision in § 244(c)(2) is clearly a "particular provision" of the Act as that language is used in the severability clause. Congress clearly intended "the remainder of the Act" to stand if "any particular provision" were held invalid. Congress could not have more plainly authorized the presumption that the provision for a one-House veto in § 244(c)(2) is severable from the remainder of § 244 and the Act of which it is a part. See Electric Bond & Share Co. v. SEC, 303 U.S. 419, 434, 58 S.Ct. 678, 683, 82 L.Ed. 936 (1938).

          The presumption as to the severability of the one-House veto provision in § 244(c)(2) is supported by the legislative history of § 244. That section and its precursors supplanted the long established pattern of dealing with deportations like Chadha's on a case-by-case basis through private bills. Although it may be that Congress was reluctant to delegate final authority over cancellation of deportations, such reluctance is not sufficient to overcome the presumption of severability raised by § 406.

Page 933

          The Immigration Act of 1924, Pub.L. No. 139, § 14, 43 Stat. 153, 162, required the Secretary of Labor to deport any alien who entered or remained in the United States unlawfully. The only means by which a deportable alien could lawfully remain in the United States was to have his status altered by a private bill enacted by both Houses and presented to the President pursuant to the procedures set out in Art. I, § 7 of the Constitution. These private bills were found intolerable by Congress. In the debate on a 1937 bill introduced by Representative Dies to authorize the Secretary to grant permanent residence in "meritorious" cases, Dies stated:

          "It was my original thought that the way to handle all these meritorious cases was through special bills. I am absolutely convinced as a result of what has occurred in this House that it is impossible to deal with the situation through special bills. We had a demonstration of that fact not long ago when 15 special bills were before the House. The House consumed 51/2 hours considering four bills and made no disposition of any of these bills." 81 Cong.Rec. 5542 (1937).

          Representative Dies' bill passed the House, id., at 5574, but did not come to a vote in the Senate. 83 Cong.Rec. 8992-8996 (1938).

          Congress first authorized the Attorney General to suspend the deportation of certain aliens in the Alien Registration Act of 1940, ch. 439, § 20, 54 Stat. 671. That Act provided that an alien was to be deported, despite the Attorney General's decision to the contrary, if both Houses, by concurrent resolution, disapproved the suspension.

          In 1948, Congress amended the Act to broaden the category of aliens eligible for suspension of deportation. In addition, however, Congress limited the authority of the Attorney General to suspend deportations by providing that the Attorney General could not cancel a deportation unless both Houses affirmatively voted by concurrent resolution to approve the Attorney General's action. Act of July 1, 1948,

Page 934

ch. 783, 62 Stat. 1206. The provision for approval by concurrent resolution in the 1948 Act proved almost as burdensome as private bills. Just four years later, the House Judiciary Committee, in support of the predecessor to § 244(c)(2), stated in a report:

          "In the light of experience of the last several months, the committee came to the conclusion that the requirements of affirmative action by both Houses of the Congress in many thousands of individual cases which are submitted by the Attorney General every year, is not workable and places upon the Congress and particularly on the Committee on the Judiciary responsibilities which it cannot assume. The new responsibilities placed upon the Committee on the Judiciary [by the concurrent resolution mechanism] are of purely administrative natur and they seriously interfere with the legislative work of the Committee on the Judiciary and would, in time, interfere with the legislative work of the House." H.R.Rep. No. 362, 81st Cong., 1st Sess. 2 (1949).

          The proposal to permit one House of Congress to veto the Attorney General's suspension of an alien's deportation was incorporated in the Immigration and Nationality Act of 1952, Pub.L. No. 414, 66 Stat. 163, 214. Plainly, Congress' desire to retain a veto in this area cannot be considered in isolation but must be viewed in the context of Congress' irritation with the burden of private immigration bills. This legislative history is not sufficient to rebut the presumption of severability raised by § 406 because there is insufficient evidence that Congress would have continued to subject itself to the onerous burdens of private bills had it known that § 244(c)(2) would be held unconstitutional.

          A provision is further presumed severable if what remains after severance "is fully operative as a law." Champlin Refining Co. v. Corporation Comm'n, supra, 286 U.S., at 234, 52 S.Ct., at 565. There can be no doubt that § 244 is "fully operative" and workable administrative machinery without the veto provision in § 244(c)(2). Entirely independent of the one-House veto, the

Page 935

administrative process enacted by Congress authorizes the Attorney General to suspend an alien's deportation under § 244(a). Congress' oversight of the exercise of this delegated authority is preserved since all such suspensions will continue to be reported to it under § 244(c)(1). Absent the passage of a bill to the contrary,⁸ deportation proceedings will be cancelled when the period specified in § 244(c)(2) has expired.⁹ Clearly, § 244 survives as a workable administrative mechanism without the one-House veto.

          We must also reject the contention that Chadha lacks standing because a consequence of his prevailing will advance

Page 936

the interests of the Executive Branch in a separation of powers dispute with Congress, rather than simply Chadha's private interests. Chadha has dem nstrated "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. . . ." Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978). If the veto provision violates the Constitution, and is severable, the deportation order against Chadha will be cancelled. Chadha therefore has standing to challenge the order of the Executive mandated by the House veto.

          It is contended that the Court should decline to decide the constitutional question presented by this case because Chadha may have other statutory relief available to him. It is argued that since Chadha married a United States citizen on August 10, 1980, it is possible that other avenues of relief may be open under §§ 201(b), 204, and 245 of the Act, 8 U.S.C. §§ 1151(b), 1154, 1255. It is true that Chadha may be eligible for classification as an "immediate relative" and, as such, could lawfully be accorded permanent residence. Moreover, in March 1980, just prior to the decision of the Court of Appeals in this case, Congress enacted the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102, under which the Attorney General is authorized to grant asylum, and then permanent residence, to any alien who is unable to return to his country of nationality because of "a well-founded fear of persecution on account of race."

          It is urged that these two intervening factors constitute a prudential bar to our consideration of the constitutional question presented in this case. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346, 56 S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). If we could perceive merit in this contention we might well seek to avoid deciding the constitutional claim advanced. But at most

Page 937

these other avenues of relief are speculative. It is by no means certain, for example, that Chadha's classification as an immediate relative would result in the adjustment of Chadha's status from nonimmigrant to permanent resident. See Menezes v. INS, 601 F.2d 1028 (CA9 1979). If Chadha is successful in his present challenge he will not be deported and will automatically become eligible to apply for citizenship.¹⁰ A person threatened with deportation cannot be denied the right to challenge the constitutional validity of the process which led to his status merely on the basis of speculation over the availability of other forms of relief.

          It is contended that the Court of Appeals lacked jurisdiction under § 106(a) of the Act, 8 U.S.C. § 1105a(a). That section provides that a petition for review in the Court of Appeals "shall be the sole and exclusive procedure for the judicial review of all final orders of deportation . . . made against aliens within the United States pursuant to administrative proceedings under section 242(b) of this Act." Congress argues that the one-House veto authorized by § 244(c)(2) takes place outside the administrative proceedings conducted under § 242(b), and that the jurisdictional grant contained in § 106(a) does not encompass Chadha's constitutional challenge.

          In Cheng Fan Kwok v. INS, 392 U.S. 206, 216, 88 S.Ct. 1970, 1976, 20 L.Ed.2d 1037 (1968), this Court held that "§ 106(a) embrace[s] only those determi-

Page 938

nations made during a proceeding conducted under § 242(b), including those determinations made inc dent to a motion to reopen such proceedings." It is true that one court has read Cheng Fan Kwok to preclude appeals similar to Chadha's. See Dastmalchi v. INS, 660 F.2d 880 (CA3 1981).¹¹ However, we agree with the Court of Appeals in this case that the term "final orders" in § 106(a) "includes all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the hearing." 634 F.2d, at 412. Here, Chadha's deportation stands or falls on the validity of the challenged veto; the final order of deportation was entered against Chadha only to implement the action of the House of Representatives. Although the Attorney General was satisfied that the House action was invalid and that it should not have any effect on his decision to suspend deportation, he appropriately let the controversy take its course through the courts.

          This Court's decision in Cheng Fan Kwok, supra, does not bar Chadha's appeal. There, after an order of deportation had been entered, the affected alien requested the INS to stay the execution of that order. When that request was denied, the alien sought review in the Court of Appeals under § 106(a). This Court's holding that the Court of Appeals lacked jurisdiction was based on the fact that the alien "did not 'attack the deportation order itself but instead [sought] relief not inconsistent with it.' " 392 U.S., at 213, 88 S.Ct., at 1975, quoting

Page 939

Mui v. Esperdy, 371 F.2d 772, 777 (CA2 1966). Here, in contrast, Chadha directly attacks the deportation order itself and the relief he seeks—cancellation of deportation—is plainly inconsistent with the deportation order. Accordingly, the Court of Appeals had jurisdiction under § 106(a) to decide this case.

          It is also contended that this is not a genuine controversy but "a friendly, non-adversary, proceeding," Ashwander v. Tennessee Valley Authority, supra, 297 U.S., at 346, 56 S.Ct., at 482 (Brandeis, J., concurring), upon which the Court should not pass. This argument rests on the fact that Chadha and the INS take the same position on the constitutionality of the one-House veto. But it would be a curious result if, in the administration of justice, a person could be denied access to the courts because the Attorney General of the United States agreed with the legal arguments asserted by the individual.

          A case or controversy is presented by this case. First, from the time of Congress' formal intervention, see note 5, supra, the concrete adverseness is beyond doubt. Congress is both a proper party to defend the constitutionality of § 244(c)(2) and a proper petitioner under § 1254(1). Second, prior to Congress' intervention, there was adequate Art. III adverseness even though the only parties were the INS and Chadha. We have already held that the INS's agreement with the Court of Appeals' decision that § 244(c)(2) is unconstitutional does not affect that agency's "aggrieved" status for purposes of appealing that decision under 28 U.S.C. § 1252, see ante, at 929-931. For similar reasons, the INS's agreement with Chadha's posit on does not alter the fact that the INS would have deported Chadha absent the Court of Appeals' judgment. We agree with the Court of Appeals that "Chadha has asserted a concrete controversy, and our decision will have real meaning: if we rule for Chadha, he will not be deported; if we uphold § 244(c)(2),

Page 940

the INS will execute its order and deport him." 634 F.2d, at 419.¹²

          Of course, there may be prudential, as opposed to Art. III, concerns about sanctioning the adjudication of this case in the absence of any participant supporting the validity of § 244(c)(2). The Court of Appeals properly dispelled any such concerns by inviting and accepting briefs from both Houses of Congress. We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. See Cheng Fan Kwok v. INS, supra, 392 U.S., at 210 n. 9, 88 S.Ct., at 1973 n. 9; United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946).

          It is also argued that this case presents a nonjusticiable political question because Chadha is merely challenging Congress' authority under the Naturalization Clause, U.S. Const. art. I, § 8, cl. 4, and the Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18. It is argued that Congress' Article I power "To establish a uniform Rule of Naturalization", combined with the Necessary and Proper Clause, grants it unreviewable authority over the regulation of aliens. The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to question, but what is

Page 941

challenged here is whether Congress has chosen a constitutionally permissible means of implementing that power. As we made clear in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); "Congress has plenary authority in all cases in which it has substantive legislative jurisdiction, M'Culloch v. Maryland, 4 Wheat. 316 [4 L.Ed. 579] (1819), so long as the exercise of that authority does not offend some other constitutional restriction." Id., 424 U.S., at 132, 96 S.Ct., at 688.

          A brief review of those factors which may indicate the presence of a nonjusticiable political question satisfies us that our assertion of jurisdiction over this case does no violence to the political question doctrine. As identified in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), a political question may arise when any one of the following circumstances is present:

          "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."

          Congress apparently directs its assertion of nonjusticiability to the first of the Baker factors by asserting that Chadha's claim is "an assault on the legislative authority to enact Section 244(c)(2)." Brief for the United States House of Representatives 48. But if this turns the question into a political question virtually every challenge to the constitutionality of a statute would be a political question. Chadha indeed argues that one House of Congress cannot constitutionally veto the Attorney General's decision to allow him to remain in this country. No policy underlying the political question doctrine

Page 942

suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts.¹³

          Other Baker factors are likewise inapplicable to this case. As we discuss more fully below, Art. I provides the "judicially discoverable and manageable standards" of Baker for resolving the question presented by this case. Those standards forestall reliance by this Court on nonjudicial "policy determinations" or any showing of disrespect for a coordinate branch. Similarly, if Chadha's arguments are accepted, § 244(c)(2) cannot stand, and, since the constitutionality of that statute is for this Court to resolve, there is no possibility of "multifarious pronouncements" on this question.

          It is correct that this controversy may, in a sense, be termed "political." But the presence of constitutional issues with significant political overtones does not automatically in-

Page 943

voke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications in the sense urged by Congress. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), was also a "political" case, involving as it did claims under a judicial commission alleged to have been duly signed by the President but not delivered. But "courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority." Baker v. Carr, supra, 369 U.S., at 217, 82 S.Ct., at 710.

          In Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294 (1892), this Court addressed and resolved the question whether

          "a bill signed by the Speaker of the House of Representatives and by the President of the Senate, presented to and approved by the President of the United States, and delivered by the latter to the Secretary of State, as an act passed by Congress, does not become a law of the United States if it had not in fact been passed by Congress.

                * * * * *

          We recognize, on one hand, the duty of this court, from the performance of which it may not shrink, to give full effect to the provisions of the Constitution relating to the enactment of laws that are to operate wherever the authority and jurisdiction of the United States extend. On the other hand, we cannot be unmindful of the consequences that must result if this court should feel obliged, in fidelity to the Constitution, to declare that an enrolled bill, on which depend public and private interests of vast magnitude, and which has been . . . deposited in the public archives, as an act of Congress, . . . did not become law." Id., at 669, 670, 12 S.Ct., at 496, 497 (emphasis in original).

          The contentions on standing and justiciability have been fully examined and we are satisfied the parties are properly before us. The important issues have been fully briefed and

Page 944

twice argued, 454 U.S. 812, 102 S.Ct. 87, 70 L.Ed.2d 80, 81 (1982). The Court's duty in this case, as Chief Justice Marshall declared in Cohens v. Virginia, 6 Wheat. 264, 404, 5 L.Ed. 257 (1821), is clear:

          "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."

            We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Constitution. We begin, of course, with the presumption that the challenged statute is valid. Its wisdom is not the concern of the courts; if a challenged action does not violate the Constitution, it must be sustained:

          "Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power of veto." Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978).

            By the same token, the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government and our inquiry is sharpened rather than blunted by the fact that Congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies:

          "Since 1932, when the first veto provision was enacted into law, 295 congressional veto-type procedures have been inserted in 196 different statutes as follows: from 1932 to 1939, five statutes were affected; from 1940-49, nineteen statutes; between 1950-59, thirty-four statutes; and from 1960-69, forty-nine. From the year 1970 through 1975, at least one hundred sixty-three such pro-

Page 945

          visions were included in eighty-nine laws." Abourezk, The Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogatives, 52 Ind.L.Rev. 323, 324 (1977). See also Appendix 1 to Justice WHITE's dissent, post,.

          Justice WHITE undertakes to make a case for the proposition that the one-House veto is a useful "political inv ntion," post, at 972, and we need not challenge that assertion. We can even concede this utilitarian argument although the long range political wisdom of this "invention" is arguable. It has been vigorously debated and it is instructive to compare the views of the protagonists. See, e.g., Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455 (1977), and Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982). But policy arguments supporting even useful "political inventions" are subject to the demands of the Constitution which defines powers and, with respect to this subject, sets out just how those powers are to be exercised.

          Explicit and unambiguous provisions of the Constitution prescribe and define the respective functions of the Congress and of the Executive in the legislative process. Since the precise terms of those familiar provisions are critical to the resolution of this case, we set them out verbatim. Art. I provides:

          "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." Art. I, § 1. (Emphasis added).

          "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; . . ." Art. I, § 7, cl. 2. (Emphasis added).

          "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment)

Page 946

          shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." Art. I, § 7, cl. 3. (Emphasis added).

          These provisions of Art. I are integral parts of the constitutional design for the separation of powers. We have recently noted that "[t]he principle of separation of powers was not simply an abstract generalization in the minds of the Framers: it was woven into the documents that they drafted in Philadelphia in the summer of 1787." Buckley v. Valeo, supra, 424 U.S., at 124, 96 S.Ct., at 684. Just as we relied on the textual provision of Art. II, § 2, cl. 2, to vindicate the principle of separation of powers in Buckley, we find that the purposes underlying the Presentment Clauses, Art. I, § 7, cls. 2, 3, and the bicameral requirement of Art. I, § 1 and § 7, cl. 2, guide our resolution of the important question presented in this case. The very structure of the articles delegating and separating powers under Arts. I, II, and III exemplify the concept of separation of powers and we now turn to Art. I.

          The records of the Constitutional Convention reveal that the requirement that all legislation be presented to the President before becoming law was uniformly accepted by the Framers.¹⁴ Presentment to the President and the Presiden-

Page 947

tial veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. During the final debate on Art. I, § 7, cl. 2, James Madison expressed concern that it might easily be evaded by the simple expedient of calling a proposed law a "resolution" or "vote" rather than a "bill." 2 M. Farrand, The Records of the Federal Convention of 1787 301-302. As a consequence, Art. I, § 7, cl. 3, ante, at 945-946, was added. Id., at 304-305.

          The decision to provide the President with a limited and qualified power to nullify proposed legislation by veto was based on the profound conviction of the Framers that the powers conferred on Congress were the powers to be most carefully circumscribed. It is beyond doubt that lawmaking was a power to be shared by both Houses and the President. In The Federalist No. 73 (H. Lodge ed. 1888), Hamilton focused on the President's role in making laws:

          "If even no propensity had ever discovered itself in the legislative body to invade the rights of the Executive, the rules of just reasoning and theoretic propriety would of themselves teach us that the one ought not to be left to the mercy of the other, but ought to possess a constitutional and effectual power of self-defense." Id., at 457-458.

          See also The Federalist No. 51. In his Commentaries on the Constitution, Joseph Story makes the same point. 1 J. Story, Commentaries on the Constitution of the United States 614-615 (1858).

          The President's role in the lawmaking process also reflects the Framers' careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvi-

Page 948

dent, or ill-considered measures. The President's veto role in the legislative process was described later during public debate on ratification:

          "It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good which may happen to influence a majority of that body. . . . The primary inducement to conferring the power in question upon the Executive is to enable him to defend himself; the secondary one is to increase the chances in favor of the community against the passing of bad laws through haste, inadvertence, or design." The Federalist No. 73, supra, at 458 (A. Hamilton).

          See also The Pocket Veto Case, 279 U.S. 655, 678, 49 S.Ct. 463, 466, 73 L.Ed. 894 (1929); Myers v. United States, 272 U.S. 52, 123, 47 S.Ct. 21, 27, 71 L.Ed. 160 (1926). The Court also has observed that the Presentment Clauses serve the important purpose of assuring that a "national" perspective is grafted on the legislative process:

          "The President is a representative of the people just as the members of the Senate and of the House are, and it may be, at some times, on some subjects, that the President elected by all the people is rather more representative of them all than are the members of either body of the Legislature whose constituencies are local and not countrywide. . . ." Myers v. United States, supra, 272 U.S., at 123, 47 S.Ct., at 27.

          The bicameral requirement of Art. I, §§ 1, 7 was of scarcely less concern to the Framers than was the Presidential veto and indeed the two concepts are interdependent. By providing that no law could take effect without the concurrence of the prescribed majority of the Members of both Houses, the Framers reemphasized their belief, already re-

Page 949

marked upon in connection with the Presentment Clauses, that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials. In the Constitutional Convention debates on the need for a bicameral legislature, James Wilson, later to become a Justice of this Court, commented:

          "Despotism comes on mankind in different shapes. Sometimes in an Execu ive, sometimes in a military, one. Is there danger of a Legislative despotism? Theory & practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue & good sense of those who compose it." 1 M. Farrand, supra, at 254.

          Hamilton argued that a Congress comprised of a single House was antithetical to the very purposes of the Constitution. Were the Nation to adopt a Constitution providing for only one legislative organ, he warned:

          "we shall finally accumulate, in a single body, all the most important prerogatives of sovereignty, and thus entail upon our posterity one of the most execrable forms of government that human infatuation ever contrived. Thus we should create in reality that very tyranny which the adversaries of the new Constitution either are, or affect to be, solicitous to avert." The Federalist No. 22, supra, at 135.

          This view was rooted in a general skepticism regarding the fallibility of human nature later commented on by Joseph Story:

          "Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable, and impetuous. . . . If [a legislature]

Page 950

          feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and relations to society." 1 J. Story, supra, at 383-384.

          These observations are consistent with what many of the Framers expressed, none more cogently than Hamilton in pointing up the need to divide and disperse power in order to protect liberty:

          "In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit." The Federalist No. 51, supra, at 324.

          See also The Federalist No. 62.

          However familiar, it is useful to recall that apart from their fear that special interests could be favored at the expense of public needs, the Framers were also concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people. See 1 M. Farrand, supra, 176-177, 484-491. It need hardly be repeated here that the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.¹⁵

Page 951

          We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exercised only after opportunity for full study and debate in separate settings. The President's unilateral veto power, in turn, was limited by the power of two thirds of both Houses of Congress to overrule a veto thereby precluding final arbitrary action of one person. See 1 M Farrand, supra, at 99-104. It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7 represents the Framers' decision that the legislative power of the Federal government be exercised in accord with a single, finely wrought and exhaustively considered, procedure.

          The Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.

          Although not "hermetically" sealed from one another, Buckley v. Valeo, supra, 424 U.S., at 121, 96 S.Ct., at 683, the powers delegated to the three Branches are functionally identifiable. When any Branch acts, it is presumptively exercising the power the Constitution has delegated to it. See Hampton & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). When the Executive acts, it presumptively acts in an executive or administrative capacity as defined in Art. II. And when, as here,

Page 952

one House of Congress purports to act, it is presumptively acting within its assigned sphere.

          Beginning with this presumption, we must nevertheless establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7 apply. Not every action taken by either House is subject to the bicameralism and presentment requirements of Art. I. See post, at 955. Whether actions taken by either House are, in law and fact, an exercise of legislative power depends not on their form but upon "whether they contain matter which is properly to be regarded as legislative in its character and effect." S.Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897).

          Examination of the action taken here by one House pursuant to § 244(c)(2) reveals that it was essentially legislative in purpose and effect. In purporting to exercise power defined in Art. I, § 8, cl. 4 to "establish an uniform Rule of Naturalization," the House took action that had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch. Section 244(c)(2) purports to authorize one House of Congress to require the Attorney General to deport an individual alien whose deportation otherwise would be cancelled under § 244. The one-House veto operated in this case to overrule the Attorney General and mandate Chadha's deportation; absent the House action, Chadha would remain in the United States. Congress has acted and its action has altered Chadha's status.

          The legislative character of the one-House veto in this case is confirmed by the character of the Congressional action it supplants. Neither the House of Representatives nor the Senate contends that, absent the veto provision in § 244(c)(2), either of them, or both of them acting together, could effectively require the Attorney General to deport an alien once the Attorney General, in the exercise of legisla-

Page 953

tively delegated authority,¹⁶ had determined the alien should remain in the United States. Without the challenged provision in § 244(c)(2), this could have been achieved, if at all, only

Page 954

by legislation requiring deportation.¹⁷ Similarly, a veto by one House of Congress under § 244(c)(2) cannot be justified as an attempt at amending the standards set out in § 244(a)(1), or as a repeal of § 244 as applied to Chadha. Amendment and repeal of statutes, no less than enactment, must conform with Art. I.¹⁸

              The nature of the decision implemented by the one-House veto in this case further manifests its legislative character. After long experience with the clumsy, time consuming private bill procedure, Congress made a deliberate choice to delegate to the Executive Branch, and specifically to the Attorney General, the authority to allow deportable aliens to remain in this country in certain specified circumstances. It is not disputed that this choice to delegate authority is precisely the kind of decision that can be implemented only in accordance with the procedures set out in Art. I. Disagreement with the Attorney General's decision on Chadha's deportation—that is, Congress' decision to deport Chadha—no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the

Page 955

President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.¹⁹

          Finally, we see that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action. There are but four provisions in the Constitution, explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the President's veto:

          (a) The House of Representatives alone was given the power to initiate impeachments. Art. I, § 2, cl. 6;

          (b) The Senate alone was given the power to conduct trials following impeachment on charges initiated by the House and to convict following trial. Art. I, § 3, cl. 5;

          (c) The Senate alone was given final unreviewable power to approve or to disapprove presidential appointments. Art. II, § 2, cl. 2;

          (d) The Senate alone was given unreviewable power to ratify treaties negotiated by the President. Art. II, § 2, cl. 2.

          Clearly, when the Draftsmen sought to confer special powers on one House, independent of the other House, or of the President, they did so in explicit, unambiguous terms.²⁰

Page 956

These carefully defined exceptions from presentment and bicameralism underscore the difference between the legislative functions of Congress and other unilateral but important and binding one-House acts provided for in the Constitution. These exceptions are narrow, explicit, and separately justified; none of them authorize the action challenged here. On the contrary, they provide further support for the conclusion that Congressional authority is not to be implied and for the conclusion that the veto provided for in § 244(c)(2) is not authorized by the constitutional design of the powers of the Legislative Branch.

          Since it is clear that the action by the House under § 244(c)(2) was not within any of the express constitutional exceptions authorizing one House to act alone, and equally

Page 957

clear that it was an exercise of legislative power, that action was subject to the standards prescribed in Article I.²¹ The bicameral requirement, the Presentment Clauses, the President's veto, and Congress' power to override a veto were intended to erect enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps. To preserve those

Page 958

checks, and maintain the separation of powers, the carefully defined limits on the power of each Branch must not be eroded. To accomplish what has been attempted by one House of Congress in this case requires action in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President.²²

          The veto authorized by § 244(c)(2) doubtless has been in many respects a convenient shortcut; the "sharing" with the Executive by Congress of its authority over aliens in this manner is, on its face, an appealing compromise. In purely practical terms, it is obviously easier for action to be taken by one House without submission to the President; but it is crys-

Page 959

tal clear from the records of the Convention, contemporaneous writings and debates, that the Framers ranked other values higher than efficiency. The records of the Convention and debates in the States preceding ratification underscore the common desire to define and limit the exercise of the newly created federal powers affecting the states and the people. There is unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.

          The choices we discern § having been made in the Constitutional Convention impose burdens on governmental processes that often seem clumsy, inefficient, even unworkable, but those hard choices were consciously made by men who had lived under a form of government that permitted arbitrary governmental acts to go unchecked. There is no support in the Constitution or decisions of this Court for the proposition that the cumbersomeness and delays often encountered in complying with explicit Constitutional standards may be avoided, either by the Congress or by the President. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.

          We hold that the Congressional veto provision in § 244(c)(2) is severable from the Act and that it is unconstitutional. Accordingly, the judgment of the Court of Appeals is

          Affirmed.

           Justice POWELL, concurring in the judgment.

          The Court's decision, based on the Presentment Clauses, Art. I, § 7, cls. 2 and 3, apparently will invalidate every use of the legislative veto. The breadth of this holding gives one pause. Congress has included the veto in literally hundreds

Page 960

of statutes, dating back to the 1930s. Congress clearly views this procedure as essential to controlling the delegation of power to administrative agencies.¹ One reasonably may disagree with Congress' assessment of the veto's utility,² but the respect due its judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide this case. In my view, the case may be decided on a narrower ground. When Congress finds that a particular person does not satisfy the statutory criteria for permanent residence in this country it has assumed a judicial function in violation of the principle of separation of powers. Accordingly, I concur only in the judgment.

          The Framers perceived that "[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 324 (J. Cooke ed. 1961) (J. Madison). Theirs was not a baseless fear. Under British rule, the colonies suffered the abuses of unchecked executive power that were attributed, at least popularly, to an hereditary monarchy. See Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 374 (1976); The Federalist No. 48. During the Confederation,

Page 961

the States reacted by removing power from the executive and placing it in the hands of elected legislators. But many legislators proved to be little better than the Crown. "The supremacy of legislatures came to be recognized as the supremacy of faction and the tyranny of shifting majorities. The legislatures confiscated property, erected paper money schemes, [and] suspended the ordinary means of collecting debts." Levi, 76 Colum.L.Rev., at 374-375.

          One abuse that was prevalent during the Confederation was the exercis of judicial power by the state legislatures. The Framers were well acquainted with the danger of subjecting the determination of the rights of one person to the "tyranny of shifting majorities." Jefferson observed that members of the General Assembly in his native Virginia had not been prevented from assuming judicial power, and " '[t]hey have accordingly in many instances decided rights which should have been left to judiciary controversy.' " ³ The Federalist No. 48, p. 336 (J. Cooke ed. 1961) (emphasis in original) (quoting T. Jefferson, Notes on the State of Virginia 196 (London edition 1787)). The same concern also was evident in the reports of the Council of the Censors, a body that was charged with determining whether the Pennsylvania Legislature had complied with the state constitution. The Council found that during this period "[t]he constitutional trial by jury had been violated; and powers assumed, which had not been delegated by the Constitution. . . . [C]ases belonging

Page 962

to the judiciary department, frequently [had been] drawn within legislative cognizance and determination." Id., at 336-337.

          It was to prevent the recurrence of such abuses that the Framers vested the executive, legislative, and judicial powers in separate branches. Their concern that a legislature should not be able unilaterally to impose a substantial deprivation on one person was expressed not only in this general allocation of power, but also in more specific provisions, such as the Bill of Attainder Clause, Art. I, § 9, cl. 3. As the Court recognized in United States v. Brown, 381 U.S. 437, 442, 85 S.Ct. 1707, 1711, 14 L.Ed.2d 484 (1965), "the Bill of Attainder Clause was intended not as a narrow, technical . . . prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature." This Clause, and the separation of powers doctrine generally, reflect the Framers' concern that trial by a legislature lacks the safeguards necessary to prevent the abuse of power.

          The Constitution does not establish three branches with precisely defined boundaries. See Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976) (per curiam ). Rather, as Justice Jackson wrote, "[w]hile 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, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (concurring opinion). The Court thus has been mindful that the boundaries between each branch should be fixed "according to common sense and the inherent necessities of the governmental co-ordination." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). But where one branch has impaired or sought to assume a power central to another branch, the

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Court has not hesitated to enforce the doctrine. See Buckley v. Valeo, supra, 424 U.S., at 123, 96 S.Ct., at 684.

          Functionally, the doctrine may be violated in two ways. One branch may interfere impermissibly with the other's performance of its constitutionally assigned function. See Nixon v. Administrator of General Services, 433 U.S. 425, 433, 97 S.Ct. 2777, 2785, 53 L.Ed.2d 867 (1977); United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another. See Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S., at 587, 72 S.Ct., at 866-867 (1952); Springer v. Philippine Islands, 277 U.S. 189, 203, 48 S.Ct. 480, 482-483, 72 L.Ed. 845 (1928). This case presents the latter situation.⁴

          Before considering whether Congress impermissibly assumed a judicial function, it is helpful to recount briefly Congress' actions. Jagdish Rai Chadha, a citizen of Kenya, stayed in this country after his student visa expired. Although he was scheduled to be deported, he requested the Immigration and Naturalization Service to suspend his deportation because he met the statutory criteria for permanent residence in this country. After a hearing,⁵ the Service granted Chadha's request and sent—as required by

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the reservation of the veto right—a report of its action to Congress.

          In addition to the report on Chadha, Congress had before it the names of 339 other persons whose deportations also had been suspended by the Service. The House Committee on the Judiciary decided that six of these persons, including Chadha, should not be allowed to remain in this country. Accordingly, it submitted a resolution to the House, which stated simply that "the House of Representatives does not approve the granting of permanent residence in the United States to the aliens hereinafter named." 121 Cong.Rec. 40800 (1975). The resolution was not distributed prior to the vote,⁶ but the Chairman of the Judiciary Committee explained to the House:

          "It was the feeling of the committee, after reviewing 340 cases, that the aliens contained in the resolution did not meet [the] statutory requirements, particularly as it relates to hardship; and it is the opinion of the committee that their deportation should not be suspended." I id. (remarks of Rep. Eilberg).

          Without further explanation and without a recorded vote, the House rejected the Service's determination that these six people met the statutory criteria.

          On its face, the House's action appears clearly adjudicatory.⁷ The House did not enact a general rule; rather it

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made its own determination that six specific persons did not comply with certain statutory criteria. It thus undertook the type of decision that traditionally has been left to other branches. Even if the House did not make a de novo determination, but simply reviewed the Immigration and Naturalization Service's findings, it still assumed a function ordinarily entrusted to the federal courts.⁸ See 5 U.S.C. § 704 (providing generally for judicial review of final agency action); cf. Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963) (holding that courts of appeals have jurisdiction to review INS decisions denying suspension of deportation). Where, as here, Congress has exercised a power "that cannot possibly be regarded as merely in aid of the legislative function of Con-

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gress," Buckley v. Valeo, 424 U.S., at 138, 96 S.Ct., at 691, the decisions of this Court have held that Congress impermissibly assumed a function that the Constitution entrusted to another branch, see id., at 138-141, 96 S.Ct., at 691-693; cf. Springer v. Philippine Islands, 277 U.S., at 202, 48 S.Ct., at 482.

          The impropriety of the House's assumption of this function is confirmed by the fact that its action raises the very danger the Framers sought to avoid—the exercise of unchecked power. In deciding whether Chadha deserves to be deported, Congress is not subject to any internal constraints that prevent it from arbitrarily depriving him of the right to remain in this country.⁹ Unlike the judiciary or an administrative agency, Congress is not bound by established substantive rules. Nor is it subject to the procedural safeguards, such as the right to counsel and a hearing before an impartial tribunal, that are present when a court or an agency ¹⁰ adjudicates individual rights. The only effective constraint on Congress' power is political, but Congress is most accountable politically when it prescribes rules of general applicability. When it decides rights of specific persons, those rights are subject to "the tyranny of a shifting majority."

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          Chief Justice Marshall observed: "It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules would seem to be the duty of other departments." Fletcher v. Peck, 6 Cranch 87, 136, 3 L.Ed. 162 (1810). In my view, when Congress undertook to apply its rules to Chadha, it exceeded the scope of its constitutionally prescribed authority. I would not reach the broader question whether legislative vetoes are invalid under the Presentment Clauses.

           Justice WHITE, dissenting.

          Today the Court not only invalidates § 244(c)(2) of the Immigration and Nationality Act, but also sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a "legislative veto." For this reason, the Court's decision is of surpassing importance. And it is for this reason that the Court would have been well-advised to decide the case, if possible, on the narrower grounds of separation of powers, leaving for full consideration the constitutionality of other congressional review statutes operating on such varied matters as war powers and agency rulemaking, some of which concern the independent regulatory agencies.¹

          The prominence of the legislative veto mechanism in our contemporary political system and its importance to Congress can hardly be overstated. It has become a central

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means by which Congress secures the accountability of executive and independent agencies. Without the legislative veto, Congress is faced with a Hobson's choice: either to refrain from delegating the necessary authority, leaving itself with a hopeless task of writing laws with the requisite specificity to cover endless special circumstances across the entire policy landscape, or in the alternative, to abdicate its law-making function to the executive branch and independent agencies. To choose the former leaves major national problems unresolved; to opt for the latter risks unaccountable policymaking by those not elected to fill that role. Accordingly, over the past five decades, the legislative veto has been placed in nearly 200 statutes.² The device is known in every field of governmental concern: reorganization, budgets, foreign affairs, war powers, and regulation of trade, safety, energy, the environment and the economy.

          The legislative veto developed initially in response to the problems of reorganizing the sprawling government structure created in response to the Depression. The Reorganization Acts established the chief model for the legislative veto. When President Hoover requested authority to reorganize the government in 1929, he coupled his request that the "Congress be willing to delegate its authority over the problem (subject to defined principles) to the Executive" with a proposal for legisla-

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tive review. He proposed that the Executive "should act upon approval of a joint committee of Congress or with the reservation of power of revision by Congress within some limited period adequate for its consideration." Pub.Papers 432 (1929). Congress followed President Hoover's suggestion and authorized reorganization subject to legislative review. Act of June 30, 1932, ch. 314, § 407, 47 Stat. 382, 414. Although the reorganization authority reenacted in 1933 did not contain a legislative veto provision, the provision returned during the Roosevelt Administration and has since been renewed numerous times. Over the years, the provision was used extensively. Presidents submitted 115 reorganization plans to Congress of which 23 were disapproved by Congress pursuant to legislative veto provisions. See Brief of U.S. Senate on Reargument, App. A.

          Shortly after adoption of the Reorganization Act of 1939, 54 Stat. 561, Congress and the President applied the legislative veto procedure to resolve the delegation problem for national security and foreign affairs. World War II occasioned the need to transfer greater authority to the President in these areas. The legislative veto offered the means by which Congress could confer additional authority while preserving its own constitutional role. During World War II, Congress enacted over thirty statutes conferring powers on the Executive with legislative veto provisions.³ President Roosevelt accepted the veto as the necessary price for obtaining exceptional authority.⁴

          Over the quarter century following World War II, Presidents continued to accept legislative vetoes by one or both Houses as constitutional, while regularly denouncing provisions by which Congressional committees reviewed Executive activity.⁵ The legislative veto balanced delegations of

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statutor authority in new areas of governmental involvement: the space program, international agreements on nuclear energy, tariff arrangements, and adjustment of federal pay rates.⁶

          During the 1970's the legislative veto was important in resolving a series of major constitutional disputes between the President and Congress over claims of the President to broad impoundment, war, and national emergency powers. The

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key provision of the War Powers Resolution, 50 U.S.C. § 1544(c), authorizes the termination by concurrent resolution of the use of armed forces in hostilities. A similar measure resolved the problem posed by Presidential claims of inherent power to impound appropriations. Congressional Budget and Impoundment Control Act of 1974, 31 U.S.C. § 1403. In conference, a compromise was achieved under which permanent impoundments, termed "rescissions," would require approval through enactment of legislation. In contrast, temporary impoundments, or "deferrals," would become effective unless disapproved by one House. This compromise provided the President with flexibility, while preserving ultimate Congressional control over the budget.⁷ Although the War Powers Resolution was enacted over President Nixon's veto, the Impoundment Control Act was enacted with the President's approval. These statutes were followed by others resolving similar problems: the National Emergencies Act, § 202, 90 Stat. 1255, 50 U.S.C. § 1622 (1976), resolving the longstanding problems with unchecked Executive emergency power; the Arms Export Control Act, § 211, 90 Stat. 729, 22 U.S.C. § 2776(b) (1976), resolving the problem o foreign arms sales; and the Nuclear Non-Proliferation Act of 1978, §§ 303, 304(a), 306, 307, 401, 92 Stat. 120, 130, 134, 137, 139, 144-145, 42 U.S.C. §§ 2160(f), 2155(b), 2157(b), 2158, 2153(d) (Supp. IV. 1980), resolving the problem of exports of nuclear technology.

          In the energy field, the legislative veto served to balance broad delegations in legislation emerging from the energy crisis of the 1970's.⁸ In the educational field, it was found

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that fragmented and narrow grant programs "inevitably lead to Executive-Legislative confrontations" because they inaptly limited the Commissioner of Education's authority. S.Rep. No. 763, 93d Cong., 2d Sess. 69 (1974). The response was to grant the Commissioner of Education rulemaking authority, subject to a legislative veto. In the trade regulation area, the veto preserved Congressional authority over the Federal Trade Commission's broad mandate to make rules to prevent businesses from engaging in "unfair or deceptive acts or practices in commerce." ⁹

          Even this brief review suffices to demonstrate that the legislative veto is more than "efficient, convenient, and useful." Ante, at 944. It is an important if not indispensable political invention that allows the President and Congress to resolve major constitutional and policy differences, assures the accountability of independent regulatory agencies, and pre-

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serves Congress' control over lawmaking. Perhaps there are other means of accommodation and accountability, but the increasing reliance of Congress upon the legislative veto suggests that the alternatives to which Congress must now turn are not entirely satisfactory.¹⁰

Page 974

          The history of the legislative veto also makes clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches—the concerns of Madison and Hamilton. Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the nation's lawmaker. While the President has often objected to particular legislative vetoes, generally those left in the hands of congressional committees, the Executive has more often agreed to legislative review as the price for a broad delegation of authority. To be sure, the President may have preferred unrestricted power, but that could be precisely why Congress thought it essential to retain a check on the exercise of delegated authority.

          For all these reasons, the apparent sweep of the Court's decision today is regretable. The Court's Article I analysis appears to invalidate all legislative vetoes irrespective of form or subject. Because the legislative veto is commonly found as a check upon rulemaking by administrative agencies and upon broad-based policy decisions of the Executive Branch, it is particularly unfortunate that the Court reaches its decision in a case involving the exercise of a veto over deportation decisions regarding particular individuals. Co rts should always be wary of striking statutes as unconstitutional; to strike an entire class of statutes based on consideration of a somewhat atypical and more-readily indictable exemplar of the class is irresponsible. It was for cases such as this one that Justice Brandeis wrote:

          "The Court has frequently called attention to the 'great gravity and delicacy' of its function in passing upon the validity of an act of Congress. . . .

Page 975

          The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N.Y. & P.S.S. Co. v. Emigration Commissioners, supra [113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899]." Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (concurring opinion).

          Unfortunately, today's holding is not so limited.¹¹

Page 976

          If the legislativ veto were as plainly unconstitutional as the Court strives to suggest, its broad ruling today would be more comprehensible. But, the constitutionality of the legislative veto is anything but clearcut. The issue divides scholars,¹² courts,¹³ attorneys general,¹⁴ and the two other

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branches of the National Government. If the veto devices so flagrantly disregarded the requirements of Article I as the Court today suggests, I find it incomprehensible that Congress, whose members are bound by oath to uphold the Constitution, would have placed these mechanisms in nearly 200 separate laws over a period of 50 years.

          The reality of the situation is that the constitutional question posed today is one of immense difficulty over which the executive and legislative branches—as well as scholars and judges have understandably disagreed. That disagreement stems from the silence of the Constitution on the precise question: The Constitution does not directly authorize or prohibit the legislative veto. Thus, our task should be to determine whether the legislative veto is consistent with the purposes of Art. I and the principles of Separation of Powers which are reflected in that Article and throughout the Con-

Page 978

stitution.¹⁵ We should not find the lack of a specific constitutional authorization for the legislative veto surprising, and I would not infer disapproval of the mechanism from its absence. From the summer of 1787 to the present the government of the United States has become an endeavor far beyond the contemplation of the Framers. Only within the last half century has the complexity and size of the Federal Government's responsibilities grown so greatly that the Congress must rely on the legislative veto as the most effective if not the only means to insure their role as the nation's lawmakers. But the wisdom of the Framers was to anticipate that the nation would grow and new problems of governance would require different solutions. Accordingly, our Federal Government was intentionally chartered with the flexibility to respond to contemporary needs without losing sight of fundamental democratic principles. This was the spirit in which Justice Jackson penned his influential concurrence in the Steel Seizure Case:

          "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." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952).

          This is the perspective from which we should approach the novel constitutional questions presented by the legislative veto. In my view, neither Article I of the Constitution nor the doctrine of separation of powers is violated by this mecha-

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nism by which our elected representatives preserve their voice in the governance of the nation.

          The Court holds that the disapproval of a suspension of deportation by the resolution of one House of Congress is an exercise of legislative power without compliance with the prerequisites for lawmaking set forth in Art. I of the Constitution. Specifically, the Court maintains that the provisions of § 244(c)(2) are inconsistent with the requirement of bicameral approval, implicit in Art. I, § 1, and the requirement that all bills and resolutions that require the concurrence of both Houses be presented to the President, Art. I, § 7, cl. 2 and 3.¹⁶

          I do not dispute the Court's truismatic exposition of these clauses. There is no question that a bill does not become a law until it is approved by both the House and the Senate, and presented to the President. Similarly, I would not hesitate to strike an action of Congress in the form of a concurrent resolution which constituted an exercise of original lawmaking authority. I agree with the Court that the Presi-

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dent's qualified veto power is a critical element in the distribution of powers under the Constitution, widely endorsed among the Framers, and intended to serve the President as a defense against legislative encroachment and to check the "passing of bad laws through haste, inadvertence, or design." The Federalist No. 73, at 458 (A. Hamilton). The records of the Convention reveal that it is the first purpose which figured most prominently but I acknowledge the vitality of the second. Id., at 443. I also agree that the bicameral approval required by Art. I, §§ 1, 7 "was of scarcely less concern to the Framers than was the Presidential veto," ante, at 948, and that the need to divide and disperse legislative power figures significantly in our scheme of Government. All of this, the Third Part of the Court's opinion, is entirely unexceptionable.

          It does not, however, answer the constitutional question before us. The power to exercise a legislative veto is not the power to write new law without bicameral approval or presidential consideration. The veto must be authorized by statute and may only negative what an Executive department or independent agency has proposed. On its face, the legislative veto no more allows one House of Congress to make law than does the presidential veto confer such power upon the President. Accordingly, the Court properly recognizes that it "must establish that the challenged action under § 244(c)(2) is of the kind to which the procedural requirements of Art. I, § 7 apply" and admits that "not every action taken by either House is subject to the bicameralism and presentation requirements of Art. I." Ante, at 952.

          The terms of the Presentment Clauses suggest only that bills and their equivalent are subject to the requirements of bicameral passage and presentment to the President. Article I, § 7, cl. 2, stipulates only that "Every Bill which shall have passed the House of Representatives and the Senate,

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shall before it becomes a Law, be presented to the President" for approval or disapproval, his disapproval then subject to being overridden by a two-thirds vote of both houses. Section 7, cl. 3 goes further:

          "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill."

          Although the Clause does not specify the actions for which the concurrence of both ouses is "necessary," the proceedings at the Philadelphia Convention suggest its purpose was to prevent Congress from circumventing the presentation requirement in the making of new legislation. James Madison observed that if the President's veto was confined to bills, it could be evaded by calling a proposed law a "resolution" or "vote" rather than a "bill." Accordingly, he proposed that "or resolve" should be added after "bill" in what is now clause 2 of § 7. 2 M. Farrand, The Records of the Federal Convention of 1787 301-302. After a short discussion on the subject, the amendment was rejected. On the following day, however, Randolph renewed the proposal in the substantial form as it now appears, and the motion passed. Id., at 304-305; 5 Elliot's Debates 431 (1845). The chosen language, Madison's comment, and the brevity of the Convention's consideration, all suggest a modest role was intended for the Clause and no broad restraint on Congressional authority was contemplated. See Stewart, Constitutionality of the Legislative Veto, 13 Harv.J.Legis. 593, 609-611 (1976). This reading is consistent with the historical background of the Presentation Clause itself which reveals only that the Framers were concerned

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with limiting the methods for enacting new legislation. The Framers were aware of the experience in Pennsylvania where the legislature had evaded the requirements attached to the passing of legislation by the use of "resolves," and the criticisms directed at this practice by the Council of Censors.¹⁷ There is no record that the Convention contemplated, let alone intended, that these Article I requirements would someday be invoked to restrain the scope of Congressional authority pursuant to duly-enacted law.¹⁸

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          When the Convention did turn its attention to the scope of Congress' lawmaking power, the Framers were expansive. The Necessary and Proper Clause, Art. I, § 8, cl. 18, vests

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Congress with the power "to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers [the enumerated powers of § 8], and all other Powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof." It is long-settled that Congress may "exercise its best judgment in the selection of measures, to carry into execution the constitutional powers of the government," and "avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances." McCulloch v. Maryland, 4 Wheat. 316, 415-416, 420, 4 L.Ed. 579 (1819).

          The Court heeded this counsel in approving the modern administrative state. The Court's holding today that all legislative-type action must be enacted through the lawmaking process ignores that legislative authority is routinely delegated to the Executive branch, to the independent regulatory agencies, and to private individuals and groups.

          "The rise of administrative bodies probably has been the most significant legal trend of the last century. . . . They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories . . ." Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 487, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (Jackson, J. dissenting).

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          This Court's decisions sanctioning such delegations make clear that Article I does not require all action with the effect of legislation to be passed as a law.

          Theoretically, agencies and officials were asked only to "fill up the details," and the rule was that "Congress cannot delegate any part of its legislative power except under a limitation of a prescribed standard." United States v. Chicago, Milwaukee R. Co., 282 U.S. 311, 324, 51 S.Ct. 159, 162, 75 L.Ed. 359 (1931). Chief Justice Taft elaborated the standard in J.W. Hampton & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 352, 72 L.Ed. 624 (1928): "If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power." In practice, however, restrictions on the scope of the power that could be delegated diminished and all but disappeared. In only two instances did the Court find an unconstitutional delegation. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935); Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935). In other cases, the "intelligible principle" through which agencies have attained enormous control over the economic affairs of the country was held to include such formulations as "just and reasonable," Tagg Bros. & Moorhead v. United States, 280 U.S. 420, 50 S.Ct. 220, 74 L.Ed. 524 (1930), "public interest," New York Central Securities Corp. v. United States, 287 U.S. 12, 53 S.Ct. 45, 77 L.Ed. 138 (1932), "public convenience, interest, or necessity," Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285, 53 S.Ct. 627, 636, 77 L.Ed. 1166 (1933), and "unfair methods of competition." FTC v. Gratz, 253 U.S. 421, 40 S.Ct. 572, 64 L.Ed. 993 (1920).

          The wisdom and the constitutionality of these broad delegations are matters that still have not been put to rest. But for present purposes, these cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law—the substantive rules that regulate private conduct and direct the operation of government—made by

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the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administr tive Procedure Act, 5 U.S.C. § 551(4) provides that a "rule" is an agency statement "designed to implement, interpret, or prescribe law or policy." When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only due deference, but is accorded "legislative effect." See, e.g. Schweiker v. Gray Panthers, 453 U.S. 34, 43-44, 101 S.Ct. 2633, 2640, 69 L.Ed.2d 460 (1981); Batterton v. Francis, 432 U.S. 416, 97 S.Ct. 2399, 53 L.Ed.2d 448 (1977).¹⁹ These regulations bind courts and officers of the federal government, may pre-empt state law, see, e.g., Fidelity Federal Savings & Loan Assoc. v. De la Cuesta, --- U.S. ----, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982), and grant rights to and impose obligations on the public. In sum, they have the force of law.

          If Congress may delegate lawmaking power to independent and executive agencies, it is most difficult to understand Article I as forbidding Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicam-

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eral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test. In both cases, it is enough that the initial statutory authorizations comply with the Article I requirements.

          Nor are there strict limits on the agents that may receive such delegations of legislative authority so that it might be said that the legislature can delegate authority to others but not to itself. While most authority to issue rules and regulations is given to the executive branch and the independent regulatory agencies, statutory delegations to private persons have also passed this Court's scrutiny. In Currin v. Wallace, 306 U.S. 1, 59 S.Ct. 379, 83 L.Ed. 441 (1939), the statute provided that restrictions upon the production or marketing of agricultural commodities was to become effective only upon the favorable vote by a prescribed majority of the affected farmers. United States v. Rock Royal Co-operative, 307 U.S. 533, 577, 59 S.Ct. 993, 1014, 83 L.Ed. 1446 (1939), upheld an act which gave producers of specified commodities the right to veto marketing orders issued by the Secretary of Agriculture. Assuming Currin and Rock Royal Co-operative remain sound law, the Court's decision today suggests that Congress may place a "veto" power over suspensions of deportation in private hands or in the hands of an independent agency, but is forbidden from reserving such authority for itself. Perhaps this odd result could be justified on other constitutional grounds, such as the separation of powers, but certainly it cannot be defended as consistent with the Court's view of the Article I presentme t and bicameralism commands.²⁰

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          The Court's opinion in the present case comes closest to facing the reality of administrative lawmaking in considering the contention that the Attorney General's action in suspending deportation under § 244 is itself a legislative act. The Court posits that the Attorney General is acting in an Article II enforcement capacity under § 244. This characterization is at odds with Mahler v. Eby, 264 U.S. 32, 40, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924), where the power conferred on the Executive to deport aliens was considered a delegation of legislative power. The Court suggests, however, that the Attorney General acts in an Article II capacity because "[t]he courts when a case or controversy arises, can always 'ascertain whether the will of Congress has been obeyed,' Yakus v. United States, 321 U.S. 414, 425 [64 S.Ct. 660, 667-668, 88 L.Ed. 834] (1944), and can enforce adherence to statutory standards." Ante, at 953, n. 16. This assumption is simply wrong, as the Court itself points out: "We are aware of no decision . . . where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it." Ante, at 957, n. 21. It is perhaps on the erroneous premise that judicial review may check abuses of the § 244 power that the Court also submits that "The bicameral process is not necessary as a check on the Executive's administration of the laws because his administrative activity cannot reach beyond the limits of the statute that created it—a statute duly enacted pursuant to Art. I, §§ 1, 7." Ante, at 953, n. 16. On the other hand, the Court's reasoning does persuasively explain why a resolution of dis-

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approval under § 244(c)(2) need not again be subject to the bicameral process. Because it serves only to check the Attorney General's exercise of the suspension authority granted by § 244, the disapproval resolution—unlike the Attorney General's action "cannot reach beyond the limits of the statute that created it—a statute duly enacted pursuant to Article I."

          More fundamentally, even if the Court correctly characterizes the Attorney General's authority under § 244 as an Article II Executive power, the Court concedes that certain administrative agency action, such as rulemaking, "may resemble lawmaking" and recognizes that "[t]his Court has referred to agency activity as being 'quasi-legislative' in character. Humphrey's Executor v. United States, 295 U.S. 602, 628 [55 S.Ct. 869, 874, 79 L.Ed. 1611] (1935)." Ante, at 953, n. 16. Such rules and adjudications by the agencies meet the Court's own definition of legislative action for they "alter[ ] the legal rights, duties, and relations of persons . . . outside the legislative branch," ante, at 952, and involve "determinations of policy," ante, at 954. Under the Court's analys s, the Executive Branch and the independent agencies may make rules with the effect of law while Congress, in whom the Framers confided the legislative power, Art. I, § 1, may not exercise a veto which precludes such rules from having operative force. If the effective functioning of a complex modern government requires the delegation of vast authority which, by virtue of its breadth, is legislative or "quasi-legislative" in character, I cannot accept that Article I—which is, after all, the source of the non-delegation doctrine—should forbid Congress from qualifying that grant with a legislative veto.²¹

Page 990

          The Court also takes no account of perhaps the most relevant consideration: However resolutions of disapproval under § 244(c)(2) are formally characterized, in reality, a departure from the status quo occurs only upon the concurrence of opinion among the House, Senate, and President. Reservations of legislative authority to be exercised by Congress should be upheld if the exercise of such reserved authority is consistent with the distribution of and limits upon legislative power that Article I provides.

          As its history reveals, § 244(c)(2) withstands this analysis. Until 1917, Congress had never established laws concerning the deportation of aliens. The Immigration Act of 1924 enlarged the categories of

Page 991

aliens subject to mandatory deportation, and substantially increased the likelihood of hardships to individuals by abolishing in most cases the previous time limitation of three years within which deportation proceedings had to be commenced. Immigration Act of 1924, ch. 190, 43 Stat. 153 (1924). Thousands of persons, who either had entered the country in more lenient times or had been smuggled in as children, or had overstayed their permits, faced the prospect of deportation. Enforcement of the Act gre more rigorous over the years with the deportation of thousand of aliens without regard to the mitigating circumstances of particular cases. See Mansfield, The Legislative Veto and the Deportation of Aliens, 1 Public Administration Review 281 (1940). Congress provided relief in certain cases through the passage of private bills.

          In 1933, when deportations reached their zenith, the Secretary of Labor temporarily suspended numerous deportations on grounds of hardship, 78 Cong.Rec. 11783 (1934), and proposed legislation to allow certain deportable aliens to remain in the country. H.R. 9725, 73d Cong., 2d Sess. (1934). The Labor Department bill was opposed, however, as "grant[ing] too much discretionary authority," 78 Cong.Rec. 11790 (remarks of Rep. Dirksen), and it failed decisively. Id., at 11791.

          The following year, the administration proposed bills to authorize an inter-Departmental committee to grant permanent residence to deportable aliens who had lived in the United States for 10 years or who had close relatives here. S. 2969 and H.R. 8163, 74th Cong., 1st Sess. (1935). These bills were also attacked as an "abandonment of congressional control over the deportation of undesirable aliens," H.R.Rep. No. 1110, Part 2, 74th Cong., 1st Sess. 2 (1935), and were not enacted. A similar fate awaited a bill introduced in the 75th Congress that would have authorized the Secretary to grant permanent residence to up to 8,000 deportable aliens. The measure passed the House, but did not come to a vote in the Senate. H.R. 6391, 83 Cong.Rec. 8992-96 (1938).

Page 992

          The succeeding Congress again attempted to find a legislative solution to the deportation problem. The initial House bill required congressional action to cancel individual deportations, 84 Cong.Rec. 10455 (1939), but the Senate amended the legislation to provide that deportable aliens should not be deported unless the Congress by Act or resolution rejected the recommendation of the Secretary. H.R. 5138, § 10, as reported with amendments by S.Rep. No. 1721, 76th Cong., 3d Sess. 2 (1940). The compromise solution, the immediate predecessor to § 244(c), allowed the Attorney General to suspend the deportation of qualified aliens. Their deportation would be canceled and permanent residence granted if the House and Senate did not adopt a concurrent resolution of disapproval. S.Rep. No. 1796, 76th Cong., 3rd Sess. 5-6 (1940). The Executive Branch played a major role in fashioning this compromise, see 86 Cong.Rec. 8345 (1940), and President Roosevelt approved the legislation, which became the Alien Registration Act of 1940, P.L. No. 670, 54 Stat. 670.

          In 1947, the Department of Justice requested legislation authorizing the Attorney General to cancel deportations without congressional review. H.R. 2933, 80th Cong., 1st Sess. (1947). The purpose of the proposal was to "save time and energy of everyone concerned . . ." Regulating Powers of the Attorney General to Suspend Deportation of Aliens: Hearings Before the Subcomm. on Immigration of the House Comm. on the Judiciary, 80th Cong., 1st Sess. 34 (1977). The Senate Judiciary Committee objected, stating that "affirmative action by the Congress in all suspension cases should be required before deportation proceedings may be canceled." S.Rep. No. 1204, 80th Cong., 2d Sess. 4 (1948). See also H.R.Rep. No. 647, 80th Cong., 1st Sess. 2 (1947). Congress not only rejected the Department's request for final authority but amended the Immigration Act to require that cancellation of deportation be approved

Page 993

by a concurrent resolution of the Congress. President Truman signed the bill without objection. Act of July 1, 1948, P.L. No. 863, 62 Stat. 1206.

          Practice over the ensuing several years convinced Congress that the requirement of affirmative approval was "not workable . . . and would, in time, interfere with the legislative work of the House." House Judiciary Committee, H.R.Rep. No. 362, 81st Cong., 1st Sess. 2 (1949 . In preparing the comprehensive Immigration and Nationality Act of 1952, the Senate Judiciary Committee recommended that for certain classes of aliens the adjustment of status be subject to the disapproval of either House; but deportation of an alien "who is of the criminal, subversive, or immoral classes or who overstays his period of admission," would be cancelled only upon a concurrent resolution disapproving the deportation. S.Rep. No. 1514, 81st Cong.2d Sess. 610 (1950). Legislation reflecting this change was passed by both Houses, and enacted into law as part of the Immigration and Nationality Act of 1952 over President Truman's veto, which was not predicated on the presence of a legislative veto. Pub.L. No. 414, 66 Stat. 163, 214 (1952). In subsequent years, the Congress refused further requests that the Attorney General be given final authority to grant discretionary relief for specified categories of aliens, and § 244 remained intact to the present.

          Section 244(a)(1) authorizes the Attorney General, in his discretion, to suspend the deportation of certain aliens who are otherwise deportable and, upon Congress' approval, to adjust their status to that of aliens lawfully admitted for permanent residence. In order to be eligible for this relief, an alien must have been physically present in the United States for a continuous period of not less than seven years, must prove he is of good moral character, and must prove that he or his immediate family would suffer "extreme hardship" if he is deported. Judicial review of a denial of relief may be sought. Thus, the suspension proceeding "has two phases: a

Page 994

determination whether the statutory conditions have been met, which generally involves a question of law, and a determination whether relief shall be granted, which [ultimately] . . . is confided to the sound discretion of the Attorney General [and his delegates]." 2 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 7.9a(5) at 7-134.

          There is also a third phase to the process. Under § 244(c)(1) the Attorney General must report all such suspensions, with a detailed statement of facts and reasons, to the Congress. Either House may then act, in that session or the next, to block the suspension of deportation by passing a resolution of disapproval. § 244(c)(2). Upon Congressional approval of the suspension—by its silence—the alien's permanent status is adjusted to that of a lawful resident alien.

          The history of the Immigration Act makes clear that § 244(c)(2) did not alter the division of actual authority between Congress and the Executive. At all times, whether through private bills, or through affirmative concurrent resolutions, or through the present one-House veto, a permanent change in a deportable alien's status could be accomplished only with the agreement of the Attorney General, the House, and the Senate.

          The central concern of the presentation and bicameralism requirements of Article I is that when a departure from the legal status quo is undertaken, it is done with the approval of the President and both Houses of Congress—or, in the event of a presidential veto, a two-thirds majority in both Houses. This interest is fully satisfied by the operation of § 244(c)(2). The President's approval is found in the Attorney General's action in recommending to Congress that the deportation order for a given alien be suspended. The House and the Senate indicate their approval of the Executive's action by not passing a resolution of disapproval within the statutory period. Thus, a change in the legal status quo—the deportability of the alien—is consummated only with the approval

Page 995

of each of the three relevant actors. The disagreement of any one of the three maintains the alien's pre-existing status: the Executive may choose not to recommend suspension; the House and Senate may each veto the recommendation. The effect on the rights and obligations of the affected individuals and upon the legisl tive system is precisely the same as if a private bill were introduced but failed to receive the necessary approval. "The President and the two Houses enjoy exactly the same say in what the law is to be as would have been true for each without the presence of the one-House veto, and nothing in the law is changed absent the concurrence of the President and a majority in each House." Atkins v. United States, 556 F.2d 1028, 1064 (Ct. Claims, 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978).

          This very construction of the Presentment Clauses which the Executive Branch now rejects was the basis upon which the Executive Branch defended the constitutionality of the Reorganization Act, 5 U.S.C. § 906(a) (1979), which provides that the President's proposed reorganization plans take effect only if not vetoed by either House. When the Department of Justice advised the Senate on the constitutionality of congressional review in reorganization legislation in 1949, it stated: "In this procedure there is no question involved of the Congress taking legislative action beyond its initial passage of the Reorganization Act." S.Rep. No. 232, 81st Cong., 1st Sess. 20 (1949) (Dept. of Justice Memorandum). This also represents the position of the Attorney General more recently.²²

Page 996

          Thus understood, § 244(c)(2) fully effectuates the purposes of the bicameralism and presentation requirements. I now briefly consider possible objections to the analysis.

          First, it may be asserted that Chadha's status before legislative disapproval is one of nondeportation and that the exercise of the veto, unlike the failure of a private bill, works a change in the status quo. This position plainly ignores the statutory language. At no place in § 244 has Congress delegated to the Attorney General any final power to determine which aliens shall be allowed to remain in the United States. Congress has retained the ultimate power to pass on such changes in deportable status. By its own terms, § 244(a) states that whatever power the Attorney General has been delegated to suspend deportation and adjust status is to be exercisable only "as hereinafter prescribed in this section." Subsection (c) is part of that section. A grant of "suspension" does not cancel the alien's deportation or adjust the alien's status to that of a permanent resident alien. A suspension order is merely a "deferment of deportation," McGrath v. Kristensen, 340 U.S. 162, 168, 71 S.Ct. 224, 228-229, 95 L.Ed. 173 (1950), which can mature into a cancellation of deportation and adjustment of status only upon the approval of Congress—by way of silence—under § 244(c)(2). Only then does the statute authorize the Attorney General to "cancel deportation proceedings" § 244(c)(2), and "record the alien's lawful admission for permanent residence . . ." § 244(d). The Immigration a d Naturalization Service's action, on behalf of the Attorney General, "cannot become effective without ratification by Congress." 2 Gordon and Rosenfield, Immigration Law

Page 997

and Procedure, § 8.14 p. 8-121 (rev. ed. 1979). Until that ratification occurs, the executive's action is simply a recommendation that Congress finalize the suspension—in itself, it works no legal change.

          Second, it may be said that this approach leads to the incongruity that the two-House veto is more suspect than its one-House brother. Although the idea may be initially counter-intuitive, on close analysis, it is not at all unusual that the one-House veto is of more certain constitutionality than the two-House version. If the Attorney General's action is a proposal for legislation, then the disapproval of but a single House is all that is required to prevent its passage. Because approval is indicated by the failure to veto, the one-House veto satisfies the requirement of bicameral approval. The two-House version may present a different question. The concept that "neither branch of Congress, when acting separately, can lawfully exercise more power than is conferred by the Constitution on the whole body," Kilbourn v. Thompson, 103 U.S. 168, 182, 26 L.Ed. 377 (1881) is fully observed.²³

          Third, it may be objected that Congress cannot indicate its approval of legislative change by inaction. In the Court of Appeals' view, inaction by Congress "could equally imply endorsement, acquiescence, passivity, indecision or indifference." 634 F.2d, at 435, and the Court appears to echo this concern, Ante, at 958, n. 22. This objection appears more properly directed at the wisdom of the legislative veto than its constitutionality. The Constitution does not and cannot guarantee that legislators will carefully scrutinize legislation and deliberate before acting. In a democracy it is the electorate that holds the legislators accountable for the wisdom of their choices. It is hard to maintain that a private bill receives any greater individualized scrutiny than a reso-

Page 998

lution of disapproval under § 244(c)(2). Certainly the legislative veto is no more susceptible to this attack than the Court's increasingly common practice of according weight to the failure of Congress to disturb an Executive or independent agency's action. See supra at 11, n. 9. Earlier this Term, the Court found it important that Congress failed to act on bills proposed to overturn the Internal Revenue Service's interpretation of the requirements for tax-exempt status under § 501(c)(3) of the tax code. Bob Jones University v. United States, --- U.S. ----, ----, 103 S.Ct. 2017, 2033, 76 L.Ed.2d 157 (1983). If Congress may be said to have ratified the Internal Revenue Service's interpretation without passing new legislation, Congress may also be said to approve a suspension of deportation by the Attorney General when it fails to exercise its veto authority.²⁴ The requirements of Article I are not compromised by the Congressional scheme.

          The Court of Appeals struck § 244(c) 2) as violative of the constitutional principle of separation of powers. It is true that the purpose of separating the authority of government is to prevent unnecessary and dangerous concentration of power in one branch. For that reason, the Framers saw fit to divide and balance the powers of government so that each branch would be checked by the others. Virtually every part of our constitutional system bears the mark of this judgment.

Page 999

          But the history of the separation of powers doctrine is also a history of accommodation and practicality. Apprehensions of an overly powerful branch have not led to undue prophylactic measures that handicap the effective working of the national government as a whole. The Constitution does not contemplate total separation of the three branches of Government. Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). "[A] hermetic sealing off of the three branches of Government from one another would preclude the establishment of a Nation capable of governing itself effectively." Ibid.²⁵

          Our decisions reflect this judgment. As already noted, the Court, recognizing that modern government must address a formidable agenda of complex policy issues, countenanced the delegation of extensive legislative authority to executive and independent agencies. Hampton & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). The separation of powers doctrine has heretofore led to the invalidation of government action only when the challenged action violated some express provision in the Constitution. In Buckley v. Valeo, 424 U.S. 1, 118-124, 96 S.Ct. 612, 681-685, 46 L.Ed.2d 659 (1976) (per curiam) and Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), congressional action compromised the appointment power of the President. See also Springer v. Phillipine Islands, 277 U.S. 189, 200-201, 48 S.Ct. 480, 481-482, 72 L.Ed. 845 (1928). In United States v. Klein, 13 Wall. 128, 20 L.Ed. 519 (1871), an Act of Congress was struck for encroaching upon judicial

Page 1000

power, but the Court found that the Act also impinged upon the Executive's exclusive pardon power. Art. II, § 2. Because we must have a workable efficient government, this is as it should be.

          This is the teaching of Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), which, in rejecting a separation of powers objection to a law requiring that the Administrator take custody of certain presidential papers, set forth a framework for evaluating such claims:

          "[I]n determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions. United States v. Nixon, 418 U.S. [683] at 711-712 [94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039]. Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutio al authority of Congress." 433 U.S., at 443, 97 S.Ct., at 2790.

          Section 244(c)(2) survives this test. The legislative veto provision does not "prevent the Executive Branch from accomplishing its constitutionally assigned functions." First, it is clear that the Executive Branch has no "constitutionally assigned" function of suspending the deportation of aliens. " 'Over no conceivable subject is the legislative power of Congress more complete than it is over' the admission of aliens." Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972), quoting Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909). Nor can it be said that the inherent function of the Executive Branch in executing the law is involved. The Steel Seizure Case resolved that the Article II mandate for the President to execute the law is a directive to enforce the law which Congress has written. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). "The duty of the President to see that the laws be executed is a

Page 1001

duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, 272 U.S., at 177, 47 S.Ct., at 85 (Holmes, J., dissenting); 272 U.S., at 247, 47 S.Ct., at 69 (Brandeis, J., dissenting). Here, § 244 grants the executive only a qualified suspension authority and it is only that authority which the President is constitutionally authorized to execute.

          Moreover, the Court believes that the legislative veto we consider today is best characterized as an exercise of legislative or quasi-legislative authority. Under this characterization, the practice does not, even on the surface, constitute an infringement of executive or judicial prerogative. The Attorney General's suspension of deportation is equivalent to a proposal for legislation. The nature of the Attorney General's role as recommendatory is not altered because § 244 provides for congressional action through disapproval rather than by ratification. In comparison to private bills, which must be initiated in the Congress and which allow a Presidential veto to be overriden by a two-thirds majority in both Houses of Congress, § 244 augments rather than reduces the executive branch's authority. So understood, congressional review does not undermine, as the Court of Appeals thought, the "weight and dignity" that attends the decisions of the Executive Branch.

          Nor does § 244 infringe on the judicial power, as Justice POWELL would hold. Section 244 makes clear that Congress has reserved its own judgment as part of the statutory process. Congressional action does not substitute for judicial review of the Attorney General's decisions. The Act provides for judicial review of the refusal of the Attorney General to suspend a deportation and to transmit a recommendation to Congress. INS v. Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981) (per curiam). But the courts have not been given the authority to review whether an alien should be given permanent status; review is limited to whether the Attorney General has prop-

Page 1002

erly applied the statutory standards for essentially denying the alien a recommendation that his deportable status be changed by the Congress. Moreover, there is no constitutional obligation to provide any judicial review whatever for a failure to suspend deportation. "The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend." Fong Yue Ting v. United States, 149 U.S. 698, 713-714, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893). See also Tutun v. United States, 270 U.S. 68, 576, 46 S.Ct. 425, 426, 70 L.Ed. 738 (1926); Ludecke v. Watkins, 335 U.S. 160, 171-172, 68 S.Ct. 1429, 1434-1435, 92 L.Ed. 1881 (1948); Harisiades v. Shaughnessy, 342 U.S. 580, 590, 72 S.Ct. 512, 519, 96 L.Ed. 586 (1952).

          I do not suggest that all legislative vetoes are necessarily consistent with separation of powers principles. A legislative check on an inherently executive function, for example that of initiating prosecutions, poses an entirely different question. But the legislative veto device here—and in many other settings—is far from an instance of legislative tyranny over the Executive. It is a necessary check on the unavoidably expanding power of the agencies, both executive and independent, as they engage in exercising authority delegated by Congress.

          I regret that I am in disagreement with my colleagues on the fundamental questions that this case presents. But even more I regret the destructive scope of the Court's holding. It reflects a profoundly different conception of the Constitution than that held by the Courts which sanctioned the modern administrative state. Today's decision strikes down in one fell swoop provisions in more laws enacted by Congress than the Court has cumulatively invalidated in its history. I fear it will now be more difficult "to insure that the fundamental policy decisions in our society will be made not

Page 1003

by an appointed official but by the body immediately responsible to the people," Arizona v. California, 373 U.S. 546, 626, 83 S.Ct. 1468, 1511, 10 L.Ed.2d 542 (1963) (Harlan, J., dissenting). I must dissent.

    STATUTES WITH PROVISIONS AUTHORIZING CONGRESSIONAL REVIEW

          This compilation, reprinted from the Brief for the United States Senate, identifies and describes briefly current statutory provisions for a legislative veto by one or both Houses of Congress. Statutory provisions for a veto by committees of the Congress and provisions which require legislation (i.e., passage of a joint resolution) are not included. The fifty-six statutes in the compilation (some of which contain more than one provision for legislative review) are divided into six broad categories: foreign affairs and national security, budget, international trade, energy, rulemaking and miscellaneous.

                        FOREIGN AFFAIRS AND NATIONAL SECURITY

          1. Act for International Development of 1961, Pub.L. No. 87-195, § 617, 75 Stat. 424, 444, 22 U.S.C. 2367 (Funds made available for foreign assistance under the Act may be terminated by concurrent resolution).

          2. War Powers Resolution, Pub.L. No. 93-148, § 5, 87 Stat. 555, 556-557 (1973), 50 U.S.C. 1544 (Absent declaration of war, President may be directed by concurrent resolution to remove United States armed forces engaged in foreign hostilities.)

          3. Department of Defense Appropriation Authorization Act, 1974, Pub.L. No. 93-155, § 807, 87 Stat. 605, 615 (1973), 50 U.S.C. 1431 (National defense contracts obligating the United States for any amount in excess of $25,000,000 may be disapproved by resolution of either House).

Page 1004

          4. Department of Defense Appropriation Authorization Act, 1975, Pub.L. No. 93-365, § 709(c), 88 Stat. 399, 408 (1974), 50 U.S.C. app. 2403-1(c) (Applications for export of defense goods, technology or techniques may be disapproved by concurrent resolution).

          5. H.R.J.Res. 683, Pub.L. No. 94-110, § 1, 89 Stat. 572 (1975), 22 U.S.C. 2441 note (Assignment of civilian personnel to Sinai may be disapproved by concurrent resolution).

          6. International Development and Food Assistance Act of 1975, Pub.L. No. 94-161, § 310, 89 Stat. 849, 860, 22 U.S.C. 2151n (Foreign assistance to countries not meeting human rights standards may be terminated by concurrent resolution).

          7. International Security Assistance and Arms Control Act of 1976, Pub.L. No. 94-329, § 211, 90 Stat. 729, 743, 22 U.S.C. 2776(b) (President's letter of offer to sell major defense equipment may be disapproved by concurrent resolution).

          8. National Emergencies Act, Pub.L. No. 94-412, § 202, 90 Stat. 1255 (1976), 50 U.S.C. 1622 (Presidentially declared national emergency may be terminated by concurrent resolution).

          9. International Navigational Rules Act of 1977, Pub.L. No. 95-75, § 3(d), 91 Stat. 308, 33 U.S.C. § 1602(d) (Supp. III 1979) (Presidential proclamation of International Regulations for Preventing Collisions at Sea may be disapproved by concurrent resolution).

          10. International Security Assistance Act of 1977, Pub.L. No. 95-92, § 16, 91 Stat. 614, 622, 22 U.S.C. § 2753(d)(2) (Supp. III 1979) (President's proposed transfer of arms to a third country may be disapproved by concurrent resolution).

          11. Act of December 8 [28], 1977, Pub.L. No. 95-223, § 207(2)(b), 91 Stat. 1625, 1628, 50 U.S.C. 1706(b) (Supp. III 1979) (Presidentially declared national emergency and exercise of conditional powers may be terminated by concurrent resolution).

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          12. Nuclear Non-Proliferation Act of 1978, Pub.L. No. 95-242, §§ 303, 304, 306, 307, 401, 92 Stat. 120, 130, 134, 137-38, 139, 144, 42 U.S.C. §§ 2160(f), 2155(b), 2157(b), 2153(d) (Supp. III 1979) (Cooperative agreements concerning storage and disposition of spent nuclear fuel, proposed export of nuclear facilities, materials or technology and proposed agreements for international cooperation in nuclear reactor development may be disapproved by concurrent resolution).

          13. Congressional Budget and Impoundment Control Act of 1974, Pub.L. No. 93-344, § 1013, 88 Stat. 297, 334-35, 31 U.S.C. 1403 (The proposed deferral of budget authority provided for a specific project or purpose may be disapproved by an impoundment resolution by either House).

          14. Trade Expansion Act of 1962, Pub.L. No. 87-794, § 351, 76 Stat. 872, 899, 19 U.S.C. 1981(a) (Tariff or duty recommended by Tariff Commission may be imposed by concurrent resolution of approval).

          15. Trade Act of 1974, Pub.L. No. 93-618, §§ 203(c), 302(b), 402(d), 407, 88 Stat. 1978, 2016, 2043, 2057-60, 2063-64, 19 U.S.C. 2253(c), 2412(b), 2432, 2434 [2437] (Proposed Presidential actions on import relief and actions concerning certain countries may be disapproved by concurrent resolution; various Presidential proposals for waiver extensions and for extension of nondiscriminatory treatment to products of foreign countries may be disapproved by simple (either House) or concurrent resolutions).

          16. Export-Import Bank Amendments of 1974, Pub.L. No. 93-646, § 8, 88 Stat. 2333, 2336, 12 U.S.C. 635e (Presidentially proposed limitation for exports to USSR in

Page 1006

excess of $300,000,000 must be approved by concurrent resolution).

          17. Act of November 16, 1973, Pub.L. No. 93-153, § 101, 87 Stat. 576, 582, 30 U.S.C. 185(u) (Continuation of oil exports being made pursuant to President's finding that such exports are in the national interest may be disapproved by concurrent resolution).

          18. Federal Nonnuclear Energy Research and Development Act of 1974, Pub.L. No. 93-577, § 12, 88 Stat. 1878, 1892-1893, 42 U.S.C. 5911 (Rules or orders proposed by the President concerning allocation or acquisition of essential materials may be disapproved by resolution of either House).

          19. Energy Policy and Conservation Act, Pub.L. No. 94-163, § 551, 89 Stat. 871, 965 (1975), 42 U.S.C. 6421(c) (Certain Presidentially proposed "energy actions" involving fuel economy and pricing may be disapproved by resolution of either House).

          20. Naval Petroleum Reserves Production Act of 1976, Pub.L. No. 94-258, § 201, 90 Stat. 303, 309, 10 U.S.C. 7422(c)(2)(C) (President's extension of production period for naval petroleum reserves may be disapproved by resolution of either House).

          21. Energy Conservation and Production Act, Pub.L. No. 94-385, § 305, 90 Stat. 1125, 1148 (1976), 42 U.S.C. 6834 (Proposed sanctions involving federal assistance and the energy conservation performance standards for new buildings must be approved by resolut on of both Houses).

          22. Department of Energy Act of 1978—Civilian Applications, Pub.L. No. 95-238, §§ 107, 207(b), 92 Stat. 47, 55, 70, 22 U.S.C. 3224a, 42 U.S.C. 5919(m) (Supp. III 1979) (International agreements and expenditures by Secretary of Energy of appropriations for foreign spent nuclear fuel storage must be approved by concurrent resolution, if not consented to by legislation;) (plans for such use of appropriated funds may be disapproved by either House;) (financing in excess of $50,000,000 for demonstration facilities must be approved by resolution in both Houses).

Page 1007

          23. Outer Continental Shelf Lands Act Amendments of 1978, Pub.L. No. 95-372, §§ 205(a), 208, 92 Stat. 629, 641, 668, 43 U.S.C. §§ 1337(a), 1354(c) (Supp. III 1979) (Establishment by Secretary of Energy of oil and gas lease bidding system may be disapproved by resolution of either House;) (export of oil and gas may be disapproved by concurrent resolution).

          24. Natural Gas Policy Act of 1978, Pub.L. No. 95-621, §§ 122(c)(1) and (2), 202(c), 206(d)(2), 507, 92 Stat. 3350, 3370, 3371, 3372, 3380, 3406, 15 U.S.C. 3332, 3342(c), 3346(d)(2), 3417 (Supp. III 1979) (Presidential reimposition of natural gas price controls may be disapproved by concurrent resolution;) (Congress may reimpose natural gas price controls by concurrent resolution;) (Federal Energy Regulatory Commission (FERC) amendment to pass through incremental costs of natural gas, and exemptions therefrom, may be disapproved by resolution of either House;) (procedure for congressional review established).

          25. Export Administration Act of 1979, Pub.L. No. 96-72, § 7(d)(B), 7(g)(3), 93 Stat. 503, 518, 520, 50 U.S.C. app. 2406(d)(2)(B), 2406(g)(3) (Supp. III 1979) (President's proposal to domestically produce crude oil must be approved by concurrent resolution;) (action by Secretary of Commerce to prohibit or curtail export of agricultural commodities may be disapproved by concurrent resolution).

          26. Energy Security Act, Pub.L. No. 96-294, §§ 104(b)(3), 104(e), 126(d)(2), 126(d)(3), 128, 129, 132(a)(3), 133(a)(3), 137(b)(5), 141(d), 179(a), 803, 94 Stat. 611, 618, 619, 620, 623-26, 628-29, 649, 650-52, 659, 660, 664, 666, 679, 776 (1980) (to be codified in 50 U.S.C. app. 2091-93, 2095, 2096, 2097, 42 U.S.C. 8722, 8724, 8725, 8732, 8733, 8737, 8741, 8779, 6240) (Loan guarantees by Departments of Defense, Energy and Commerce in excess of specified amounts may be disapproved by resolution of either House;) (President's proposal to provide loans or guarantees in excess

Page 1008

of established amounts may be disapproved by resolution of either House;) (proposed award by President of individual contracts for purchase of more than 75,000 barrels per day of crude oil may be disapproved by resolution of either House;) (President's proposals to overcome energy shortage through synthetic fuels development, and individual contracts to purchase more than 75,000 barrels per day, including use of loans or guarantees, may be disapproved by resolution of either House;) (procedures for either House to disapprove proposals made under Act are established;) (request by Synthetic Fuels Corporation (SFC) for additional time to submit its comprehensive strategy may be disapproved by resolution of either House;) (proposed amendment to comprehensive strategy by SFC Board of Directors may be disapproved by concurrent resolution of either House or by failure of both Houses to pass concurrent resolution of approval;) (procedure for either House to disapprove certain proposed actions of SFC is established;) (procedure for both Houses to approve by concurrent resolution or either House to reject concurrent resolution for proposed amendments to comprehensive strategy of SFC is established;) (proposed loans and loan guarantees by SFC may be disapproved by resolution of either House;) (acquisition by SFC of a synthetic fuels project which is receiving financial assistance may be disapproved by resolution of either House;) (SFC c ntract renegotiations exceeding initial cost estimates by 175% may be disapproved by resolution of either House;) (proposed financial assistance to synthetic fuel projects in Western Hemisphere outside United States may be disapproved by resolution of either House;) (President's request to suspend provisions requiring build up of reserves and limiting sale or disposal of certain crude oil reserves must be approved by resolution of both Houses).

          27. Education Amendments of 1974, Pub.L. No. 93-380, § 509, 88 Stat. 484, 567, 20 U.S.C. 1232(d)(1)

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(Department of Education regulations may be disapproved by concurrent resolution).

          28. Federal Education Campaign Act Amendments of 1979, Pub.L. No. 96-187, § 109, 93 Stat. 1339, 1364, 2 U.S.C. 438(d)(2) (Supp. III 1979) (Proposed rules and regulations of the Federal Election Commission may be disapproved by resolution of either House).

          29. Act of January 2, 1975, Pub.L. No. 93-595, § 2, 88 Stat. 1926, 1948, 28 U.S.C. 2076 (Proposed amendments by Supreme Court of Federal Rules of Evidence may be disapproved by resolution of either House).

          30. Act of August 9, 1975, Pub.L. No. 94-88, § 208, 89 Stat. 433, 436-37, 42 U.S.C. 602 note (Social Security standards proposed by Secretary of Health and Human Services may be disapproved by either House).

          31. Airline Deregulation Act of 1978, Pub.L. No. 95-504, § 43(f)(3), 92 Stat. 1705, 1752, 49 U.S.C. 1552(f) (Supp. III 1979) (Rules or regulations governing employee protection program may be disapproved by resolution of either House).

          32. Education Amendments of 1978, Pub.L. No. 95-561, §§ 1138, 1212, 1409, 92 Stat. 2143, 2327, 2341, 2341, 2369, 25 U.S.C. 2018, 20 U.S.C. [927] 1221-3(e) (Supp. III 1979) (Rules and regulations proposed under the Act may be disapproved by concurrent resolution).

          33. Civil Rights of Institutionalized Persons Act, Pub.L. No. 96-247, § 7(b)(1), 94 Stat. 349, 352-355 (1980) (to be codified in 42 U.S.C. 1997e) (Attorney General's proposed standards for resolution of grievances of adults confined in correctional facilities may be disapproved by resolution of either House).

          34. Federal Trade Commission Improvements Act of 1980, Pub.L. No. 96-252, § 21(a), 94 Stat. 374, 393 (to be codified in 15 U.S.C. 57a-1) (Federal Trade Commission rules may be disapproved by concurrent resolution).

          35. Department of Education Organization Act, Pub.L. No. 96-88, § 414(b), 93 Stat. 668, 685 (1979), 20 U.S.C. 3474 (Supp. III 1979)

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(Rules and regulations promulgated with respect to the various functions, programs and responsibilities transferred by this Act, may be disapproved by concurrent resolution).

          36. Multiemployer Pension Plan Amendments Act of 1980, Pub.L. No. 96-364, § 102, 94 Stat. 1208, 1213 (to be codified in 29 U.S.C. 1322a) (Schedules proposed by Pension Benefit Guaranty Corporation (PBGC) which requires an increase in premiums must be approved by concurrent resolution;) (revised premium schedules for voluntary supplemental coverage proposed by PBGC may be disapproved by concurrent resolution).

          37. Farm Credit Act Amendments of 1980, Pub.L. No. 96-592, § 508, 94 Stat. 3437, 3450 (to be codified in 12 U.S.C. 2121 [2252] ) (Certain Farm Credit Administration regulations or delayed by resolution of either House.)

          38. Comprehensive Environmental Response, Compensation, and Liability Act of 1980, Pub.L. No. 96-510, § 305, 94 Stat. 2767, 2809 (to be codified in 42 U.S.C. 9655) (Environmental Protection Agency regulations concerning hazardous substances releases, liability and compensation may be disapproved by concurrent resolution or by the adoption of either House of a concurrent resolution which is not disapproved by the other House).

          39. National Historic Preservation Act Amendments of 1980, Pub.L. No. 96-515, § 501, 94 Stat. 2987, 3004 (to be codified in 16 U.S.C. 470w-6) (Regulation proposed by the Secretary of the Interior may be disapproved by concurrent resolution).

          40. Coastal Zone Management Improvement Act of 1980, Pub.L. No. 96-464, § 12, 94 Stat. 2060, 2067 (to be codified in 16 U.S.C. 1463a) (Rules proposed by the Secretary of Commerce may be disapproved by concurrent resolution).

          41. Act of December 17, 1980, Pub.L. No. 96-539, § 4, 94 Stat. 3194, 3195 (to be codified in 7 U.S.C. 136w) (Rules or regulations promulgated by the Administrator of the Envi-

Page 1011

ronmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act may be disapproved by concurrent resolution).

          42. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, §§ 533(a)(2), 1107(d), 1142, 1183(a)(2), 1207, 95 Stat. 357, 453, 626, 654, 659, 695, 718-20 (to be codified in 20 U.S.C. 1089, 23 U.S.C. 402(j), 45 U.S.C. 761, 767, 564(c)(3), 15 U.S.C. 2083, 1276, 1204) (Secretary of Education's schedule of expected family contributions for Pell Grant recipients may be disapproved by resolution of either House;) (rules promulgated by Secretary of Transportation for programs to reduce accidents, injuries and deaths may be disapproved by resolution of either House;) (Secretary of Transportation's plan for the sale of government's common stock in rail system may be disapproved by concurrent resolution;) (Secretary of Transportation's approval of freight transfer agreements may be disapproved by resolution of either House;) (amendments to Amtrak's Route and Service Criteria may be disapproved by resolution of either House;) (Consumer Product Safety Commission regulations may be disapproved by concurrent resolution of both Houses, or by concurrent resolution of disapproval by either House if such resolution is not disapproved by the other House).

          43. Federal Civil Defense Act of 1950, Pub.L. No. 81-920, § 201, 64 Stat. 1245, 1248, 50 app. U.S.C. 2281(g) (Interstate civil defense compacts may be disapproved by concurrent resolution).

          44. National Aeronautics and Space Act of 1958, Pub.L. No. 85-568, § 302c [302(c) ] 72 Stat. 426, 433, 42 U.S.C. 2453 (President's transfer to National Air and Space Administration of functions of other departments and agencies may be disapproved by concurrent resolution).

Page 1012

          45. Federal Pay Comparability Act of 1970, Pub.L. No. 91-656, § 3, 84 Stat. 1946, 1949, 5 U.S.C. 5305 (President's alternative pay plan may be disapproved by resolution of either House).

          46. Act of October 19, 1973, Pub.L. No. 93-134, § 5, 87 Stat. 466, 468, 25 U.S.C. 1405 (Plan for use and distribution of funds paid in satisfaction of judgment of Indian Claims Commission or Court of Claims may be disapproved by resolution of either House).

          47. Menominee Restoration Act, Pub.L. No. 93-197, § 6, 87 Stat. 770, 773 (1973), 25 U.S.C. 903d(b) (Plan by Secretary of the Interior for assumption of the assets the Menominee Indian corporation may be disapproved by resolution of either House).

          48. District of Columbia Self-Government and Governmental Reorganization Act, Pub.L. No. 93-198, §§ 303, 602(c)(1) and (2), 87 Stat. 774, 784, 814 (1973) (District of Columbia Charter amendments ratified by electors must be approved by concurrent resolution;) (acts of District of Columbia Council may be disapproved by concurrent resolution;) (acts of District of Columbia Council under certain titles of D.C.Code may be disapproved by resolution of either House).

          49. Act of December 31, 1975, Pub.L. No. 94-200, § 102, 89 Stat. 1124, 12 U.S.C. 461 note (Federal Reserve System Board of Governors may not eliminate or reduce interest rate differentials between banks insured by Federal Deposit Insurance Corporation and associations insured by Federal Savings and Loan Insurance Corporations without concurrent resolution of approval).

          50. Veterans' Education and Employment Assistance Act of 1976, Pub.L. No. 94-502, § 408, 90 Stat. 2383, 2397-98, 38 U.S.C. 1621 note (President's recommendation for continued enrollment period in Armed Forces educational assistance program may be disapproved by resolution of either House).

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          51. Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, §§ 203(c), 204(c)(1), 90 Stat. 2743, 2750, 2752, 43 U.S.C. 1713(c), 1714 (Sale of public lands in excess of two thousand five hundred acres and withdrawal of public lands aggregating five thousand acres or more may be disapproved by concurrent resolution).

          52. Emergency Unemployment Compensation Extension Act of 1977, Pub.L. No. 95-19, § 401, 91 Stat. 39, 45, 2 U.S.C. 359 (Supp. III 1979) (President's recommendations regarding rates of salary payment may be disapproved by resolution of either House).

          53. Civil Service Reform Act of 1978, Pub.L. No. 95-454, § 515 [415] 92 Stat. 1111, 1179, 5 U.S.C. 3131 note (Supp. III 1979) (Continuation of Senior Executive Service may be disapproved by concurrent resolution).

          54. Full Employment and Balanced Growth Act of 1978, Pub.L. No. 95-523, § 304(b), 92 Stat. 1887, 1906, 31 U.S.C. 1322 (Supp. III 1979) (Presidential timetable for reducing unemployment may be superseded by concurrent resolution).

          55. District of Columbia Retirement Reform Act, Pub.L. No. 96-122, § 164, 93 Stat. 866, 891-92 (1979) (Required reports to Congress on the District of Columbia retirement program may be rejected by resolution of either House).

          56. Act of August 29, 1980, Pub.L. No. 96-332, § 2, 94 Stat. 1057, 1058 (to be codified in 16 U.S.C. 1432) (Designation of marine sanctuary by the Secretary of Commerce may be disapproved by concurrent resolution).

           Justice REHNQUIST, with whom Justice WHITE joins, dissenting.

          A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid. Carter v. Carter Coal Co., 298 U.S. 238, 312, 56 S.Ct. 855, 873, 80 L.Ed. 1160 (1936); Champlin Refining Co. v. Corporation Comm'n, 286 U.S. 210, 235, 52 S.Ct. 559, 565, 76 L.Ed. 1062

Page 1014

(1932). A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers," Carter, supra, 298 U.S., at 312, 56 S.Ct., at 873, and "will rarely turn on the presence or absence of such a clause." United States v. Jackson, 390 U.S. 570, 585, n. 27, 88 S.Ct. 1209, 1218, n. 27, 20 L.Ed.2d 138 (1968). Because I believe that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable, I dissent.

          Section 244(c)(2) is an exception to the general rule that an alien's deportation shall be suspended when the Attorney General finds that statutory criteria are met. It is severable only if Congress would have intended to permit the Attorney General to suspend deportations without it. This Court has held several times over the years that exceptions such as this are not severable because

          "by rejecting the exceptions intended by the legislature . . . the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions." Spraigue v. Thompson, 118 U.S. 90, 95, 6 S.Ct. 988, 990, 30 L.Ed. 115 (1886).

          By severing § 244(c)(2), the Court permits suspension of deportation in a class of cases where Congress never stated that suspension was appropriate. I do not believe we should expand the statute in this way without some clear indication that Congress intended such an expansion. As the Court said in Davis v. Wallace, 257 U.S. 478, 484-485, 42 S.Ct. 164, 166, 66 L.Ed. 325 (1922):

          "Where an excepting provision in a statute is found unconstitutional, courts very generally hold that this does not work an enlargement of the scope or operation of other provisions with which that provision was enacted and which was intended to qualify or restrain. The reasoning on which the decisions proceed is illustra ed in State Ex Rel. McNeal v. Dombaugh, 20 Ohio St. 167, 174. In dealing with a contention that a statute

Page 1015

          containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said: 'This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.'

                    Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application."

          See also Frost v. Corporation Comm'n, 278 U.S. 515, 525, 49 S.Ct. 235, 239, 73 L.Ed. 483 (1929).

          The Court finds that the legislative history of § 244 shows that Congress intended § 244(c)(2) to be severable because Congress wanted to relieve itself of the burden of private bills. But the history elucidated by the Court shows that Congress was unwilling to give the Executive Branch permission to suspend deportation on its own. Over the years, Congress consistently rejected requests from the Executive for complete discretion in this area. Congress always insisted on retaining ultimate control, whether by concurrent resolution, as in the 1948 Act, or by one-House veto, as in the present Act. Congress has never indicated that it would be willing to permit suspensions of deportation unless it could retain some sort of veto.

Page 1016

          It is doubtless true that Congress has the power to provide for suspensions of deportation without a one-House veto. But the Court has failed to identify any evidence that Congress intended to exercise that power. On the contrary, Congress' continued insistence on retaining control of the suspension process indicates that it has never been disposed to give the Executive Branch a free hand. By severing § 244(c)(2) the Court has "confounded" Congress' "intention" to permit suspensions of deportation "with their power to carry that intention into effect." Davis, supra, 257 U.S., at 484, 42 S.Ct., at 166, quotingDombaugh, supra, at 174.

          Because I do not believe that § 244(c)(2) is severable, I would reverse the judgment of the Court of Appeals.

^{1. Congress delegated the major responsibilities for enforcement of the Immigration and Nationality Act to the Attorney General. 8 U.S.C. § 1103(a). The Attorney General discharges his responsibilities through the Immigration and Naturalization Service, a division of the Department of Justice. Ibid.}

^2. In constitutional terms, "veto" is used to describe the President's power under Art. I, § 7 of the Constitution. See Black's Law Dictionary 1403 (5th ed. 1979). It appears, however, that Congressional devices of the type authorized by § 244(c)(2) have come to be commonly referred to as a "veto." See, e.g., Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Miller and Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind.L.J. 367 (1977). We refer to the Congressional "resolution" authorized by § 244(c)(2) as a "one-House veto" of the Attorney General's decision to allow a particular deportable alien to remain in the United States.

^3. It is not at all clear whether the House generally, or Subcommittee Chairman Eilberg in particular, correctly understood the relationship between H.R.Res. 926 and the Attorney General's decision to suspend Chadha's deportation. Exactly one year previous to the House veto of the Attorney General's decision in this case, Representative Eilberg introduced a similar resolution disapproving the Attorney General's suspension of deportation in the case of six other aliens. H.R.Res. 1518, 93d Cong., 2d Sess. The following colloquy occurred on the floor of the House:

"Mr. WYLIE. Mr. Speaker, further reserving the right to object, is this procedure to expedite the ongoing operations of the Department of Justice, as far as these people are concerned. Is it in any way contrary to whatever action the Attorney General has taken on the question of deportation; does the gentleman know?

Mr. EILBERG. Mr. Speaker, the answer is no to the gentleman's final question. These aliens have been found to be deportable and the Special Inquiry Officer's decision denying suspension of deportation has been reversed by the Board of Immigration Appeals. We are complying with the law since all of these decisions have been referred to us for approval or disapproval, and there are hundreds of cases in this category. In these six cases however, we believe it would be grossly improper to allow these people to acquire the status of permanent resident aliens.

Mr. WYLIE. In other words, the gentleman has been working with the Attorney General's office?

Mr. EILBERG. Yes.

Mr. WYLIE. This bill then is in fact a confirmation of what the Attorney General intends to do?

Mr. EILBERG. The gentleman is correct insofar as it relates to the determination of deportability which has been made by the Department of Justice in these cases.

Mr. WYLIE. Mr. Speaker, I withdraw my reservation of objection." 120 Cong.Rec. 41412 (1974).

Clearly, this was an obfuscation of the effect of a veto under § 244(c)(2). Such a veto in no way constitutes "a confirmation of what the Attorney General intends to do." To the contrary, such a resolution was meant to overrule and set aside, or "veto," the Attorney General's determination that, in a particular case, cancellation of deportation would be appropriate under the standards set forth in § 244(a)(1).

^4. Nine Members of the House of Representatives disagree with the position taken in the briefs filed by the Senate and the House of Representatives and have filed a brief amicus curiae urging that the decision of the Court of Appeals be affirmed in this case.

^5. The Senate and House authorized intervention in this case, S.Res. 40 and H.R.Res. 49, 97th Cong., 1st Sess. (1981), and, on February 3, 1981, filed motions to intervene and petitioned for rehearing. The Court of Appeals granted the motions to intervene. Both Houses are therefore proper "parties" within the meaning of that term in 28 U.S.C. § 1254(1). See Batterton v. Francis, 432 U.S. 416, 424, n. 7, 97 S.Ct. 2399, 2405, n. 7, 53 L.Ed.2d 448 (1977).

^6. In addition to meeting the statutory requisites of § 1252, of course, an appeal must present a justiciable case or controversy under Art. III. Such a controversy clearly exists in No. 80-1832, as in the other two cases, because of the presence of the two Houses of Congress as adverse parties. See infra, at 939; see also Director, OWCP v. Perini North River Associates, --- U.S. ----, ----, 103 S.Ct. 634, 641, 74 L.Ed.2d 465 (1982).

^7. In this case we deem it appropriate to address questions of severability first. But see Buckley v. Valeo, 424 U.S. 1, 108-109, 96 S.Ct. 612, 677-678, 46 L.Ed.2d 659 (1976); United States v. Jackson, 390 U.S. 570, 585, 88 S.Ct. 1209, 1218, 20 L.Ed.2d 138 (1968).

^8. Without the provision for one-House veto, Congress would presumably retain the power, during the time allotted in § 244(c)(2), to enact a law, in accordance with the requirements of Article I of the Constitution, mandating a particular alien's deportation, unless, of course, other constitutional principles place substantive limitations on such action. Cf. Attorney General Jackson's attack on H.R. 9766, 76th Cong., 3d Sess. (1940), a bill to require the Attorney General to deport an individual alien. The Attorney General called the bill "an historical departure from an unbroken American practice and tradition. It would be the first time that an act of Congress singled out a named individual for deportation." S.Rep. No. 2031, 76th Cong., 3d Sess. 9 (1940) (reprinting Jackson's letter of June 18, 1940). See n. 17, infra.

^9. Without the one-House veto, § 244 resembles the "report and wait" provision approved by the Court in Sibbach v. Wilson, 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941). The statute examined in Sibbach provided that the newly promulgated Federal Rules of Civil Procedure "shall not take effect until they shall have been reported to Congress by the Attorney General at the beginning of a regular session thereof and until after the close of such session." Act of June 19, 1934, ch. 651, § 2, 48 Stat. 1064. This statute did not provide that Congress could unilaterally veto the Federal Rules. Rather, it gave Congress the opportunity to review the Rules before they became effective and to pass legislation barring their effectiveness if the Rules were found objectionable. This technique was used by Congress when it acted in 1973 to stay, and ultimately to revise, the proposed Rules of Evidence. Compare Act of March 30, 1973, Pub.L. No. 93-12, 87 Stat. 9, with Act of Jan. 2, 1975, Pub.L. 93-595, 88 Stat. 1926.

^10. Depending on how the INS interprets its statutory duty under § 244 apart from the challenged portion of § 244(c)(2), Chadha's status may be retroactively adjusted to that of a permanent resident as of December 19, 1975—the last session in which Congress could have attempted to stop the suspension of Chadha's deportation from ripening into cancellation of deportation. See 8 U.S.C. § 1254(d). In that event, Chadha's five-year waiting period to become a citizen under § 316(a) of the Act, 8 U.S.C. § 1427(a), would have elapsed.

^11. Under the Third Circuit's reasoning, judicial review under § 106(a) would not extend to the constitutionality of § 244(c)(2) because that issue could not have been tested during the administrative deportation proceedings conducted under § 242(b). Dastmalchi v. INS, 660 F.2d 880 (CA3 1981). The facts in Dastmalchi are distinguishable, however. In Dastmalchi, Iranian aliens who had entered the United States on nonimmigrant student visas challenged a regulation that required them to report to the District Director of the INS during the Iranian hostage crisis. The aliens reported and were ordered deported after a § 242(b) proceeding. The aliens in Dastmalchi could have been deported irrespective of the challenged regulation. Here, in contrast, Chadha's deportation would have been cancelled but for § 242(c)(2).

^12. A relevant parallel can be found in our recent decision in Bob Jones University v. United States, --- U.S. ----, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983). There, the United States agreed with Bob Jones University and Goldsboro Christian Schools that certain Revenue Rulings denying tax exempt status to schools that discriminated on the basis of race were invalid. Despite its agreement with the schools, however, the United States was complying with a court order enjoining it from granting tax-exempt status to any school that discriminated on the basis of race. Even though the government largely agreed with the opposing party on the merits of the controversy, we found an adequate basis for jurisdiction in the fact that the government intended to enforce the challenged law against that party. See id., at ---- n. 9, 103 S.Ct., at 2025 n. 9.

^13. The suggestion is made that § 244(c)(2) is somehow immunized from constitutional scrutiny because the Act containing § 244(c)(2) was passed by Congress and approved by the President. Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803), resolved that question. The assent of the Executive to a bill which contains a provision contrary to the Constitution does not shield it from judicial review. See Smith v. Maryland, 442 U.S. 735, 740 n. 5, 99 S.Ct. 2577, 2580, n. 5, 61 L.Ed.2d 220 (1979); National League of Cities v. Usery, 426 U.S. 833, 841 n. 12, 96 S.Ct. 2465, 2469 n. 12, 49 L.Ed.2d 245 (1976); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926). See also n. 22, infra. In any event, eleven Presidents, from Mr. Wilson through Mr. Reagan, who have been presented with this issue have gone on record at some point to challenge Congressional vetoes as unconstitutional. See Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv.J.Legis. 735, 737-738 n. 7 (1979) (collecting citations to presidential statements). Perhaps the earliest Executive expression on the constitutionality of the Congressional veto is found in Attorney General William D. Mitchell's opinion of January 24, 1933 to President Hoover. 37 Op.Atty.Gen. 56 (1933). Furthermore, it is not uncommon for Presidents to approve legislation containing parts which are objectionable on constitutional grounds. For example, after President Roosevelt signed the Lend-Lease Act of 1941, Attorney General Jackson released a memorandum explaining the President's view that the provision allowing the Act's authorization to be terminated by concurrent resolution was unconstitutional. Jackson, A Presidential Legal Opinion, 66 Harv.L.Rev. 1353 (1953).

^14. The widespread approval of the delegates was commented on by Joseph Story:

"In the convention there does not seem to have been much diversity of opinion on the subject of the propriety of giving to the president a negative on the laws. The principal points of discuss on seem to have been, whether the negative should be absolute, or qualified; and if the latter, by what number of each house the bill should subsequently be passed, in order to become a law; and whether the negative should in either case be exclusively vested in the president alone, or in him jointly with some other department of government." 1 J. Story, Commentaries on the Constitution of the United States 611 (1858). See 1 M. Farrand, The Records of the Federal Convention of 1787 21, 97-104, 138-140; id., at 73-80, 181, 298, 301-305.

^15. The Great Compromise was considered so important by the Framers that they inserted a special provision to ensure that it could not be altered, even by constitutional amendment, except with the consent of the states affected. See U.S. Const. Art. V.

^16. Congress protests that affirming the Court of Appeals in this case will sanction "lawmaking by the Attorney General. . . . Why is the Attorney General exemp from submitting his proposed changes in the law to the full bicameral process?" Brief of the United States House of Representatives 40. To be sure, some administrative agency action—rule making, for example—may resemble "lawmaking." See 5 U.S.C. § 551(4), which defines an agency's "rule" as "the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. . . ." This Court has referred to agency activity as being "quasi-legislative" in character. Humphrey's Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935). Clearly, however, "[i]n the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867, 96 L.Ed. 1153 (1952). See Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1976). When the Attorney General performs his duties pursuant to § 244, he does not exercise "legislative" power. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-214, 96 S.Ct. 1375, 1391, 47 L.Ed.2d 668 (1976). The bicameral process is not necessary as a check on the Executive's administration of the laws because his administrative activity cannot reach beyond the limits of the statute that created it—a statute duly enacted pursuant to Art. I, §§ 1, 7. The constitutionality of the Attorney General's execution of the authority delegated to him by § 244 involves only a question of delegation doctrine. The courts, when a case or controversy arises, can always "ascertain whether the will of Congress has been obeyed," Yakus v. United States, 321 U.S. 414, 425, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944), and can enforce adherence to statutory standards. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 865-866, 96 L.Ed. 1153 (1952); Ethyl Corp. v. EPA, 541 F.2d 1, 68 (CADC) (en banc) (separate statement of Leventhal, J.), cert. denied, 426 U.S. 941, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976); L. Jaffe, Judicial Control of Administrative Action 320 (1965). It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act. Executive action under legislatively delegated authority that might resemble "legislative" action in some respects is not subject to the approval of both Houses of Congress and the President for the reason that the Constitution does not so require. That kind of Executive action is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review as well as the power of Congress to modify or revoke the authority entirely. A one-House veto is clearly legislative in both character and effect and is not so checked; the need for the check provided by Art. I, §§ 1, 7 is therefore clear. Congress' authority to delegate portions of its power to administrative agencies provides no support for the argument that Congress can constitutionally control administration of the laws by way of a Congressional veto.

^17. We express no opinion as to whether such legislation would violate any constitutional provision. See note 8, supra.

^18. During the Convention of 1787, the application of the President's veto to repeals of statutes was addressed and the Framers were apparently content with Madison's comment that "[a]s to the difficulty of repeals, it was probable that in doubtful cases the policy would soon take place of limiting the duration of laws as to require renewal instead of repeal." 2 M. Farrand, supra, at 587. See Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569, 587-599 (1953). There is no provision allowing Congress to repeal or amend laws by other than legislative means pursuant to Art. I.

^19. This does not mean that Congress is required to capitulate to "the accretion of policy control by forces outside its chambers." Javits and Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 462 (1977). The Constitution provides Congress with abundant means to oversee and control its administrative creatures. Beyond the obvious fact that Congress ultimately controls administrative agencies in the legislation that creates them, other means of control, such as durational limits on authorizations and formal reporting requirements, lie well within Congress' constitutional power. See id., at 460-461; Kaiser, Congressional Action to Overturn Agency Rules: Alternatives to the "Legislative Veto", 32 Ad.L.Rev. 667 (1980). See also note 9, supra.

^20. An exception from the Presentment Clauses was ratified in Hollingsworth v. Virginia, 3 Dall. 378, 1 L.Ed. 644 (1798). There the Court held presidential approval was unnecessary for a proposed constitutional amendment

which had passed both Houses of Congress by the requisite two-thirds majority. See U.S. Const. Art. V.

One might also incl de another "exception" to the rule that Congressional action having the force of law be subject to the bicameral requirement and the Presentment Clauses. Each House has the power to act alone in determining specified internal matters. Art. I, § 7, cls. 2, 3, and § 5, cl. 2. However, this "exception" only empowers Congress to bind itself and is noteworthy only insofar as it further indicates the Framers' intent that Congress not act in any legally binding manner outside a closely circumscribed legislative arena, except in specific and enumerated instances.

Although the bicameral check was not provided for in any of these provisions for independent Congressional action, precautionary alternative checks are evident. For example, Art. II, § 2 requires that two-thirds of the Senators present concur in the Senate's consent to a treaty, rather than the simple majority required for passage of legislation. See The Federalist No. 64 (J. Jay); The Federalist No. 66 (A. Hamilton); The Federalist No. 75 (A. Hamilton). Similarly, the Framers adopted an alternative protection, in the stead of Presidential veto and bicameralism, by requiring the concurrence of two-thirds of the Senators present for a conviction of impeachment. Art. I, § 3. We also note that the Court's holding in Hollingsworth, supra, that a resolution proposing an amendment to the Constitution need not be presented to the President, is subject to two alternative protections. First, a constitutional amendment must command the votes of two-thirds of each House. Second, three-fourths of the states must ratify any amendment.

^21. Justice POWELL's position is that the one-House veto in this case is a judicial act and therefore unconstitutional as beyond the authority vested in Congress by the Constitution. We agree that there is a sense in which one-House action pursuant to § 244(c)(2) has a judicial cast, since it purports to "review" Executive action. In this case, for example, the sponsor of the resolution vetoing the suspension of Chadha's deportation argued that Chadha "did not meet [the] statutory requirements" for suspension of deportation. Ante, at 926. To be sure, it is normally up to the courts to decide whether an agency has complied with its statutory mandate. See note 16, supra. But the attempted analogy between judicial action and the one-House veto is less than perfect. Federal courts do not enjoy a roving mandate to correct alleged excesses of administrative agencies; we are limited by Art. III to hearing cases and controversies and no justiciable case or controversy was presented by the Attorney General's decision to allow Chadha to remain in this country. We are aware of no decision, and Justice POWELL has cited none, where a federal court has reviewed a decision of the Attorney General suspending deportation of an alien pursuant to the standards set out in § 244(a)(1). This is not surprising, given that no party to such action has either the motivation or the right to appeal from it. A Justice WHITE correctly notes, post, at 1001-1002, "the courts have not been given the authority to review whether an alien should be given permanent status; review is limited to whether the Attorney General has properly applied the statutory standards for" denying a request for suspension of deportation. Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963), relied on by Justice POWELL, addressed only "whether a refusal by the Attorney General to grant a suspension of deportation is one of these 'final orders of deportation' of which direct review by Courts of Appeals is authorized under § 106(a) of the Act." Id., at 221, 84 S.Ct., at 309. Thus, Justice POWELL's statement that the one-House veto in this case is "clearly adjudicatory," post, at 965, simply is not supported by his accompanying assertion that the House has "assumed a function ordinarily entrusted to the federal courts." Ibid. We are satisfied that the one-House veto is legislative in purpose and effect and subject to the procedures set out in Art. I.

^22. Neither can we accept the suggestion that the one-House veto provision in § 244(c)(2) either removes or modifies the bicameralism and presentation requirements for the enactment of future legislation affecting aliens. See Atkins v. United States, 556 F.2d 1028, 1063-1064 (Ct.Cl.1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); Brief for the United States House of Representatives 40. The explicit prescription for legislative action contained in Art. I cannot be amended by legislation. See n. 13, supra.

Justice WHITE suggests that the Attorney General's action under § 244(c)(1) suspending deportation is equivalent to a proposal for legislation and that because Congressional approval is indicated "by failure to veto, the one-House veto satisfies the requirement of bicameral approval." Post, at 997. However, as the Court of Appeals noted, that approach "would analogize the effect of the one house disapproval to the failure of one house to vote affirmatively on a private bill." 634 F.2d, at 435. Even if it were clear that Congress entertained such an arcane theory when it enacted § 244(c)(2), which Justice WHITE does not suggest, this would amount to nothing less than an amending of Art. I. The legislative steps outlined in Art. I are not empty formalities; they were designed to assure that both Houses of Congress and the President participate in the exercise of lawmaking authority. This does not mean that legislation must always be preceded by debate; on the contrary, we have said that it is not necessary for a legislative body to "articulate its reasons for enacting a statute." United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980). But the steps required by Art. I, §§ 1, 7 make certain that there is an opportunity for deliberation and debate. To allow Congress to evade the strictures of the Constitution and in effect enact Executive proposals into law by mere silence cannot be squared with Art. I.

^1. As Justice WHITE's dissenting opinion explains, the legislative veto has been included in a wide variety of statutes, ranging from bills for executive reorganization to the War Powers Resolution. See post, at 968-972. Whether the veto complies with the Presentment Clauses may well turn on the particular context in which it is exercised, and I would be hesitant to conclude that every veto is unconstitutional on the basis of the unusual example presented by this litigation.

^2. See Martin, The Legislative Veto and The Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Consumer Energy Council of America v. FERC, --- U.S.App.D.C. ----, ----, 673 F.2d 425, 475 (1982).

^3. Jefferson later questioned the degree to which the Constitution insulates the judiciary. See D. Malone, Jefferson the President: Second Term, 1805-1809, pp. 304-305 (1974). In response to Chief Justice Marshall's rulings during Aaron Burr's trial, Jefferson stated that the judiciary had favored Burr—whom Jefferson viewed as clearly guilty of treason—at the expense of the country. He predicted that the people "will see and amend the error in our Constitution, which makes any branch independent of the nation." Id., at 305 (quoting Jefferson's letter to William Giles). The very controversy that attended Burr's trial, however, demonstrates the wisdom in providing a neutral forum, removed from political pressure, for the determination of one person's rights.

^4. The House and the Senate argue that the legislative veto does not prevent the executive from exercising its constitutionally assigned function. Even assuming this argument is correct, it does not address the concern that the Congress is exercising unchecked judicial power at the expense of individual liberties. It was precisely to prevent such arbitrary action that the Framers adopted the doctrine of separation of powers. See, e.g., Myers v. United States, 272 U.S. 52, 293, 47 S.Ct. 21, 84-85, 71 L.Ed. 160 (1926) (Brandeis, J., dissenting).

^5. The Immigration and Naturalization Service, a division of the Department of Justice, administers the Immigration and Naturalization Act on behalf of the Attorney General, who has primary responsibility for the Act's enforcement. See 8 U.S.C. § 1103. The Act establishes a detailed administrative procedure for determining when a specific person is to be deported, see § 1252(b), and provides for judicial review of this decision, see § 1105a(a); Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963).

^6. Normally the House would have distributed the resolution before acting on it, see 121 Cong.Rec. 40800 (1975), but the statute providing for the legislative veto limits the time in which Congress may veto the Service's determination that deportation should be suspended. See 8 U.S.C. § 1254(c)(2). In this case Congress had Chadha's report before it for approximately a year and a half, but failed to act on it until three days before the end of the limitations period. Accordingly, it was required to abandon its normal procedures for considering resolutions, thereby increasing the danger of arbitrary and ill-considered action.

^7. The Court concludes that Congress' action was legislative in character because each branch "presumptively act[s] within its assigned sphere." Ante, at 952. The Court's presumption provides a useful starting point, but does not conclude the inquiry. Nor does the fact that the House's action alters an individual's legal status indicate, as the Court reasons, see ante, at 952-954, that the action is legislative rather than adjudicative in nature. In determining whether one branch unconstitutionally has assumed a power central to another branch, the traditional characterization of the assumed power as legislative, executive, or judicial may provide some guidance. See Springer v. Philippine Islands, 277 U.S. 189, 203, 48 S.Ct. 480, 482-483, 72 L.Ed. 845 (1928). But reasonable minds may disagree over the character of an act and the more helpful inquiry, in my view, is whether the act in question raises the dangers the Framers sought to avoid.

^8. The Court reasons in response to this argument that the one-house veto exercised in this case was not judicial in nature because the decision of the Immigration and Naturalization Service did not present a justiciable issue that could have been reviewed by a court on appeal. See ante, at 957, n. 21. The Court notes that since the administrative agency decided the case in favor of Chadha, there was no aggrieved party who could appeal. Reliance by the Court on this fact misses the point. Even if review of the particular decision to suspend deportation is not committed to the courts, the House of Representatives assumed a function that generally is entrusted to an impartial tribunal. In my view, the legislative branch in effect acted as an appellate court by overruling the Service's application of established law to Chadha. And unlike a court or an administrative agency, it did not provide Chadha with the right to counsel or a hearing before acting. Although the parallel is not entirely complete, the effect on Chadha's personal rights would not have been different in principle had he been acquitted of a federal crime and thereafter found by one House of Congress to have been guilty.

^9. 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. Similarly, Congress may authorize the admission of individual aliens by special acts, but it does not follow that Congress unilaterally may make a judgment that a particular alien has no legal right to remain in this country. See Memorandum Concerning H.R. 9766 Entitled "An Act to Direct the Deportation of Harry Renton Bridges," reprinted in S.Rep. No. 2031, pt. 1, 76th Cong., 3d Sess., 8 (1940). As Attorney General Robert Jackson remarked, such a practice "would be an historical departure from an unbroken American practice and tradition." S.Rep. No. 2031, supra, at 9.

^10. We have recognized that independent regulatory agencies and departments of the Executive Branch often exercise authority that is "judicial in nature." Buckley v. Valeo, 424 U.S. 1, 140-141, 96 S.Ct. 612, 692-693, 46 L.Ed.2d 659 (1976). This function, however, forms part of the agencies' execution of public law and is subject to the procedural safeguards, including judicial review, provided by the Administrative Procedure Act, see 5 U.S.C. § 551 et seq. See also n. 5, supra.

^1. As Justice POWELL observes in his separate opinion, "the respect due [Congress'] judgment as a coordinate branch of Government cautions that our holding should be no more extensive than necessary to decide the case." Ante, at 960. The Ninth Circuit Court of Appeals also recognized that "We are not here faced with a situation in which the unforeseeability of future circumstances or the broad scope and complexity of the subject matter of an agency's rulemaking authority preclude the articulation of specific criteria in the governing statute itself. Such factors might present considerations different from those we find here, both as to the question of separation of powers and the legitimacy of the unicameral device." 634 F.2d, at 433.

^2. A selected list and brief description of these provisions is appended to this opinion.

^3. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1089-1090 (1975) (listing statutes).

^4. The Roosevelt Administration submitted proposed legislation containing veto provisions and defended their constitutionality. See e.g., General Counsel to the Office of Price Administration, "Statement on Constitutionality of Concurrent Resolution Provision of Proposed Price Control Bill (H.R.5479)", reprinted in Price-Control Bill: Hearings Before the House Comm. on Banking and Currency on H.R.5479, Part 1, 77th Cong., 1st Sess. 983 (1941).

^5. Presidential objections to the veto, until the veto by President Nixon of the War Powers Resolution, principally concerned bills authorizing committee vetoes. As the Senate Subcommittee on Separation of Powers found in 1969, "an accommodation was reached years ago on legislative vetoes exercised by the entire Congress or by one House, [while] disputes have continued to arise over the committee form of the veto." S.Rep. No. 549, 91st Cong., 1st Sess., p. 14 (1969). Presidents Kennedy and Johnson proposed enactment of statutes with legislative veto provisions. See National Wilderness Preservation Act: Hearings Before the Senate Comm. on Interior and Insular Affairs on S. 4, 88th Cong., 1st Sess., p. 4 (1963)

(President Kennedy's proposals for withdrawal of wilderness areas); President's Message to the Congress Transmitting the Budget for Fiscal Year 1970, 5 Weekly Comp.Pres.Doc. 70, 73 (Jan. 15, 1969) (President Johnson's proposals allowing legislative veto of tax surcharge). The administration of President Kennedy submitted a memorandum supporting the constitutionality of the legislative veto. See General Counsel of the Department of Agriculture, Constitutionality of Title I of H.R.6400, 87th Cong., 1st Session (1961), reprinted in Legislative Policy of the Bureau of the Budget: Hearing Before the Subcomm. on Conservation and Credit of the House Comm. on Agriculture, 89th Cong., 2d Sess. 27, 31-32 (1966). During the administration of President Johnson, the Department of Justice again defended the constitutionality of the legislative veto provision of the Reorganization Act, as contrasted with provisions for a committee veto. See Separation of Powers: Hearings Before the Subcomm. on Separation of Powers of the Senate Comm. on the Judiciary, 90th Cong. 1st Sess. 206 (1967) (testimony of Frank M. Wozencraft, Assistant Attorney General for the Office of Legal Counsel).

^6. National Aeronautics and Space Act of 1958, Pub.L. No. 85-568, § 302, 72 Stat. 426, 433 (space program); Atomic Energy Act Amendment of 1958, Pub.L. No. 85-479, § 4, 72 Stat. 276, 277 (cooperative nuclear agreements); Trade Expansion Act of 1962, Pub.L. No. 87-794, § 351, 76 Stat. 872, 899, 19 U.S.C. § 1981 (tariff recommended by Tariff Commission may be imposed by concurrent resolution of approval); Postal Revenue and Federal Salary Act of 1976, Pub.L. No. 90-206, § 255(i)(1), 81 Stat. 613, 644.

^7. The Impoundment Control Act's provision for legislative review has been used extensively. Presidents have submitted hundreds of proposed budget deferrals, of which 65 have been disapproved by resolutions of the House or Senate with no protest by the Executive. See Appendix B to Brief on Reargument of U.S. Senate.

^8. The veto appears in a host of broad statutory delegations concerning energy rationing, contingency plans, strategic oil reserves, allocation of energy production materials, oil exports, and naval reserve production. Naval Petroleum Reserves Production Act of 1976, Pub.L. No. 94-258, § 201, 90 Stat. 303, 309, 10 U.S.C. § 7422(c)(2)(C) (naval reserve production); Energy Policy and Conservation Act, Pub.L. No. 94-163, §§ 159, 201, 401(a), and 455, 89 Stat. 871, 886, 890, 941, and 950 (1975), 42 U.S.C. §§ 6239 and 6261, 15 U.S.C. §§ 757 and 760a (strategic oil reserves, rationing and contingency plans, oil price controls and product allocation); Federal Nonnuclear Energy Research and Development Act of 1974, Pub.L. No. 93-577, § 12, 88 Stat. 1878, 1892-93, 42 U.S.C. § 5911 (allocation of energy production materials); Act of November 16, 1973, Pub.L. No. 93-153, § 10, 87 Stat. 576, 582, 30 U.S.C. § 185(u) (oil exports).

^9. Congress found that under the agency's

"very broad authority to prohibit conduct which is 'unfair or deceptive' . . . the [Federal Trade Commission] FTC can regulate virtually every aspect of America's commercial life. . . . The FTC's rules are not merely narrow interpretations of a tightly drawn statute; instead, they are broad policy pronouncements which Congress has an obligation to study and review."

124 Cong.Rec. 5012 (1978) (statement by Rep. Broyhill). A two-House legislative veto was added to constrain that broad delegation. Federal Trade Commission Improvements Act of 1980, § 21(a), 94 Stat. 374, 393, 15 U.S.C. § 57a-1 (Supp. IV 1980). The constitutionality of that provision is presently pending before us. United States Senate v. Federal Trade Commission, No. 82-935; United States House of Representatives v. Federal Trade Commission, No. 82-1044.

^10. While Congress could write certain statutes with greater specificity, it is unlikely that this is a realistic or even desirable substitute for the legislative veto. 'Political volatility and the controversy of many issues would prevent Congress from reaching agreement on many major problems if specificity were required in their enactments." Fuchs, Administrative Agencies and the Energy Problem, 47 Ind.L.J. 606, 608 (1972); Stewart, Reformation of American Administrative Law, 88 Harv.L.Rev. 1667, 1695-1696 (1975). For example, in the deportation context, the solution is not for Congress to create more refined categorizations of the deportable aliens whose status should be subject to change. In 1979, the Immigration and Naturalization Service proposed regulations setting forth factors to be considered in the exercise of discretion under numerous provisions of the Act, but not including § 244, to ensure "fair and uniform" adjudication "under appropriate discretionary criteria." 44 Fed.Reg. 36187 (1979). The proposed rule was canceled in 1981, because "[t]here is an inherent failure in any attempt to list those factors which should be considered in the exercise of discretion. It is impossible to list or foresee all of the adverse or favorable factors which may be present in a given set of circumstances." 46 Fed.Reg. 9119 (1981).

Oversight hearings and congressional investigations have their purpose, but unless Congress is to be rendered a think tank or debating society, they are no substitute for the exercise of actual authority. The "laying" procedure approved in Sibbach v. Wilson, 312 U.S. 1, 15, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941), while satisfactory for certain measures, has its own shortcomings. Because a new law must be passed to restrain administrative action, Congress must delegate authority without the certain ability of being able to check its exercise.

Finally, the passage of corrective legislation after agency regulations take effect or Executive Branch officials have acted entail the drawbacks endemic to a retroactive response. "Post hoc substantive revision of legislation, the only available corrective mechanism in the absence of post-enactment review could have serious prejudicial consequences; if Congress retroactively tampered with a price control system after prices have been set, the economy could be damaged and private interests seriously impaired; if Congress rescinded the sale of arms to a foreign country, our relations with that Country would be severely strained; and if Congress reshuffled the bureaucracy after a President's reorganization proposal had taken effect, the results could be chaotic." Javits and Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455, 464 (1977).

^11. Perhaps I am wrong and the Court remains open to consider whether certain forms of the legislative veto are reconcilable with the Article I requirements. One possibility for the Court and Congress is to accept that a resolution of disapproval cannot be given legal effect in its own right, but may serve as a guide in the interpretation of a delegation of lawmaking authority. The exercise of the veto could be read as a manifestation of legislative intent, which, unless itself contrary to the authorizing statute, serves as the definitive construction of the statute. Therefore, an agency rule vetoed by Congress would not be enforced in the courts because the veto indicates that the agency action departs from the Congressional intent.

This limited role for a redefined legislative veto follows in the steps of the longstanding practice of giving some weight to subsequent legislative reaction to administrative rulemaking. The silence of Congress after consideration of a practice by the Executive may be equivalent to acquiescence and consent that the practice be continued until the power exercised be revoked. United States v. Midwest Oil Co., 236 U.S. 459, 460, 472-473, 35 S.Ct. 309, 312-313, 59 L.Ed. 673 (1914). See also Zemel v. Rusk, 381 U.S. 1, 11-12, 85 S.Ct. 1271, 1278-1279, 14 L.Ed.2d 179 (1965) (relying on Congressional failure to repeal administration interpretation); Haig v. Agee, 453 U.S. 280, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (same); Bob Jones University v. United States, --- U.S. ----, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1983) (same); Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 384, 102 S.Ct. 1825, 1842, 72 L.Ed.2d 182 (1982) (relying on failure to disturb judicial decision in later revision of law).

Reliance on subsequent legislative reaction has been limited by the fear of overturning the intent of the original Congress and the unreliability of discerning the views of a subsequent Congress. Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 117-118, 100 S.Ct. 2051, 2060-2061, 64 L.Ed.2d 766 (1980); United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 331-332, 4 L.Ed.2d 334 (1960). These concerns are not forceful when the original statute authorizes subsequent legislative review. The presence of the review provision constitutes an express authorization for a subsequent Congress to participate in defining the meaning of the law. Second, the disapproval resolution allows for a reliable determination of Congressional intent. Without the review mechanism, uncertainty over the inferences to draw from subsequent Congressional action is understandable. The refusal to pass an amendment, for example, may indicate opposition to that position but could mean that Congress believes the amendment is redundant with the statute as written. By contrast, the exercise of a legislative veto is an unmistakable indication that the agency or Executive decision at issue is disfavored. This is not to suggest that the failure to pass a veto resolution should be given any weight whatever.

^12. For commentary generally favorable to the legislative veto see Abourezk, Congressional Veto: A Contemporary Response to Executive Encroachment on Legislative Prerogative, 52 Ind.L.J. 323 (1977); Cooper & Cooper, The Legislative Veto and the Constitution, 30 Geo.Wash.L.Rev. 467 (1962); Dry, The Congressional Veto and Constitutional Separation of Powers, in the Presidency in the Constitutional Order 195 (J. Bessette & J. Tulis eds.); Javits & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis, 52 N.Y.U.L.Rev. 455 (1977); Miller & Knapp, The Congressional Veto: Preserving the Constitutional Framework, 52 Ind.L.J. 367 (1977); Nathanson, Separation of Powers and Administrative Law: Delegation, The Legislative Veto, and the "Independent" Agencies, 75 Nw.U.L.Rev. 1064 (1981); Newman & Keaton, Congress and the Faithful Execution of Laws—Should Legislators Supervise Administrators?, 41 Calif.L.Rev. 565 (1953); Pearson, Oversight: A Vital Yet Neglected Congressional Function, 23 U.Kan.L.Rev. 277 (1975); Rodino, Congressional Review of Executive Actions, 5 Seton Hall L.Rev. 489 (1974); Schwartz, Legislative Veto and the Constitution—A Reexamination, 46 Geo.Wash.L.Rev. 351 (1978); Schwartz, Legislative Control of Administrative Rules and Regulations: I. The American Experience, 30 N.Y.U.L.Rev. 1031 (1955); Stewart, Constitutionality of the Legislative Veto, 13 Harv.J.Legis. 593 (1976).

For Commentary generally unfavorable to the legislative veto, see J. Bolton, The Legislative Veto: Unseparating the Powers (1977); Bruff & Gellhorn, Congressional Control of Administrative Regulation: A Study of Legislative Vetoes, 90 Harv.L.Rev. 1369 (1977); Dixon, The Congressional Veto and Separation of Powers: The Executive On a Leash?, 56 N.C.L.Rev. 423 (1978); Fitzgerald, Congressional Oversight or Congressional Foresight: Guidelines From the Founding Fathers, 28 Ad.L.Rev. 429 (1976); Ginaane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569 (1953); Henry, The Legislative Veto: In Search of Constitutional Limits, 16 Harv.J.Legis. 735 (1979); Martin, The Legislative Veto and the Responsible Exercise of Congressional Power, 68 Va.L.Rev. 253 (1982); Scalia, The Legislative Veto: A False Remedy For System Overload, Regulation, Nov.-Dec. 1979, at 19; Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983 (1975); Comment, Congressional Oversight of Administrative Discretion: Defining the Proper Role of the Legislative Veto, 26 Am.U.L.Rev. 1018 (1977); Note, Congressional Veto of Administrative Action: The Probable Response to a Constitutional Challenge, 1976 Duke L.J. 285; Recent Developments, The Legislative Veto in the Arms Control Act of 1976, 9 Law & Pol'y Int'l Bus. 1029 (1977).

^13. Compare Atkins v. United States, 556 F.2d 1028 (Ct.Claims 1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978), (upholding legislative veto provision in Federal Salary Act, 2 U.S.C. §§ 351 et seq. (1976)) with Consumer Energy Council of America v. FERC, 673 F.2d 425 (CA DC 1982), appeals and petitions for cert. pending, Nos. 81-2008, 81-2020, 81-2151, 81-2171, 82-177 and 82-209, (holding unconstitutional the legislative veto provision in the Natural Gas Policy Act of 1978, 15 U.S.C. §§ 3301-3342 Supp. III 1979)).

^14. See, e.g., 6 Op.Att'y Gen. 680, 683 (1854); Department of Justice, Memorandum re Constitutionality of Provisions in Proposed Reorganization Bills Now Pending in Congress, reprinted in S.Rep. No. 232, 81st Cong., 1st Sess. 19-20 (1949); Jackson, "A Presidential Legal Opinion," 66 Harv.L.Rev. 1353 (1953); 43 Op.Att'y Gen. No. 10, at 2 (1977).

^15. I limit my concern here to those legislative vetoes which require either one or both Houses of Congress to pass resolutions of approval or disapproval, and leave aside the questions arising from the exercise of such powers by committees of Congress.

^16. I agree with Justice REHNQUIST that Congress did not intend the one-House veto provision of § 244(c)(2) to be severable. Although the general rule is that the presence of a savings clause creates a presumption of divisibility, Champlin Rfg. Co. v. Commission, 286 U.S. 210, 235, 52 S.Ct. 559, 565, 76 L.Ed. 1062 (1931), I read the savings clause contained in § 40 of the Immigration Act as primarily pertaining to the severability of major parts of the Act from one another, not the divisibility of different provisions within a single section. Surely, Congress would want the naturalization provisions of the Act to be severable from the deportation sections. But this does not support preserving § 244 without the legislative veto any more than a savings provision would justify preserving immigration authority without quota limits.

More relevant is the fact that for forty years Congress has insisted on retaining a voice on individual suspension cases—it has frequently rejected bills which would place final authority in the Executive branch. It is clear that Congress believed its retention crucial. Given this history, the Court's rewriting of the Act flouts the will of Congress.

^17. The Pennsylvania Constitution required that all "bills of [a] public nature" had to be printed after being introduced and had to lie over until the following session of the legislature before adoption. Pa. Const. § 15 (1776). These printing and layover requirements applied only to "bills." At the time, measures could also be enacted as a "resolve," which was allowed by the Constitution as "urgent temporary legislation" without such requirements. Pa. Const. § 20 (1776). Using this method the Pennsylvania legislature routinely evaded printing and layover requirements through adoption of resolves. A. Nevins, The American States During and After the Revolution 152 (1969).

A 1784 Report of a committee of the Council of Censors, a state body responsible for periodically reviewing the state government's adherence to its Constitution, charged that the procedures for enacting legislation had been evaded though the adoption of resolves instead of bills. Report of the Committee of the Council of Censors 13 (1784). See Nevins, supra, at 190. When three years later the federal Constitutional Convention assembled in Philadelphia, the delegates were reminded, in the course of discussing the President's veto, of the dangers pointed out by the Council of Censors Report. 5 J. Elliot, Debates on the Adoption of the Federal Constitution 430 (1974 ed.). Furthermore, Madison, who made the motion that led to the Presentation Clause, knew of the Council of Censors report, The Federalist No. 50, at 353 (Wright ed. 1974), and was aware of the Pennsylvania experience. See The Federalist No. 48, at 346. We have previously recognized the relevance of the Council of Censors report in interpreting the Constitution. See Powell v. McCormack, 395 U.S. 486, 529-530, 89 S.Ct. 1944, 1968-1969, 23 L.Ed.2d 491 (1969).

^18. Although the legislative veto was not a feature of Congressional enactments until the twentieth century, the practices of the first Congresses demonstrate that the constraints of Article I were not envisioned as a constitutional straightjacket. The First Congress, for example, began the practice of arming its committees with broad investigatory powers without the passage of legislation. See A. J sephy, On the Hill: A History of the American

Congress 81-83 (1975). More directly pertinent is the First Congress' treatment of the Northwest Territories Ordinance of 1787. The ordinance, initially drafted under the Articles of Confederation on July 13, 1787, was the document which governed the territory of the United States northwest of the Ohio River. The ordinance authorized the territories to adopt laws, subject to disapproval in Congress.

"The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original states, criminal and civil, as may be necessary and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the general assembly therein, unless disapproved of by Congress; but afterwards the legislature shall have authority to alter them as they shall think fit." (emphasis added)

After the Constitution was enacted, the ordinance was reenacted to conform to the requirements of the Constitution. Act of Aug. 7, 1789, ch. VIII, § 1, 1 Stat. 50-51. Certain provisions, such as one relating to appointment of officials by Congress, were changed because of constitutional concerns, but the language allowing disapproval by Congress was retained. Subsequent provisions for territorial laws contained similar language. See, e.g., 48 U.S.C. § 1478 (1970).

Although at times Congress disapproved of territorial actions by passing legislation, see e.g., Act of March 3, 1807, 4 Laws of the United States, Ch. 99, 117, on at least two occasions one House of Congress passed resolutions to disapprove territorial laws, only to have the other House fail to pass the measure for reasons pertaining to the subject matter of the bills. First, on February 16, 1795, the House of Representatives passed a concurrent resolution disapproving in one sweep all but one of the laws that the governors and judges of the Northwest Territory had passed at a legislative session on August 1, 1792. 4 Annals of Congress 1227. The Senate, however, refused to concur. 4 Annals of Congress 830. See B. Bond, The Civilization of the Old Northwest 70-71 (1934). Second, on May 9, 1800, the House passed a resolution to disapprove of a Mississippi territorial law imposing a license fee on taverns. 3 House Journal 704-706. The Senate unsuccessfully attempted to amend the resolution to strike down all laws of the Mississippi territory enacted since June 30, 1799. Carter, Territorial Papers of the United States Vol. 5 Mississippi, 94-95 (1937). The histories of the territories, the correspondence of the era, and the Congressional reports contain no indication that such resolutions disapproving of territorial laws were to be presented to the President or that the authorization for such a "congressional veto" in the Act of August 7, 1789 was of doubtful constitutionality.

The practices of the First Congress are not so clear as to be dispositive of the constitutional question now before us. But it is surely significant that this body, largely composed of the same men who authored Article I and secured ratification of the Constitution, did not view the Constitution as forbidding a precursor of the modern day legislative veto. See Hampton v. United States, 276 U.S. 394, 412, 48 S.Ct. 348, 353, 72 L.Ed. 624 (1928) ("In the first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixed the construction to be given its provisions.")

^19. "Legislative, or substantive, regulations are 'issued by an agency pursuant to statutory authority and . . . implement the statute, as for example, the proxy rules issue by the Securities and Exchange Commission . . . Such rules have the force and effect of law.' U.S.Dept. of Justice, Attorney General's Manual on the Administrative Procedures Act 30 n. 3 (1947)." Batterton v. Francis, 432 U.S. 416, 425 n. 9, 97 S.Ct. 2399, 2405 n. 9, 53 L.Ed.2d 448 (1977).

Substantive agency regulations are clearly exercises of lawmaking authority; agency interpretations of their statutes are only arguably so. But as Henry Monaghan has observed, "Judicial deference to agency 'interpretation' of law is simply one way of recognizing a delegation of lawmaking authority to an agency." H. Monaghan, Marbury and the Administrative State, 83 Colum.L.Rev. 1, 26 (1983). See, e.g., NLRB v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170 (1944); NLRB v. Hendricks County Rural Electric Membership Corp., 454 U.S. 170, 102 S.Ct. 216, 70 L.Ed.2d 323 (1981).

^20. As the Court acknowledges, the "provisions of Art. I are integral parts of the constitutional design for the separation of powers." Ante, at 946. But these separation of power concerns are that legislative power be exercised by Congress, executive power by the President, and judicial power by the Courts. A scheme which allows delegation of legislative power to the President and the departments under his control, but forbids a check on its exercise by Congress itself obviously denigrates the separation of power concerns underlying Article I. To be sure, the doctrine of separation of powers is also concerned with checking each branch's exercise of its characteristic authority. Section 244(c)(2) is fully consistent with the need for checks upon Congressional authority, infra, at 994-996, and the legislative veto mechanism, more generally is an important check upon Executive authority, supra, at 967-974.

^21. The Court's other reasons for holding the legislative veto subject to the presentment and bicameral passage requirements require but brief discussion. First, the Court posits that the resolution of disapproval should be considered equivalent to new legislation because absent the veto authority of § 244(c)(2) neither House could, short of legislation, effectively require the Attorney General to deport an alien once the Attorney General has determined that the alien should remain in the United States. Ante, at 952-954. The statement is neither accurate nor meaningful. The Attorney General's power under the Act is only to "suspend" the order of deportation; the "suspension" does not cancel the deportation or adjust the alien's status to that of a permanent resident alien. Cancellation of deportation and adjustment of status must await favorable action by Congress. More important, the question is whether § 244(c)(2) as written is constitutional and no law is amended or repealed by the resolution of disapproval which is, of course, expressly authorized by that section.

The Court also argues that "the legislative character of the challenged action of one House is confirmed by the fact that when the Framers intended to authorize either House of Congress to act alone and outside of its prescribed bicameral legislative role, they narrowly and precisely defined the procedure for such action." Ante, at 955.

Leaving aside again the above-refuted premise that all action with a legislative character requires passage in a law, the short answer is that all of these carefully defined exceptions to the presentment and bicameralism strictures do not involve action of the Congress pursuant to a duly-enacted statute. Indeed, for the most part these powers—those of impeachment, review of appointments, and treaty ratification—are not legislative powers at all. The fact that it was essential for the Constitution to stipulate that Congress has the power to impeach and try the President hardly demonstrates a limit upon Congress' authority to reserve itself a legislative veto, through statutes, over subjects within its lawmaking authority.

^22. In his opinion on the constitutionality of the legislative review provisions of the most recent reorganization statute, 5 U.S.C. 906(a) (Supp. III 1979), Attorney General Bell stated that "the statement in Article I, § 7 of the procedural steps to be followed in the enactment of legislation does not exclude other forms of action by the Congress. . . . The procedures prescribed in Article I § 37, for congressional action are not exclusive." 43 Op.Atty.Gen. No. 10, at 2 (1977). "If the procedures provided in a given statute have no effect on the constitutional distribution of power between the legislature and the executive," then the statute is constitutional. Id., at 3. In the case of the reorganization statute, the power of the President to refuse to submit a plan, combined with the power of either House of Congress to reject a submitted plan suffices under the standard to make the statute constitutional. Although the Attorney General sought to limit his opinion to the reorganization statute, and the Executive opposes the instant statute, I see no Article I basis to distinguish between the two.

^23. Of course, when the authorizing legislation requires approval to be expressed by a positive vote, then the two-House veto would clearly comply with the bicameralism requirement under any analysis.

^24. The Court's doubts that Congress entertained this "arcane" theory when it enacted § 244(c)(2) disregards the fact that this is the historical basis upon which the legislative vetoes contained in the Reorganization Acts have been defended, supra at ----, n. 20, and that the Reorganization Acts then provided the precedent articulated in support of other legislative veto provisions. See, e.g. 87 Cong.Rec. 735 (Rep. Dirksen) (citing Reorganization Act in support of proposal to include a legislative veto in Lend-Lease Act), H.R.Rep. No. 658, 93d Cong., 1st Sess. 42 (1973) (citing Reorganization Act as "sufficient precedent" for legislative veto provision for Impoundment Control Act.).

^25. Madison emphasized that the principle of separation of powers is primarily violated "where the whole power of one department is exercised by the same hands which possess the whole power of another department." Federalist No. 47, 302-303. Madison noted that, the oracle of the separation doctrine, Montesquieu, in writing that the legislative, executive and judicial powers should not be united "in the same person or body of persons," did not mean "that these departments ought to have no partial agency in, or control over the acts of each other." The Federalist No. 47, p. 325 (J. Cooke ed. 1961) (emphasis in original). Indeed, according to Montesquieu, the legislature is uniquely fit to exercise an additional function: "to examine in what manner the laws that it has made have been executed." W. Gwyn, The Meaning of Separation of Powers 102 (1965).

          In order to eliminate the federal budget deficit, Congress enacted the Balanced Budget and Emergency Deficit Control Act of 1985 (Act), popularly known as the "Gramm-Rudman-Hollings Act," which sets a maximum deficit amount for federal spending for each of the fiscal years 1986 through 1991 (progressively reducing the deficit amount to zero in 1991). If in any fiscal year the budget deficit exceeds the prescribed maximum by more than a specified sum, the Act requires basically across-the-board cuts in federal spending to reach the targeted deficit level. These reductions are accomplished under the "reporting provisions" spelled out in § 251 of the Act, which requires the Directors of the Office of Management and Budget (OMB) and the Congressional Budget Office (CBO) to submit their deficit estimates and program-by-program budget reduction calculations to the Comptroller General who, after reviewing the Directors' joint report, then reports his conclusions to the President. The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General, and the sequestration order becomes effective unless, within a specified time, Congress legislates reductions to obviate the need for the sequestration order. The Act also contains in § 274(f) a "fallback" deficit reduction process (eliminating the Comptroller General's participation) to take effect if § 251's reporting provisions are invalidated. In consolidated actions in the Federal District Court, individual Congressmen and the National Treasury Employees Union (Union) (who, along with one of the Union's members, are appellees here) challenged the Act's constitutionality. The court held, inter alia, that the Comptroller General's role in exercising executive functions under the Act's deficit reduction process violated the constitutionally imposed doctrine of separation of powers because the Comptroller General is removable only by a congressional

Page 715

joint resolution or by impeachment, and Congress may not retain the power of removal over an officer performing executive powers.

          Held:

          1. The fact that members of the Union, one of whom is an appellee here, will sustain injury because the Act suspends certain scheduled cost-of-living benefit increases to the members, is sufficient to create standing under a provision of the Act and Article III to challenge the Act's constitutionality. Therefore, the standing issue as to the Union itself or Members of Congress need not be considered. Pp. 721.

          2. The powers vested in the Comptroller General under § 251 violate the Constitution's command that Congress play no direct role in the execution of the laws. Pp. 721-734.

          (a) Under the constitutional principle of separation of powers, Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control of the execution of the laws. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. Cf. INS v. Chadha, 462 U.S. 919. Pp. 721-727.

          (b) There is no merit to the contention that the Comptroller General performs his duties independently and is not subservient to Congress. Although nominated by the President and confirmed by the Senate, the Comptroller General is removable only at the initiative of Congress. Under controlling statutes, he may be removed not only by impeachment but also by joint resolution of Congress "at any time" for specified causes, including "inefficiency," "neglect of duty," and "malfeasance." The quoted terms, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. Moreover, the political realities do not reveal that the Comptroller General is free from Congress' influence. He heads the General Accounting Office, which under pertinent statutes is "an instrumentality of the United States Government independent of the executive departments," and Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. Thus, because Congress has retained removal authority over the Comptroller General, he may not be entrusted with executive powers. Pp. 727-732.

          (c) Under § 251 of the Act, the Comptroller General has been improperly assigned executive powers. Although he is to have "due regard" for the estimates and reductions contained in the joint report of

Page 716

the Directors of the CBO and the OMB, the Act clearly contemplates that in preparing his report the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates and will make decisions of the kind that are made by officers charged with executing a statute. The Act's provisions give him, not the President, the ultimate authority in determining what budget cuts are to be made. By placing the responsibility for execution of the Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the Act's execution and has unconstitutionally intruded into the executive function. Pp. 732-735.

          3. It is not necessary to consider whether the appropriate remedy is to nullify the 1921 statutory provisions that authorize Congress to remove the Comptroller General, rather than to invalidate § 251 of the Act. In § 274(f), Congress has explicitly provided "fallback" provisions that take effect if any of the reporting procedures described in § 251 are invalidated. Assuming that the question of the appropriate remedy must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect as written. Pp. 734-736.

          626 F.Supp. 1374, affirmed.

          BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 736. WHITE, J., post, p. 759, and BLACKMUN, J., post, p. 776 filed dissenting opinions.

          Lloyd N. Cutler, Washington , D.C., for appellant.

          Comptroller Gen. by Mr. Steven R. Ross, Washington, D.C., for appellants, O'Neill, et al.

          Michael Davidson, Washington, D.C., for appellant, U.S. Senate.

          Sol. Gen. Charles Fried, for appellee, U.S.

          Alan B. Morrison, Washington, D.C., for appellees, Synar, et al.

          Lois G. Williams, Washington, D.C.,

Page 717

for appellees, Nat. Treasury Employees, et al.

           Chief Justice BURGER delivered the opinion of the Court.

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

          On December 12, 1985, the President signed into law the Balanced Budget and Emergency Deficit Control Act of 1985, Pub.L. 99-177, 99 Stat. 1038, 2 U.S.C. § 901 et seq. (1982 ed., Supp. III), popularly known as the "Gramm-Rudman-Hollings Act." The purpose of the Act is to eliminate the federal budget deficit. To that end, the Act sets a "maximum deficit amount" for federal spending for each of fiscal years 1986 through 1991. The size of that maximum deficit amount progressively reduces to zero in fiscal year 1991. If in any fiscal year the federal budget deficit exceeds the maxi-

Page 718

mum deficit amount by more than a specified sum, the Act requires across-the-board cuts in federal spending to reach the targeted deficit level, with half of the cuts made to defense programs and the other half made to nondefense programs. The Act exempts certain priority programs from these cuts. § 255.

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

          The Comptroller General, after reviewing the Directors' reports, then reports his conclusions to the President. § 251(b). The President in turn must issue a "sequestration" order mandating the spending reductions specified by the Comptroller General. § 252. There follows a period during which Congress may by legislation reduce spending to obviate, in whole or in part, the need for the sequestration order. If such reductions are not enacted, the sequestration order becomes effective and the spending reductions included in that order are made.

          Anticipating constitutional challenge to these procedures, the Act also contains a "fallback" deficit reduction process to take effect "[i]n the event that any of the reporting procedures described in section 251 are invalidated." § 274(f). Under these provisions, the report prepared by the Directors of OMB and the CBO is submitted directly to a specially

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created Temporary Joint Committee on Deficit Reduction, which must report in five days to both Houses a joint resolution setting forth the content of the Directors' report. Congress then must vote on the resolution under special rules, which render amendments out of order. If the resolution is passed and signed by the President, it then serves as the basis for a Presidential sequestration order.

          Within hours of the President's signing of the Act,¹ Congressman Synar, who had voted against the Act, filed a complaint seeking declaratory relief that the Act was unconstitutional. Eleven other Members later joined Congressman Synar's suit. A virtually identical lawsuit was also filed by the National Treasury Employees Union. The Union alleged that its members had been injured as a result of the Act's automatic spending reduction provisions, which have suspended certain cost-of-living benefit increases to the Union's members.²

          A three-judge District Court, appointed pursuant to 2 U.S.C. § 922(a)(5) (1982 ed., Supp. III), invalidated the reporting provisions. Synar v. United States, 626 F.Supp. 1374 (DC 1986) (Scalia, Johnson and Gasch, JJ.). The District Court concluded that the Union had standing to challenge the Act since the members of the Union had suffered actual injury by suspension of certain benefit increases. The District Court also concluded that Congressman Synar and his fellow Members had standing under the so-called "congressional standing" doctrine. See Barnes v. Kline, 245 U.S.App.D.C. 1, 21, 759 F.2d 21, 41 (1985), cert. granted sub nom. Burke v. Barnes, 475 U.S. 1044, 106 S.Ct. 1258, 89 L.Ed.2d 569 (1986).

Page 720

          The District Court next rejected appellees' challenge that the Act violated the delegation doctrine. The court expressed no doubt that the Act delegated broad authority, but delegation of similarly broad authority has been upheld in past cases. The District Court observed that in Yakus v. United States, 321 U.S. 414, 420, 64 S.Ct. 660, 665, 88 L.Ed. 834 (1944), this Court upheld a statute that delegated to an unelected "Price Administrator" the power "to promulgate regulations fixing prices of commodities." Moreover, in the District Court's view, the Act adequately confined the exercise of administrative discretion. The District Court concluded that "the totality of the Act's standards, definitions, context, and reference to past administrative practice provides an adequate 'intelligible principle' to guide and confine administrative decisionmaking." 626 F.Supp., at 1389.

          Although the District Court concluded that the Act survived a delegation doctrine challenge, it held that the role of the Comptroller General in the deficit reduction process violated the constitutionally imposed separation of powers. The court first explained that the Comptroller General exercises executive functions under the Act. However, the Comptroller General, while appointed by the President with the advice and consent of the Senate, is removable not by the President but only by a joint resolution of Congress or by impeachment. The District Court reasoned that this arrangement could not be sustained under this Court's decisions in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), and Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). Under the separation of powers established by the Framers of the Constitution, the court concluded, Congress may not retain the power of removal over an officer performing executive functions. The congressional removal power created a "here-and-now subservience" of the Comptroller General to Congress. 626 F.Supp., at 1392. The District Court therefore held that

Page 721

          "since the powers conferred upon the Comptroller General as part of the automatic deficit reduction process are executive powers, which cannot constitutionally be exercised by an officer removable by Congress, those powers cannot be exercised and therefore the automatic deficit reduction process to which they are central cannot be implemented." Id., at 1403.

          Appeals were taken directly to this Court pursuant to § 274(b) of the Act. We noted probable jurisdiction and expedited consideration of the appeals. 475 U.S. 1009, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986). We affirm.

          A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See § 252(a)(6)(C)(i); 626 F.Supp., at 1381. This is sufficient to confer standing under § 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, 464 U.S. 312, 319, n. 3, 104 S.Ct. 656, 660, n. 3, 78 L.Ed.2d 496 (1984). Cf. Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986); Barnes v. Kline, supra. Accordingly, we turn to the merits of the case.

          We noted recently that "[t]he Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial." INS v. Chadha, 462 U.S. 919, 951, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983). The declared purpose of separating and dividing the powers of government, of course, was to "diffus[e] power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Justice Jackson's words echo the famous warning of Montesquieu,

Page 722

quoted by James Madison in The Federalist No. 47, that " 'there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates'. . . ." The Federalist No. 47, p. 325 (J. Cooke ed. 1961).

          Even a cursory examination of the Constitution reveals the influence of Montesquieu's thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people. The Framers also provided for a Judicial Branch equally independent with "[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, § 2.

          Other, more subtle, examples of separated powers are evident as well. Unlike parliamentary systems such as that of Great Britain, no person who is an officer of the United States may serve as a Member of the Congress. Art. I, § 6. Moreover, unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people. Art. II, § 4. And even in the impeachment of a President the presiding officer of the ultimate tribunal is not a member of the Legislative Branch, but the Chief Justice of the United States. Art. I, § 3.

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

          The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts. The President appoints "Officers of the United States" with the "Advice and Consent of

Page 723

the Senate. . . ." Art. II, § 2. Once the appointment has been made and confirmed, however, the Constitution explicitly provides for removal of Officers of the United States by Congress only upon impeachment by the House of Representatives and conviction by the Senate. An impeachment by the House and trial by the Senate can rest only on "Treason, Bribery or other high Crimes and Misdemeanors." Article II, § 4. A direct congressional role in the removal of officers charged with the execution of the laws beyond this limited one is inconsistent with separation of powers.

          This was made clear in debate in the First Congress in 1789. When Congress considered an amendment to a bill establishing the Department of Foreign Affairs, the debate centered around whether the Congress "should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate." Myers, 272 U.S., at 114, 47 S.Ct., at 24. James Madison urged rejection of a congressional role in the removal of Executive Branch officers, other than by impeachment, saying in debate:

          "Perhaps there was no argument urged with more success, or more plausibly grounded against the Constitution, under which we are now deliberating, than that founded on the mingling of the Executive and Legislative branches of the Government in one body. It has been objected, that the Senate have too much of the Executive power even, by having a control over the President in the appointment to office. Now, shall we extend this connexion between the Legislative and Executive departments, which will strengthen the objection, and diminish the responsibility we have in the head of the Executive?" 1 Annals of Cong. 380 (1789).

          Madison's position ultimately prevailed, and a congressional role in the removal process was rejected. This "Decision of 1789" provides "contemporaneous and weighty evidence" of the Constitution's meaning since many of the Members of the

Page 724

First Congress "had taken part in framing that instrument." Marsh v. Chambers, 463 U.S. 783, 790, 103 S.Ct. 3330, 3335, 77 L.Ed.2d 1019 (1983).³

          This Court first directly addressed this issue in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1925). At issue in Myers was a statute providing that certain postmasters could be removed only "by and with the advice and consent of the Senate." The President removed one such Postmaster without Senate approval, and a lawsuit ensued. Chief Justice Taft, writing for the Court, declared the statute unconstitutional on the ground that for Congress to "draw to itself, or to either branch of it, the power to remove or the right to participate in the exercise of that power . . . would be . . . to infringe the constitutional principle of the separation of governmental powers." Id., at 161, 47 S.Ct., at 40.

          A decade later, in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), relied upon heavily by appellants, a Federal Trade Commissioner who had been removed by the President sought backpay. Humphrey's Executor involved an issue not presented either in the Myers case or in this case—i.e., the power of Congress to limit the President's powers of removal of a Federal Trade Commissioner. 295

Page 725

U.S., at 630, 55 S.Ct., at 874-875.⁴ The relevant statute permitted removal "by the President," but only "for inefficiency, neglect of duty, or malfeasance in office." Justice Sutherland, speaking for the Court, upheld the statute, holding that "illimitable power of removal is not possessed by the President [with respect to Federal Trade Commissioners]." Id., at 628-629, 55 S.Ct., at 874. The Court distinguished Myers, reaffirming its holding that congressional participation in the removal of executive officers is unconstitutional. Justice Sutherland's opinion for the Court also underscored the crucial role of separated powers in our system:

                    "The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the Constitution; and in the rule which recognizes their essential co-equality." 295 U.S., at 629-630, 55 S.Ct., at 874.

          The Court reached a similar result in Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958), concluding that, under Humphrey's Executor, the President did not have unrestrained

Page 726

removal authority over a member of the War Claims Commission.

          In light of these precedents, we conclude that Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment. To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws. As the District Court observed: "Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey." 626 F.Supp., at 1401. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.

          Our decision in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), supports this conclusion. In Chadha, we struck down a one-House "legislative veto" provision by which each House of Congress retained the power to reverse a decision Congress had expressly authorized the Attorney General to make:

          "Disagreement with the Attorney General's decision on Chadha's deportation—that is, Congress' decision to deport Chadha—no less than Congress' original choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked." Id., at 954-955, 103 S.Ct., at 2786.

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

Page 727

the execution of the laws, Chadha makes clear, is constitutionally impermissible.

          The dangers of congressional usurpation of Executive Branch functions have long been recognized. "[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Buckley v. Valeo, 424 U.S. 1, 129, 96 S.Ct. 612, 687, 46 L.Ed.2d 659 (1976). Indeed, we also have observed only recently that "[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted." Chadha, supra, 462 U.S., at 951, 103 S.Ct., at 2784. With these principles in mind, we turn to consideration of whether the Comptroller General is controlled by Congress.

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

          The critical factor lies in the provisions of the statute defining the Comptroller General's office relating to removability.⁵ Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, see 31 U.S.C.

Page 728

§ 703(a)(2),⁶ and confirmed by the Senate, he is removable only at the initiative of Congress. He may be removed not only by impeachment but also by joint resolution of Congress "at any time" resting on any one of the following bases:

          "(i) permanent disability;

          "(ii) inefficiency;

          "(iii) neglect of duty;

          "(iv) malfeasance; or

          "(v) a felony or conduct involving moral turpitude."

          31 U.S.C. § 703(e)(1)B.⁷

          This provision was included, as one Congressman explained in urging passage of the Act, because Congress "felt that [the Comptroller General] should be brought under the sole control of Congress, so that Congress at any moment when it found he was inefficient and was not carrying on the duties of his office as he should and as the Congress expected, could remove him without the long, tedious process of a trial by impeachment." 61 Cong.Rec. 1081 (1921).

          The removal provision was an important part of the legislative scheme, as a number of Congressmen recognized. Representative Hawley commented: "[H]e is our officer, in a measure, getting information for us. . . . If he does not do his work properly, we, as practically his employers, ought to be able to discharge him from his office." 58 Cong.Rec. 7136 (1919). Representative Sisson observed that the removal provisions would give "[t]he Congress of the United States . . . absolute control of the man's destiny in office."

Page 729

61 Cong.Rec. 987 (1921). The ultimate design was to "give the legislative branch of the Government control of the audit, not through the power of appointment, but through the power of removal." 58 Cong.Rec. 7211 (1919) (Rep. Temple).

          Justice WHITE contends: "The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary." Post, at ----. That observation by the dissenter rests on at least two arguable premises: (a) that the enumeration of certain specified causes of removal excludes the possibility of removal for other causes, cf. Shurtleff v. United States, 189 U.S. 311, 315-316, 23 S.Ct. 535, 536-537, 47 L.Ed. 828 (1903); and (b) that any removal would be subject to judicial review, a position that appellants were unwilling to endorse.⁸

          Glossing over these difficulties, the dissent's assessment of the statute fails to recognize the breadth of the grounds for removal. The statute permits removal for "inefficiency," "neglect of duty," or "malfeasance." These terms are very broad and, as interpreted by Congress, could sustain removal of a Comptroller General for any number of actual or perceived transgressions of the legislative will. The Constitutional Convention chose to permit impeachment of executive officers only for "Treason, Bribery, or other high Crimes and Misdemeanors." It rejected language that would have permitted impeachment for "maladministration," with Madison

Page 730

arguing that "[s]o vague a term will be equivalent to a tenure during pleasure of the Senate." 2 M. Farrand, Records of the Federal Convention of 1787, p. 550 (1911).

          We need not decide whether "inefficiency" or "malfeasance" are terms as broad as "maladministration" in order to reject the dissent's position that removing the Comptroller General requires "a feat of bipartisanship more difficult than that required to impeach and convict." Post, at 771 (WHITE, J., dissenting). Surely no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding "inefficiency," "neglect of duty," or "malfeasance."

          Justice WHITE, however, assures us that "[r]ealistic consideration" of the "practical result of the removal provision," post, at 774, 773, reveals that the Comptroller General is unlikely to be removed by Congress. The separated powers of our Government cannot be permitted to turn on judicial assessment of whether an officer exercising executive power is on good terms with Congress. The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty. In constitutional terms, the removal powers over the Comptroller General's office dictate that he will be subservient to Congress.

          This much said, we must also add that the dissent is simply in error to suggest that the political realities reveal that the Comptroller General is free from influence by Congress. The Comptroller General heads the General Accounting Office (GAO), "an instrumentality of the United States Government independent of the executive departments," 31 U.S.C. § 702(a), which was created by Congress in 1921 as part of the Budget and Accounting Act of 1921, 42 Stat. 23. Congress created the office because it believed that it "needed an officer, responsible to it alone, to check upon the application of public funds in accordance with appropriations." H. Mansfield,

Page 731

The Comptroller General: A Study in the Law and Practice of Financial Administration 65 (1939).

          It is clear that Congress has consistently viewed the Comptroller General as an officer of the Legislative Branch. The Reorganization Acts of 1945 and 1949, for example, both stated that the Comptroller General and the GAO are "a part of the legislative branch of the Government." 59 Stat. 616; 63 Stat. 205. Similarly, in the Accounting and Auditing Act of 1950, Congress required the Comptroller General to conduct audits "as an agent of the Congress." 64 Stat. 835.

          Over the years, the Comptrollers General have also viewed themselves as part of the Legislative Branch. In one of the early Annual Reports of Comptroller General, the official seal of his office was described as reflecting

          "the independence of judgment to be exercised by the General Accounting Office, subject to the control of the legislative branch. . . . The combination represents an agency of the Congress independent of other authority auditing and checking the expenditures of the Government as required by law and subjecting any questions arising in that connection to quasi-judicial determination." GAO Ann.Rep. 5-6 (1924).

          Later, Comptroller General Warren, who had been a Member of Congress for 15 years before being appointed Comptroller General, testified: "During most of my public life, . . . I have been a member of the legislative branch. Even now, although heading a great agency, it is an agency of the Congress, and I am an agent of the Congress." To Provide for Reorganizing of Agencies of the Government: Hearings on H.R. 3325 before the House Committee on Expenditures, 79th Cong., 1st Sess., 69 (1945) (emphasis added). And, in one conflict during Comptroller General McCarl's tenure, he asserted his independence of the Executive Branch, stating:

          "Congress . . . is . . . the only authority to which there lies an appeal from the decision of this office. . . .

Page 732

                    ". . . I may not accept the opinion of any official, inclusive of the Attorney General, as controlling my duty under the law." 2 Comp.Gen. 784, 786-787 (1923) (disregarding conclusion of the Attorney General, 33 Op.Atty.Gen. 476 (1923), with respect to interpretation of compensation statute).

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

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

          In preparing the report, the Comptroller General is to have "due regard" for the estimates and reductions set forth in a joint report submitted to him by the Director of CBO and the Director of OMB, the President's fiscal and budgetary adviser. However, the Act plainly contemplates that the Comptroller General will exercise his independent judgment and evaluation with respect to those estimates. The Act also provides that the Comptroller General's report "shall explain fully any differences between the contents of such report and the report of the Directors." § 251(b)(2).

          Appellants suggest that the duties assigned to the Comptroller General in the Act are essentially ministerial and mechanical so that their performance does not constitute "execution of the law" in a meaningful sense. On the contrary, we view these functions as plainly entailing execution

Page 733

of the law in constitutional terms. Interpreting a law enacted by Congress to implement the legislative mandate is the very essence of "execution" of the law. Under § 251, the Comptroller General must exercise judgment concerning facts that affect the application of the Act. He must also interpret the provisions of the Act to determine precisely what budgetary calculations are required. Decisions of that kind are typically made by officers charged with executing a statute.

          The executive nature of the Comptroller General's functions under the Act is revealed in § 252(a)(3) which gives the Comptroller General the ultimate authority to determine the budget cuts to be made. Indeed, the Comptroller General commands the President himself to carry out, without the slightest variation (with exceptions not relevant to the constitutional issues presented), the directive of the Comptroller General as to the budget reductions:

          "The [Presidential] order must provide for reductions in the manner specified in section 251(a)(3), must incorporate the provisions of the [Comptroller General's] report submitted under section 251(b), and must be consistent with such report in all respects. The President may not modify or recalculate any of the estimates, determinations, specifications, bases, amounts, or percentages set forth in the report submitted under section 251(b) in determining the reductions to be specified in the order with respect to programs, projects, and activities, or with respect to budget activities, within an account. . . ." § 252(a)(3) (emphasis added).

          See also § 251(d)(3)(A).

          Congress of course initially determined the content of the Balanced Budget and Emergency Deficit Control Act; and undoubtedly the content of the Act determines the nature of the executive duty. However, as Chadha makes clear, once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution

Page 734

of its enactment only indirectly—by passing new legislation. Chadha, 462 U.S., at 958, 103 S.Ct., at 2787-2789. By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control over the execution of the Act and has intruded into the executive function. The Constitution does not permit such intrusion.

          We now turn to the final issue of remedy. Appellants urge that rather than striking down § 251 and invalidating the significant power Congress vested in the Comptroller General to meet a national fiscal emergency, we should take the lesser course of nullifying the statutory provisions of the 1921 Act that authorizes Congress to remove the Comptroller General. At oral argument, counsel for the Comptroller General suggested that this might make the Comptroller General removable by the President. All appellants urge that Congress would prefer invalidation of the removal provisions rather than invalidation of § 251 of the Balanced Budget and Emergency Deficit Control Act.

          Severance at this late date of the removal provisions enacted 65 years ago would significantly alter the Comptroller General's office, possibly by making him subservient to the Executive Branch. Recasting the Comptroller General as an officer of the Executive Branch would accordingly alter the balance that Congress had in mind in drafting the Budget and Accounting Act of 1921 and the Balanced Budget and Emergency Deficit Control Act, to say nothing of the wide array of other tasks and duties Congress has assigned the Comptroller General in other statutes.⁹ Thus appellants'

Page 735

argument would require this Court to undertake a weighing of the importance Congress attached to the removal provisions in the Budget and Accounting Act of 1921 as well as in other subsequent enactments against the importance it placed on the Balanced Budget and Emergency Deficit Control Act of 1985.

          Fortunately this is a thicket we need not enter. The language of the Balanced Budget and Emergency Deficit Control Act itself settles the issue. In § 274(f), Congress has explicitly provided "fallback" provisions in the Act that take effect "[i]n the event . . . any of the reporting procedures described in section 251 are invalidated." § 274(f)(1) (emphasis added). The fallback provisions are " 'fully operative as a law,' " Buckley v. Valeo, 424 U.S., at 108, 96 S.Ct., at 677 (quoting Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 234, 52 S.Ct. 559, 564-565, 76 L.Ed. 1062 (1932) ). Assuming that appellants are correct in urging that this matter must be resolved on the basis of congressional intent, the intent appears to have been for § 274(f) to be given effect in this situation. Indeed, striking the removal provisions would lead to a statute that Congress would probably have refused to adopt. As the District Court concluded:

          "[T]he grant of authority to the Comptroller General was a carefully considered protection against what the House conceived to be the pro-executive bias of the OMB. It is doubtful that the automatic deficit reduction process would have passed without such protection, and doubtful that the protection would have been considered present if the Comptroller General were not removable by Congress itself. . . ." 626 F.Supp., at 1394.

Page 736

          Accordingly, rather than perform the type of creative and imaginative statutory surgery urged by appellants, our holding simply permits the fallback provisions to come into play.¹⁰

          No one can doubt that Congress and the President are confronted with fiscal and economic problems of unprecedented magnitude, but "the fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives—or the hallmarks—of democratic government. . . ." Chadha, supra, 462 U.S., at 944, 103 S.Ct., at 2781.

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

          Our judgment is stayed for a period not to exceed 60 days to permit Congress to implement the fallback provisions.

          It is so ordered.

           Justice STEVENS, with whom Justice MARSHALL joins, concurring in the judgment.

          When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons. I

Page 737

agree with the Court that the "Gramm-Rudman-Hollings" Act contains a constitutional infirmity so severe that the flawed provision may not stand. I disagree with the Court, however, on the reasons why the Constitution prohibits the Comptroller General from exercising the powers assigned to him by § 251(b) and § 251(c)(2) of the Act. It is not the dormant, carefully circumscribed congressional removal power that represents the primary constitutional evil. Nor do I agree with the conclusion of both the majority and the dissent that the analysis depends on a labeling of the functions assigned to the Comptroller General as "executive powers." Ante, at ---- - ----; post, at ---- - ----. Rather, I am convinced that the Comptroller General must be characterized as an agent of Congress because of his longstanding statutory responsibilities; that the powers assigned to him under the Gramm-Rudman-Hollings Act require him to make policy that will bind the Nation; and that, when Congress, or a component or an agent of Congress, seeks to make policy that will bind the Nation, it must follow the procedures mandated by Article I of the Constitution—through passage by both Houses and presentment to the President. In short, Congress may not exercise its fundamental power to formulate national policy by delegating that power to one of its two Houses, to a legislative committee, or to an individual agent of the Congress such as the Speaker of the House of Representatives, the Sergeant at Arms of the Senate, or the Director of the Congressional Budget Office. INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). That principle, I believe, is applicable to the Comptroller General.

          The fact that Congress retained for itself the power to remove the Comptroller General is important evidence supporting the conclusion that he is a member of the Legislative Branch of the Government. Unlike the Court, however, I am not persuaded that the congressional removal power is either a necessary, or a sufficient, basis for concluding that his statutory assignment is invalid.

Page 738

          As Justice WHITE explains, post, at 770-771, Congress does not have the power to remove the Comptroller General at will, or because of disagreement with any policy determination that he may be required to make in the administration of this, or any other, Act. The statute provides a term of 15 years for the Comptroller General; it further provides that he must retire upon becoming 70 years of age, and that he may be removed at any time by impeachment or by "joint resolution of Congress, after notice and an opportunity for a hearing, only for—(i) permanent disability; (ii) inefficiency; (iii) neglect of duty; (iv) malfeasance; or (v) a felony or conduct involving moral turpitude." 31 U.S.C. § 703(e)(1)(B). Far from assuming that this provision creates a " 'here-and-now subservience' " respecting all of the Comptroller General's actions, ante, at 727, n. 5 (quoting District Court), we should presume that Congress will adhere to the law—that it would only exercise its removal powers if the Comptroller General were found to be permanently disabled, inefficient, neglectful, or culpable of malfeasance, a felony, or conduct involving moral turpitude.¹

Page 739

          The notion that the removal power at issue here automatically creates some kind of "here-and-now subservience" of the Comptroller General to Congress is belied by history. There is no evidence that Congress has ever removed, or threatened to remove, the Comptroller General for reasons of policy. Moreover, the President has long possessed a comparable power to remove members of the Federal Trade Commission, yet it is universally accepted that they are independent of, rather than subservient to, the President in performing their official duties. Thus, the statute that the Court construed in Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), provided:

          "Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office." 38 Stat. 718.

          In upholding the congressional limitations on the President's power of removal, the Court stressed the independence of the Commission from the President.² There was no suggestion that the retained Presidential removal powers—similar to those at issue here—created a subservience to the President.³

Page 740

          To be sure, there may be a significant separation-of-powers difference between the President's exercise of carefully circumscribed removal authority and Congress' exercise of identically circumscribed removal authority. But the Humphrey's Executor analysis at least demonstrates that it is entirely proper for Congress to specify the qualifications for an office that it has created, and that the prescription of what might be termed "dereliction-of-duty" removal standards does not itself impair the independence of the official subject to such standards.⁴

          The fact that Congress retained for itself the power to remove the Comptroller General thus is not necessarily an adequate reason for concluding that his role in the Gramm-Rudman-Hollings budget reduction process is unconstitutional. It is, however, a fact that lends support to my ulti-

Page 741

mate conclusion that, in exercising his functions under this Act, he serves as an agent of the Congress.

          In assessing the role of the Comptroller General, it is appropriate to consider his already existing statutory responsibilities. Those responsibilities leave little doubt that one of the identifying characteristics of the Comptroller General is his statutorily required relationship to the Legislative Branch.

          In the statutory section that identifies the Comptroller General's responsibilities for investigating the use of public money, four of the five enumerated duties specifically describe an obligation owed to Congress. The first is the only one that does not expressly refer to Congress: The Comptroller General shall "investigate all matters related to the receipt, disbursement, and use of public money." 31 U.S.C. § 712(1). The other four clearly require the Comptroller General to work with Congress' specific needs as his legal duty. Thus, the Comptroller General must "estimate the cost to the United States Government of complying with each restriction on expenditures of a specific appropriation in a general appropriation law and report each estimate to Congress with recommendations the Comptroller General considers desirable." § 712(2) (emphasis added). He must "analyze expenditures of each executive agency the Comptroller General believes will help Congress decide whether public money has been used and expended economically and efficiently." § 712(3) (emphasis added). He must "make an investigation and report ordered by either House of Congress or a committee of Congress having jurisdiction over revenue, appropriations, or expenditures." § 712(4) (emphasis added). Finally, he must "give a committee of Congress having jurisdiction over revenue, appropriations, or expenditures the help and information the committee requests." § 712(5) (emphasis added).

Page 742

          The statutory provision detailing the Comptroller General's role in evaluating programs and activities of the United States Government similarly leaves no doubt regarding the beneficiary of the Comptroller General's labors. The Comptroller General may undertake such an evaluation for one of three specified reasons: (1) on his own initiative; (2) "when either House of Congress orders an evaluation"; or (3) "when a committee of Congress with jurisdiction over the program or activity requests the evaluation." 31 U.S.C. § 717(b). In assessing a program or activity, moreover, the Comptroller General's responsibility is to "develop and recommend to Congress ways to evaluate a program or activity the Government carries out under existing law." § 717(c) (emphasis added).

          The Comptroller General's responsibilities are repeatedly framed in terms of his specific obligations to Congress. Thus, one provision specifies in some detail the obligations of the Comptroller General with respect to an individual committee's request for a program evaluation:

                    "On request of a committee of Congress, the Comptroller General shall help the committee to—

                    "(A) develop a statement of legislative goals and ways to assess and report program performance related to the goals, including recommended ways to assess performance, information to be reported, responsibility for reporting, frequency of reports, and feasibility of pilot testing; and

                    "(B) assess program evaluations prepared by and for an agency." § 717(d)(1).

          Similarly, another provision requires that, on "request of a member of Congress, the Comptroller General shall give the member a copy of the material the Comptroller General compiles in carrying out this subsection that has been released by the committee for which the material was compiled." § 717(d)(2).

Page 743

          Numerous other provisions strongly support the conclusion that one of the Comptroller General's primary responsibilities is to work specifically on behalf of Congress. The Comptroller General must make annual reports on specified subjects to Congress, to the Senate Committee on Finance, to the Senate Committee on Governmental Affairs, to the House Committee on Ways and Means, to the House Committee on Government Operations, and to the Joint Committee on Taxation. 31 U.S.C. §§ 719(a), (d). On request of a committee, the Comptroller General "shall explain to and discuss with the committee or committee staff a report the Comptroller General makes that would help the committee—(1) evaluate a program or activity of an agency within the jurisdiction of the committee; or (2) in its consideration of proposed legislation." § 719(i). Indeed, the relationship between the Comptroller General and Congress is so close that the "Comptroller General may assign or detail an officer or employee of the General Accounting Office to full-time continuous duty with a committee of Congress for not more than one year." 31 U.S.C. § 734(a).

          The Comptroller General's current statutory responsibilities on behalf of Congress are fully consistent with the historic conception of the Comptroller General's office. The statute that created the Comptroller General's office—the Budget and Accounting Act of 1921—provided that four of the five statutory responsibilities given to the Comptroller General be exercised on behalf of Congress, three of them exclusively so.⁵ On at least three occasions since 1921, moreover,

Page 744

in considering the structure of Government, Congress has defined the Comptroller General as being a part of the Legislative Branch. In the Reorganization Act of 1945, Congress specified that the Comptroller General and the General Accounting Office "are a part of the legislative branch of the Government." 59 Stat. 616.⁶ In the Reorganization Act of 1949, Congress again confirmed that the Comptroller General and the General Accounting Office "are a part of the legislative branch of the Government." 63 Stat. 205.⁷ Finally, in the Budget and Accounting Procedures Act of 1950, Congress referred to the "auditing for the Government, con-

Page 745

ducted by the Comptroller General of the United States as an agent of the Congress." 64 Stat. 835. Like the already existing statutory responsibilities, then, the history of the Comptroller General statute confirms that the Comptroller General should be viewed as an agent of the Congress.

          This is not to say, of course, that the Comptroller General has no obligations to the Executive Branch, or that he is an agent of the Congress in quite so clear a manner as the Doorkeeper of the House. For the current statutory responsibilities also envision a role for the Comptroller General with respect to the Executive Branch. The Comptroller General must "give the President information on expenditures and accounting the President requests." 31 U.S.C. § 719(f). Although the Comptroller General is required to provide Congress with an annual report, he is also required to provide the President with the report if the President so requests. § 719(a). The Comptroller General is statutorily required to audit the Internal Revenue Service and the Bureau of Alcohol, Tobacco, and Firearms (and provide congressional committees with information respecting the audits). § 713. In at least one respect, moreover, the Comptroller General is treated like an executive agency: "To the extent applicable, all laws generally related to administering an agency apply to the Comptroller General." § 704(a). Historically, as well, the Comptroller General has had some relationship to the Executive Branch. As noted, n. 5, supra, in the 1921 Act, one of the Comptroller General's specific responsibilities was to provide information to the Bureau of the Budget. In fact, when the Comptroller General's office was created, its functions, personnel, records, and even furniture derived from a previous executive office.⁸

Page 746

          Thus, the Comptroller General retains certain obligations with respect to the Executive Branch.⁹ Obligations to two branches are not, however, impermissible and the presence of such dual obligations does not prevent the characterization of the official with the dual obligations as part of one branch.¹⁰ It is at least clear that, in most, if not all, of his statutory responsibilities, the Comptroller General is properly characterized as an agent of the Congress.¹¹

Page 747

          Everyone agrees that the powers assigned to the Comptroller General by § 251(b) and § 251(c)(2) of the Gramm-Rudman-Hollings Act are extremely important. They require him to exercise sophisticated economic judgment concerning anticipated trends in the Nation's economy, pro-

Page 748

jected levels of unemployment, interest rates, and the special problems that may be confronted by the many components of a vast federal bureaucracy. His duties are anything but ministerial—he is not merely a clerk wearing a "green eye-shade" as he undertakes these tasks. Rather, he is vested with the kind of responsibilities that Congress has elected to discharge itself under the fallback provision that will become effective if and when § 251(b) and § 251(c)(2) are held invalid. Unless we make the naive assumption that the economic destiny of the Nation could be safely entrusted to a mindless bank of computers, the powers that this Act vests in the Comptroller General must be recognized as having transcendent importance.¹²

          The Court concludes that the Gramm-Rudman-Hollings Act impermissibly assigns the Comptroller General "executive powers." Ante, at 732. Justice WHITE's dissent agrees that "the powers exercised by the Comptroller under the Act may be characterized as 'executive' in that they involve the interpretation and carrying out of the Act's mandate." Post, at 765. This conclusion is not only far from obvious but also rests on the unstated and unsound premise that there is a definite line that distinguishes executive power from legislative power.

          "The great ordinances of the Constitution do not establish and divide fields of black and white." Springer v. Philippine Islands, 277 U.S. 189, 209, 48 S.Ct. 480, 485, 72 L.Ed. 845 (1928) (Holmes, J., dissenting). "The men who met in Philadelphia in the summer of 1787 were practical statesmen, experienced in politics, who viewed the principle of separation of powers as a vital check against tyranny. But they likewise saw that a hermetic sealing off of the three branches of Government from one an-

Page 749

other would preclude the establishment of a Nation capable of governing itself effectively." Buckley v. Valeo, 424 U.S. 1, 121, 96 S.Ct. 612, 683, 46 L.Ed.2d 659 (1976). As Justice Brandeis explained in his dissent in Myers v. United States, 272 U.S. 52, 291, 47 S.Ct. 21, 84, 71 L.Ed. 160 (1926): "The separation of the powers of government did not make each branch completely autonomous. It left each, in some measure, dependent upon the others, as it left to each power to exercise, in some respects, functions in their nature executive, legislative and judicial."

          One reason that the exercise of legislative, executive, and judicial powers cannot be categorically distributed among three mutually exclusive branches of Government is that governmental power cannot always be readily characterized with only one of those three labels. On the contrary, as our cases demonstrate, a particular function, like a chameleon, will often take on the aspect of the office to which it is assigned. For this reason, "[w]hen any Branch acts, it is presumptively exercising the power the Constitution has delegated to it." INS v. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784.¹³

          The Chadha case itself illustrates this basic point. The governmental decision that was being made was whether a resident alien who had overstayed his student visa should be

Page 750

deported. From the point of view of the Administrative Law Judge who conducted a hearing on the issue—or as Justice POWELL saw the issue in his concurrence ¹⁴—the decision took on a judicial coloring. From the point of view of the Attorney General of the United States to whom Congress had delegated the authority to suspend deportation of certain aliens, the decision appeared to have an executive character.¹⁵ But, as the Court held, when the House of Representatives finally decided that Chadha must be deported, its action "was essentially legislative in purpose and effect." Id., at 952, 103 S.Ct., at 2784.

          The powers delegated to the Comptroller General by § 251 of the Act before us today have a similar chameleon-like quality. The District Court persuasively explained why they may be appropriately characterized as executive powers.¹⁶ But, when that delegation is held invalid, the "fallback provision" provides that the report that would otherwise be issued by the Comptroller General shall be issued by Congress itself.S¹⁷

Page 751

In the event that the resolution is enacted, the congressional report will have the same legal consequences as if it had been issued by the Comptroller General. In that event, moreover, surely no one would suggest that Congress had acted in any capacity other than "legislative." Since the District Court expressly recognized the validity of what it described as the " 'fallback' deficit reduction process," Synar v. United States, 626 F.Supp. 1374, 1377 (DC 1986), it obviously did not doubt the constitutionality of the performance by Congress of the functions delegated to the Comptroller General.

          Under the District Court's analysis, and the analysis adopted by the majority today, it would therefore appear that the function at issue is "executive" if performed by the Comptroller General but "legislative" if performed by the Congress. In my view, however, the function may appropri-

Page 752

ately be labeled "legislative" even if performed by the Comptroller General or by an executive agency.

          Despite the statement in Article I of the Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States," it is far from novel to acknowledge that independent agencies do indeed exercise legislative powers. As Justice WHITE explained in his Chadha dissent, after reviewing our cases upholding broad delegations of legislative power:

          "[T]hese cases establish that by virtue of congressional delegation, legislative power can be exercised by independent agencies and Executive departments without the passage of new legislation. For some time, the sheer amount of law—the substantive rules that regulate private conduct and direct the operation of government—made by the agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process. There is no question but that agency rulemaking is lawmaking in any functional or realistic sense of the term. The Administrative Procedure Act, 5 U.S.C. § 551(4), provides that a 'rule' is an agency statement 'designed to implement, interpret, or prescribe law or policy.' When agencies are authorized to prescribe law through substantive rulemaking, the administrator's regulation is not only due deference, but is accorded 'legislative effect.' See, e.g., Schweiker v. Gray Panthers, 453 U.S. 34, 43-44 [101 S.Ct. 2633, 2640, 69 L.Ed.2d 460] (1981); Batterton v. Francis, 432 U.S. 416 [97 S.Ct. 2399, 53 L.Ed.2d 448] (1977). These regulations bind courts and officers of the Federal Government, may preempt state law, see, e.g., Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141 [102 S.Ct. 3014, 73 L.Ed.2d 664] (1982), and grant rights to and impose obligations on the public. In sum, they have the force of law." 462 U.S., at 985-986, 103 S.Ct., at 2802 (footnote omitted).

          Thus, I do not agree that the Comptroller General's responsibilities under the Gramm-Rudman-Hollings Act must be

Page 753

termed "executive powers," or even that our inquiry is much advanced by using that term. For, whatever the label given the functions to be performed by the Comptroller General under § 251 or by the Congress under § 274—the District Court had no difficulty in concluding that Congress could delegate the performance of those functions to another branch of the Government.¹⁸ If the delegation to a stranger is permissible, why may not Congress delegate the same responsibilities to one of its own agents? That is the central question before us today.

          Congress regularly delegates responsibility to a number of agents who provide important support for its legislative activities. Many perform functions that could be characterized as "executive" in most contexts—the Capitol Police can arrest and press charges against lawbreakers, the Sergeant at Arms manages the congressional payroll, the Capitol Architect maintains the buildings and grounds, and its Librarian has custody of a vast number of books and records. Moreover, the Members themselves necessarily engage in many activities that are merely ancillary to their primary lawmak-

Page 754

ing responsibilities—they manage their separate offices, they communicate with their constituents, they conduct hearings, they inform themselves about the problems confronting the Nation, and they make rules for the governance of their own business. The responsibilities assigned to the Comptroller General in the case before us are, of course, quite different from these delegations and ancillary activities.

          The Gramm-Rudman-Hollings Act assigns to the Comptroller General the duty to make policy decisions that have the force of law. The Comptroller General's report is, in the current statute, the engine that gives life to the ambitious budget reduction process. It is the Comptroller General's report that "provide[s] for the determination of reductions" and that "contain[s] estimates, determinations, and specifications for all of the items contained in the report" submitted by the Office of Management and Budget and the Congressional Budget Office. § 251(b). It is the Comptroller General's report that the President must follow and that will have conclusive effect. § 252. It is, in short, the Comptroller General's report that will have a profound, dramatic, and immediate impact on the Government and on the Nation at large.

          Article I of the Constitution specifies the procedures that Congress must follow when it makes policy that binds the Nation: its legislation must be approved by both of its Houses and presented to the President. In holding that an attempt to legislate by means of a "one-House veto" violated the procedural mandate in Article I, we explained:

                    "We see therefore that the Framers were acutely conscious that the bicameral requirement and the Presentment Clauses would serve essential constitutional functions. The President's participation in the legislative process was to protect the Executive Branch from Congress and to protect the whole people from improvident laws. The division of the Congress into two distinctive bodies assures that the legislative power would be exer-

Page 755

          cised only after opportunity for full study and debate in separate settings. The President's unilateral veto power, in turn, was limited by the power of two-thirds of both Houses of Congress to overrule a veto thereby precluding final arbitrary action of one person. . . . It emerges clearly that the prescription for legislative action in Art. I, §§ 1, 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure." INS v. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784.

          If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade "the carefully crafted restraints spelled out in the Constitution." Id., at 959, 103 S.Ct., at 2788.¹⁹ That danger congressional action that evades constitutional restraints—is not present when Congress delegates lawmaking power to the executive or to an independent agency.²⁰

          The distinction between the kinds of action that Congress may delegate to its own components and agents and those that require either compliance with Article I procedures or delegation to another branch pursuant to defined standards is

Page 756

reflected in the practices that have developed over the years regarding congressional resolutions. The joint resolution, which is used for "special purposes and . . . incidental matters," 7 Deschler's Precedents of the House of Representatives 334 (1977), makes binding policy and "requires an affirmative vote by both Houses and submission to the President for approval" id., at 333 the full Article I requirements. A concurrent resolution, in contrast, makes no binding policy; it is "a means of expressing fact, principles, opinions, and purposes of the two Houses," Jefferson's Manual and Rules of the House of Representatives 176 (1983), and thus does not need to be presented to the President. It is settled, however, that if a resolution is intended to make policy that will bind the Nation and thus is "legislative in its character and effect," S.Rep. No. 1335, 54th Cong., 2d Sess., 8 (1897)—then the full Article I requirements must be observed. For "the nature or substance of the resolution, and not its form, controls the question of its disposition." Ibid.

          In my opinion, Congress itself could not exercise the Gramm-Rudman-Hollings functions through a concurrent resolution. The fact that the fallback provision in § 274 requires a joint resolution rather than a concurrent resolution indicates that Congress endorsed this view.²¹ I think it equally clear that Congress may not simply delegate those functions to an agent such as the Congressional Budget Office. Since I am persuaded that the Comptroller General is also fairly deemed to be an agent of Congress, he too cannot exercise such functions.²²

Page 757

          As a result, to decide this case there is no need to consider the Decision of 1789, the President's removal power, or the abstract nature of "executive powers." Once it is clear that the Comptroller General, whose statutory duties define him as an agent of Congress, has been assigned the task of making policy determinations that will bind the Nation, the question is simply one of congressional process. There can be no doubt that the Comptroller General's statutory duties under Gramm-Rudman-Hollings do not follow the constitutionally prescribed procedures for congressional lawmaking.²³

          In short, even though it is well settled that Congress may delegate legislative power to independent agencies or to the Executive, and thereby divest itself of a portion of its lawmaking power, when it elects to exercise such power itself, it may not authorize a lesser representative of the Legislative

Page 758

Branch to act on its behalf.²⁴ It is for this reason that I believe § 251(b) and § 251(c)(2) of the Act are unconstitutional.²⁵

          Thus, the critical inquiry in this case concerns not the manner in which executive officials or agencies may act, but the manner in which Congress and its agents may act. As we emphasized in Chadha, when Congress legislates, when it makes binding policy, it must follow the procedures prescribed in Article I. Neither the unquestioned urgency of the national budget crisis nor the Comptroller General's proud record of professionalism and dedication provides a justification for allowing a congressional agent to set policy that binds

Page 759

the Nation. Rather than turning the task over to its agent, if the Legislative Branch decides to act with conclusive effect, it must do so through a process akin to that specified in the fallback provision—through enactment by both Houses and presentment to the President.

          I concur in the judgment.

           Justice WHITE, dissenting.

          The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal. The basis of the Court's action is a solitary provision of another statute that was passed over 60 years ago and has lain dormant since that time. I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers as a bar to the attainment of governmental objectives through the means chosen by the Congress and the President in the legislative process established by the Constitution. Twice in the past four years I have expressed my view that the Court's recent efforts to police the separation of powers have rested on untenable constitutional propositions leading to regrettable results. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 92-118, 102 S.Ct. 2858, 2882-2896, 73 L.Ed.2d 598 (1982) (WHITE, J., dissenting); INS v. Chadha, 462 U.S. 919, 967-1003, 103 S.Ct. 2764, 2792-2811, 77 L.Ed.2d 317 (1983) (WHITE, J., dissenting). Today's result is even more misguided. As I will explain, the Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers. In attaching dispositive significance to what should be regarded as a triviality, the Court neglects what has

Page 760

in the past been recognized as a fundamental principle governing consideration of disputes over separation of powers:

                    "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." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

          The Court's argument is straightforward: the Act vests the Comptroller General with "executive" powers, that is, powers to "[i]nterpre[t] a law enacted by Congress [in order] to implement the legislative mandate," ante, at 733; such powers may not be vested by Congress in itself or its agents, see Buckley v. Valeo, 424 U.S. 1, 120-141, 96 S.Ct. 612, 682-692, 46 L.Ed.2d 659 (1976), for the system of Government established by the Constitution for the most part limits Congress to a legislative rather than an executive or judicial role, see INS v. Chadha, supra; the Comptroller General is an agent of Congress by virtue of a provision in the Budget and Accounting Act of 1921, 43 Stat. 23, 31 U.S.C. § 703(e)(1), granting Congress the power to remove the Comptroller for cause through joint resolution; therefore the Comptroller General may not constitutionally exercise the executive powers granted him in the Gramm-Rudman-Hollings Act, and the Act's automatic budget-reduction mechanism, which is premised on the Comptroller's exercise of those powers, must be struck down.

          Before examining the merits of the Court's argument, I wish to emphasize what it is that the Court quite pointedly and correctly does not hold: namely, that "executive" powers of the sort granted the Comptroller by the Act may only be exercised by officers removable at will by the President.

Page 761

The Court's apparent unwillingness to accept this argument,¹ which has been tendered in this Court by the Solicitor General,² is fully consistent with the Court's longstanding recognition that it is within the power of Congress under the "Necessary and Proper" Clause, Art. I, § 8, to vest authority that falls within the Court's definition of executive power in officers who are not subject to removal at will by the President and are therefore not under the President's direct control. See, e.g., Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); Wiener v. United States, 357 U.S. 349, 78 S.Ct. 1275, 2 L.Ed.2d 1377 (1958).³ In an earlier day, in which simpler notions of the role of government in society prevailed, it was perhaps plausible to insist that all "executive" officers be subject to an unqualified Presidential removal power, see Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926); but with the advent and triumph of the administrative state and the accompanying multiplication of the tasks undertaken by the Federal Government, the

Page 762

Court has been virtually compelled to recognize that Congress may reasonably deem it "necessary and proper" to vest some among the broad new array of governmental functions in officers who are free from the partisanship that may be expected of agents wholly dependent upon the President.

          The Court's recognition of the legitimacy of legislation vesting "executive" authority in officers independent of the President does not imply derogation of the President's own constitutional authority—indeed, duty—to "take Care that the Laws be faithfully executed," Art. II, § 3, for any such duty is necessarily limited to a great extent by the content of the laws enacted by the Congress. As Justice Holmes put it: "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United States, supra, at 177, 47 S.Ct., at 85 (dissenting).⁴ Justice Holmes perhaps overstated his case, for there are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President. Whether a particular function falls within this class or within the far larger class that may be relegated to independent officers "will depend upon the character of the office." Humphrey's Executor, supra, 295 U.S., at 631, 55 S.Ct., at 875. In determining whether a limitation on the President's power to remove an officer performing executive functions constitutes a violation of the constitutional scheme of separation of powers, a court must "focu[s] on the extent to which [such a limitation] prevents the Executive Branch from accomplishing its constitutionally assigned functions." Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). "Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." Ibid. This inquiry

Page 763

is, to be sure, not one that will beget easy answers; it provides nothing approaching a bright-line rule or set of rules. Such an inquiry, however, is necessitated by the recognition that "formalistic and unbending rules" in the area of separation of powers may "unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851, 106 S.Ct. 3245, 3258, 92 L.Ed.2d 675 (1986).

          It is evident (and nothing in the Court's opinion is to the contrary) that the powers exercised by the Comptroller General under the Gramm-Rudman-Hollings Act are not such that vesting them in an officer not subject to removal at will by the President would in itself improperly interfere with Presidential powers. Determining the level of spending by the Federal Government is not by nature a function central either to the exercise of the President's enumerated powers or to his general duty to ensure execution of the laws; rather, appropriating funds is a peculiarly legislative function, and one expressly committed to Congress by Art. I, § 9, which provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." In enacting Gramm-Rudman-Hollings, Congress has chosen to exercise this legislative power to establish the level of federal spending by providing a detailed set of criteria for reducing expenditures below the level of appropriations in the event that certain conditions are met. Delegating the execution of this legislation—that is, the power to apply the Act's criteria and make the required calculations—to an officer independent of the President's will does not deprive the President of any power that he would otherwise have or that is essential to the performance of the duties of his office. Rather, the result of such a delegation, from the standpoint of the President, is no different from the result of more traditional forms of appropriation: under either system, the level of funds available to the Executive Branch to carry out its duties is not within the President's discretionary control. To be sure,

Page 764

if the budget-cutting mechanism required the responsible officer to exercise a great deal of policymaking discretion, one might argue that having created such broad discretion Congress had some obligation based upon Art. II to vest it in the Chief Executive or his agents. In Gramm-Rudman-Hollings, however, Congress has done no such thing; instead, it has created a precise and articulated set of criteria designed to minimize the degree of policy choice exercised by the officer executing the statute and to ensure that the relative spending priorities established by Congress in the appropriations it passes into law remain unaltered.⁵ Given that the exercise of policy choice by the officer executing the statute would be inimical to Congress' goal in enacting "automatic" budget-cutting measures, it is eminently reasonable and proper for Congress to vest the budget-cutting authority in an officer who is to the greatest degree possible nonpartisan and independent of the President and his political agenda and who therefore may be relied upon not to allow his calculations to be colored by political considerations. Such a delegation deprives the President of no authority that is rightfully his.

          If, as the Court seems to agree, the assignment of "executive" powers under Gramm-Rudman-Hollings to an officer not removable at will by the President would not in itself represent a violation of the constitutional scheme of separated

Page 765

powers, the question remains whether, as the Court concludes, the fact that the officer to whom Congress has delegated the authority to implement the Act is removable by a joint resolution of Congress should require invalidation of the Act. The Court's decision, as I have stated above, is based on a syllogism: the Act vests the Comptroller with "executive power"; such power may not be exercised by Congress or its agents; the Comptroller is an agent of Congress because he is removable by Congress; therefore the Act is invalid. I have no quarrel with the proposition that the powers exercised by the Comptroller under the Act may be characterized as "executive" in that they involve the interpretation and carrying out of the Act's mandate. I can also accept the general proposition that although Congress has considerable authority in designating the officers who are to execute legislation, see supra, at ---- - ----, the constitutional scheme of separated powers does prevent Congress from reserving an executive role for itself or for its "agents." Buckley v. Valeo, 424 U.S., at 120-141, 96 S.Ct., at 682-692, id., at 267-282, 96 S.Ct., at 749-756 (WHITE, J., concurring in part and dissenting in part). I cannot accept, however, that the exercise of authority by an officer removable for cause by a joint resolution of Congress is analogous to the impermissible execution of the law by Congress itself, nor would I hold that the congressional role in the removal process renders the Comptroller an "agent" of the Congress, incapable of receiving "executive" power.

          In Buckley v. Valeo, supra, the Court held that Congress could not reserve to itself the power to appoint members of the Federal Election Commission, a body exercising "executive" power. Buckley, however, was grounded on a textually based separation-of-powers argument whose central premise was that the Constitution requires that all "Officers of the United States" (defined as "all persons who can be said to hold an office under the government," 424 U.S., at 126, 96 S.Ct., at 685) whose appointment is not otherwise specifically provided for elsewhere in its text be appointed through the means speci-

Page 766

fied by the Appointments Clause, Art. II, § 2, cl. 2—that is, either by the President with the advice and consent of the Senate or, if Congress so specifies, by the President alone, by the courts, or by the head of a department. The Buckley Court treated the Appointments Clause as reflecting the principle that "the Legislative Branch may not exercise executive authority," 424 U.S., at 119, 96 S.Ct., at 682 (citing Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928)), but the Court's holding was merely that Congress may not direct that its laws be implemented through persons who are its agents in the sense that it chose them; the Court did not pass on the legitimacy of other means by which Congress might exercise authority over those who execute its laws. Because the Comptroller is not an appointee of Congress but an officer of the United States appointed by the President with the advice and consent of the Senate, Buckley neither requires that he be characterized as an agent of the Congress nor in any other way calls into question his capacity to exercise "executive" authority. See 424 U.S., at 128, n. 165, 96 S.Ct., at 686, n. 165.

          As the majority points out, however, the Court's decision in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), recognizes additional limits on the ability of Congress to participate in or influence the execution of the laws. As interpreted in Chadha, the Constitution prevents Congress from interfering with the actions of officers of the United States through means short of legislation satisfying the demands of bicameral passage and presentment to the President for approval or disapproval. Id., at 954-955, 103 S.Ct., at 2785-2786. Today's majority concludes that the same concerns that underlay Chadha indicate the invalidity of a statutory provision allowing the removal by joint resolution for specified cause of any officer performing executive functions. Such removal power, the Court contends, constitutes a "congressional veto" analogous to that struck down in Chadha, for it permits Congress to "remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory." Ante, at 726. The Court concludes

Page 767

that it is "[t]his kind of congressional control over the execution of the laws" that Chadha condemns. Ibid.

          The deficiencies in the Court's reasoning are apparent. First, the Court baldly mischaracterizes the removal provision when it suggests that it allows Congress to remove the Comptroller for "executing the laws in any fashion found to be unsatisfactory"; in fact, Congress may remove the Comptroller only for one or more of five specified reasons, which "although not so narrow as to deny Congress any leeway, circumscribe Congress' power to some extent by providing a basis for judicial review of congressional removal." Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 895 (CA3 1986) (Becker, J., concurring in part). Second, and more to the point, the Court overlooks or deliberately ignores the decisive difference between the congressional removal provision and the legislative veto struck down in Chadha: under the Budget and Accounting Act, Congress may remove the Comptroller only through a joint resolution, which by definition must be passed by both Houses and signed by the President. See United States v. California, 332 U.S. 19, 28, 67 S.Ct. 1658, 1663, 91 L.Ed. 1889 (1947).⁶ In other words, a removal of the Comptroller under the statute satisfies the requirements of bicameralism and presentment laid down in Chadha. The majority's citation of Chadha for the proposition that Congress may only control the acts of officers of the United States "by passing new legislation," ante, at 734, in

Page 768

no sense casts doubt on the legitimacy of the removal provision, for that provision allows Congress to effect removal only through action that constitutes legislation as defined in Chadha.

          To the extent that it has any bearing on the problem now before us, Chadha would seem to suggest the legitimacy of the statutory provision making the Comptroller removable through joint resolution, for the Court's opinion in Chadha reflects the view that the bicameralism and presentment requirements of Art. I represent the principal assurances that Congress will remain within its legislative role in the constitutionally prescribed scheme of separated powers. Action taken in accordance with the "single, finely wrought, and exhaustively considered, procedure" established by Art. I, Chadha, supra, at 951, 103 S.Ct., at 2784, should be presumptively viewed as a legitimate exercise of legislative power. That such action may represent a more or less successful attempt by Congress to "control" the actions of an officer of the United States surely does not in itself indicate that it is unconstitutional, for no one would dispute that Congress has the power to "control" administration through legislation imposing duties or substantive restraints on executive officers, through legislation increasing or decreasing the funds made available to such officers, or through legislation actually abolishing a particular office. Indeed, Chadha expressly recognizes that while congressional meddling with administration of the laws outside of the legislative process is impermissible, congressional control over executive officers exercised through the legislative process is valid. 462 U.S., at 955, n. 19, 103 S.Ct., at 2786, n. 19. Thus, if the existence of a statute permitting removal of the Comptroller through joint resolution (that is, through the legislative process) renders his exercise of executive powers unconstitutional, it is for reasons having virtually nothing to do with Chadha.⁷

Page 769

          That a joint resolution removing the Comptroller General would satisfy the requirements for legitimate legislative action laid down in Chadha does not fully answer the separation of powers argument, for it is apparent that even the results of the constitutional legislative process may be unconstitutional if those results are in fact destructive of the scheme of separation-of-powers. Nixon v. Administrator of General

Page 770

Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). The question to be answered is whether the threat of removal of the Comptroller General for cause through joint resolution as authorized by the Budget and Accounting Act renders the Comptroller sufficiently subservient to Congress that investing him with "executive" power can be realistically equated with the unlawful retention of such power by Congress itself; more generally, the question is whether there is a genuine threat of "encroachment or aggrandizement of one branch at the expense of the other," Buckley v. Valeo, 424 U.S., at 122, 96 S.Ct., at 684. Common sense indicates that the existence of the removal provision poses no such threat to the principle of separation of powers.

          The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary. See Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d, at 895 (Becker, J., concurring in part).⁸ These procedural and substantive limitations on the removal power militate strongly against the characterization of the Comptroller as a mere agent of Congress by virtue of the removal authority. Indeed, similarly qualified grants of removal power are generally deemed to protect the officers to whom they apply and to establish their independence from the domination of the possessor of the removal power. See Humphrey's Executor v. United States, 295 U.S., at 625-626, 629-630, 55 S.Ct., at 874-875. Removal authority limited in such a manner is more properly viewed as motivating adherence to a substantive standard established by law than as inducing subservience to the particular

Page 771

institution that enforces that standard. That the agent enforcing the standard is Congress may be of some significance to the Comptroller, but Congress' substantively limited removal power will undoubtedly be less of a spur to subservience than Congress' unquestionable and unqualified power to enact legislation reducing the Comptroller's salary, cutting the funds available to his department, reducing his personnel, limiting or expanding his duties, or even abolishing his position altogether.

          More importantly, the substantial role played by the President in the process of removal through joint resolution reduces to utter insignificance the possibility that the threat of removal will induce subservience to the Congress. As I have pointed out above, a joint resolution must be presented to the President and is ineffective if it is vetoed by him, unless the veto is overridden by the constitutionally prescribed two-thirds majority of both Houses of Congress. The requirement of Presidential approval obviates the possibility that the Comptroller will perceive himself as so completely at the mercy of Congress that he will function as its tool.⁹ If the Comptroller's conduct in office is not so unsatisfactory to the President as to convince the latter that removal is required under the statutory standard, Congress will have no independent power to coerce the Comptroller unless it can muster a two-thirds majority in both Houses—a feat of bipartisanship more difficult than that required to impeach and convict. The incremental in terrorem effect of the possibility of congressional removal in the face of a Presidential

Page 772

veto is therefore exceedingly unlikely to have any discernible impact on the extent of congressional influence over the Comptroller.¹⁰

Page 773

          The practical result of the removal provision is not to render the Comptroller unduly dependent upon or subservient to Congress, but to render him one of the most independent officers in the entire federal establishment. Those who have studied the office agree that the procedural and substantive limits on the power of Congress and the President to remove the Comptroller make dislodging him against his will practically impossible. As one scholar put it nearly 50 years ago: "Under the statute the Comptroller General, once confirmed, is safe so long as he avoids a public exhibition of personal immorality, dishonesty, or failing mentality." H. Mansfield, The Comptroller General 75-76 (1939).¹¹ The passage of time has done little to cast doubt on this view: of the six Comptrollers who have served since 1921, none has been threatened with, much less subjected to, removal. Recent students of the office concur that "[b]arring resignation, death, physical or mental incapacity, or extremely bad behavior, the Comptroller General is assured his tenure if he wants it, and not a day more." F. Mosher, The GAO 242 (1979).¹² The threat of "here-and-now subservience," ante, at ----, is obviously remote indeed.¹³

Page 774

          Realistic consideration of the nature of the Comptroller General's relation to Congress thus reveals that the threat to separation of powers conjured up by the majority is wholly chimerical. The power over removal retained by the Congress is not a power that is exercised outside the legislative process as established by the Constitution, nor does it appear likely that it is a power that adds significantly to the influence Congress may exert over executive officers through other, undoubtedly constitutional exercises of legislative power and through the constitutionally guaranteed impeachment power. Indeed, the removal power is so constrained by its own substantive limits and by the requirement of Presidential ap-

Page 775

proval "that, as a practical matter, Congress has not exercised, and probably will never exercise, such control over the Comptroller General that his non-legislative powers will threaten the goal of dispersion of power, and hence the goal of individual liberty, that separation of powers serves." Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d, at 895 (Becker, J., concurring in part).¹⁴

Page 776

          The majority's contrary conclusion rests on the rigid dogma that, outside of the impeachment process, any "direct congressional role in the removal of officers charged with the execution of the laws . . . is inconsistent with separation of powers." Ante, at 723. Reliance on such an unyielding principle to strike down a statute posing no real danger of aggrandizement of congressional power is extremely misguided and insensitive to our constitutional role. The wisdom of vesting "executive" powers in an officer removable by joint resolution may indeed be debatable—as may be the wisdom of the entire scheme of permitting an unelected official to revise the budget enacted by Congress—but such matters are for the most part to be worked out between the Congress and the President through the legislative process, which affords each branch ample opportunity to defend its interests. The Act vesting budget-cutting authority in the Comptroller General represents Congress' judgment that the delegation of such authority to counteract ever-mounting deficits is "necessary and proper" to the exercise of the powers granted the Federal Government by the Constitution; and the President's approval of the statute signifies his unwillingness to reject the choice made by Congress. Cf. Nixon v. Administrator of General Services, 433 U.S., at 441, 97 S.Ct., at 2789. Under such circumstances, the role of this Court should be limited to determining whether the Act so alters the balance of authority among the branches of government as to pose a genuine threat to the basic division between the lawmaking power and the power to execute the law. Because I see no such threat, I cannot join the Court in striking down the Act.

          I dissent.

           Justice BLACKMUN, dissenting.

          The Court may be correct when it says that Congress cannot constitutionally exercise removal authority over an official vested with the budget-reduction powers that § 251 of the Balanced Budget and Emergency Deficit Control Act of 1985

Page 777

gives to the Comptroller General. This, however, is not because "the removal powers over the Comptroller General's office dictate that he will be subservient to Congress," ante, at 730; I agree with Justice WHITE that any such claim is unrealistic. Furthermore, I think it is clear under Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), that "executive" powers of the kind delegated to the Comptroller General under the Deficit Control Act need not be exercised by an officer who serves at the President's pleasure; Congress certainly could prescribe the standards and procedures for removing the Comptroller General. But it seems to me that an attempt by Congress to participate directly in the removal of an executive officer—other than through the constitutionally prescribed procedure of impeachment—might well violate the principle of separation of powers by assuming for Congress part of the President's constitutional responsibility to carry out the laws.

          In my view, however, that important and difficult question need not be decided in this litigation, because no matter how it is resolved the plaintiffs, now appellees, are not entitled to the relief they have requested. Appellees have not sought invalidation of the 1921 provision that authorizes Congress to remove the Comptroller General by joint resolution; indeed, it is far from clear they would have standing to request such a judgment. The only relief sought in this case is nullification of the automatic budget-reduction provisions of the Deficit Control Act, and that relief should not be awarded even if the Court is correct that those provisions are constitutionally incompatible with Congress' authority to remove the Comptroller General by joint resolution. Any incompatibility, I feel, should be cured by refusing to allow congressional removal—if it ever is attempted and not by striking down the central provisions of the Deficit Control Act. However wise or foolish it may be, that statute unquestionably ranks among the most important federal enactments of the past several

Page 778

decades. I cannot see the sense of invalidating legislation of this magnitude in order to preserve a cumbersome, 65-year-old removal power that has never been exercised and appears to have been all but forgotten until this litigation.¹

Page 779

          The District Court believed it had no choice in this matter. Once it concluded that the Comptroller General's functions under the Deficit Control Act were constitutionally incompatible with the 1921 removal provision, the District Court considered itself bound as a matter of orderly judicial procedure to set aside the statute challenged by the plaintiffs. See Synar v. United States, 626 F.Supp. 1374, 1393 (DC 1986). The majority today does not take this view, and I believe it is untenable.

          Under the District Court's approach, everything depends on who first files suit. Because Representative Synar and

Page 780

the plaintiffs who later joined him in this case objected to budget cuts made pursuant to the Deficit Control Act, the District Court struck down that statute, while retaining the 1921 removal provision. But if the Comptroller General had filed suit 15 minutes before the Congressman did, seeking a declaratory judgment that the 1921 removal power could not constitutionally be exercised in light of the duties delegated to the Comptroller General in 1985, the removal provision presumably would have been invalidated, and the Deficit Control Act would have survived intact. Momentous issues of public law should not be decided in so arbitrary a fashion. In my view, the only sensible way to choose between two conjunctively unconstitutional statutory provisions is to determine which provision can be invalidated with the least disruption of congressional objectives.

          The District Court apparently thought differently in large part because it believed this Court had never undertaken such analysis in the past; instead, according to the District Court, this Court has "set aside that statute which either allegedly prohibits or allegedly authorizes the injury-in-fact that confers standing upon the plaintiff." 626 F.Supp., at 1393. But none of the four cases the District Court cited for this proposition discussed the problem of choice of remedy, and in none of them could a strong argument have been made that invalidating the other of the inconsistent statutory provisions would have interfered less substantially with legislative goals or have been less disruptive of governmental operations.²

Page 781

          More importantly, the District Court ignored what appears to be the only separation-of-powers case in which this Court did expressly consider the question as to which of two incompatible statutes to invalidate: Glidden Co. v. Zdanok, 370 U.S. 530, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962). The petitioners in that case had received unfavorable rulings from judges assigned to temporary duty in the District Court or Court of Appeals from the Court of Claims or the Court of Customs and Patent Appeals; they argued that those rulings should be set aside because the judges from the specialized courts did not enjoy the tenure and compensation guaranteed by Article III of the Constitution. Before the assignments, Congress had pronounced the Court of Claims and the Court of Customs and Patent Appeals to be Article III courts, implying that judges on those courts were entitled to Article III benefits. Older statutes, however, gave both courts authority to issue advisory opinions, an authority incompatible with Article III status. Glidden held that the Court of Claims and the Court of Customs and Patent Appeals were indeed Article III tribunals. With respect to the advisory-opinion jurisdiction, Justice Harlan's opinion for the plurality noted: "The overwhelming majority of the Court of Claims' business is composed of cases and controversies." 370 U.S., at 583, 82 S.Ct., at 1490. Since

Page 782

"it would be . . . perverse to make the status of these courts turn upon so minuscule a portion of their purported functions," Justice Harlan reasoned that, "if necessary, the particular offensive jurisdiction, and not the courts, would fall." Ibid. Justice Clark's opinion concurring in the result for himself and the Chief Justice similarly concluded that the "minuscule" advisory-opinion jurisdiction of the courts in question would have to bow to the Article III status clearly proclaimed by Congress, and not vice versa. Id., at 587-589, 82 S.Ct., at 1492-1493.

          The Court thus recognized in Glidden that it makes no sense to resolve the constitutional incompatibility between two statutory provisions simply by striking down whichever provision happens to be challenged first. A similar recognition has underlain the Court's approach in equal protection cases concerning statutes that create unconstitutionally circumscribed groups of beneficiaries. The Court has noted repeatedly that such a defect may be remedied in either of two ways: the statute may be nullified, or its benefits may be extended to the excluded class. See, e.g., Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed.2d 646 (1984); Califano v. Westcott, 443 U.S. 76, 89, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979). Although extension is generally the preferred alternative, we have instructed lower courts choosing between the two remedies to " 'measure the intensity of [legislative] commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation.' " Heckler v. Mathews, supra, 465 U.S., at 739, n. 5, 104 S.Ct., at 1395, n. 5, quoting Welsh v. United States, 398 U.S. 333, 365, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result). Calculations of this kind are obviously more complicated when a court is faced with two different statutes, enacted decades apart, but Glidden indicates that even then the task is judicially manageable. No matter how difficult it is to determine which remedy would less obstruct congressional objectives, surely we should make that determination as best we can instead of leaving the selection to the litigants.

Page 783

          Assuming that the Comptroller General's functions under § 251 of the Deficit Control Act cannot be exercised by an official removable by joint resolution of Congress, we must determine whether legislative goals would be frustrated more by striking down § 251 or by invalidating the 1921 removal provision. That question is not answered by the "fallback" provisions of the 1985 Act, which take effect "[i]n the event that any of the reporting procedures described in section 251 [of the Act] are invalidated." § 274(f)(1), 99 Stat. 1100. The question is whether the reporting procedures should be invalidated in the first place. The fallback provisions simply make clear that Congress would prefer a watered-down version of the Deficit Control Act to none at all; they provide no evidence that Congress would rather settle for the watered-down version than surrender its statutory authority to remove the Comptroller General. The legislative history of the Deficit Control Act contains no mention of the 1921 statute, and both Houses of Congress have argued in this Court that, if necessary, the removal provision should be invalidated rather than § 251. See Brief for Appellant United States Senate 31-43; Brief for Appellants Speaker and Bipartisan Leadership Group of United States House of Representatives 49; accord, Brief for Appellant Comptroller General 33-47. To the extent that the absence of express fallback provisions in the 1921 statute signifies anything, it appears to signify only that, if the removal provision were invalidated, Congress preferred simply that the remainder of the statute should remain in effect without alteration.³

Page 784

          In the absence of express statutory direction, I think it is plain that, as both Houses urge, invalidating the Comptroller General's functions under the Deficit Control Act would frustrate congressional objectives far more seriously than would refusing to allow Congress to exercise its removal authority under the 1921 law. The majority suggests that the removal authority plays an important role in furthering Congress' desire to keep the Comptroller General under its control. But as Justice WHITE demonstrates, see ante, at 770-773, the removal provision serves feebly for such purposes, especially in comparison to other, more effective means of supervision at Congress' disposal. Unless Congress institutes impeachment proceedings—a course all agree the Constitution would permit—the 1921 law authorizes Congress to remove the Comptroller General only for specified cause, only after a hearing, and only by passing the procedural equivalent of a new public law. Congress has never attempted to use this cumbersome procedure, and the Comptroller General has shown few signs of subservience.⁴ If Congress in 1921

Page 785

wished to make the Comptroller General its lackey, it did a remarkably poor job.

          Indeed, there is little evidence that Congress as a whole was very concerned in 1921—much less in 1985 or during the intervening decades—with its own ability to control the Comptroller General. The Committee Reports on the 1921 Act and its predecessor bills strongly suggest that what was critical to the legislators was not the Comptroller General's subservience to Congress, but rather his independence from the President. See, e.g., H.R.Rep. No. 14, 67th Cong., 1st Sess., 7-8 (1921); H.R.Conf.Rep. No. 1044, 66th Cong., 2d Sess., 13 (1920); S.Rep. No. 524, 66th Cong., 2d Sess., 6-7 (1920); H.R.Rep. No. 362, 66th Cong., 1st Sess., 8-9 (1919). The debates over the Deficit Control Act contain no suggestion that the Comptroller General was chosen for the tasks outlined in § 251 because Congress thought it could count on him to do its will; instead, the Comptroller General appears to have been selected precisely because of his independence from both the Legislature and the Executive. By assigning the reporting functions to the Comptroller General, rather than to the Congressional Budget Office or to the Office of Management and Budget, Congress sought to create "a wall . . . that takes these decisions out of the hands of the President and the Congress." 131 Cong. Rec. 30865 (1985) (remarks of Rep. Gephardt) (emphasis added); see also, e.g., id., at 36089 (1985) (remarks of Rep. Weiss); id., at 36367 (1985) (remarks of Rep. Bedell).

          Of course, the Deficit Control Act was hardly the first statute to assign new functions to the Comptroller General; a good number of other duties have been delegated to the Comptroller General over the years. But there is no reason to believe that, in effecting these earlier delegations, Congress relied any more heavily on the availability of the re-

Page 786

moval provision than it did in passing the Deficit Control Act. In the past, as in 1985, it is far more likely that Congress was concerned mainly with the Comptroller General's demonstrated political independence, and perhaps to a lesser extent with his long tradition of service to the Legislative Branch; neither of these characteristics depends to any significant extent on the ability of Congress to remove the Comptroller General without instituting impeachment proceedings. Striking down the congressional-removal provision might marginally frustrate the legislative expectations underlying some grants of authority to the Comptroller General, but surely to a lesser extent than would invalidation of § 251 of Gramm-Rudman-Hollings—along with all other "executive" powers delegated to the Comptroller General over the years.⁵

Page 787

          I do not claim that the 1921 removal provision is a piece of statutory deadwood utterly without contemporary significance. But it comes close. Rarely if ever invoked even for symbolic purposes, the removal provision certainly pales in importance beside the legislative scheme the Court strikes down today—an extraordinarily far-reaching response to a deficit problem of unprecedented proportions. Because I believe that the constitutional defect found by the Court cannot justify the remedy it has imposed, I respectfully dissent.

^{1. In his signing statement, the President expressed his view that the Act was constitutionally defective because of the Comptroller General's ability to exercise supervisory authority over the President. Statement on Signing H.J. Res. 372 Into Law, 21 Weekly Comp. of Pres.Doc. 1491 (1985).}

^2. An individual member of the Union was later added as a plaintiff. See 475 U.S. 1094, 106 S.Ct. 1631, 90 L.Ed.2d 178 (1986).

^3. The First Congress included 20 Members who had been delegates to the Philadelphia Convention:

Richard Bassett (Delaware) William Samuel Johnson (Connecticut)

Pierce Butler (South Carolina)

Oliver Ellsworth (Connecticut) Rufus King (New York)

William Few (Georgia) John Langdon (New Hampshire)

Robert Morris (Pennsylvania) George Read (Delaware)

William Paterson (New Jersey) Caleb Strong (Massachusetts)

Abraham Baldwin (Georgia) Nicholas Gilman (New Hampshire)

Daniel Carroll (Maryland) James Madison (Virginia)

George Clymer (Pennsylvania) Roger Sherman (Connecticut)

Thomas FitzSimons (Pennsylvania) Hugh Williamson (North Carolina)

Elbridge Gerry (Massachusetts)

^4. Appellants therefore are wide of the mark in arguing that an affirmance in this case requires casting doubt on the status of "independent" agencies because no issues involving such agencies are presented here. The statutes establishing independent agencies typically specify either that the agency members are removable by the President for specified causes, see, e.g., 15 U.S.C. § 41 (members of the Federal Trade Commission may be removed by the President "for inefficiency, neglect of duty, or malfeasance in office"), or else do not specify a removal procedure, see, e.g., 2 U.S.C. § 437c (Federal Election Commission). This case involves nothing like these statutes, but rather a statute that provides for direct congressional involvement over the decision to remove the Comptroller General. Appellants have referred us to no independent agency whose members are removable by the Congress for certain causes short of impeachable offenses, as is the Comptroller General, see Part IV, infra.

^5. We reject appellants' argument that consideration of the effect of a removal provision is not "ripe" until that provision is actually used. As the District Court concluded, "it is the Comptroller General's presumed desire to avoid removal by pleasing Congress, which creates the here-and-now subservience to another branch that raises separation-of-powers problems." Synar v. United States, 626 F.Supp. 1374, 1392 (DC 1986). The Impeachment Clause of the Constitution can hardly be thought to be undermined because of nonuse.

^6. Congress adopted this provision in 1980 because of "the special interest of both Houses in the choice of an individual whose primary function is to provide assistance to Congress." S.Rep. No. 96-570, p. 10. U.S.Code Cong. & Admin.News 1980, pp. 732, 741.

^7. Although the President could veto such a joint resolution, the veto could be overridden by a two-thirds vote of both Houses of Congress. Thus, the Comptroller General could be removed in the face of Presidential opposition. Like the District Court, 626 F.Supp., at 1393, n. 21, we therefore read the removal provision as authorizing removal by Congress alone.

^8. The dissent relies on Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed.2d 1611 (1935), as its only Court authority for this point, but the President did not assert that he had removed the Federal Trade Commissioner in compliance with one of the enumerated statutory causes for removal. See id., at 612, 55 S.Ct., at 870 (argument of Solicitor General Reed); see also, Synar v. United States, 626 F.Supp., at 1398.

^9. Since 1921, the Comptroller General has been assigned a variety of functions. See, e.g., 2 U.S.C. § 687 (1982 ed., Supp. III) (duty to bring suit to require release of impounded budget authority); 42 U.S.C. § 6384(a) (duty to impose civil penalties under the Energy Policy and Conservation Act of 1975); 15 U.S.C. § 1862 (member of Chrysler Corporation Loan Guarantee Board); 45 U.S.C. § 711(d)(1)(C) (member of Board of Directors of United States Railway Association); 31 U.S.C. §§ 3551-3556 (1982 ed., Supp. III) (authority to consider bid protests under Competition in Contracting Act of 1984).

^10. Because we conclude that the Comptroller General, as an officer removable by Congress, may not exercise the powers conferred upon him by the Act, we have no occasion for considering appellees' other challenges to the Act, including their argument that the assignment of powers to the Comptroller General in § 251 violates the delegation doctrine, see, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).

^1. Just as it is "always appropriate to assume that our elected representatives, like other citizens, know the law," Cannon v. University of Chicago, 441 U.S. 677, 696-697, 99 S.Ct. 1946, 1957-1958, 60 L.Ed.2d 560 (1979), so too is it appropriate to assume that our elected representatives, like other citizens, will respect the law. As the proceedings in the United States Senate resulting from the impeachment of Justice Chase demonstrate, moreover, if that body were willing to give only lipservice to the governing standard, political considerations rather than "good behavior" would determine the tenure of federal judges. See M. Elsmere, The Impeachment Trial of Justice Samuel Chase 205 (1962); 3 A. Beveridge, The Life of John Marshall 157-223 (1919). See also W. Wilson, Congressional Government: A Study in American Politics 186-187 (Meridian Books ed., 1956) (quoted in Levi, Some Aspects of Separation of Powers, 76 Colum.L.Rev. 369, 380 (1976)):

" 'If there be one principle clearer than another, it is this: that in any business, whether of government or of mere merchandising, somebody must be trusted, in order that when things go wrong it may be quite plain who should be punished. . . . Power and strict accountability of its use are the essential constituents of good government.' " (Emphasis in original.)

^2. See Humphrey's Executor, 295 U.S., at 625-626, 55 S.Ct., at 872-873 (describing congressional intention to create "a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the government") (emphasis in original).

^3. The manner in which President Franklin Roosevelt exercised his removal power further underscores the propriety of presuming that Congress, and the President, will not use statutorily prescribed removal causes as pretexts for other removal reasons. President Roosevelt never claimed that his removal of Humphrey was for one of the statutorily prescribed reasons—inefficiency, neglect of duty, or malfeasance in office. The President's removal letter merely stated:

" 'Effective as of this date you are hereby removed from the office of Commissioner of the Federal Trade Commission.' " See id., at 619, 55 S.Ct., at 870.

Previously, the President had written to Commissioner Humphrey stating:

" 'You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it is best for the people of this country that I should have a full confidence.' " Ibid.

^4. Indeed, even in Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), in its challenge to the provision requiring Senate approval of the removal of a postmaster, the Federal Government assumed that Congress had power to limit the terms of removal to reasons that relate to the office. Solicitor General Beck recognized "that the power of removal may be subject to such general laws as do not destroy the exercise by the President of his power of removal, and which leaves to him the exercise of the power subject to such general laws as may fairly measure the standard of public service." Substitute Brief for United States on Reargument in No. 2, O.T. 1926, p. 9. At oral argument, the Solicitor General explained his position:

"Mr. BECK. . . . Suppose the Congress creates an office and says that it shall only be filled by a man learned in the law; and suppose it further provides that, if a man ceases to be member of the bar, he shall be removed. I am not prepared to say that such a law can not be reconciled with the Constitution. What I do say is that, when the condition imposed upon the creation of the office has no reasonable relation to the office; when it is not a legislative standard to be applied by the President, and is not the declaration of qualifications, but is the creation of an appointing power other than the President, then Congress has crossed the dead line, for it has usurped the prerogative of the President." 272 U.S., at 96-97, 47 S.Ct., at 52.

^5. In pertinent part, the 1921 Act provided:

"SEC. 312(a) The Comptroller General shall investigate, at the seat of government or elsewhere, all matters relating to the receipt, disbursement, and application of public funds, and shall make to the President when requested by him, and to Congress at the beginning of each regular session, a report in writing of the work of the General Accounting Office, containing recommendations concerning the legislation he may deem necessary to facilitate the prompt and accurate rendition and settlement of accounts and concerning such other matters relating to the receipt, disbursement, and application of public funds as he may think advisable. In such regular report, or in special reports at any time when Congress is in session, he shall make recommendations looking to greater economy or efficiency in public expenditures.

"(b) He shall make such investigations and reports as shall be ordered by either House of Congress or by any committee of either House having jurisdiction over revenue, appropriations, or expenditures. The Comptroller General shall also, at the request of any such committee, direct assistants from his office to furnish the committee such aid and information as it may request.

"(c) The Comptroller General shall specifically report to Congress every expenditure or contract made by any department or establishment in any year in violation of law.

"(d) He shall submit to Congress reports upon the adequacy and effectiveness of the administrative examination of accounts and claims in the respective departments and establishments and upon the adequacy and effectiveness of departmental inspection of the offices and accounts of fiscal officers.

"(e) He shall furnish such information relating to expenditures and accounting to the Bureau of the Budget as it may request from time to time." 42 Stat. 25-26 (emphases added).

^6. See also H.R.Rep. No. 971, 79th Cong., 1st Sess., 12 (1945) ("[T]he Comptroller General of the United States" and "the General Accounting Office . . . are declared by the bill to be a part of the legislative branch of the Government").

^7. See also H.R.Rep. No. 23, 81st Cong., 1st Sess., 11 (1949) ("[T]he Comptroller General of the United States" and "the General Accounting Office . . . (as in the Reorganization Act of 1945) are declared by the bill to be a part of the legislative branch of the Government").

^8. See 42 Stat. 23 ("The offices of Comptroller of the Treasury and Assistant Comptroller of the Treasury are abolished, to take effect July 21, 1921. . . . [A]ll books, records, documents, papers, furniture, office equipment and other property of the office of the Comptroller of the Treasury shall become the property of the General Accounting Office").

^9. The Comptroller General, of course, is also appointed by the President. 31 U.S.C. § 703(a)(1). So too, however, are the Librarian of Congress, 2 U.S.C. § 136, the Architect of the Capitol, 40 U.S.C. § 162, and the Public Printer, 44 U.S.C. § 301.

^10. See Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 36-37, and n. 1, 106 S.Ct. 355, 357-358, and n. 1, 88 L.Ed.2d 189 (1985) (reviewing the Marshals' statutory obligations to the Judiciary and the Executive Branch, but noting that the "Marshals are within the Executive Branch of the Federal Government"). Cf. Report by the Comptroller General, U.S. Marshals' Dilemma: Serving Two Branches of Government 14 (1982) ("It is extremely difficult for one person to effectively serve two masters"). Surely no one would suggest that the fact that THE CHIEF JUSTICE performs executive functions for the Smithsonian Institution, 20 U.S.C. § 42, affects his characterization as a member of the Judicial Branch of the Government. Nor does the performance of similar functions by three Members of the Senate and three Members of the House, ibid., affect their characterization as members of the Legislative Branch of the Government.

^11. Despite the suggestions of the dissents, post, at 773, n. 12 (WHITE, J., dissenting); post, at 778-779, n. 1 (BLACKMUN, J., dissenting), it is quite obvious that the Comptroller General, and the General Accounting Office, have a fundamentally different relationship with Congress than do independent agencies like the Federal Trade Commission. Rather than an independent agency, the Comptroller General and the GAO are functionally equivalent to congressional agents such as the Congressional Budget Office, the Office of Technology Assessment, and the Library of Congress' Congressional Research Service. As the statutory responsibilities make clear, like those congressional agents, the Comptroller General and the GAO function virtually as a permanent staff for Congress. Indeed, in creating the Congressional Budget Office, Congress explicitly required that the GAO provide extensive services for the CBO—a fact with some significance for this case. The CBO statute enumerates the three "congressional agencies" that must provide assistance to the CBO—"the General Accounting Office,

the Library of Congress, and the Office of Technology Assessment." 2 U.S.C. § 601(e). These "congressional agencies" are authorized to provide the CBO with "services, facilities, and personnel with or without reimbursement," ibid., as well as "information, data, estimates, and statistics." Ibid. See also Congressional Quarterly's Guide to Congress 555 (3d ed. 1982) ("In addition to their staffs, committees, facilities and privileges, members of Congress are backed by a number of other supporting organizations and activities that keep Capitol Hill running. Among the largest of these in size of staff are the General Accounting Office (GAO), with about 5,200 employees; the Library of Congress' Congressional Research Service (CRS), with 856; the Congressional Budget Office (CBO), with 218; and the Office of Technology Assessment (OTA), with 130. . . . To an extent, each of the four legislative agencies has its own specialized functions. . . . Although each of the four agencies has been given its own task, their jobs overlap to some extent. This has led in some cases to duplication and waste and even to competition among the different groups. . . . The General Accounting Office is an arm of the legislative branch that was created to oversee the expenditures of the executive branch").

Thus, to contend that the Comptroller General's numerous statutory responsibilities to serve Congress directly are somehow like an independent agency's obligations to report to Congress and to implement legislatively mandated standards simply misconceives the actual duties of the Comptroller General and the GAO. It also ignores the clear import of the legislative history of these entities. See, e.g., Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 892-893 (CA3 1986) (Becker, J., concurring in part) ("Because the office of the Comptroller General is created by statute, the Comptroller General's status within the government is a matter of statutory interpretation which, like all statutory interpretation, is controlled by legislative intent. . . . There is copious evidence in the legislative history that the GAO (and therefore the Comptroller General) was intended to be in the legislative branch. . . . Because there is no legislative intent to the contrary, I believe that it is incumbent upon us to hold that the Comptroller General is within the legislative branch of government, despite the inconveniences that may attend such a holding").

^12. The element of judgment that the Comptroller General must exercise is evident by the congressional recognition that there may be "differences between the contents of [his] report and the report of the Directors" of the Congressional Budget Office and the Office of Management and Budget. § 251(b)(2).

^13. "Perhaps as a matter of political science we could say that Congress should only concern itself with broad principles of policy and leave their application in particular cases to the executive branch. But no such rule can be found in the Constitution itself or in legislative practice. It is fruitless, therefore, to try to draw any sharp and logical line between legislative and executive functions. Characteristically, the draftsmen of 1787 did not even attempt doctrinaire definitions, but placed their reliance in the mechanics of the Constitution. One of their principal devices was to vest the legislative powers in the two Houses of Congress and to make the President a part of the legislative process by requiring that all bills passed by the two Houses be submitted to him for his approval or disapproval, his disapproval or veto to be overridden only by a two-thirds vote of each House. It is in such checks upon powers, rather than in the classifications of powers, that our governmental system finds equilibrium." Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev. 569, 571 (1953) (footnote omitted).

^14. For Justice POWELL the critical question in the Chadha case was "whether Congress impermissibly assumed a judicial function." 462 U.S., at 963, 103 S.Ct., at 2790.

^15. "It is clear, therefore, that the Attorney General acts in his presumptively Art. II capacity when he administers the Immigration and Nationality Act." Id., at 953, n. 16, 103 S.Ct., at 2785, n. 6.

^16. "Under subsection 251(b)(1), the Comptroller General must specify levels of anticipated revenue and expenditure that determine the gross amount which must be sequestered; and he must specify which particular budget items are required to be reduced by the various provisions of the Act (which are not in all respects clear), and in what particular amounts. The first of these specifications requires the exercise of substantial judgment concerning present and future facts that affect the application of the law—the sort of power normally conferred upon the executive officer charged with implementing a statute. The second specification requires an interpretation of the law enacted by Congress, similarly a power normally committed initially to the Executive under the Constitution's prescription that he 'take Care that the Laws be faithfully executed.' Art. II, § 3." Synar v. United States, 626 F.Supp. 1374, 1400 (DC 1986).

^17. Section 274(f) of the Act provides, in part:

"Alternative Procedures for the Joint Reports of the Directors.—

"(1) In the event that any of the reporting procedures described in section 251 are invalidated, then any report of the Directors referred to in section 251(a) or (c)(1) . . . shall be transmitted to the joint committee established under this subsection.

"(2) Upon the invalidation of any such procedure there is established a Temporary Joint Committee on Deficit Reduction, composed of the entire membership of the Budget Committees of the House of Representatives and the Senate. . . . The purposes of the Joint Committee are to receive the reports of the Directors as described in paragraph (1), and to report (with respect to each such report of the Directors) a joint resolution as described in paragraph (3).

"(3) No later than 5 days after the receipt of a report of the Directors in accordance with paragraph (1), the Joint Committee shall report to the House of Representatives and the Senate a joint resolution setting forth the contents of the report of the Directors.

* * * * *

"(5) Upon its enactment, the joint resolution shall be deemed to be the report received by the President under section 251(b) or (c)(2) (whichever is applicable)." 99 Stat. 1100 (emphasis added).

^18. "All that has been left to administrative discretion is the estimation of the aggregate amount of reductions that will be necessary, in light of predicted revenues and expenditures, and we believe that the Act contains standards adequately confining administrative discretion in making that estimation. While this is assuredly an estimation that requires some judgment, and on which various individuals may disagree, we hardly think it is a distinctively political judgment, much less a political judgment of such scope that it must be made by Congress itself. Through specification of maximum deficit amounts, establishment of a detailed administrative mechanism, and determination of the standards governing administrative decisionmaking, Congress has made the policy decisions which constitute the essence of the legislative function." 626 F.Supp., at 1391.

The District Court's holding that the exercise of discretion was not the kind of political judgment that "must be made by Congress itself" is, of course, consistent with the view that it is a judgment that "may be made by Congress itself" pursuant to § 274.

^19. Even scholars who would have sustained the one-House veto appear to agree with this ultimate conclusion. See Nathanson, Separation of Powers and Administrative Law: Delegation, The Legislative Veto, and the "Independent" Agencies, 75 Nw.U.L.Rev. 1064, 1090 (1981) ("It is not a case where the Congress has delegated authority to one of its components to take affirmative steps to impose regulations upon private interests—an action which would, I assume, be unconstitutional"). Cf. Buckley v. Valeo, 424 U.S. 1, 286, 96 S.Ct. 612, 728, 46 L.Ed.2d 659 (1976) (WHITE, J., dissenting) (expressing the opinion that a one-House veto of agency regulations would be unobjectionable, but adding that it "would be considerably different if Congress itself purported to adopt and propound regulations by the action of both Houses").

^20. As I have emphasized, in this case, the Comptroller General is assigned functions that require him to make policy determinations that bind the Nation. I note only that this analysis need not call into question the Comptroller General's performance of numerous existing functions that may not rise to this level. See ante, at 734-735, n. 9.

^21. The fact that Congress specified a joint resolution as the fallback provision has another significance as well. For it reveals the congressional intent that, if the Comptroller General could not exercise the prescribed functions, Congress wished to perform them itself, rather than delegating them, for instance, to an independent agency or to an Executive Branch official. This choice shows that Congress intended that the important functions of the Act be no further from itself than the Comptroller General.

^22. In considering analogous problems, our state courts have consistently recognized the importance of strict adherence to constitutionally mandated procedures in the legislative process. See, e.g., State v. A.L.I.V.E. Voluntary, 606 P.2d 769, 773, 777 (Alaska 1980) ("Of course, when the legislature wishes to act in an advisory capacity it may act by resolution. However, when it means to take action having a binding effect on those outside the legislature it may do so only by following the enactment procedures. Other state courts have so held with virtual unanimity. . . . The fact that it can delegate legislative power to others who are not bound by article II does not mean that it can delegate the same power to itself and, in the process, escape from the constraints under which it must operate"); People v. Tremaine, 252 N.Y. 27, 44, 168 N.E. 817, 822 (1929) ("If the power to approve the segregation of lump sum appropriations may be delegated to any one, even to one or two members of the Legislature, it necessarily follows that the power to segregate such appropriations may also be conferred upon such delegates. . . . To visualize an extreme case, one lump sum appropriation might be made to be segregated by the committee chairmen. Such a delegation of legislative power would be abhor[r]ent to all our notions of legislation on the matter of appropriations").

^23. I have previously noted my concern about the need for a "due process of lawmaking" even when Congress has acted with bicameralism and presentment. See Fullilove v. Klutznick, 448 U.S. 448, 549, and n. 24, 100 S.Ct. 2758, 2811, and n. 24, 65 L.Ed.2d 902 (1980) (STEVENS, J., dissenting); Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 98, and n. 11, 97 S.Ct. 911, 916, and n. 11, 51 L.Ed. 173 (1977) (STEVENS, J., dissenting). When a legislature's agent is given powers to act without even the formalities of the legislative process, these concerns are especially prominent.

^24. See also Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif.L.Rev. 983, 1067, n. 430 (1975) ("A delegation which disperses power is not necessarily constitutionally equivalent to one which concentrates power in the hands of the delegating agency"); Ginnane, 66 Harv.L.Rev., at 595 ("It is a non sequitur to say that, since a statute can delegate a power to someone not bound by the procedure prescribed in the Constitution for Congress' exercise of the power, it can therefore 'delegate' the power to Congress free of constitutional restrictions on the manner of its exercise").

^25. Justice BLACKMUN suggests that Congress may delegate legislative power to one of its own agents as long as it does not retain "tight control" over that agent. Post, at 779, n. 1. His suggestion is not faithful to the rationale of Chadha because no component of Congress, not even one of its Houses, is subject to the "tight control" of the entire Congress. For instance, the Congressional Research Service, whose primary function is to respond to congressional research requests, 2 U.S.C. § 166, apparently would not fall within Justice BLACKMUN's "tight control" test because Congress has guaranteed the Service "complete research independence and the maximum practicable administrative independence consistent with these objectives." § 166(b)(2). I take it, however, that few would doubt the unconstitutionality of assigning the functions at issue in this case to the Congressional Research Service. Moreover, Chadha surely forecloses the suggestion that because delegation of legislative power to an independent agency is acceptable, such power may also be delegated to a component or an agent of Congress. Finally, with respect to Justice BLACKMUN's emphasis on Presidential appointment of the Comptroller General, post, at 778-779, n. 1, as I have previously pointed out, other obvious congressional agents, such as the Librarian of Congress, the Architect of the Capitol, and the Public Printer are also appointed by the President. See n. 9, supra.

^1. See ante, at 724-726, and n. 4.

^2. The Solicitor General appeared on behalf of the "United States," or, more properly, the Executive Departments, which intervened to attack the constitutionality of the statute that the Chief Executive had earlier endorsed and signed into law.

^3. Although the Court in Humphrey's Executor characterized the powers of the Federal Trade Commissioner whose tenure was at issue as "quasi-legislative" and "quasi-judicial," it is clear that the FTC's power to enforce and give content to the Federal Trade Commission Act's proscription of "unfair" acts and practices and methods of competition is in fact "executive" in the same sense as is the Comptroller's authority under Gramm-Rudman-Hollings—that is, it involves the implementation (or the interpretation and application) of an Act of Congress. Thus, although the Court in Humphrey's Executor found the use of the labels "quasi-legislative" and "quasi-judicial" helpful in "distinguishing" its then-recent decision in Myers v. United States, 272 U.S. 52, (1926), these terms are hardly of any use in limiting the holding of the case; as Justice Jackson pointed out, "[t]he mere retreat to the qualifying 'quasi' is implicit with confession that all recognized classifications have broken down, and 'quasi' is a smooth cover which we draw over our confusion as we might use a counterpane to conceal a disordered bed." FTC v. Ruberoid Co., 343 U.S. 470, 487-488, 72 S.Ct. 800, 810, 96 L.Ed. 1081 (1952) (dissenting).

^4. Cf. ante, at 733 ("[U]ndoubtedly the content of the Act determines the nature of the executive duty").

^5. That the statute provides, to the greatest extent possible, precise guidelines for the officer assigned to carry out the required budget cuts not only indicates that vesting budget-cutting authority in an officer independent of the President does not in any sense deprive the President of a significant amount of discretionary authority that should rightfully be vested in him or an officer accountable to him, but also answers the claim that the Act represents an excessive and hence unlawful delegation of legislative authority. Because the majority does not address the delegation argument, I shall not discuss it at any length, other than to refer the reader to the District Court's persuasive demonstration that the statute is not void under the nondelegation doctrine.

^6. The legislative history indicates that the inclusion of the President in the removal process was a deliberate choice on the part of the Congress that enacted the Budget and Accounting Act. The previous year, legislation establishing the position of Comptroller General and providing for removal by concurrent resolution—that is, by a resolution not presented to the President had been vetoed by President Wilson on the ground that granting the sole power of removal to the Congress would be unconstitutional. See 59 Cong.Rec. 8609-8610 (1920). That Congress responded by providing for removal through joint resolution clearly evinces congressional intent that removal take place only through the legislative process, with Presidential participation.

^7. Because a joint resolution passed by both Houses of Congress and signed by the President (or repassed over the President's veto) is legislation

having the same force as any other Act of Congress, it is somewhat mysterious why the Court focuses on the Budget and Accounting Act's authorization of removal of the Comptroller through such a resolution as an indicator that the Comptroller may not be vested with executive powers. After all, even without such prior statutory authorization, Congress could pass, and the President sign, a joint resolution purporting to remove the Comptroller, and the validity of such legislation would seem in no way dependent on previous legislation contemplating it. Surely the fact that Congress might at any time pass and the President sign legislation purporting to remove some officer of the United States does not make the exercise of executive power by all such officers unconstitutional. Since the effect of the Budget and Accounting Act is merely to recognize the possibility of legislation that Congress might at any time attempt to enact with respect to any executive officer, it should not make the exercise of "executive" power by the Comptroller any more problematic than the exercise of such power by any other officer. A joint resolution purporting to remove the Comptroller, or any other executive officer, might be constitutionally infirm, but Congress' advance assertion of the power to enact such legislation seems irrelevant to the question whether exercise of authority by an officer who might in the future be subject to such a possibly valid and possibly invalid resolution is permissible, since the provision contemplating a resolution of removal obviously cannot in any way add to Congress' power to enact such a resolution.

Of course, the foregoing analysis does not imply that the removal provision of the Budget and Accounting Act is meaningless; for although that provision cannot add to any power Congress might have to pass legislation (that is, a joint resolution) removing the Comptroller, it can limit its power to do so to the circumstances specified. The reason for this is that any joint resolution purporting to remove the Comptroller in the absence of a hearing or one of the specified grounds for removal would not be deemed an implied repeal of the limits on removal in the 1921 Act (for such implied repeals are disfavored), and thus the joint resolution would only be given effect to the extent consistent with the pre-existing law (that is, to the extent that there was actually cause for removal).

^8. Cf. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (1935), in which the Court entertained a challenge to Presidential removal under a statute that similarly limited removals to specified cause.

^9. The Court cites statements made by supporters of the Budget and Accounting Act indicating their belief that the Act's removal provisions would render the Comptroller subservient to Congress by giving Congress " 'absolute control of the man's destiny in office.' " Ante, at 728. The Court's scholarship, however, is faulty: at the time all of these statements were made including Representative Sisson's statement of May 3, 1921—the proposed legislation provided for removal by concurrent resolution, with no Presidential role. See 61 Cong.Rec. 983, 989-992, 1079-1085 (1921).

^10. Concededly, the substantive grounds for removal under the statute are broader than the grounds for impeachment specified by the Constitution, see ante, at ---- - ----, although given that it is unclear whether the limits on the impeachment power may be policed by any body other than Congress itself, the practical significance of the difference is hard to gauge. It seems to me most likely that the difficulty of obtaining a two-thirds vote for removal in both Houses would more than offset any increased likelihood of removal that might result from the greater liberality of the substantive grounds for removal under the statute. And even if removal by Congress alone through joint resolution passed over Presidential veto is marginally more likely than impeachment, whatever additional influence over the Comptroller Congress may thereby possess seems likely to be minimal in relation to that which Congress already possesses by virtue of its general legislative powers and its power to impeach. Of course, if it were demonstrable that the Constitution specifically limited Congress' role in removal to the impeachment process, the insignificance of the marginal increase in congressional influence resulting from the provision authorizing removal through joint resolution would be no answer to a claim of unconstitutionality. But no such limit appears in the Constitution: the Constitution merely provides that all officers of the United States may be impeached for high crimes and misdemeanors, and nowhere suggests that impeachment is the sole means of removing such officers.

As for the Court's observation that "no one would seriously suggest that judicial independence would be strengthened by allowing removal of federal judges only by a joint resolution finding 'inefficiency,' 'neglect of duty,' or 'malfeasance,' " ante, at 730, it can only be described as a non sequitur. The issue is not whether the removal provision makes the Comptroller more independent than he would be if he were removable only through impeachment, but whether the provision so weakens the Comptroller that he may not exercise executive authority. Moreover, the Court's reference to standards applicable to removal of Art. III judges is a red herring, for Art. III judges—unlike other officers of the United States—are specifically protected against removal for other than constitutionally specified cause. Thus, the infirmity of a statute purporting to allow removal of judges for some other reason would be that it violated the specific command of Art. III. In the absence of a similar textual limit on the removal of nonjudicial officers, the test for a violation of separation of powers should be whether an asserted congressional power to remove would constitute a real and substantial aggrandizement of congressional authority at the expense of executive power, not whether a similar removal provision would appear problematic if applied to federal judges.

^11. The author of this statement was no apologist for the Comptroller; rather, his study of the office is premised on the desirability of Presidential control over many of the Comptroller's functions. Nonetheless, he apparently found no reason to accuse the Comptroller of subservience to Congress, and he conceded that "[t]he political independence of the office has in fact been one of its outstanding characteristics." H. Mansfield, The Comptroller General 75 (1939).

^12. Professor Mosher's reference to the fact that the Comptroller is limited to a single term highlights an additional source of independence: unlike an officer with a fixed term who may be reappointed to office, the Comptroller need not concern himself with currying favor with the Senate in order to secure its consent to his reappointment.

^13. The majority responds to the facts indicating the practical independence of the Comptroller from congressional control by cataloging a series of

statements and materials categorizing the Comptroller as a part of the "Legislative Branch." Ante, at ---- - ----. Such meaningless labels are quite obviously irrelevant to the question whether in actuality the Comptroller is so subject to congressional domination that he may not participate in the execution of the laws.

Justice STEVENS, for his part, finds that the Comptroller is an "agent" of Congress, and thus incapable of wielding the authority granted him by the Act, because his responsibilities under a variety of statutes include making reports to the Congress. Justice STEVENS' position is puzzling, to say the least. It seems to rest on the view that an officer required to perform certain duties for the benefit of Congress somehow becomes a part of Congress for all purposes. But it is by no means true that an officer who must perform specified duties for some other body is under that body's control or acts as its agent when carrying out other, unrelated duties. As Justice BLACKMUN points out, see post, at 778-779, n. 1, duties toward Congress are imposed on a variety of agencies, including the Federal Trade Commission; and certainly it cannot credibly be maintained that by virtue of those duties the agencies become branches of Congress, incapable of wielding governmental power except through the legislative process. Indeed, the President himself is under numerous obligations, both statutory and constitutional, to provide information to Congress, see, e.g., Art. II, § 3, cl. 1; surely the President is not thereby transformed into an arm or agency of the Congress. If, therefore, as Justice STEVENS concedes, see ante, at ---- - ----, the provision authorizing removal of the Comptroller by joint resolution does not suffice to establish that he may not exercise the authority granted him under Gramm-Rudman-Hollings, I see no substantial basis for concluding that his various duties toward Congress render him incapable of receiving such power.

^14. Even if I were to concede that the exercise of executive authority by the Comptroller is inconsistent with the removal provision, I would agree with Justice BLACKMUN that striking down the provisions of the Gramm-Rudman-Hollings Act vesting the Comptroller with such duties is a grossly inappropriate remedy for the supposed constitutional infirmity, and that if one of the features of the statutory scheme must go, it should be the removal provision. As Justice BLACKMUN points out, the mere fact that the parties before the Court have standing only to seek invalidation of the Gramm-Rudman-Hollings spending limits cannot dictate that the Court resolve any constitutional incompatibility by striking down Gramm-Rudman-Hollings. Nor does the existence of the fallback provisions in Gramm-Rudman-Hollings indicate the appropriateness of the Court's choice, for those provisions, by their terms, go into effect only if the Court finds that the primary budget-cutting mechanism established by the Act must be invalidated; they by no means answer the antecedent question whether the Court should take that step.

Given the majority's constitutional premises, it is clear to me that the decision whether to strike down Gramm-Rudman-Hollings must depend on whether such a choice would be more or less disruptive of congressional objectives than declaring the removal provision invalid (with the result that the Comptroller would still be protected against removal at will by the President, but could also not be removed through joint resolution). When the choice is put in these terms, it is evident that it is the never-used removal provision that is far less central to the overall statutory scheme. That this is so is underscored by the fact that under the majority's theory, the removal provision was never constitutional, as the Comptroller's primary duties under the 1921 Act were clearly executive under the Court's definition: the Comptroller's most important tasks under that legislation were to dictate accounting techniques for all executive agencies, to audit all federal expenditures, and to approve or disapprove disbursement of funds. See F. Mosher, The GAO (1979). Surely the Congress in 1921 would have sacrificed its own role in removal rather than allow such duties to go unfulfilled by a Comptroller independent of the President. See 59 Cong.Rec. 8611 (1920).

^1. For the reasons identified by the District Court, I agree that the Deficit Control Act does not violate the nondelegation doctrine. See Synar v. United States, 626 F.Supp. 1374, 1382-1391 (DC 1986).

Justice STEVENS concludes that the delegation effected under § 251 contravenes the holding of INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), that Congress may make law only "in conformity with the express procedures of the Constitution's prescription for legislative action: passage by a majority of both Houses and presentment to the President." Id., at 958, 103 S.Ct., at 2787. I do not agree. We made clear in Chadha that the bicameralism and presentation requirements prevented Congress from itself exercising legislative power through some kind of procedural shortcut, such as the one-House veto challenged in that case. But we also made clear that our holding in no way questioned "Congress' authority to delegate portions of its power to administrative agencies." Id., at 953-954, n. 16, 103 S.Ct., at 2785, n. 16. We explained: "Executive action under legislatively delegated authority that might resemble 'legislative' action in some respects is not subject to the approval of both Houses of Congress and the President for the reason that the Constitution does not so require. That kind of Executive action is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review as well as the power of Congress to modify or revoke the authority entirely." Ibid.

Although Justice STEVENS seems to agree that the duties delegated to the Comptroller General under § 251 could be assigned constitutionally to an independent administrative agency, he argues that Congress may not give these duties "to one of its own agents." Ante, at ---- - ----. He explains that the Comptroller General fits this description because "most" of his statutory responsibilities require him to provide services to Congress, and because Congress has repeatedly referred to the Comptroller General as part of the Legislative Branch. See ante, at ---- - ----. "If Congress were free to delegate its policymaking authority" to such an officer, Justice STEVENS contends that "it would be able to evade 'the carefully crafted restraints spelled out in the Constitution.' " Ante, at ----, quoting Chadha, 462 U.S., at 959, 103 S.Ct., at 2788. In his view, "[t]hat danger congressional action that evades constitutional restraints—is not present when Congress delegates lawmaking power to the executive or to an independent agency." Ante, at ----.

I do not think that danger is present here, either. The Comptroller General is not Congress, nor is he a part of Congress; "irrespective of Congress' designation,"

he is an officer of the United States, appointed by the President. Buckley v. Valeo, 424 U.S. 1, 128, n. 165, 96 S.Ct. 612, 686, n. 165, 46 L.Ed.2d 659 (1976). In this respect the Comptroller General differs critically from, for example, the Director of the Congressional Budget Office, who is appointed by Congress, see 2 U.S.C. § 601(a)(2), and hence may not "exercis[e] significant authority pursuant to the laws of the United States," Buckley v. Valeo, supra, at 126, 96 S.Ct., at 685; see U.S. Const., Art. II, § 2, cl. 2. The exercise of rulemaking authority by an independent agency such as the Federal Trade Commission does not offend Chadha, even though the Commission could be described as an "agent" of Congress because it "carr[ies] into effect legislative policies embodied in the statute in accordance with the legislative standard therein prescribed." Humphrey's Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 79 L.Ed. 1611 (1935). I do not see why the danger of "congressional action that evades constitutional restraints" becomes any more pronounced when a statute delegates power to a Presidentially appointed agent whose primary duties require him to provide services to Congress. The impermissibility of such a delegation surely is not rendered "obvious" by the fact that some officers who perform services for Congress have titles such as "librarian," "architect," or "printer." See ante, at ----, n. 25 (STEVENS, J., concurring in judgment). Furthermore, in sustaining the constitutionality of the Federal Trade Commission's independent status, this Court noted specifically that the Commission "acts as a legislative agency" in "making investigations and reports thereon for the information of Congress . . . in aid of the legislative power." 295 U.S., at 628, 55 S.Ct., at 874. Justice STEVENS' approach might make some sense if Congress had delegated legislative responsibility to an officer over whom Congress could hope to exercise tight control, but even Justice STEVENS does not claim that the Comptroller General is such an officer.

^2. In Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926), the Court refused to enforce a statute requiring congressional approval for removal of postmasters. The Court's analysis suggested that there was no practical way the duties of the office could have been reformulated to render congressional participation in the removal process permissible. In Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), the Court removed from office several Philippine officials exercising executive powers but appointed by officers of the Philippine Legislature. As in Myers, the Court concluded that the offices by their very nature were executive, so the appointments could not have been rendered legal simply by trimming the delegated duties. In Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court set aside Federal Election Campaign Act provisions granting certain powers to officials appointed by Congress, but it structured its remedy so as to interfere as little as possible with the orderly conduct of business by the Federal Election Commission. Past acts of the improperly constituted Commission were deemed valid, and the Court's mandate was stayed for 30 days to allow time for the Commission to be reconstituted through Presidential appointment. See id., at 142-143. Finally, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), the Court set aside an exercise of judicial power by a bankruptcy judge, because his tenure was not protected in the manner required by Article III of the Constitution. To give Article III protections to bankruptcy judges, the federal bankruptcy statute would have had to be rewritten completely.

^3. Although the legislative history on this point is sparse, it seems reasonably clear that Congress intended the removal provision to be severable from the remainder of the 1921 statute. An earlier bill, providing for removal of the Comptroller General only by impeachment or concurrent resolution of Congress, was vetoed by President Wilson on the grounds that Congress could not constitutionally limit the President's removal power or exercise such power on its own. See 59 Cong.Rec. 8609-8610 (1920). In the course of an unsuccessful attempt to override the veto, Representative Pell inquired: "If we pass this over the President's veto and then the Supreme Court should uphold the contention of the President, this bill would not fail, would it? The bill would continue." Representative Blanton answered, "Certainly." Id., at 8611.

^4. "All of the comptrollers general have treasured and defended the independence of their office, not alone from the president but also from the Congress itself. . . . Like the other institutions in the government, GAO depends upon Congress for its powers, its resources, and its general oversight. But it also possesses continuing legal powers, of both long and recent standing, that Congress has granted it and that it can exercise in a quite independent fashion. And the comptroller general, realistically speaking, is immune from removal during his fifteen-year term for anything short of a capital crime, a crippling illness, or insanity." F. Mosher, A Tale of Two Agencies 158 (1984). See also, e.g., Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875, 885-887 (CA3 1986); F. Mosher, The GAO 2, 240-244 (1979); H. Mansfield, The Comptroller General 75-76 (1939).

^5. Many of the Comptroller General's other duties, including those listed by the majority, see ante, at 734, n. 9, appear to meet the majority's test for plainly "executive" functions—i.e., they require the Comptroller General to "[i]nterpre[t] a law enacted by Congress to implement the legislative mandate," and to "exercise judgment concerning facts that affect the application of the [law]." Ante, at 733. Indeed, the majority's approach would appear to classify as "executive" some of the most traditional duties of the Comptroller General, such as approving expenditure warrants, rendering conclusive decisions on the legality of proposed agency disbursements, and settling financial claims by and against the Government. See 31 U.S.C. §§ 3323, 3526-3529, 3702; F. Mosher, A Tale of Two Agencies 159-160 (1984). All three of these functions were given to the Comptroller General when the position was created in 1921. See 42 Stat. 20, 24-25.

I do not understand the majority's assertion that invalidating the 1921 removal provision might make the Comptroller General "subservient to the Executive Branch." Ante, at 734. The majority does not suggest that an official who exercises the functions that the Deficit Control Act vests in the Comptroller General must be removable by the President at will. Perhaps the President possesses inherent constitutional authority to remove "executive" officials for such politically neutral grounds as inefficiency or neglect of duty, but if so—and I am not convinced of it—I do not see how that power would be enhanced by nullification of a statutory provision giving similar authority to Congress. In any event, I agree with Justice WHITE and Justice STEVENS that the power to remove an officer for reasons of this kind cannot realistically be expected to make an officer "subservient" in any meaningful sense to the removing authority. Cf. Humphrey's Executor v. United States, 295 U.S., at 629, 55 S.Ct., at 874.

Supreme Court of the United States

METROPOLITAN WASHINGTON AIRPORTS AUTHORITY, et al., Petition-ers

v.

CITIZENS FOR THE ABATEMENT OF AIRCRAFT NOISE, INC., et al.

No. 90-906.

Argued April 16, 1991.

Decided June 17, 1991.

Organization and individuals concerned with operation of District of Columbia area airports challenged constitutionality of review board created by legislation transferring control of airports from Congress to local authority. The United States District Court for the District of Columbia, 718 F.Supp. 974,Joyce Hens Green, J., granted summary judgment for government, and appeal was taken. The Court of Appeals for the District of Columbia Circuit, 917 F.2d 48, reversed and remanded. On certiorari review, the Supreme Court, Justice Stevens, held that Congress' conditioning of transfer of District of Co-lumbia area airports to local authority upon creation of Board of Review composed of congressmen and having veto power over decisions of local authority's directors violated separation of pow-ers.

Affirmed.

Justice White dis-sented and filed opinion in which Chief Justice Rehnquist and Justice Marshall joined.

**2299 *252 Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.

An Act of Congress (hereinafter the Transfer Act) authorized the transfer of operating control of Washington National Airport (National) and Dulles International Airport (Dulles) from the federal Department of Transportation to petitioner Metropolitan Washington Airports Authority (MWAA), which was created by a compact between Virginia and the District of Columbia. Both airports are located in the Virginia suburbs of the District. Dulles is larger than National and lies in a rural area miles from the Capitol. National is a much busier airport due to the convenience of its location at the center of the metropolitan area, but its flight paths over densely populated areas have generated concern among residents about safety, noise, and pollution. Because of congressional concern that surrender of federal control of the airports might result in the transfer of a significant amount of traffic from Na-tional to Dulles, the Transfer Act authorizes MWAA's Board of Directors to create a Board of Review (Board). The Board is to be composed of nine congressmen who serve on committees having jurisdiction over transportation issues, and who are to act “in their individual capacities.” The Board is vested with a variety of powers, including the author-ity to veto decisions made by MWAA's directors. After the directors adopted bylaws providing for the Board, and Virginia and the District amended their legislation to give MWAA powers to establish the Board, the directors appointed the Board's nine mem-bers from lists submitted by Congress. The directors then adopted a master plan providing for extensive new facilities at National, and the Board voted not to disapprove that plan. Subsequently, respondents-individuals living along National flight paths and Citizens for the Abatement of Aircraft Noise, Inc. (CAAN), whose members include persons living along such paths, and whose purposes include the reduction of National operations and associated noise, safety, and air pollution problems-brought this action seeking declaratory and injunctive relief, alleg-ing that the Board's veto power is unconstitutional. Although ruling that respondents had standing to maintain the action, the District Court granted sum-mary judgment for petitioners. The Court of Appeals reversed, holding, inter alia, that Congress' delega-tion of the *253 veto power to the Board violated the constitutional doctrine of separation of pow-ers.

Held:

1. Respondents have standing. Accepting as true their claims that the mas-ter plan will result in increased noise, pollution, and accidents, they have alleged “personal injury” to themselves that is “fairly **2300 traceable” to the Board's veto power. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556. This is because knowledge that the plan was subject to that power undoubtedly influenced MWAA's directors when they drew up the plan. Moreover, because in-validation of the veto power will prevent enactment of the plan, the relief respondents have requested is “likely to ... redres[s]” their alleged injury. Ibid. Fur-thermore, the harm they allege is not confined to the consequences of a possible increase in National activ-ity, since the Board and the master plan injure CAAN by making it more difficult for it to fulfill its goal of reducing that activity. P. 2306.

2. Congress' conditioning of the airports' transfer upon the creation of a Board of Review composed of congressmen and having veto power over the MWAA directors' deci-sions violates the separation of powers. Pp. 2306-2312.

(a) Petitioners argue incorrectly that this case does not raise any separation-of-powers issue because the Board is a state creation that neither exercises federal power nor acts as an agent of Con-gress. An examination of the Board's origin and structure reveals an entity created at the initiative of Congress, the powers of which Congress has man-dated in detail, the purpose of which is to protect an acknowledged federal interest in the efficient opera-tion of airports vital to the smooth conduct of Gov-ernment and congressional business, and membership in which is controlled by Congress and restricted to Members charged with authority over air transporta-tion. Such an entity necessarily exercises sufficient federal powers as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the Constitution's “carefully crafted” constraints, INS v. Chadha, 462 U.S. 919, 959, 103 S.Ct. 2764, 2788, 77 L.Ed.2d 317, simply by delegating primary responsibility for exe-cution of national policy to the States, subject to the veto power of Members of Congress acting “in their individual capacities.” Cf. Bowsher v. Synar, 478 U.S. 714, 755, 106 S.Ct. 3181, 3202, 92 L.Ed.2d 583 (STEVENS, J., concurring in judgment). Nor is there merit to petitioners' contention that the Board should nevertheless be immune from scrutiny for constitu-tional defects because it was created in the course of Congress' exercise of its power to dispose of federal property under Article IV, § 3, cl. 2. South Dakota v. Dole, 483 U.S. 203, 212, 107 S.Ct. 2793, 2799, 97 L.Ed.2d 171, distinguished. Pp. 2306-2309.

*254 b) Congress has not followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board. To forestall the danger of en-croachment into the executive sphere, the Constitu-tion imposes two basic and related constraints on Congress. It may not invest itself, its Members, or its agents with executive power. See, e.g., J.W. Hamp-ton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624; Bowsher, supra, 478 U.S., at 726, 106 S.Ct., at 3187. And, when it exer-cises its legislative power, it must follow the “single, finely wrought and exhaustively considered proce-dures” specified in Article I. Chadha, supra, 462 U.S., at 951, 103 S.Ct., at 2784. If the Board's power is considered to be executive, the Constitution does not permit an agent of Congress to exercise it. How-ever, if the power is considered to be legislative, Congress must, but has not, exercised it in confor-mity with the bicameralism and presentment re-quirements of Article I, § 7. Although Congress im-posed its will on MWAA by means that are unique and that might prove to be innocuous, the statutory scheme by which it did so provides a blueprint for extensive expansion of the legislative power beyond its constitutionally defined role. Pp. 2309-2312.

286 U.S.App.D.C. 334, 917 F.2d 48 (CADC 1990), affirmed.

STEVENS, J., delivered the opinion of the Court, in which BLACKMUN, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined. WHITE, J., filed a **2301 dissenting opinion, in which REHNQUIST, C.J., and MARSHALL, J., joined, post, p. 2312.

Deputy Solicitor General Shapiro argued the cause for the United States as respondent under this Court's Rule 12.4. With him on the briefs were Acting Solicitor General Bryson, Assistant Attorney General Gerson, Clifford M. Sloan, and Douglas Let-ter.

William T. Coleman, Jr., argued the cause for petitioners. With him on the briefs were Donald T. Bliss and Debra A. Valen-tine.

Patti A. Goldman argued the cause and filed a brief for respondents Citizens for Abatement of Aircraft Noise, Inc., et al.*

*Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, K. Marshall Cook, Deputy Attorney General, John M. McCarthy, Senior Assis-tant Attorney General, and William W. Muse and John Westrick, Assistant Attorneys General, filed a brief for the Commonwealth of Virginia as amicus curiae urging reversal.

*255 Justice STEVENS delivered the opinion of the Court.

An Act of Congress authorizing the transfer of operating control of two major airports from the Federal Government to the Metropolitan Washington Airports Authority (MWAA) condi-tioned the transfer on the creation by MWAA of a unique “Board of Review” composed of nine Mem-bers of Congress and vested with veto power over decisions made by MWAA's Board of Directors.FN1 The principal question presented is whether this un-usual statutory condition violates the constitutional principle of separation of powers, as interpreted in INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), and Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928). We conclude, as did the Court of Appeals for the District of Columbia Circuit, that the condition is unconstitutional.

FN1. Metro-politan Washington Airports Act of 1986 (Transfer Act), 100 Stat. 3341, 49 U.S.C.App. §§ 2451-2461.

I

In 1940, Congress author-ized the Executive Branch to acquire a tract of land a few miles from the Capitol and to construct what is now Washington National Airport (National). 54 Stat. 686. From the time it opened until 1987, Na-tional was owned and operated by the Federal Gov-ernment. The airport was first managed by the Civil Aeronautics Agency, a division of the Commerce Department. 54 Stat. 688. In 1959, control of Na-tional shifted to the newly-created Federal Aviation Administration (FAA), an agency that, since 1967, has been a part of the Department of Transportation. See 72 Stat. 731; 80 Stat. 932, 938.

A few years after National opened, the Truman administra-tion proposed that a federal corporation be formed to operate the airport. See Congressional Research Serv-ice, Federal Ownership of National and Dulles Air-ports: Background, Pro-Con Analysis, and Outlook 4 (1985) (CRS Report), reprinted in Hearings before the Subcommittee on *256 Governmental Efficiency and the District of Columbia of the Senate Commit-tee on Governmental Affairs, 99th Cong., 1st Sess., 404 (1985). The proposal was endorsed by the Hoo-ver Commission in 1949 but never adopted by Con-gress. Instead, when Congress authorized construc-tion of a second major airport to serve the Washing-ton area, it again provided for federal ownership and operation. 64 Stat. 770. Dulles International Airport (Dulles) was opened in 1962 under the direct control of the FAA. See CRS Report 1-2.

National and Dulles are the only two major commercial air-ports owned by the Federal Government. A third air-port, Baltimore Washington International (BWI), which is owned by the State of Maryland, also serves the Washington metropolitan area. Like Dulles, it is larger than National and located in a rural area many miles from the Capitol. Because of its location, Na-tional is by far the busiest and most profitable of the three.FN2 Although proposals for the joint operating **2302 control of all three airports have been consid-ered, the plan that gave rise to this litigation involves only National and Dulles, both of which are located in Virginia. Maryland's interest in the overall prob-lem explains its representation on the Board of Direc-tors of MWAA. See 49 U.S.C.App. § 2456(e)(3)(C).

FN2. “Of the three airports, National, as the Nation's 14th busiest airport (1983), handles by far the most traffic. In 1983, these airports handled passenger volumes of: National, 14.2 mil-lion; Dulles, 2.9 million; and BWI, 5.2 million. Other measures of airport activity also indicate a much greater activity level at National. On a combined ba-sis, the [airports] earned the Federal Government a profit of $11.4 million. This profit, however, is en-tirely the result of activity at National, as Dulles con-sistently operates at a deficit. BWI, which not long ago operated at a loss, is now a consistent money maker for Maryland.” CRS Report 2.

Throughout its history, National has been the subject of controversy. Its location at the center of the metropolitan area is a great convenience for air travelers, but flight paths over densely populated ar-eas have generated concern among local residents about safety, noise, and pollution. Those living*257 closest to the airport have provided the strongest sup-port for proposals to close National or to transfer some of its operations to Dulles. See CRS Report 3.

Despite the FAA's history of profitable operation of National and excellent management of both airports, the Secretary of Transportation con-cluded that necessary capital improvements could not be financed for either National or Dulles unless con-trol of the airports was transferred to a regional authority with power to raise money by selling tax-exempt bonds.FN3 In 1984, she therefore appointed an advisory commission to develop a plan for the crea-tion of such a regional authority. Id., at 6.

FN3. “There is no question that the daily management of the airports by the Metropolitan Washington Airports unit of FAA has been excellent. However, inclusion of the airports in the unified Fed-eral budget has generally stymied most efforts to im-prove or expand facilities at either airport to keep pace with the growing commercial and air travel needs of the Washington area. No major capital pro-jects have been financed at either airport from Fed-eral appropriations since the construction of Dulles in the early 1960's. Given the continuing need to limit federal expenditures to reduce Federal deficits, it is unlikely that any significant capital improvements could be undertaken at the airports in the foreseeable future.” S.Rep. No. 99-193, p. 2 (1985).

The Commission recommended that the proposed author-ity be created by a congressionally approved compact between Virginia and the District, and that its Board of Directors be composed of 11 members serving staggered 6-year terms, with 5 members to be ap-pointed by the Governor of Virginia, 3 by the Mayor of the District, 2 by the Governor of Maryland, and 1 by the President, with the advice and consent of the Senate. See App. 17. Emphasizing the importance of a “non-political, independent authority,” the Com-mission recommended that members of the board “should not hold elective or appointive political of-fice.” Ibid. To allay concerns that local interests would not be adequately represented, the Commis-sion recommended a requirement that all *258 board members except the Presidential appointee reside in the Washington metropolitan area. Ibid.

In 1985, Virginia and the District both passed legisla-tion authorizing the establishment of the recom-mended regional authority. See 1985 Va.Acts, ch. 598; 1985 D.C.Law 6-67. A bill embodying the advi-sory commission's recommendations passed the Sen-ate. See 132 Cong.Rec. 7263-7281 (1986). In the House of Representatives, however, the legislation encountered strong opposition from Members who expressed concern that the surrender of federal con-trol of the airports might result in the transfer of a significant amount of traffic from National to Dulles. See Hearings on H.R. 2337, H.R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 99th Cong., 2d Sess., 1-3, 22 (1986).

Substitute bills were therefore drafted to provide for the estab-lishment of a review board with veto power over ma-jor actions of MWAA's Board of Directors. Under two of the proposals, the board of review would clearly have acted as an agent of the Congress. After Congress received an opinion **2303 from the De-partment of Justice that a veto of MWAA action by such a board of review “would plainly be legislative action that must conform to the requirements of Arti-cle 1, section 7 of the Constitution,” FN4 the Senate adopted a version of the review*259 board that re-quired Members of Congress to serve in their indi-vidual capacities as representatives of users of the airports. See 132 Cong.Rec. 28372-28375, 28504, 28521-28525 (1986). The provision was further amended in the House, id., at 32127-32144, and the Senate concurred, id., at 32483. Ultimately, § 2456(f) of the Transfer Act, as enacted, defined the composi-tion and powers of the Board of Review in much greater detail than the Board of Directors. Compare 49 U.S.C.App. § 2456(f) with § 2456(e).

FN4. “Two of the suggestions made by the staff would present substantial constitu-tional problems. The first of these proposals would create a ‘Federal Board of Directors,’ consisting of three members of the House, appointed by the Speaker, three members of the Senate, appointed by the President pro tempore, and the Comptroller Gen-eral. As proposed, this Federal Board would clearly be unconstitutional. In reality the Federal Board would be no more than a committee of Congress plus the Comptroller General-who is clearly a legislative officer. This committee would be authorized by the bill to veto certain types of actions otherwise within the Airports Authority's power under applicable state law. In the absence of the Federal Board, the Airports Authority could implement those decisions without further review or approval. Disapproval by the Fed-eral Board of a particular action would thus have ‘the purpose and effect of altering the legal rights, duties, and relations of persons ... outside the Legislative Branch,’ INS v. Chadha, 462 U.S. 919, 952, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317 (1983), and would plainly be legislative action that must conform to the requirements of Article 1, section 7 of the Constitu-tion: passage by both Houses and approval by the President. Id., at 954-955, 103 S.Ct., at 2785-2786. Congress cannot directly vest the Federal Board with authority to veto decisions made by the Airports Authority any more than it can authorize one House, one committee, or one officer to overturn the Attor-ney General's decision to allow a deportable alien to remain in the United States, to reject rules imple-mented by an executive agency pursuant to delegated authority, to dictate mandatory budget cuts to be made by the President, or to overturn any decision made by a state agency.” App. 26-27 (footnotes omit-ted).

Subparagraph (1) of § 2456(f) specifies that the Board of Review “shall consist” of nine Members of the Congress, eight of whom serve on committees with jurisdiction over transportation is-sues and none of whom may be a Member from Maryland, Virginia, or the District of Columbia.FN5 Subparagraph*260 (4)(B) details the actions that must be submitted to the Board of Review for ap-proval, which include adoption of a budget, authori-zation of bonds, promulgation of regulations, en-dorsement of a master plan, and appointment of the chief executive officer of the Authority.FN6 Subpara-graph (4)(D) explains that disapproval by the Board will prevent **2304 submitted actions from taking effect.FN7 Other significant provisions of the Act in-clude subparagraph (5), which authorizes the Board of Review to require Authority directors to consider any action relating to the airports; FN8 subsection (g), which requires that any action changing the hours of operation at either National or Dulles be taken by regulation and therefore be subject to veto by the Board of Review; FN9 and *261 subsection (h), which contains a provision disabling MWAA's Board of Directors from performing any action subject to the veto power if a court should hold that the Board of Review provisions of the Act are invalid. FN10

FN5. “The board of directors shall be subject to review of its actions and to requests, in accordance with this subsection, by a Board of Re-view of the Airports Authority. Such Board of Re-view shall be established by the board of directors and shall consist of the following, in their individual capacities, as representatives of users of the Metro-politan Washington Airports:

“(A) two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Representatives from a list provided by the Speaker of the House;

“(B) two members of the Com-merce, Science, and Transportation Committee and two members of the Appropriations Committee of the Senate from a list provided by the President pro tem-pore of the Senate; and

“(C) one member chosen alternatively from members of the House of Representatives and members of the Senate, from a list provided by the Speaker of the House or the President pro tempore of the Senate, respec-tively.

“The members of the Board of Re-view shall elect a chairman. A member of the House of Representatives or the Senate from Maryland or Virginia and the Delegate from the District of Co-lumbia may not serve on the Board of Review.” 49 U.S.C.App. § 2456(f)(1).

FN6. “The follow-ing are the actions referred to in subparagraph (A):

“(i) the adoption of an annual budget;

“(ii) the authorization for the issu-ance of bonds;

“(iii) the adoption, amend-ment, or repeal of a regulation;

“(iv) the adoption or revision of a master plan, including any proposal for land acquisition; and

“(v) the appointment of the chief executive officer.” § 2456(f)(4)(B).

FN7. “An action disapproved under this paragraph shall not take effect. Unless an annual budget for a fiscal year has taken effect in accordance with this paragraph, the Airports Author-ity may not obligate or expend any money in such fiscal year, except for (i) debt service on previously authorized obligations, and (ii) obligations and ex-penditures for previously authorized capital expendi-tures and routine operating expenses.” § 2456(f)(4)(D).

FN8. “The Board of Review may request the Airports Authority to consider and vote, or to report, on any matter related to the Metro-politan Washington Airports. Upon receipt of such a request the Airports Authority shall consider and vote, or report, on the matter as promptly as feasi-ble.” § 2456(f)(5).

FN9. “Any action of the Airports Authority changing, or having the effect of changing, the hours of operation of or the type of aircraft serving either of the Metropolitan Washing-ton Airports may be taken only by regulation of the Airports Authority.” § 2456(g).

FN10. “If the Board of Review established under subsection (f) of this section is unable to carry out its functions un-der this subchapter by reason of a judicial order, the Airports Authority shall have no authority to perform any of the actions that are required by paragraph (f)(4) of this section to be submitted to the Board of Review.” § 2456(h).

On March 2, 1987, the Secretary of Transportation and MWAA entered into a long-term lease complying with all of the condi-tions specified in the then recently enacted Transfer Act. See App. to Pet. for Cert. 163a-187a. The lease provided for a 50-year term and annual rental pay-ments of $3 million “in 1987 dollars.” Id., at 170a, 178a. After the lease was executed, MWAA's Board of Directors adopted bylaws providing for the Board of Review, id., at 151a-154a, and Virginia and the District of Columbia amended their legislation to give MWAA power to establish the Board of Review, 1987 Va.Acts, ch. 665; 1987 D.C.Law 7-18. On Sep-tember 2, 1987, the directors appointed the nine members of the Board of Review from lists that had been submitted by the Speaker of the House of Rep-resentatives and the President pro tempore of the Senate. App. 57-58.

On March 16, 1988, MWAA's Board of Directors adopted a master plan providing for the construction of a new terminal at National with gates capable of handling larger air-craft, an additional taxiway turnoff to reduce aircraft time on the runway and thereby improve airport ca-pacity, a new dual-level roadway system, and new parking facilities. Id., at 70-71, 89-91. On April 13, the Board of Review met and voted not to disapprove the master plan. Id., at 73-78.

II

In November 1988, Citizens for the Abatement of Air-craft Noise, Inc., and two individuals who reside un-der flight *262 paths of aircraft departing from, and arriving at, National (collectively CAAN) brought this action. CAAN sought a declaration that the Board of Review's power to veto actions of MWAA's Board of Directors is unconstitutional and an injunc-tion against any action by the Board of Review as well as any action by the Board of Directors that is subject to Board of Review approval. Id., at 10. The complaint alleged that most of the members of CAAN live under flight paths to and from National and that CAAN's primary purpose is to develop and implement a transportation policy for the Washington area that would include balanced service among its three major airports, thus reducing the operations at National and alleviating**2305 noise, safety, and air pollution problems associated with such operations. Id., at 4. The complaint named MWAA and its Board of Review as defendants. Id., at 5.

The Dis-trict Court granted the defendants' motion for sum-mary judgment. 718 F.Supp. 974 (DC 1989). As a preliminary matter, however, the court held that plaintiffs had standing to maintain the action for two reasons: FN11 first, because the master plan will facili-tate increased activity at National that is harmful to plaintiffs, and second, because the composition of the Board of Review diminishes the influence of CAAN on airport user issues since local congressmen and senators are ineligible for service on the Board. Id., at 980-982. On the merits, the District Court concluded that there was no violation of the doctrine of separa-tion of powers because the members of the Board of Review acted in their individual capacities as repre-sentatives of airport users, and therefore the Board was not an agent of Congress. Id., at 985. Moreover, the Board's powers were derived from the legislation enacted by Virginia and the District, as implemented by MWAA's bylaws, rather than from the Transfer *263 Act. Id., at 986. “In short, because Congress exercises no federal power under the Act, it cannot overstep its constitutionally-designated bounds.” Ibid.

FN11. The District Court also rejected the arguments that the case was not ripe for review and that plaintiffs had failed to exhaust administrative remedies. 718 F.Supp., at 979-980.

A di-vided panel of the Court of Appeals for the District of Columbia Circuit reversed. 286 U.S.App.D.C. 334, 917 F.2d 48 (1990). The court agreed that plaintiffs had standing because they had alleged a distinct and palpable injury that was “fairly traceable” to the im-plementation of the master plan and a favorable rul-ing would prevent MWAA from implementing that plan. Id., at 339, 917 F.2d, at 53. On the merits, the majority concluded that it was “wholly unrealistic to view the Board of Review as solely a creature of state law immune to separation-of-powers scrutiny” be-cause it was federal law that had required the estab-lishment of the Board and defined its powers. Id., at 340, 917 F.2d, at 54. It held that the Board was “in essence a congressional agent” with disapproval powers over key operational decisions that were “quintessentially executive,” id., at 343, 917 F.2d, at 57, and therefore violated the separation of powers, ibid. The dissenting judge, emphasizing the impor-tance of construing federal statutes to avoid constitu-tional questions when fairly possible, concluded that the Board of Review should not be characterized as a federal entity but that, even if it were so character-ized, its members could, consistent with the Constitu-tion, serve in their individual capacities even though they were Members of Congress. Id., at 345-347, 917 F.2d, at 59-61.

Because of the importance of the constitutional question, we granted MWAA's petition for certiorari. 498 U.S. 1045, 111 S.Ct. 750, 112 L.Ed.2d 770 (1991). Although the United States intervened in the Court of Appeals to support the constitutionality of the Transfer Act, see 28 U.S.C. § 2403(a), the United States did not join in MWAA's petition for certiorari. As a respondent in this Court pursuant to this Court's Rule 12.4, the United *264 States has again taken the position that the Transfer Act is constitutional.FN12

FN12. Rule 12.4 provides that “[a]ll parties to the proceeding in the court whose judgment is sought to be reviewed shall be deemed parties in this Court, unless the petitioner notifies the Clerk of this Court in writing of the peti-tioner's belief that one or more of the parties below has no interest in the outcome of the petition.... All parties other than petitioners shall be respondents....” Even though the United States is technically a re-spondent under Rule 12.4, we shall use the term “re-spondents” to refer solely to plaintiffs.

The United States does not support the position taken by petitioners and the dissent. The United States argues that “[i]f the exercise of state authority were suffi-cient in itself to validate a statutorily imposed condi-tion like the one in this case, a massive loophole in the separation of powers would be opened.” Brief for United States 31. According to the United States, the condition in this case is constitutional only because “there is here a reasonable basis for the appointment of Members of Congress ‘in their individual capaci-ties.’ ” Id., at 33.

**2306 III

[1][2][3] Petitioners (MWAA and the Board of Review) renew the challenge to respon-dents' standing that was rejected by the District Court and the Court of Appeals. To establish standing, re-spondents “must allege personal injury fairly trace-able to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Petitioners argue that respondents' asserted injuries are caused by factors independent of the Board of Review's veto power and that the injuries will not be cured by invalidation of the Board of Review. We believe that petitioners are mistaken.

Respondents alleged that the mas-ter plan allows increased air traffic at National and a consequent increase in accident risks, noise, and pol-lution. App. 10. “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 alle-gations of the complaint.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). If we accept that the master plan's provisions will result in increased noise, pollution, and danger of accidents, *265 this “personal injury” to respondents is “fairly traceable” to the Board of Review's veto power because knowledge that the master plan was subject to the veto power undoubtedly influenced MWAA's Board of Directors when it drew up the plan. Because invalidation of the veto power will prevent the enactment of the master plan, see 49 U.S.C.App. § 2456(h), the relief respondents have requested is likely to redress their alleged injury. Moreover, the harm respondents have alleged is not confined to the consequences of a possible increase in the level of activity at National. The harm also includes the creation of an impediment to a reduction in that activity. See App. 8. The Board of Review was created by Congress as a mechanism to preserve operations at National at their present level, or at a higher level if possible. See supra, at 2299. The Board of Review and the master plan, which even petitioners acknowledge is at a minimum “noise neu-tral,” Brief for Petitioners 37-38, therefore injure CAAN by making it more difficult for CAAN to re-duce noise and activity at Na-tional.FN13

FN13. In the lower courts, peti-tioners also challenged this action on ripeness grounds. Although petitioners do not press this issue on appeal, it concerns our jurisdiction under Article III, so we must consider the question on our own initiative. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976). We have no trouble concluding, however, that a challenge to the Board of Review's veto power is ripe even if the veto power has not been exercised to respondents' detriment. The threat of the veto hangs over the Board of Directors like the sword over Damocles, creating a “here-and-now subservience” to the Board of Review sufficient to raise constitutional questions. See Bowsher v. Synar, 478 U.S. 714, 727, n. 5, 106 S.Ct. 3181, 3188, n. 5, 92 L.Ed.2d 583 (1986).

IV

[4] Petitioners argue that this case does not raise any separation-of-powers issue because the Board of Review neither exercises federal power nor acts as an agent of Congress. Ex-amining the origin and structure of the Board, we conclude that petitioners are incorrect.

*266 Petitioners lay great stress on the fact that the Board of Review was established by the bylaws of MWAA, which was created by legislation enacted by the Commonwealth of Virginia and the District of Co-lumbia. Putting aside the unsettled question whether the District of Columbia acts as a State or as an agent of the Federal Government for separation-of-powers purposes, we believe the fact that the Board of Re-view was created by state enactments is not enough to immunize **2307 it from separation-of-powers review. Several factors combine to mandate this re-sult.

Control over National and Dulles was originally in federal hands, and was transferred to MWAA only subject to the condition that the States create the Board of Review. Congress placed such significance on the Board that it required that the Board's invalidation prevent MWAA from taking any action that would have been subject to Board over-sight. See 49 U.S.C.App. § 2456(h). Moreover, the Federal Government has a strong and continuing in-terest in the efficient operation of the airports, which are vital to the smooth conduct of Government busi-ness, especially to the work of Congress, whose Members must maintain offices in both Washington and the districts that they represent and must shuttle back and forth according to the dictates of busy and often unpredictable schedules. This federal interest was identified in the preamble to the Transfer Act,FN14 justified a Presidential appointee on the Board of Directors, and motivated the creation of the Board of Review, the structure and the powers of which Congress mandated in detail, see § 2456(f). Most significant,*267 membership on the Board of Review is limited to federal officials, specifically members of congressional committees charged with authority over air transportation.

FN14. “The Congress finds that-

. . . . .

“(3) the Federal Government has a continu-ing but limited interest in the operation of the two federally owned airports, which serve the travel and cargo needs of the entire Metropolitan Washington region as well as the District of Columbia as the na-tional seat of government.” 49 U.S.C.App. § 2451.

That the Members of Congress who serve on the Board nominally serve “in their individ-ual capacities, as representatives of users” of the air-ports, § 2456(f)(1), does not prevent this group of officials from qualifying as a congressional agent exercising federal authority for separation-of-powers purposes. As we recently held, “separation-of-powers analysis does not turn on the labeling of an activity,” Mistretta v. United States, 488 U.S. 361, 393, 109 S.Ct. 647, 666, 102 L.Ed.2d 714 (1989). The Transfer Act imposes no requirement that the Members of Congress who are appointed to the Board actually be users of the airports. Rather, the Act imposes the re-quirement that the Board members have congres-sional responsibilities related to the federal regulation of air transportation. These facts belie the ipse dixit that the Board members will act “in their individual capacities.”

Although the legislative history is not necessary to our conclusion that the Board members act in their official congressional capacities, the floor debates in the House confirm our view. See, e.g., 132 Cong.Rec. 32135 (1986) (The bill “also provides for continuing congressional review over the major decisions of the new airport authority. A Congressional Board will still have veto power over the new airport authority's: annual budget; issuance of bonds; regulations; master plan; and the naming of the Chief Executive Officer”) (Rep. Lehman); id., at 32136 (“In addition, the motion provides continued congressional control over both airports. Congress would retain oversight through a Board of Review made up of nine Members of Congress. This Board would have the right to overturn major decisions of the airport authority”) (Rep. Coughlin); id., at 32137 (“Under this plan, Congress retains enough control of the airports to deal with any unseen pitfalls resulting from this transfer of authority....*268 We are getting our cake and eating it too.... The beauty of the deal is that Congress retains its control without spending a dime”) (Rep. Smith); id., at 32141 (“There is, how-ever, a congressional board which is established by this.... [T]hat board has been established to make sure that the Nation's interest, the congressional interest was attended to in the consideration of how these two airports are operated”) (Rep. Hoyer); id., at 32142 (The bill does “not give up congressional control and oversight-that remains in a Congressional **2308 Board of review”) (Rep. Conte); id., at 32143 (“I understand that one concern of Members is that by leasing these airports to a local authority, we would be losing control over them. But, in fact, under this bill exactly the opposite is true. We will have more control than before”) (Rep. Hammer-schmidt).

Congress as a body also exercises substantial power over the appointment and removal of the particular Members of Congress who serve on the Board. The Transfer Act provides that the Board “shall consist” of “two members of the Public Works and Transportation Committee and two members of the Appropriations Committee of the House of Rep-resentatives from a list provided by the Speaker of the House,” “two members of the Commerce, Sci-ence, and Transportation Committee and two mem-bers of the Appropriations Committee of the Senate from a list provided by the President pro tempore of the Senate,” and “one member chosen alternately ... from a list provided by the Speaker of the House or the President pro tempore of the Senate, respec-tively.” 49 U.S.C.App. § 2456(f)(1). Significantly, appointments must be made from the lists, and there is no requirement that the lists contain more recom-mendations than the number of Board openings. Cf. 28 U.S.C. § 991(a) (Sentencing Reform Act upheld in Mistretta required only that the President “con-side[r]” the recommendations of the Judicial Confer-ence); 31 U.S.C. § 703(a) (Congressional *269 Commission only “recommend[s]” individuals for selection as Comptroller General). The list system, combined with congressional authority over commit-tee assignments, guarantees Congress effective con-trol over appointments. Control over committee as-signments also gives Congress effective removal power over Board members because depriving a Board member of membership in the relevant com-mittees deprives the member of authority to sit on the Board. See 49 U.S.C.App. § 2456(f)(1) (Board “shall consist” of relevant committee mem-bers).FN15

FN15. Thus, whether or not the statute gives MWAA formal appointment and re-moval power over the Board of Review is irrelevant. Also irrelevant for separation-of-powers purposes is the likelihood that Congress will discipline Board members by depriving them of committee member-ship. See Bowsher, 478 U.S., at 730, 106 S.Ct., at 3189 (rejecting relevance of likelihood that Congress would actually remove the Comptroller General). The dissenting judge on the Court of Appeals suggested that a constitutional problem could be avoided by reading the statute's requirement that Board members be members of particular congressional committees as applying only at the time of appointment. See 286 U.S.App.D.C. 334, 347, 917 F.2d 48, 61 (1990) (Mikva, J., dissenting). We do not dispute that stat-utes should be interpreted, if possible, to avoid con-stitutional difficulties. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988). However, the statutory language unambiguously requires that the Board of Review “shall consist” of members of certain con-gressional committees. The Transfer Act cannot fairly be read to impose this requirement only at the time of appointment.

We thus confront an entity created at the initiative of Congress, the powers of which Congress has delineated, the purpose of which is to protect an acknowledged federal interest, and membership in which is restricted to congres-sional officials. Such an entity necessarily exercises sufficient federal power as an agent of Congress to mandate separation-of-powers scrutiny. Any other conclusion would permit Congress to evade the “carefully crafted” constraints of the Constitution, INS v. Chadha, 462 U.S. 919, 959, 103 S.Ct. 2764, 2788, 77 L.Ed.2d 317 (1983), simply by delegating primary responsibility for execution of national *270 policy to the States, subject to the veto power of Members of Congress acting “in their individual ca-pacities.” Cf. Bowsher v. Synar, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS, J., concurring in judg-ment).FN16

FN16. Petitioners and the United States both place great weight on the fact that the Framers at the Constitutional Convention expressly rejected a constitutional provision that would have prohibited an individual from holding both state and federal office. Brief for Petitioners 15; Brief for United States 21-23. The Framers apparently were concerned that such a prohibition would limit the pool of talented citizens to one level of government or the other. See 1 M. Farrand, Records of the Fed-eral Convention of 1787, pp. 20-21, 217, 386, 389, 428-429 (1911). Neither petitioners nor the United States, however, point to any endorsement by the Framers of offices that are nominally created by the State but for which concurrent federal office is a pre-requisite.

**2309 [5] Petitioners contend that the Board of Review should nevertheless be im-mune from scrutiny for constitutional defects because it was created in the course of Congress' exercise of its power to dispose of federal property. See U.S. Const., Art. IV, § 3, cl. 2.FN17 In South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), we held that a grant of highway funds to a State conditioned on the State's prohibition of the possession of alcoholic beverages by persons under the age of 21 was a lawful exercise of Congress' power to spend money for the general welfare. See U.S. Const., Art. I, § 8, cl. 1. Even assuming that “Congress might lack the power to impose a national minimum drinking age directly,” we held that this indirect “encouragement to state action” was a valid use of the spending power. Dole, 483 U.S., at 212, 107 S.Ct. at 2798. We thus concluded that Congress could endeavor to accomplish the federal objective of regulating the national drinking age by the indirect use of the spending power even though that regula-tory authority*271 would otherwise be a matter within state control pursuant to the Twenty-first Amendment.FN18

FN17. U.S. Const., Art. IV, § 3, cl. 2, provides in relevant part:

“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Terri-tory or other Property belonging to the United States.”

FN18. U.S. Const., Amdt. 21, pro-vides:

“SECTION 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

“SEC. 2. The transportation or importation into any State, Terri-tory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

“SEC. 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in several States, as provided in the Con-stitution, within seven years from the date of the submission hereof to the States by the Con-gress.”

Our holding in Dole did not involve separation-of-powers principles. It concerned only the allocation of power between the Federal Govern-ment and the States. Our reasoning that, absent coer-cion, a Sovereign State has both the incentive and the ability to protect its own rights and powers, and therefore may cede such rights and powers, see id., at 210-211, 107 S.Ct., at 2797-2798, is inapplicable to the issue presented by this case. Here, unlike Dole, there is no question about federal power to operate the airports. The question is whether the maintenance of federal control over the airports by means of the Board of Review, which is allegedly a federal in-strumentality, is invalid, not because it invades any state power, but because Congress' continued control violates the separation-of-powers principle, the aim of which is to protect not the States but “the whole people from improvident laws.” Chadha, 462 U.S., at 951, 103 S.Ct., at 2784. Nothing in our opinion in Dole implied that a highway grant to a State could have been conditioned on the State's creating a “Highway Board of Review” composed of Members of Congress. We must therefore consider whether the powers of the Board of Review may, consistent with the separation of powers, be exercised by an agent of Congress.

V

Because National and Dulles are the property of the Federal Government and their operations directly affect interstate*272 commerce, there is no doubt concerning the ultimate power of Congress to enact legislation defining the policies that govern those operations. Congress itself can formulate the details, or it can enact general stan-dards and assign to the Executive Branch the respon-sibility**2310 for making necessary managerial deci-sions in conformance with those standards. The ques-tion presented is only whether the Legislature has followed a constitutionally acceptable procedure in delegating decisionmaking authority to the Board of Review.

The structure of our Government as conceived by the Framers of our Constitution dis-perses the federal power among the three branches-the Legislative, the Executive, and the Judicial-placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed. As former Attorney General Levi ex-plained:

“The essence of the separation of powers concept formulated by the Founders from the political experience and philosophy of the revolu-tionary era is that each branch, in different ways, within the sphere of its defined powers and subject to the distinct institutional responsibilities of the others is essential to the liberty and security of the people. Each branch, in its own way, is the people's agent, its fiduciary for certain purposes.

. . . . .

“Fiduciaries do not meet their obligations by arrogating to themselves the distinct duties of their master's other agents.” Levi, Some Aspects of Sepa-ration of Powers, 76 Colum.L.Rev. 385-386 (1976).

Violations of the separation-of-powers principle have been uncommon because each branch has traditionally respected the prerogatives of the other two. Nevertheless, the Court has been sensi-tive to its responsibility to enforce the principle when necessary.

*273 “Time and again we have reaffirmed the importance in our constitutional scheme of the separation of governmental powers into the three coordinate branches. See, e.g., Bowsher v. Synar, 478 U.S., at 725 [106 S.Ct., at 3187] (citing Humphrey's Executor, 295 U.S. [602], at 629-630 [55 S.Ct. 869, 874, 79 L.Ed. 1611 (1935) ] ). As we stated in Buckley v. Valeo, 424 U.S. 1 [96 S.Ct. 612, 46 L.Ed.2d 659] (1976), the system of separated powers and checks and balances established in the Constitution was regarded by the Framers as ‘a self-executing safeguard against the encroachment or ag-grandizement of one branch at the expense of the other.’ Id., at 122 [96 S.Ct., at 684]. We have not hesitated to invalidate provisions of law which vio-late this principle. See id., at 123 [96 S.Ct., at 684].” Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988).

The abuses by the monarch recounted in the Declaration of Independence provide dramatic evidence of the threat to liberty posed by a too powerful executive. But, as James Madison recognized, the representa-tives of the majority in a democratic society, if un-constrained, may pose a similar threat:

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

. . . . .

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

“The legislative department derives a superiority in our governments from other circum-stances. Its constitutional*274 powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under compli-cated **2311 and indirect measures, the encroach-ments which it makes on the co-ordinate depart-ments. It is not unfrequently a question of real-nicety in legislative bodies, whether the operation of a par-ticular measure, will, or will not extend beyond the legislative sphere.” The Federalist No. 48, pp. 332-334 (J. Cooke ed. 1961).

[6] To forestall the danger of encroachment “beyond the legislative sphere,” the Constitution imposes two basic and re-lated constraints on the Congress. It may not “invest itself or its Members with either executive power or judicial power.” J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928). And, when it exercises its legisla-tive power, it must follow the “single, finely wrought and exhaustively considered, procedures” specified in Article I. INS v. Chadha, 462 U.S., at 951, 103 S.Ct., at 2784.FN19

FN19. “As we emphasized in Chadha, when Congress legislates, when it makes binding policy, it must follow the procedures pre-scribed in Article I. Neither the unquestioned urgency of the national budget crisis nor the Comptroller General's proud record of professionalism and dedi-cation provides a justification for allowing a congres-sional agent to set policy that binds the Nation. Rather than turning the task over to its agent, if the Legislative Branch decides to act with conclusive effect, it must do so through a process akin to that specified in the fallback provision-through enactment by both Houses and presentment to the President.” Bowsher, 478 U.S., at 757-759, 106 S.Ct., at 3204-3205 (STEVENS, J., concurring in judg-ment).

The first constraint is illustrated by the Court's holdings in Springer v. Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), and Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Springer involved the validity of Acts of the Philippine Legislature that authorized a committee of three-two legislators and one executive-to vote corporate stock owned by the Philippine Gov-ernment. Because the Organic Act of the Philippine Islands incorporated the separation-of-powers princi-ple, and because the challenged statute authorized two legislators to perform *275 the executive func-tion of controlling the management of the govern-ment-owned corporations, the Court held the statutes invalid. Our more recent decision in Bowsher in-volved a delegation of authority to the Comptroller General to revise the federal budget. After conclud-ing that the Comptroller General was in effect an agent of Congress, the Court held that he could not exercise executive powers:

“To permit the execution of the laws to be vested in an officer an-swerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws.... The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Bowsher, 478 U.S., at 726, 106 S.Ct., at 3188.

The second constraint is illustrated by our decision in Chadha. That case in-volved the validity of a statute that authorized either House of Congress by resolution to invalidate a deci-sion by the Attorney General to allow a deportable alien to remain in the United States. Congress had the power to achieve that result through legislation, but the statute was nevertheless invalid because Congress cannot exercise its legislative power to enact laws without following the bicameral and presentment procedures specified in Article I. For the same rea-son, an attempt to characterize the budgetary action of the Comptroller General in Bowsher as legislative action would not have saved its constitutionality be-cause Congress may not delegate the power to legis-late to its own agents or to its own Mem-bers.FN20

FN20. “If Congress were free to delegate its policymaking authority to one of its components, or to one of its agents, it would be able to evade ‘the carefully crafted restraints spelled out in the Constitution.’ [ Chadha, 462 U.S.], at 959[, 103 S.Ct., at 2788].” Bowsher, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS, J., concurring in judg-ment).

**2312 [7] Respondents rely on both of these constraints in their challenge to the Board of Review. The Court of Appeals found it unnecessary to discuss the second constraint because the *276 court was satisfied that the power exercised by the Board of Review over “key operational decisions is quintessentially executive.” 286 U.S.App.D.C., at 342, 917 F.2d, at 56. We need not agree or disagree with this characterization by the Court of Appeals to conclude that the Board of Review's power is consti-tutionally impermissible. If the power is executive, the Constitution does not permit an agent of Congress to exercise it. If the power is legislative, Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7. In short, when Congress “[takes] action that ha[s] the purpose and effect of altering the legal rights, duties, and rela-tions of persons ... outside the Legislative Branch,” it must take that action by the procedures authorized in the Constitution. See Chadha, 462 U.S., at 952-955, 103 S.Ct., at 2784-2786.FN21

FN21. The Constitution does permit Congress or a part of Con-gress to take some actions with effects outside the Legislative Branch by means other than the provi-sions of Art. I, § 7. These include at least the power of the House alone to initiate impeachments, Art. I, § 2, cl. 5; the power of the Senate alone to try im-peachments, Art. I, § 3, cl. 6; the power of the Senate alone to approve or disapprove Presidential appoint-ments, Art. II, § 2, cl. 2; and the power of the Senate alone to ratify treaties, Art. II, § 2, cl. 2. See also Art. II, § 1, and Amdt. 12 (congressional role in Presiden-tial election process); Art. V (congressional role in amendment process). Moreover, Congress can, of course, manage its own affairs without complying with the constraints of Art. I, § 7. See Chadha, 462 U.S., at 954, n. 16, 103 S.Ct., at 2785, n. 16; Bowsher, 478 U.S., at 753-756, 106 S.Ct., at 3201-3203 (STEVENS, J., concurring in judg-ment).

One might argue that the provision for a Board of Review is the kind of practical ac-commodation between the Legislature and the Execu-tive that should be permitted in a “workable govern-ment.” FN22 Admittedly, Congress imposed its will on the regional authority created by the District of Co-lumbia and the Commonwealth of Virginia by means that are unique *277 and that might prove to be in-nocuous. However, the statutory scheme challenged today provides a blueprint for extensive expansion of the legislative power beyond its constitutionally con-fined role. Given the scope of the federal power to dispense benefits to the States in a variety of forms and subject to a host of statutory conditions, Con-gress could, if this Board of Review were valid, use similar expedients to enable its Members or its agents to retain control, outside the ordinary legislative process, of the activities of state grant recipients charged with executing virtually every aspect of na-tional policy. As James Madison presciently ob-served, the legislature “can with greater facility, mask under complicated and indirect measures, the en-croachments which it makes on the co-ordinate de-partments.” The Federalist No. 48, at 334. Heeding his warning that legislative “power is of an encroach-ing nature,” we conclude that the Board of Review is an impermissible encroachment.FN23

FN22. “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable gov-ernment. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring).

FN23. Because we invalidate the Board of Review under basic separa-tion-of-powers principles, we need not address re-spondents' claim that Members of Congress serve on the Board in violation of the Incompatibility and In-eligibility Clauses. See U.S. Const., Art. I, § 6. We also express no opinion on whether the appointment process of the Board of Review contravenes the Ap-pointments Clause, U.S. Const., Art. II, § 2, cl. 2.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice WHITE, with whom The Chief Justice and Justice MARSHALL join, dissenting.

Today the Court strikes down yet another innovative and otherwise lawful governmental**2313 experiment in the name of separation of powers. To reach this result, the ma-jority must strain to bring state enactments within the ambit of a doctrine hitherto applicable only to the Federal Government and strain again to extend the doctrine even though both Congress and the Execu-tive argue for the constitutionality of *278 the ar-rangement which the Court invalidates. These efforts are untenable because they violate the “ ‘cardinal principle that this Court will first ascertain whether a construction of [a] statute is fairly possible by which the [constitutional] question may be avoided.’ ” Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932)). They are also unten-able because the Court's separation-of-powers cases in no way compel the decision the majority reaches.

I

For the first time in its history, the Court employs separation-of-powers doc-trine to invalidate a body created under state law. The majority justifies this unprecedented step on the ground that the Board of Review “exercises sufficient federal power ... to mandate separation-of-powers scrutiny.” Ante, at 2308. This conclusion follows, it is claimed, because the Board, as presently constituted, would not exist but for the conditions set by Congress in the Metropolitan Washington Airports Act of 1986 (Transfer Act), 49 U.S.C.App. § 2456(f)(1). This unprecedented rationale is insufficient on at least two counts. The Court's reasoning fails first because it ignores the plain terms of every instrument relevant to this case. The Court further errs because it also misapprehends the nature of the Transfer Act as a lawful exercise of congressional authority under the Property Clause. U.S. Const., Art. IV, § 3, cl. 2.

A

Both the Airports Authority (Authority) and the Board are clearly creatures of state law. The Authority came into being exclusively by virtue of acts passed by the Commonwealth of Virginia, 1985 Va. Acts, ch. 598, § 2, and the District of Columbia, 1985 D.C.Law 6-67, § 3.FN1 These en-actments*279 expressly declared that the Authority would be a “public body corporate and politic ... in-dependent of all other bodies” with such powers as “conferred upon it by the legislative authorities of both the Commonwealth of Virginia and the Dis-trict.” 1985 Va. Acts, ch. 598, § 2; 1985 D.C.Law 6-67, § 3. The Transfer Act acknowledged that the Authority was to have only “the powers and jurisdic-tion as are conferred upon it jointly by the legislative authority of the Commonwealth of Virginia and the District of Columbia,” § 2456(a), and was to be “in-dependent of the ... Federal Government,” 49 U.S.C.App. § 2456(b)(1). Under the Transfer Act, the Secretary of Transportation and the Authority negoti-ated a lease that defined the powers and composition of the Board to be established. Lease, Art. 13, see App. to Pet. for Cert. 175a-176a. Even then, the Board could not come into existence until the state-created Authority adopted bylaws establishing it. Bylaws, Art. IV, see App. to Pet. for Cert. 151a-154a. To allay any doubt about **2314 the Board's prove-nance, both Virginia and the District amended their enabling legislation to make explicit the Authority's power to establish the Board under state law. See 1987 Va. Acts, ch. 665, § 5, subd. A, par. 5; 1987 D.C.Law 7-18, § 3(c)(2).

FN1. The District of Columbia, of course, is not a State under the Con-stitution. See, e.g., Hepburn & Dundas v. Ellzey, 2 Cranch 445, 452-453, 2 L.Ed. 332 (1805). Nonethe-less, neither respondents nor the Court of Appeals contend that the Authority is a federal entity because it derives its authority from a delegation by the Dis-trict as well as Virginia. For the purposes of separa-tion-of-powers limitations, the power that the District delegated to the Authority operates as the functional equivalent of state or local power. Cf. Key v. Doyle, 434 U.S. 59, 68, n. 13, 98 S.Ct. 280, 285, n. 13, 54 L.Ed.2d 238 (1977); District of Columbia v. John R. Thompson Co., 346 U.S. 100, 110, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480 (1953). This conclusion follows with additional force since the District currently acts under “home rule” authority. See District of Colum-bia Self-Government and Governmental Reorganiza-tion Act, Pub.L. 93-198, 87 Stat. 774 (1973). The majority does not suggest that the Authority's partial District of Columbia parentage furnishes a basis for subjecting the Board to separation-of-powers analy-sis. Ante, at 2306-2307.

The specific fea-tures of the Board are consistent with its status as a state-created entity. As the Transfer Act and *280 the lease contemplated, the bylaws provide that the Board consist of nine Members of Congress whom the Board of Directors would appoint. 49 U.S.C.App. § 2456(f)(1); Lease, Art. 13A, App. to Pet. for Cert. 175a; Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151a. But, again as contemplated by both the Trans-fer Act and lease, the bylaws also make clear that the Members of Congress sit not as congressional agents but “in their individual capacities,” as “representa-tives of the users of the Metropolitan Washington Airports.” Ibid. To ensure that the Board members protect the interests of nationwide users, the bylaws further provide that Members of Congress from Vir-ginia, Maryland, and the District of Columbia would be ineligible. Id., at 152a.

As the Court has emphasized, “[g]oing behind the plain language of a statute in search of a possibly contrary ... intent is ‘a step to be taken cautiously’ even under the best of circumstances.” American Tobacco Co. v. Patterson, 456 U.S. 63, 75, 102 S.Ct. 1534, 1540, 71 L.Ed.2d 748 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941, 51 L.Ed.2d 124 (1977)). Nowhere should this caution be greater than where the Court flirts with embracing “serious constitutional problems” at the expense of “con-stru[ing a] statute to avoid such problems.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988); see Murray v. The Charming Betsy, 2 Cranch 64, 118, 2 L.Ed. 208 (1804) (Marshall, C.J.). The majority nonetheless offers three reasons for taking just these steps. First, control over the airports “was originally in federal hands,” and was transferred “only subject to the con-dition that the States create the Board.” Ante, at 2307. Second, “the Federal Government has a strong and continuing interest in the efficient operation of the airports.” Ibid. Finally, and “[m]ost significant, membership on the Board of Review is limited to federal officials.” Ante, at 2307. In other words, Con-gress, in effect, created a body that, in effect, dis-charges an ongoing interest of the Federal Govern-ment*281 through federal officials who, in effect, serve as congressional agents.

This picture stands in stark contrast to that drawn in each of the applicable enactments and agreements which, as noted, establish a state-created authority given the power to create a body to safeguard the interests of nationwide travelers by means of federal officials serving in their individual capacities. We have, to be sure, held that separation-of-powers analysis “does not turn on the labeling of an activity,” but instead looks to “practical consequences,” Mistretta v. United States, 488 U.S. 361, 393, 109 S.Ct. 647, 666, 102 L.Ed.2d 714 (1989). This observation, however, does not give the Court a license to supplant the care-ful work of the Authority, Virginia, the District, the Federal Executive, and Congress with its own in-house punditry. This is especially so when the in-struments under consideration do not merely “label” but detail an arrangement in which any unconstitu-tional consequences are pure speculation.

As an initial matter, the Board may not have existed but for Congress, but it does not follow that Congress created the Board or even that Congress' role is a “factor” mandating separation-of-powers scrutiny. Congressional suggestion does not render subsequent independent state actions federal ones. Aside from the clear statutory language, the majority's conclusion ignores the entire series of voluntary and intervening actions, agreements, and enactments on the part of **2315 the Federal Executive, Virginia, the District, and the Authority, without which the Transfer Act would have been a nullity and the Board of Review would not have existed. Congress commonly enacts conditional transfers of federal resources to the States. See, e.g., Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980); Lau v. Nich-ols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974); Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937). Separation-of-powers doctrine would know few bounds if such transfers compelled its application to the state enact-ments that result.

*282 Likewise, nothing charges the Board with oversight of any strong and continuing interest of the Federal Government, much less with conducting such oversight as an agent of Congress. Despite disclaimers, the majority is quick to point to portions of the legislative history in which various Members of Congress state their belief that the Board would ensure congressional control over the airports. Ante, at 2307-2308. But that is not all the legislative history contains. Other statements support the declaration in all the relevant enactments that Members of Congress are to sit on a state-created body in their individual capacities to safeguard the interests of frequent, nationwide users. On this point Members of the House, the Senate, and the Executive agreed. Representative Hammerschmidt, for example, stated that the purpose of a “board of review com-posed of Congressmen is ... to protect the interests of all users of the two airports.” 132 Cong.Rec. 32143 (1986). Senator Kassebaum contended that Members of Congress could further this purpose since, “[m]ost Members are intensely interested in the amount of service to and from certain cities, from both National and Dulles.” Id., at 6069. Secretary of Transportation Dole echoed these sentiments, testifying that “Mem-bers of Congress are heavy users of the air transporta-tion system.” Hearing on H.R. 2337, H.R. 5040, and S. 1017 before the Subcommittee on Aviation of the House Committee on Public Works and Transporta-tion, 99th Cong., 2d Sess., 110 (1986).

Considered as a creature of state law, the Board offends no constitutional provision or doctrine. The Court does not assert that congressional membership on a state-created entity, without more, violates the Incompatibility or Ineligibility Clauses. U.S. Const., Art. I, § 6, cl. 2. By their express terms, these provisions prohibit Members of Congress from serving in another federal office. They say nothing to bar congressional service in state or state-created offices. To the contrary, the Framers considered and rejected such a bar. 1 M. Farrand, Records of the Federal Convention of *283 1787, pp. 20-21, 217, 386, 389, 428-429 (1966 ed.). As Roger Sherman observed, maintaining a state-ineligibility require-ment would amount to “erecting a Kingdom at war with itself.” Id., at 386. The historical practice of the First Congress confirms the Conventions sentiments, insofar as several Members simultaneously sat as state legislators and judges. See, e.g., Biographical Directory of the United States Congress, 1774-1989, pp. 748, 1389, 1923 (1989). As the Court has held, actions by Members of the First Congress provide weighty evidence on the Constitution's meaning. Bowsher v. Synar, 478 U.S. 714, 723-724, 106 S.Ct. 3181, 3186-3187, 92 L.Ed.2d 583 (1986). Constitu-tional text and history leave no question but that Vir-ginia and the District of Columbia could constitution-ally agree to pass reciprocal legislation creating a body to which nonfederal officers would appoint Members of Congress functioning in their individual capacities. No one in this case contends other-wise.

B

The Court's haste to extend separation-of-powers doctrine is even less defensible in light of the federal statute on which it relies. Far from transforming the Board into a federal entity, the Transfer Act confirms the Board's constitutionality inasmuch as that **2316 statute is a legitimate exer-cise of congressional authority under the Property Clause. U.S. Const., Art. IV, § 3, cl. 2. To overlook this fact the Court must once again ignore plain meaning, this time the plain meaning of the Court's controlling precedent regarding Congress' coexten-sive authority under the Spending Clause. Ibid.

As the majority acknowledges, in South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987), the Court held that Congress could condition a grant of federal funds to a State on the State's raising the drinking age to 21, even assum-ing that Congress did not have the power to mandate a minimum national drinking age directly. As the majority fails to acknowledge, the Court's holding in no way turned on a State's “incentive and ... ability to protect its own rights and powers.” Ante, at *284 2309. Rather, the Court stated that Congress could exercise its spending authority so long as the condi-tional grant of funds did not violate an “ ‘independent constitutional bar.’ ” Dole, supra, at 209, 107 S.Ct., at 2797 (quoting Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U.S. 256, 269-270, 105 S.Ct. 695, 702-703, 83 L.Ed.2d 635 (1985)). Dole defined this constraint as fol-lows:

“[T]he ‘independent constitutional bar’ limitation on the spending power is not ... a pro-hibition on the indirect achievement of objectives which Congress is not empowered to achieve di-rectly. Instead, we think that the language in our ear-lier opinions stands for the unexceptional proposition that the [spending] power may not be used to induce the States to engage in activities that would them-selves be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously discrimi-natory state action or the infliction of cruel and un-usual punishment would be an illegitimate exercise of the Congress' broad spending power.... Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone.” 483 U.S., at 210-211, 107 S.Ct., at 2798 (emphasis added).

Dole states only that Congress may not induce the States to engage in activities that would themselves have been unconsti-tutional in the absence of the inducement. The deci-sion does not indicate that Congress can act only when its actions implicate “the allocation of power between the Federal Government and the States” ante, at 2309, as opposed to principles, “the aim of which is to protect not the States but ‘the whole peo-ple from improvident laws.’ ” Ibid. Nor could it. In the context of 42 U.S.C. § 1983, the Court has re-jected any broad distinction between constitutional provisions that allocate powers and those that affirm rights. Dennis v. Higgins, 498 U.S. 439, 447-448, 111 S.Ct. 865, 870-871, 112 L.Ed.2d 969 (1991). The majority's own application of its test to this case illus-trates the difficulties in its position. The Court asserts that Dole cannot safeguard *285 the Board because separation-of-powers doctrine, ultimately, protects the rights of the people. By this logic, Dole itself would have had to come out the other way since the Twenty-first Amendment reinstated state authority over liquor, which in turn strengthened federalism, which in turn theoretically protects the rights of the people no less than separation-of-powers principles. See The Federalist No. 51, p. 323 (C. Rossiter ed. 1961) (J. Madison).

There is no question that Dole, when faithfully read, places the Board out-side the scope of separation-of-powers scrutiny. As noted, no one suggests that Virginia and the District of Columbia could not have created a board of review to which nonfederal officers would appoint Members of Congress had Congress not offered any induce-ment to do so. The Transfer Act, therefore, did not induce the States to engage in activities that would themselves be unconstitutional. Nor is there any as-sertion that this case involves the rare circumstance in which “the financial **2317 inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion’ ” Dole, supra, 483 U.S., at 211, 107 S.Ct., at 2798 (quoting Steward Machine Co., 301 U.S., at 590, 57 S.Ct., at 892). In Dole, Congress authorized the Secretary of Transportation to withdraw funding should the States fail to comply with certain conditions. Here, Con-gress merely indicated that federal control over Na-tional and Dulles Airports would continue given a failure to comply with certain conditions. Virginia and the District may sorely have wanted control over the airports for themselves. Placing conditions on a desire, however, does not amount to compulsion. Dole therefore requires precisely what the majority denies-the rejection of separation-of-powers doctrine as an “independent bar” against Congress condition-ing the lease of federal property in this case.FN2

FN2. This is not to say that Con-gress could condition a grant of property on a state enactment consenting to the exercise of federal law-making powers that Congress or its individual Mem-bers could not exercise consistently with Article I. We do not have that situation here, for as explained, the Board does not exercise federal power.

*286 II

Even assuming that separation-of-powers principles apply, the Court can hold the Board to be unconstitutional only by extending those principles in an unwarranted fashion. The majority contends otherwise, reasoning that the Constitution requires today's result whether the Board exercises executive or legislative power. Ante, at 2311-2312. Yet never before has the Court struck down a body on separation-of-powers grounds that neither Con-gress nor the Executive oppose. It is absurd to sug-gest that the Board's power represents the type of “legislative usurpatio[n] ... which, by assembling all power in the same hands ... must lead to the same tyranny,” that concerned the Framers. The Federalist No. 48, supra, at 309-310 (J. Madison). More to the point, it is clear that the Board does not offend sepa-ration-of-powers principles either under our cases dealing with executive power or our decisions con-cerning legislative authority.FN3

FN3. For these reasons, the Court's historical exposition is not entirely relevant. The majority attempts to clear the path for its decision by stressing the Framers' fear of overweaning legislative authority. Ante, at 2309-2310. It cannot be seriously maintained, however, that the basis for fearing legislative encroachment has increased or even persisted rather than substantially diminished. At one point Congress may have reigned as the pre-eminent branch, much as the Framers pre-dicted. See W. Wilson, Congressional Government 40-57 (1885). It does so no longer. This century has witnessed a vast increase in the power that Congress has transferred to the Executive. See INS v. Chadha, 462 U.S. 919, 968-974, 103 S.Ct. 2764, 2793-2796, 77 L.Ed.2d 317 (1983) (WHITE, J., dissenting). Given this shift in the constitutional balance, the Framers' fears of legislative tyranny ring hollow when invoked to portray a body like the Board as a serious encroachment on the powers of the Execu-tive.

A

Based on its faulty premise that the Board is exercising federal power, the Court first reasons that “[i]f the [Board's] power is execu-tive, the Constitution does not permit an *287 agent of Congress to exercise it.” Ante, at 2312. The major-ity does not, however, rely on the constitutional pro-visions most directly on point. Under the Incompati-bility and Ineligibility Clauses, Members of Congress may not serve in another office that is under the authority of the United States. U.S. Const., Art. I, § 6, cl. 2. If the Board did exercise executive authority that is federal in nature, the Court would have no need to say anything other than that congressional membership on the Board violated these express con-stitutional limitations. The majority's failure is either unaccountable or suggests that it harbors a certain discomfort with its own position that the Board in fact exercises significant federal power. Whichever is the case, the Court instead relies on expanding non-textual principles as articulated in **2318Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Bowsher, echoing Springer v. Philippine Is-lands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928), held that the Constitution prevented legisla-tive agents from exercising executive authority. Bowsher, supra, 478 U.S., at 726, 106 S.Ct., at 3187. The Court asserts that the Board, again in effect, is controlled by Congress. The analysis the Court has hitherto employed to recognize congressional control, however, show this not to be the case.

As Bowsher made clear, a “critical factor” in determin-ing whether an official is “subservient to Congress” is the degree to which Congress maintains the power of removal. Bowsher, supra, at 727, 106 S.Ct., at 3188. Congress cannot “draw to itself, or to either branch of it, the power to remove or the right to par-ticipate in the exercise of” the removal of a federal executive officer. Myers v. United States, 272 U.S. 52, 161, 47 S.Ct. 21, 40, 71 L.Ed. 160 (1926). Here Congress exercises no such power. Unlike the stat-utes struck down in Bowsher and Myers, the Transfer Act contains no provision authorizing Congress to discharge anyone from the Board. Instead, the only express mention of removal authority over Board members in any enactment occurs in resolutions passed by the Board of Directors under the bylaws. These resolutions provide that members of the *288 Board shall sit for fixed terms, but may be removed by the Board of Directors for cause. See Resolution No. 87-12 (June 3, 1987), App. 47-48; Resolution No. 87-27 (Sept. 2, 1987), App. 60. This arrangement is consistent with the settled principle that “the power of removal result[s] by a natural implication from the power of appointing.” 1 Annals of Cong. 496 (1789) (statement of Rep. Madison). See Carlucci v. Doe, 488 U.S. 93, 99, 109 S.Ct. 407, 411, 102 L.Ed.2d 395 (1988); Myers, supra, 272 U.S., at 119, 47 S.Ct., at 26.

The majority counters that Congress maintains “effective removal power over Board members because depriving a Board member of membership in [certain congressional] committees deprives the member of authority to sit on the Board.” Ante, at 2308. This conclusion rests on the faulty premise that the Transfer Act requires the re-moval of a Board member once he or she leaves a particular committee. But the Act does not say this. Rather, it merely states that members of the Board “shall consist” of Members of Congress who sit in certain specified committees. 49 U.S.C.App. § 2456(f)(1). Moreover, the Act elsewhere provides that the standard term of service on the Board is six years. § 2456(f)(2). This term, which spans three Congresses, suggests that a Board member's tenure need not turn on continuing committee or even con-gressional status. Nor, to date, has any member of the Board been removed for having lost a committee post. Tr. of Oral Arg. 11. Once again, the Court seizes upon a less plausible interpretation to reach a constitutional infirmity despite “ ‘[t]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitu-tionality.’ ” DeBartolo Corp., 485 U.S., at 575, 108 S.Ct., at 1397 (quoting Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211, 39 L.Ed. 297 (1895)); see Ashwander, 297 U.S., at 348, 56 S.Ct., at 483.

Nor has Congress improperly influ-enced the appointment process, which is ordinarily a less important factor in separation-of-powers analysis in any event. The Authority's Bylaws, reflecting the lease and the Transfer Act, provide that the Board consist of two members each from the House *289 Appropriations Committee, the House Public Works Committee, the Senate Appropriations Committee, and the Senate Commerce, Science and Transporta-tion Committee, as well as an additional Member from the House or Senate. Bylaws, Art. IV, § 4, App. to Pet. for Cert. 153a; see Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U.S.C.App. § 2456(f)(1). The Board of Directors appoints members from lists pro-vided by the Speaker of the House and the President pro tempore of the Senate. To the **2319 majority, these provisions add up to impermissible congres-sional control. Our cases point to the opposite con-clusion.

Twice in recent Terms the Court has considered similar mechanisms without suggest-ing that they raised any constitutional concern. In Bowsher, the Court voiced no qualms concerning Presidential appointment of the Comptroller General from a list of three individuals suggested by the House Speaker and the President pro tempore. 478 U.S., at 727, 106 S.Ct., at 3188. Likewise, in Mis-tretta, the Court upheld Congress' authority to require the President to appoint three federal judges to the Sentencing Commission after considering a list of six judges recommended by the Judicial Conference of the United States. 488 U.S., at 410, n. 31, 109 S.Ct., at 674, n. 31. The majority attempts to distinguish these cases by asserting that the lists involved were merely recommendations whereas the Board “must ” be chosen from the submitted lists at issue here. Ante, at 2308. A fair reading of the requirement shows only that the Board may not be chosen outside the lists. It is perfectly plausible to infer that the directors are free to reject any and all candidates on the lists until acceptable names are submitted. It is difficult to see how the marginal difference that would remain be-tween list processes in Bowsher and Mistretta on one hand, and in this case on the other, would possess any constitutional importance. In sharp contrast, Springer can be readily distinguished. In that instance, as in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), the Court struck down a scheme in which the Legislature usurped for *290 itself the appointment authority of a coequal, coordinate branch of Government. Springer, 277 U.S., at 203, 205, 48 S.Ct., at 482, 483. Here Congress has neither expressly nor substantively vested appointment power in itself or appropriated appointment power properly lodged with the President.

Our re-cent case law also compels approval of the Board's composition. The majority makes much of the re-quirement that appointees to the Board must be members of the enumerated congressional commit-tees. Ante, at 2308. Committee membership, the ar-gument goes, somehow belies the express declaration that Members of Congress are to sit in their individ-ual capacities as representatives of frequent, nation-wide travelers. Mistretta, however, refused to dis-qualify federal judges, sitting in their individual ca-pacities, from exercising nonjudicial authority simply because they possessed judicial expertise relevant to their posts on the Sentencing Commission. It is diffi-cult, then, to see why Members of Congress, sitting in their individual capacities, should be disqualified from exercising nonlegislative authority because their legislative expertise-as enhanced by their member-ship on key transportation and finance committees-is relevant to their posts on the Board. I refuse to in-validate the Board because its members are too well qualified.

B

The majority alterna-tively suggests that the Board wields an unconstitu-tional legislative veto contrary to INS v. Chadha, 462 U.S. 919, 952-955, 103 S.Ct. 2764, 2784-2786, 77 L.Ed.2d 317 (1983). If the Board's “power is legisla-tive,” the Court opines, “Congress must exercise it in conformity with the bicameralism and presentment requirements of Art. I, § 7.” Ante, at 2312. The prob-lem with this theory is that if the Board is exercising federal power, its power is not legislative. Neither does the Board itself serve as an agent of Congress in any case.

The majority never makes up its mind whether its claim is that the Board exercises legislative or executive authority. *291 The Court of Appeals, however, had no doubts, concluding that the Board's authority was “quintessentially executive.” 286 U.S.App.D.C. 334, 342, 917 F.2d 48, 56 (1990). Judge Mikva in dissent operated on the same assump-tion. See id., at 344-347, 917 F.2d, at 58-61. Accord, 718 F.Supp. 974, 986 (DC 1989); **2320Federal Firefighters Association, Local 1 v. United States, 723 F.Supp. 825, 826 (DC 1989). If federal authority is being wielded by the Board, the lower courts' char-acterization is surely correct. Before their transfer to the Authority, National and Dulles were managed by the Federal Aviation Administration, which in turn succeeded the Civil Aeronautics Agency. Ante, at 2301. There is no question that these two agencies exercised paradigmatic executive power or that the transfer of the airports in no way altered that power, which is now in the hands of the Authority. In Chadha, by contrast, there was no question-at least among all but one Member of the Court-that the power over alien deportability was legislative. 462 U.S., at 951-959, 103 S.Ct., at 2784-2788; id., at 976, 984-989, 103 S.Ct., at 2797, 2801-2804 (WHITE, J., dissenting). But see id., at 959, 964-967, 103 S.Ct., at 2788, 2790-2792 (Powell, J., concurring in judg-ment). Chadha is therefore inapposite. Even more questionable is reliance on Bowsher to suggest that requirements of bicameralism and presentment apply to the actions of a “quintessentially executive” entity. While a concurrence in that case explored this theory, 478 U.S., at 755, 106 S.Ct., at 3202 (STEVENS, J., concurring in judgment), the Court never so held, id., at 732, 106 S.Ct., at 3191. The Board's authority is not of an order that the Court has ever held to be “an exercise of legislative power ... subject to the stan-dards prescribed in Art. I.” Chadha, supra, 462 U.S., at 957, 103 S.Ct., at 2787. The majority can make it so only by reaching past our prece-dents.

More important, the case for viewing the Board as a “congressional agent” is even less compelling in the context of Article I than it was with reference to Article II. Chadha dealt with a self-evident exercise of congressional authority in the form of a resolution passed by either *292House. 462 U.S., at 925, 103 S.Ct., at 2770. Bowsher involved a situation in which congressional control was at least arguable since the Comptroller General labored under numerous, express statutory obligations to Congress itself. See 478 U.S., at 741-746, 106 S.Ct., at 3195-3198 (STEVENS, J.). Even then, the Court did not adopt the theory that such control subjected the ac-tions of the Comptroller General to bicameralism and presentment requirements, but instead held that Con-gress' power of removal amounted to an unconstitu-tional intrusion on executive authority. Id., at 727-734, 106 S.Ct., at 3188-3192. Here, by contrast, the Board operates under no obligations to Congress of any sort. To the contrary, every relevant instrument declares that Members of Congress sit in their “indi-vidual capacities” as “representatives of the users of the Metropolitan Washington Airports.” Bylaws, Art. IV, § 1, App. to Pet. for Cert. 151a; Lease, Art. 13A, App. to Pet. for Cert. 175a; 49 U.S.C.App. § 2456(f)(1). There may well be instances in which a significant congressional presence would mandate an extension of the principles set forth in Chadha. This, plainly, is not one.

III

The majority claims not to retreat from our settled rule that “ ‘[w]hen this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, ... it should only do so for the most compelling constitutional reasons.’ ” Mistretta, 488 U.S., at 384, 109 S.Ct., at 661, (quoting Bowsher, supra, 478 U.S., at 736, 106 S.Ct., at 3193 (STEVENS, J.)). This rule should ap-ply with even greater force when the arrangement under challenge has also been approved by what are functionally two state legislatures and two state ex-ecutives.

Since the “compelling constitu-tional reasons” on which we have relied in our past separation-of-powers decisions are insufficient to strike down the Board, the Court has had to inflate those reasons needlessly to defend today's decision. I cannot follow along this course. The Board violates none of the principles set forth in our cases. Still **2321 less does it provide *293 a “blueprint for extensive expansion of the legislative power beyond its constitutionally confined role.” Ante, at 2312. This view utterly ignores the Executive's ability to protect itself through, among other things, the ample power of the veto. Should Congress ever undertake such improbable projects as transferring national parklands to the States on the condition that its agents control their oversight, see Brief for Respondents 39, there is little doubt that the President would be equal to the task of safeguarding his or her interests. Least of all, finally, can it be said that the Board reflects “[t]he propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments,” that the Framers feared. The Federalist No. 73, at 442 (A. Hamilton). Accordingly, I dis-sent.

U.S.Dist.Col.,1991.

Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc.

501 U.S. 252, 111 S.Ct. 2298, 115 L.Ed.2d 236, 59 USLW 4660

END OF DOCUMENT

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

[419] [419] [420] Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Kennedy, J., filed a concurring opinion, post, p. 449. Scalia, J., filed an opinion concurring in part and dissenting in part, in which Connor, J., joined, and in which Breyer, J., joined as to Part III, post, p. 453. Breyer, J., filed a dissenting opinion, in which Connor and Scalia, JJ., joined as to Part III, post, p. 469.

Solicitor General Waxman argued the cause for the appellants. With him on the briefs were Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Douglas N. Letter.

Louis R. Cohen argued the cause for appellees Snake River Potato Growers, Inc., et al. With him on the brief were Lloyd N. Cutler, Lawrence A. Kasten, Donald B. Holbrook, Randon W. Wilson, and William H. Orton. Charles J. Cooper argued the cause for appellees City of New York et al. With him on the briefs were M. Sean Laane, Leonard J. Koerner, Alan G. Krams, David B. Goldin, and Peter F. Nadel.^[1]

Justice Stevens, delivered the opinion of the Court.

The Line Item Veto Act (Act), 110 Stat. 1200, 2 U. S. C. § 691 et seq. (1994 ed., Supp. II), was enacted in April 1996 [421] and became effective on January 1, 1997. The following day, six Members of Congress who had voted against the Act brought suit in the District Court for the District of Columbia challenging its constitutionality. On April 10, 1997, the District Court entered an order holding that the Act is unconstitutional. Byrd v. Raines, 956 F. Supp. 25. In obedience to the statutory direction to allow a direct, expedited appeal to this Court, see §§ 692(b)—(c), we promptly noted probable jurisdiction and expedited review, 520 U. S. 1194 (1997). We determined, however, that the Members of Congress did not have standing to sue because they had not "alleged a sufficiently concrete injury to have established Article III standing," Raines v. Byrd, 521 U. S. 811, 830 (1997); thus, "[i]n . . . light of [the] overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere," id., at 820, we remanded the case to the District Court with instructions to dismiss the complaint for lack of jurisdiction.

Less than two months after our decision in that case, the President exercised his authority to cancel one provision in the Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 515, and two provisions in the Taxpayer Relief Act of 1997, Pub. L. 105-34, 111 Stat. 788, 895-896, 990-993. Appellees, claiming that they had been injured by two of those cancellations, filed these cases in the District Court. That Court again held the statute invalid, 985 F. Supp. 168, 177— 182 (1998), and we again expedited our review, 522 U. S. 1144 (1998). We now hold that these appellees have standing to challenge the constitutionality of the Act and, reaching the merits, we agree that the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, § 7, cl. 2, of the Constitution.

I

We begin by reviewing the canceled items that are at issue in these cases. [422] Section 4722(c) of the Balanced Budget Act

Title XIX of the Social Security Act, 79 Stat. 343, as amended, authorizes the Federal Government to transfer huge sums of money to the States to help finance medical care for the indigent. See 42 U. S. C. § 1396d(b). In 1991, Congress directed that those federal subsidies be reduced by the amount of certain taxes levied by the States on health care providers.^[2] In 1994, the Department of Health and Human Services (HHS) notified the State of New York that 15 of its taxes were covered by the 1991 Act, and that as of June 30, 1994, the statute therefore required New York to return $955 million to the United States. The notice advised the State that it could apply for a waiver on certain statutory grounds. New York did request a waiver for those tax programs, as well as for a number of others, but HHS has not formally acted on any of those waiver requests. New York has estimated that the amount at issue for the period from October 1992 through March 1997 is as high as $2.6 billion.

Because HHS had not taken any action on the waiver requests, New York turned to Congress for relief. On August 5, 1997, Congress enacted a law that resolved the issue in New York's favor. Section 4722(c) of the Balanced Budget Act of 1997 identifies the disputed taxes and provides that they "are deemed to be permissible health care related taxes and in compliance with the requirements" of the relevant provisions of the 1991 statute.^[3]

[423] On August 11, 1997, the President sent identical notices to the Senate and to the House of Representatives canceling "one item of new direct spending," specifying § 4722(c) as that item, and stating that he had determined that "this cancellation will reduce the Federal budget deficit." He explained that § 4722(c) would have permitted New York "to continue relying upon impermissible provider taxes to finance its Medicaid program" and that "[t]his preferential treatment would have increased Medicaid costs, would have treated New York differently from all other States, and would have established a costly precedent for other States to request comparable treatment."^[4]Section 968 of the Taxpayer Relief Act of 1997

A person who realizes a profit from the sale of securities is generally subject to a capital gains tax. Under existing law, however, an ordinary business corporation can acquire a corporation, including a food processing or refining company, in a merger or stock-for-stock transaction in which no gain is recognized to the seller, see 26 U. S. C. §§ 354(a), 368(a); the seller's tax payment, therefore, is deferred. If, however, the purchaser is a farmers' cooperative, the parties cannot structure such a transaction because the stock of the cooperative may be held only by its members, see § 521(b)(2); thus, a seller dealing with a farmers' cooperative cannot obtain the benefits of tax deferral.

[424] In § 968 of the Taxpayer Relief Act of 1997, Congress amended § 1042 of the Internal Revenue Code to permit owners of certain food refiners and processors to defer the recognition of gain if they sell their stock to eligible farmers' cooperatives.^[5] The purpose of the amendment, as repeatedly explained by its sponsors, was "to facilitate the transfer of refiners and processors to farmers' cooperatives."^[6] The [425] amendment to § 1042 was one of the 79 "limited tax benefits" authorized by the Taxpayer Relief Act of 1997 and specifically identified in Title XVII of that Act as "subject to [the] line item veto."^[7]

On the same date that he canceled the "item of new direct spending" involving New York's health care programs, the President also canceled this limited tax benefit. In his explanation of that action, the President endorsed the objective of encouraging "value-added farming through the purchase by farmers' cooperatives of refiners or processors of agricultural goods,"^[8] but concluded that the provision lacked safeguards and also "failed to target its benefits to small-andmedium-size cooperatives."^[9]

II

Appellees filed two separate actions against the President^[10] and other federal officials challenging these two cancellations. The plaintiffs in the first case are the City of New York, two hospital associations, one hospital, and two unions representing health care employees. The plaintiffs in the second are a farmers' cooperative consisting of about 30 potato growers in Idaho and an individual farmer who is a member and officer of the cooperative. The District Court consolidated the two cases and determined that at least one [426] of the plaintiffs in each had standing under Article III of the Constitution.

Appellee New York City Health and Hospitals Corporation (NYCHHC) is responsible for the operation of public health care facilities throughout the City of New York. If HHS ultimately denies the State's waiver requests, New York law will automatically require^[11] NYCHHC to make retroactive tax payments to the State of about $4 million for each of the years at issue. 985 F. Supp., at 172. This contingent liability for NYCHHC, and comparable potential liabilities for the other appellee health care providers, were eliminated by § 4722(c) of the Balanced Budget Act of 1997 and revived by the President's cancellation of that provision. The District Court held that the cancellation of the statutory protection against these liabilities constituted sufficient injury to give these providers Article III standing.

Appellee Snake River Potato Growers, Inc. (Snake River) was formed in May 1997 to assist Idaho potato farmers in marketing their crops and stabilizing prices, in part through a strategy of acquiring potato processing facilities that will allow the members of the cooperative to retain revenues otherwise payable to third-party processors. At that time, Congress was considering the amendment to the capital gains tax that was expressly intended to aid farmers' cooperatives in the purchase of processing facilities, and Snake River had concrete plans to take advantage of the amendment if passed. Indeed, appellee Mike Cranney, acting on behalf of Snake River, was engaged in negotiations with the [427] owner of an Idaho potato processor that would have qualified for the tax benefit under the pending legislation, but these negotiations terminated when the President canceled § 968. Snake River is currently considering the possible purchase of other processing facilities in Idaho if the President's cancellation is reversed. Based on these facts, the District Court concluded that the Snake River plaintiffs were injured by the President's cancellation of § 968, as they "lost the benefit of being on equal footing with their competitors and will likely have to pay more to purchase processing facilities now that the sellers will not [be] able to take advantage of section 968's tax breaks." Id. , at 177.

On the merits, the District Court held that the cancellations did not conform to the constitutionally mandated procedures for the enactment or repeal of laws in two respects. First, the laws that resulted after the cancellations "were different from those consented to by both Houses of Congress." Id., at 178.^[12] Moreover, the President violated Article I "when he unilaterally canceled provisions of duly enacted statutes." Id., at 179.^[13] As a separate basis for [428] its decision, the District Court also held that the Act "impermissibly disrupts the balance of powers among the three branches of government." Ibid.

III

As in the prior challenge to the Line Item Veto Act, we initially confront jurisdictional questions. The appellees invoked the jurisdiction of the District Court under the section of the Act entitled "Expedited review." That section, 2 U. S. C. § 692(a)(1) (1994 ed., Supp. II), expressly authorizes "[a]ny Member of Congress or any individual adversely affected" by the Act to bring an action for declaratory judgment or injunctive relief on the ground that any provision of the Act is unconstitutional. Although the Government did not question the applicability of that section in the District Court, it now argues that, with the exception of Mike Cranney, the appellees are not "individuals" within the meaning of § 692(a)(1). Because the argument poses a jurisdictional question (although not one of constitutional magnitude), it is not waived by the failure to raise it in the District Court. The fact that the argument did not previously occur to the able lawyers for the Government does, however, confirm our view that in the context of the entire section Congress undoubtedly intended the word "individual" to be construed as synonymous with the word "person."^[14]

The special section authorizing expedited review evidences an unmistakable congressional interest in a prompt and authoritative judicial determination of the constitutionality [429] of the Act. Subsection (a)(2) requires that copies of any complaint filed under subsection (a)(1) "shall be promptly delivered" to both Houses of Congress, and that each House shall have a right to intervene. Subsection (b) authorizes a direct appeal to this Court from any order of the District Court, and requires that the appeal be filed within 10 days. Subsection (c) imposes a duty on both the District Court and this Court "to advance on the docket and to expedite to the greatest possible extent the disposition of any matter brought under subsection (a)." There is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons. Acceptance of the Government's new-found reading of § 692 "would produce an absurd and unjust result which Congress could not have intended." Griffin v. Oceanic Contractors, Inc., 458 U. S. 564, 574 (1982).^[15]

We are also unpersuaded by the Government's argument that appellees' challenge to the constitutionality of the Act is nonjusticiable. We agree, of course, that Article III of the Constitution confines the jurisdiction of the federal courts to actual "Cases" and "Controversies," and that "the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process." Whit- [430] more v. Arkansas, 495 U. S. 149, 155 (1990).^[16] Our disposition of the first challenge to the constitutionality of this Act demonstrates our recognition of the importance of respecting the constitutional limits on our jurisdiction, even when Congress has manifested an interest in obtaining our views as promptly as possible. But these cases differ from Raines, not only because the President's exercise of his cancellation authority has removed any concern about the ripeness of the dispute, but more importantly because the parties have alleged a "personal stake" in having an actual injury redressed rather than an "institutional injury" that is "abstract and widely dispersed." 521 U. S., at 829.

In both the New York and the Snake River cases, the Government argues that the appellees are not actually injured because the claims are too speculative and, in any event, the claims are advanced by the wrong parties. We find no merit in the suggestion that New York's injury is merely speculative because HHS has not yet acted on the State's waiver requests. The State now has a multibillion dollar contingent liability that had been eliminated by § 4722(c) of the Balanced Budget Act of 1997. The District Court correctly concluded that the State, and the appellees, "suffered an immediate, concrete injury the moment that the President used the Line Item Veto to cancel section 4722(c) and deprived them of the benefits of that law." 985 F. Supp., at 174. The self-evident significance of the contingent liability is confirmed by the fact that New York lobbied Congress for this relief, that Congress decided that it warranted statutory attention, and that the President selected for cancellation only this one provision in an Act that occupies 536 pages of the Statutes at Large. His action was comparable to the judgment of an appellate court setting aside a verdict for the defendant and remanding for a new trial of a multibillion [431] dollar damages claim. Even if the outcome of the second trial is speculative, the reversal, like the President's cancellation, causes a significant immediate injury by depriving the defendant of the benefit of a favorable final judgment. The revival of a substantial contingent liability immediately and directly affects the borrowing power, financial strength, and fiscal planning of the potential obligor.^[17]

We also reject the Government's argument that New York's claim is advanced by the wrong parties because the claim belongs to the State of New York, and not appellees. Under New York statutes that are already in place, it is clear that both the City of New York^[18] and the appellee health care providers^[19] will be assessed by the State for substantial portions of any recoupment payments that the State may have to make to the Federal Government. To the extent of such assessments, they have the same potential liability as the State does.^[20]

[432] The Snake River farmers' cooperative also suffered an immediate injury when the President canceled the limited tax benefit that Congress had enacted to facilitate the acquisition of processing plants. Three critical facts identify the specificity and the importance of that injury. First, Congress enacted § 968 for the specific purpose of providing a benefit to a defined category of potential purchasers of a defined category of assets.^[21] The members of that statutorily defined class received the equivalent of a statutory "bargaining chip" to use in carrying out the congressional plan to facilitate their purchase of such assets. Second, the President selected § 968 as one of only two tax benefits in the Taxpayer Relief Act of 1997 that should be canceled. The cancellation rested on his determination that the use of those bargaining chips would have a significant impact on the federal budget deficit. Third, the Snake River cooperative was organized for the very purpose of acquiring processing facilities, it had concrete plans to utilize the benefits of § 968, and it was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a taxdeferred sale when the President canceled § 968. Moreover, it is actively searching for other processing facilities for possible future purchase if the President's cancellation is reversed; and there are ample processing facilities in the State that Snake River may be able to purchase.^[22] By depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents. See, e. g., Investment [433] Company Institute v. Camp, 401 U. S. 617, 620 (1971); 3 K. Davis & R. Pierce, Administrative Law Treatise 13-14 (3d ed. 1994) ("The Court routinely recognizes probable economic injury resulting from [governmental actions] that alter competitive conditions as sufficient to satisfy the [Article III `injury-in-fact' requirement]. . . . It follows logically that any . . . petitioner who is likely to suffer economic injury as a result of [governmental action] that changes market conditions satisfies this part of the standing test").

Appellees' injury in this regard is at least as concrete as the injury suffered by the respondents in Bryant v. Yellen, 447 U. S. 352 (1980). In that case, we considered whether a rule that generally limited water deliveries from reclamation projects to 160 acres applied to the much larger tracts of the Imperial Irrigation District in southeastern California; application of that limitation would have given large landowners an incentive to sell excess lands at prices below the prevailing market price for irrigated land. The District Court had held that the 160-acre limitation did not apply, and farmers who had hoped to purchase the excess land sought to appeal. We acknowledged that the farmers had not presented "detailed information about [their] financial resources," and noted that "the prospect of windfall profits could attract a large number of potential purchasers" besides the farmers. Id., at 367, n. 17. Nonetheless, "even though they could not with certainty establish that they would be able to purchase excess lands" if the judgment were reversed, id., at 367, we found standing because it was "likely that excess lands would become available at less than market prices," id., at 368. The Snake River appellees have alleged an injury that is as specific and immediate as that in Yellen. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72-78 (1978).^[23]

[434] As with the New York case, the Government argues that the wrong parties are before the Court—that because the sellers of the processing facilities would have received the tax benefits, only they have standing to challenge the cancellation of § 968. This argument not only ignores the fact that the cooperatives were the intended beneficiaries of § 968, but also overlooks the self-evident proposition that more than one party may have standing to challenge a particular action or inaction.^[24] Once it is determined that a particular plaintiff [435] is harmed by the defendant, and that the harm will likely be redressed by a favorable decision, that plaintiff has standing—regardless of whether there are others who would [436] also have standing to sue. Thus, we are satisfied that both of these actions are Article III "Cases" that we have a duty to decide.

IV

The Line Item Veto Act gives the President the power to "cancel in whole" three types of provisions that have been signed into law: "(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit." 2 U. S. C. § 691(a) (1994 ed., Supp. II). It is undisputed that the New York case involves an "item of new direct spending" and that the Snake River case involves a "limited tax benefit" as those terms are defined in the Act. It is also undisputed that each of those provisions had been signed into law pursuant to Article I, § 7, of the Constitution before it was canceled.

The Act requires the President to adhere to precise procedures whenever he exercises his cancellation authority. In identifying items for cancellation he must consider the legislative history, the purposes, and other relevant information about the items. See 2 U. S. C. § 691(b) (1994 ed., Supp. II). He must determine, with respect to each cancellation, that it will "(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest." § 691(a)(A). Moreover, he must transmit a special message to Congress notifying it of each cancellation within five calendar days (excluding Sundays) after the enactment of the canceled provision. See § 691(a)(B). It is undisputed that the President meticulously followed these procedures in these cases.

A cancellation takes effect upon receipt by Congress of the special message from the President. See § 691b(a). If, however, a "disapproval bill" pertaining to a special message is enacted into law, the cancellations set forth in that message become "null and void." Ibid. The Act sets forth a detailed expedited procedure for the consideration of a "disapproval bill," see § 691d, but no such bill was passed for [437] either of the cancellations involved in these cases.^[25] A majority vote of both Houses is sufficient to enact a disapproval bill. The Act does not grant the President the authority to cancel a disapproval bill, see § 691(c), but he does, of course, retain his constitutional authority to veto such a bill.^[26]

The effect of a cancellation is plainly stated in § 691e, which defines the principal terms used in the Act. With respect to both an item of new direct spending and a limited tax benefit, the cancellation prevents the item "from having legal force or effect." §§ 691e(4)(B)—(C).^[27] Thus, under the [438] plain text of the statute, the two actions of the President that are challenged in these cases prevented one section of the Balanced Budget Act of 1997 and one section of the Taxpayer Relief Act of 1997 "from having legal force or effect." The remaining provisions of those statutes, with the exception of the second canceled item in the latter, continue to have the same force and effect as they had when signed into law.

In both legal and practical effect, the President has amended two Acts of Congress by repealing a portion of each. "[R]epeal of statutes, no less than enactment, must conform with Art. I." INS v. Chadha, 462 U. S. 919, 954 (1983). There is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Both Article I and Article II assign responsibilities to the President that directly relate to the lawmaking process, but neither addresses the issue presented by these cases. The President "shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient . . . ." Art. II, § 3. Thus, he may initiate and influence legislative proposals.^[28] Moreover, after a bill has passed both Houses of Congress, but "before it become[s] a Law," it must be presented to the President. If he approves it, "he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it." Art. I, § 7, cl. 2.^[29] His [439] "return" of a bill, which is usually described as a "veto,"^[30] is subject to being overridden by a two-thirds vote in each House.

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

There are powerful reasons for construing constitutional silence on this profoundly important issue as equivalent to an express prohibition. The procedures governing the enactment of statutes set forth in the text of Article I were the product of the great debates and compromises that produced the Constitution itself. Familiar historical materials provide abundant support for the conclusion that the power to enact statutes may only "be exercised in accord with a single, finely wrought and exhaustively considered, [440] procedure." Chadha, 462 U. S., at 951. Our first President understood the text of the Presentment Clause as requiring that he either "approve all the parts of a Bill, or reject it in toto."^[31] What has emerged in these cases from the President's exercise of his statutory cancellation powers, however, are truncated versions of two bills that passed both Houses of Congress. They are not the product of the "finely wrought" procedure that the Framers designed.

At oral argument, the Government suggested that the cancellations at issue in these cases do not effect a "repeal" of the canceled items because under the special "lock box" provisions of the Act,^[32] a canceled item "retain[s] real, legal [441] budgetary effect" insofar as it prevents Congress and the President from spending the savings that result from the cancellation. Tr. of Oral Arg. 10.^[33] The text of the Act expressly provides, however, that a cancellation prevents a direct spending or tax benefit provision "from having legal force or effect." 2 U. S. C. §§ 691e(4)(B)—(C). That a canceled item may have "real, legal budgetary effect" as a result of the lock box procedure does not change the fact that by canceling the items at issue in these cases, the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provides a tax benefit, and § 4722(c) of the Balanced Budget Act of 1997 no longer relieves New York of its contingent liability.^[34] Such significant changes do not lose their character simply because the canceled provisions may have some continuing financial effect on the Government.^[35] The cancellation of one section of a statute may be the functional equivalent of a partial repeal even if a portion of the section is not canceled.

[442] V

The Government advances two related arguments to support its position that despite the unambiguous provisions of the Act, cancellations do not amend or repeal properly enacted statutes in violation of the Presentment Clause. First, relying primarily on Field v. Clark, 143 U. S. 649 (1892), the Government contends that the cancellations were merely exercises of discretionary authority granted to the President by the Balanced Budget Act and the Taxpayer Relief Act read in light of the previously enacted Line Item Veto Act. Second, the Government submits that the substance of the authority to cancel tax and spending items "is, in practical effect, no more and no less than the power to `decline to spend' specified sums of money, or to `decline to implement' specified tax measures." Brief for Appellants 40. Neither argument is persuasive.

In Field v. Clark, the Court upheld the constitutionality of the Tariff Act of 1890. Act of Oct. 1, 1890, 26 Stat. 567. That statute contained a "free list" of almost 300 specific articles that were exempted from import duties "unless otherwise specially provided for in this act." Id., at 602. Section 3 was a special provision that directed the President to suspend that exemption for sugar, molasses, coffee, tea, and hides "whenever, and so often" as he should be satisfied that any country producing and exporting those products imposed duties on the agricultural products of the United States that he deemed to be "reciprocally unequal and unreasonable. . . ." Id., at 612, quoted in Field, 143 U. S., at 680. The section then specified the duties to be imposed on those products during any such suspension. The Court provided this explanation for its conclusion that § 3 had not delegated legislative power to the President:

"Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. . . . [W]hen he ascertained the fact that duties [443] and exactions, reciprocally unequal and unreasonable, were imposed upon the agricultural or other products of the United States by a country producing and exporting sugar, molasses, coffee, tea or hides, it became his duty to issue a proclamation declaring the suspension, as to that country, which Congress had determined should occur. He had no discretion in the premises except in respect to the duration of the suspension so ordered. But that related only to the enforcement of the policy established by Congress. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws. . . . It was a part of the law itself as it left the hands of Congress that the provisions, full and complete in themselves, permitting the free introduction of sugars, molasses, coffee, tea and hides, from particular countries, should be suspended, in a given contingency, and that in case of such suspensions certain duties should be imposed." Id., at 693.

This passage identifies three critical differences between the power to suspend the exemption from import duties and the power to cancel portions of a duly enacted statute. First, the exercise of the suspension power was contingent upon a condition that did not exist when the Tariff Act was passed: the imposition of "reciprocally unequal and unreasonable" import duties by other countries. In contrast, the exercise of the cancellation power within five days after the enactment of the Balanced Budget and Tax Reform Acts necessarily was based on the same conditions that Congress evaluated when it passed those statutes. Second, under the Tariff Act, when the President determined that the contingency had arisen, he had a duty to suspend; in contrast, while it is true that the President was required by the Act to make three determinations before he canceled a provision, see 2 [444] U. S. C. § 691(a)(A) (1994 ed., Supp. II), those determinations did not qualify his discretion to cancel or not to cancel. Finally, whenever the President suspended an exemption under the Tariff Act, he was executing the policy that Congress had embodied in the statute. In contrast, whenever the President cancels an item of new direct spending or a limited tax benefit he is rejecting the policy judgment made by Congress and relying on his own policy judgment.^[36] Thus, the conclusion in Field v. Clark that the suspensions mandated by the Tariff Act were not exercises of legislative power does not undermine our opinion that cancellations pursuant to the Line Item Veto Act are the functional equivalent of partial repeals of Acts of Congress that fail to satisfy Article I, § 7.

The Government's reliance upon other tariff and import statutes, discussed in Field, that contain provisions similar to the one challenged in Field is unavailing for the same reasons.^[37] Some of those statutes authorized the President to "suspen[d] and discontinu[e]" statutory duties upon his determination that discriminatory duties imposed by other nations had been abolished. See 143 U. S., at 686-687 (discussing Act of Jan. 7, 1824, ch. 4, § 4, 4 Stat. 3, and Act of May 24, 1828, ch. 111, 4 Stat. 308).^[38] A slightly different statute, [445] Act of May 31, 1830, ch. 219, § 2, 4 Stat. 425, provided that certain statutory provisions imposing duties on foreign ships "shall be repealed" upon the same no-discrimination determination by the President. See 143 U. S., at 687; see also id., at 686 (discussing similar tariff statute, Act of Mar. 3, 1815, ch. 77, 3 Stat. 224, which provided that duties "are hereby repealed," "[s]uch repeal to take effect . . . whenever the President" makes the required determination).

The cited statutes all relate to foreign trade, and this Court has recognized that in the foreign affairs arena, the President has "a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 320 (1936). "Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries." Ibid.^[39] More important, when enacting the statutes discussed in Field, Congress itself made the decision to suspend or repeal the particular provisions at issue upon the occurrence of particular events subsequent to enactment, and it left only the determination of whether such events occurred up to the President.^[40] The Line Item Veto Act authorizes the President himself to effect the repeal of laws, for his own policy reasons, without observing the procedures set out in Article I, § 7. The fact that Congress intended such a result is of no [446] moment. Although Congress presumably anticipated that the President might cancel some of the items in the Balanced Budget Act and in the Taxpayer Relief Act, Congress cannot alter the procedures set out in Article I, § 7, without amending the Constitution.^[41]

Neither are we persuaded by the Government's contention that the President's authority to cancel new direct spending and tax benefit items is no greater than his traditional authority to decline to spend appropriated funds. The Government has reviewed in some detail the series of statutes in which Congress has given the Executive broad discretion over the expenditure of appropriated funds. For example, the First Congress appropriated "sum[s] not exceeding" specified amounts to be spent on various Government operations. See, e. g., Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. In those statutes, as in later years, the President was given wide discretion with respect to both the amounts to be spent and how the money would be allocated among different functions. It is argued that the Line Item Veto Act merely confers comparable discretionary authority over the expenditure of appropriated funds. The critical [447] difference between this statute and all of its predecessors, however, is that unlike any of them, this Act gives the President the unilateral power to change the text of duly enacted statutes. None of the Act's predecessors could even arguably have been construed to authorize such a change.

VI

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

First, we express no opinion about the wisdom of the procedures authorized by the Line Item Veto Act. Many members of both major political parties who have served in the Legislative and the Executive Branches have long advocated the enactment of such procedures for the purpose of "ensur[ing] greater fiscal accountability in Washington." H. R. Conf. Rep. 104-491, p. 15 (1996).^[42] The text of the Act was itself the product of much debate and deliberation in both Houses of Congress and that precise text was signed into law by the President. We do not lightly conclude that their action was unauthorized by the Constitution.^[43] We have, however, twice had full argument and briefing on the question and have concluded that our duty is clear.

Second, although appellees challenge the validity of the Act on alternative grounds, the only issue we address concerns the "finely wrought" procedure commanded by the Constitution. Chadha, 462 U. S., at 951. We have been [448] favored with extensive debate about the scope of Congress' power to delegate lawmaking authority, or its functional equivalent, to the President. The excellent briefs filed by the parties and their amici curiae have provided us with valuable historical information that illuminates the delegation issue but does not really bear on the narrow issue that is dispositive of these cases. Thus, because we conclude that the Act's cancellation provisions violate Article I, § 7, of the Constitution, we find it unnecessary to consider the District Court's alternative holding that the Act "impermissibly disrupts the balance of powers among the three branches of government." 985 F. Supp., at 179.^[44]

Third, our decision rests on the narrow ground that the procedures authorized by the Line Item Veto Act are not authorized by the Constitution. The Balanced Budget Act of 1997 is a 500-page document that became "Public Law 105-33" after three procedural steps were taken: (1) a bill containing its exact text was approved by a majority of the Members of the House of Representatives; (2) the Senate approved precisely the same text; and (3) that text was signed into law by the President. The Constitution explicitly requires that each of those three steps be taken before a bill may "become a law." Art. I, § 7. If one paragraph of that text had been omitted at any one of those three stages, Public Law 105-33 would not have been validly enacted. If the Line Item Veto Act were valid, it would authorize the President to create a different law—one whose text was not voted on by either House of Congress or presented to the President for signature. Something that might be known as "Public Law 105-33 as modified by the President" may or [449] may not be desirable, but it is surely not a document that may "become a law" pursuant to the procedures designed by the Framers of Article I, § 7, of the Constitution.

If there is to be a new procedure in which the President will play a different role in determining the final text of what may "become a law," such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution. Cf. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 837 (1995).

The judgment of the District Court is affirmed.

It is so ordered.

Justice Kennedy, concurring.

A Nation cannot plunder its own treasury without putting its Constitution and its survival in peril. The statute before us, then, is of first importance, for it seems undeniable the Act will tend to restrain persistent excessive spending. Nevertheless, for the reasons given by Justice Stevens in the opinion for the Court, the statute must be found invalid. Failure of political will does not justify unconstitutional remedies.

I write to respond to my colleague Justice Breyer, who observes that the statute does not threaten the liberties of individual citizens, a point on which I disagree. See post, at 496-497. The argument is related to his earlier suggestion that our role is lessened here because the two political branches are adjusting their own powers between themselves. Post, at 472, 482-483. To say the political branches have a somewhat free hand to reallocate their own authority would seem to require acceptance of two premises: first, that the public good demands it, and second, that liberty is not at risk. The former premise is inadmissible. The Constitution's structure requires a stability which transcends the convenience of the moment. See Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 276-277 (1991); Bowsher v. Synar, [450] 478 U. S. 714, 736 (1986); INS v. Chadha, 462 U. S. 919, 944— 945, 958-959 (1983); Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U. S. 50, 73-74 (1982). The latter premise, too, is flawed. Liberty is always at stake when one or more of the branches seek to transgress the separation of powers.

Separation of powers was designed to implement a fundamental insight: Concentration of power in the hands of a single branch is a threat to liberty. The Federalist states the axiom in these explicit terms: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands. . . may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 301 (C. Rossiter ed. 1961). So convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary. The Federalist No. 84, pp. 513, 515; G. Wood, The Creation of the American Republic 1776-1787, pp. 536-543 (1969). It was at Madison's insistence that the First Congress enacted the Bill of Rights. R. Goldwin, From Parchment to Power 75-153 (1997). It would be a grave mistake, however, to think a Bill of Rights in Madison's scheme then or in sound constitutional theory now renders separation of powers of lesser importance. See Amar, The Bill of Rights as a Constitution, 100 Yale L. J. 1131, 1132 (1991).

In recent years, perhaps, we have come to think of liberty as defined by that word in the Fifth and Fourteenth Amendments and as illuminated by the other provisions of the Bill of Rights. The conception of liberty embraced by the Framers was not so confined. They used the principles of separation of powers and federalism to secure liberty in the fundamental political sense of the term, quite in addition to the idea of freedom from intrusive governmental acts. The idea and the promise were that when the people delegate some degree of control to a remote central authority, one branch of government ought not possess the power to shape their destiny without a sufficient check from the other two. In this vision, liberty demands limits on the ability of any one [451] branch to influence basic political decisions. Quoting Montesquieu, the Federalist Papers made the point in the following manner:

"`When the legislative and executive powers are united in the same person or body,' says he, `there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to exe- cute them in a tyrannical manner.' Again: `Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. ` " The Federalist No. 47, supra, at 303.

It follows that if a citizen who is taxed has the measure of the tax or the decision to spend determined by the Executive alone, without adequate control by the citizen's Representatives in Congress, liberty is threatened. Money is the instrument of policy and policy affects the lives of citizens. The individual loses liberty in a real sense if that instrument is not subject to traditional constitutional constraints.

The principal object of the statute, it is true, was not to enhance the President's power to reward one group and punish another, to help one set of taxpayers and hurt another, to favor one State and ignore another. Yet these are its undeniable effects. The law establishes a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in order to disfavor the group or to extract further concessions from Congress. The law is the functional equivalent of a line item veto and enhances the President's powers beyond what the Framers would have endorsed.

It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or [452] enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow. See Freytag v. Commissioner, 501 U. S. 868, 880 (1991); cf. Chadha, supra, at 942, n. 13. Abdication of responsibility is not part of the constitutional design.

Separation of powers helps to ensure the ability of each branch to be vigorous in asserting its proper authority. In this respect the device operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority. Separation of powers operates on a vertical axis as well, between each branch and the citizens in whose interest powers must be exercised. The citizen has a vital interest in the regularity of the exercise of governmental power. If this point was not clear before Chadha, it should have been so afterwards. Though Chadha involved the deportation of a person, while the case before us involves the expenditure of money or the grant of a tax exemption, this circumstance does not mean that the vertical operation of the separation of powers is irrelevant here. By increasing the power of the President beyond what the Framers envisioned, the statute compromises the political liberty of our citizens, liberty which the separation of powers seeks to secure.

The Constitution is not bereft of controls over improvident spending. Federalism is one safeguard, for political accountability is easier to enforce within the States than nationwide. The other principal mechanism, of course, is control of the political branches by an informed and responsible electorate. Whether or not federalism and control by the electorate are adequate for the problem at hand, they are two of the structures the Framers designed for the problem the statute strives to confront. The Framers of the Constitution [453] could not command statesmanship. They could simply provide structures from which it might emerge. The fact that these mechanisms, plus the proper functioning of the separation of powers itself, are not employed, or that they prove insufficient, cannot validate an otherwise unconstitutional device. With these observations, I join the opinion of the Court.

Justice Scalia, with whom Justice O'Connor joins, and with whom Justice Breyer joins as to Part III, concurring in part and dissenting in part.

Today the Court acknowledges the "`overriding and timehonored concern about keeping the Judiciary's power within its proper constitutional sphere.' " Ante, at 421, quoting Raines v. Byrd, 521 U. S. 811, 820 (1997). It proceeds, however, to ignore the prescribed statutory limits of our jurisdiction by permitting the expedited-review provisions of the Line Item Veto Act to be invoked by persons who are not "individual[s]," 2 U. S. C. § 692 (1994 ed., Supp. II); and to ignore the constitutional limits of our jurisdiction by permitting one party to challenge the Government's denial to another party of favorable tax treatment from which the first party might, but just as likely might not, gain a concrete benefit. In my view, the Snake River appellees lack standing to challenge the President's cancellation of the "limited tax benefit," and the constitutionality of that action should not be addressed. I think the New York appellees have standing to challenge the President's cancellation of an "item of new direct spending"; I believe we have statutory authority (other than the expedited-review provision) to address that challenge; but unlike the Court I find the President's cancellation of spending items to be entirely in accord with the Constitution.

I

The Court's unrestrained zeal to reach the merits of this case is evident in its disregard of the statute's expeditedreview [454] provision, which extends that special procedure to "[a]ny Member of Congress or any individual adversely affected by [the Act]." § 692. With the exception of Mike Cranney, a natural person, the appellees—corporations, cooperatives, and governmental entities—are not "individuals" under any accepted usage of that term. Worse still, the first provision of the United States Code confirms that insofar as this word is concerned, Congress speaks English like the rest of us: "In determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the wor[d] `person'. . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. " 1 U. S. C. § 1 (emphasis added). And doubly worse, one of the definitional provisions of this very Act expressly distinguishes "individuals" from "persons." A tax law does not create a "limited tax benefit," it says, so long as

"any difference in the treatment of persons is based solely on—

"(I) in the case of businesses and associations, the size or form of the business or association involved;

"(II) in the case of individuals, general demographic conditions, such as income, marital status, number of dependents, or tax return filing status . . . ." 2 U. S. C. § 691e(9)(B)(iii) (1994 ed., Supp. II) (emphasis added).

The Court majestically sweeps the plain language of the statute aside, declaring that "[t]here is no plausible reason why Congress would have intended to provide for such special treatment of actions filed by natural persons and to have precluded entirely jurisdiction over comparable cases brought by corporate persons." Ante, at 429. Indeed, the Court says, it would be "absurd" for Congress to have done so. Ibid. But Congress treats individuals more favorably than corporations and other associations all the time. There is nothing whatever extraordinary—and surely nothing so [455] bizarre as to permit this Court to declare a "scrivener's error"—in believing that individuals will suffer more seriously from delay in the receipt of "vetoed" benefits or tax savings than corporations will, and therefore according individuals (but not corporations) expedited review. It may be unlikely that this is what Congress actually had in mind; but it is what Congress said, it is not so absurd as to be an obvious mistake, and it is therefore the law.

The only individual who has sued, and thus the only appellee who qualifies for expedited review under § 692, is Mike Cranney. Since § 692 does not confer jurisdiction over the claims of the other appellees, we must dismiss them, unless we have jurisdiction under another statute. In their complaints, appellees sought declaratory relief not only under § 692(a), but also under the Declaratory Judgment Act, 28 U. S. C. § 2201, invoking the District Court's jurisdiction under 28 U. S. C. § 1331. After the District Court ruled, the Government appealed directly to this Court, but it also filed a notice of appeal to the Court of Appeals for the District of Columbia Circuit. In light of the Government's representation that it desires "[t]o eliminate any possibility that the district court's decision might escape review," Reply Brief for Appellants 2, n. 1, I would deem its appeal to this Court a petition for writ of certiorari before judgment, see 28 U. S. C. § 2101(e), and grant it. Under this Court's Rule 11, "[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." In light of the public importance of the issues involved, and the little sense it would make for the Government to pursue its appeal against one appellee in this Court and against the others in the Court of Appeals, the entire case, in my view, qualifies for certiorari review before judgment.

[456] II

Not only must we be satisfied that we have statutory jurisdiction to hear this case; we must be satisfied that we have jurisdiction under Article III. "To meet the standing requirements of Article III, `[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.' " Raines, 521 U. S., at 818, quoting Allen v. Wright, 468 U. S. 737, 751 (1984).

In the first action before us, appellees Snake River Potato Growers, Inc. (Snake River) and Mike Cranney, Snake River's Director and Vice-Chairman, challenge the constitutionality of the President's cancellation of § 968 of the Taxpayer Relief Act of 1997. The Snake River appellees have standing, in the Court's view, because § 968 gave them "the equivalent of a statutory `bargaining chip,' " and "[b]y depriving them of their statutory bargaining chip, the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents." Ante, at 432. It is unclear whether the Court means that deprivation of a "bargaining chip" itself suffices for standing, or that such deprivation suffices in the present case because it creates a likelihood of economic injury. The former is wrong as a matter of law, and the latter is wrong as a matter of fact, on the facts alleged.

For the proposition that "a denial of a benefit in the bargaining process" can suffice for standing the Court relies in a footnote, see ante, at 433, n. 22, on Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U. S. 656 (1993). There, an association of contractors alleged that a city ordinance according racial preferences in the award of city contracts denied its members equal protection of the laws. Id., at 658-659. The association's members had regularly bid on and performed city contracts, and would have bid on designated set-aside contracts but for the ordinance. Id., at 659. We held that the association had [457] standing even without proof that its members would have been awarded contracts absent the challenged discrimination. The reason, we explained, is that "[t]he `injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Id., at 666, citing two earlier equal protection cases, Turner v. Fouche, 396 U. S. 346, 362 (1970), and Richmond v. J. A. Croson Co., 488 U. S. 469, 493 (1989). In other words, Northeastern Florida did not hold, as the Court suggests, that harm to one's bargaining position is an "injury in fact," but rather that, in an equal protection case, the denial of equal treatment is. Inasmuch as Snake River does not challenge the Line Item Veto Act on equal protection grounds, Northeastern Florida is in apposite. And I know of no case outside the equal protection field in which the mere detriment to one's "bargaining position," as opposed to a demonstrated loss of some bargain, has been held to confer standing. The proposition that standing is established by the mere reduction in one's chances of receiving a financial benefit is contradicted by Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26 (1976), which held that low-income persons who had been denied treatment at local hospitals lacked standing to challenge an Internal Revenue Service (IRS) ruling that reduced the amount of charitable care necessary for the hospitals to qualify for tax-exempt status. The situation in that case was strikingly similar to the one before us here: The denial of a tax benefit to a third party was alleged to reduce the chances of a financial benefit to the plaintiffs. And standing was denied.

But even if harm to one's bargaining position were a legally cognizable injury, Snake River has not alleged, as it must, facts sufficient to demonstrate that it personally has suffered that injury. See Warth v. Seldin, 422 U. S. 490, 502 (1975). In Eastern Ky. Welfare Rights, supra, the plaintiffs at least had applied for the financial benefit which had allegedly [458] been rendered less likely of receipt; the present suit, by contrast, resembles a complaint asserting that the plaintiff's chances of winning the lottery were reduced, filed by a plaintiff who never bought a lottery ticket, or who tore it up before the winner was announced. Snake River has presented no evidence to show that it was engaged in bargaining, and that that bargaining was impaired by the President's cancellation of § 968. The Court says that Snake River "was engaged in ongoing negotiations with the owner of a processing plant who had expressed an interest in structuring a taxdeferred sale when the President canceled § 968," ante, at 432. There is, however, no evidence of "negotiations," only of two "discussions." According to the affidavit of Mike Cranney:

"On or about May 1997, I spoke with Howard Phillips, the principal owner of Idaho Potato Packers, concerning the possibility that, if the Cooperative Tax Act were passed, Snake River Potato Growers might purchase a Blackfoot, Idaho processing facility in a transaction that would allow the deferral of gain. Mr. Phillips expressed an interest in such a transaction if the Cooperative Tax Act were to pass. Mr. Phillips also acknowledged to me that Jim Chapman, our General Manager, had engaged him in a previous discussion concerning this matter." App. 112.

This affidavit would have set forth something of significance if it had said that Phillips had expressed an interest in the transaction "if and only if the Cooperative Tax Act were to pass." But of course it is most unlikely he said that; Idaho Potato Packers (IPP) could get just as much from the sale without the Act as with the Act, so long as the price was right. The affidavit would also have set forth something of significance if it had said that Phillips had expressed an interest in the sale "at a particular price if the Cooperative Tax Act were to pass." But it does not say that either. [459] Nor does it even say that the President's action caused IPP to reconsider. Moreover, it was Snake River, not IPP, that terminated the discussions. According to Cranney, "[t]he President's cancellation of the Cooperative Tax Act caused me to terminate discussions with Phillips about the possibility of Snake River Potato Growers buying the Idaho Potato Packers facility." Id., at 114. So all we know from the record is that Snake River had two discussions with IPP concerning the sale of its processing facility on the tax deferred basis the Act would allow; that IPP was interested; and that Snake River ended the discussions after the President's action. We do not know that Snake River was prepared to offer a price—tax deferral or no—that would cross IPP's laugh threshold. We do not even know for certain that the tax deferral was a significant attraction to IPP; we know only that Cranney thought it was. On these facts—which never even bring things to the point of bargaining—it is pure conjecture to say that Snake River suffered an impaired bargaining position. As we have said many times, conjectural or hypothetical injuries do not suffice for Article III standing. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).

Nor has Snake River demonstrated, as the Court finds, that "the cancellation inflicted a sufficient likelihood of economic injury to establish standing under our precedents." Ante, at 432. Presumably the economic injury the Court has in mind is Snake River's loss of a bargain purchase of a processing plant. But there is no evidence, and indeed not even an allegation, that before the President's action such a purchase was likely. The most that Snake River alleges is that the President's action rendered it "more difficult for plaintiffs to purchase qualified processors," App. 12. And even if that abstract "increased difficulty" sufficed for injury in fact (which it does not), the existence of even that is pure speculation. For all that appears, no owner of a processing plant would have been willing to sell to Snake [460] River at any price that Snake River could afford—and the impossible cannot be made "more difficult." All we know is that a potential seller was "interested" in talking about the subject before the President's action, and that after the President's action Snake River itself decided to proceed no further. If this establishes a "likelihood" that Snake River would have made a bargain purchase but for the President's action, or even a "likelihood" that the President's action rendered "more difficult" a purchase that was realistically within Snake River's grasp, then we must adopt for our standing jurisprudence a new definition of likely: "plausible."

Twice before have we addressed whether plaintiffs had standing to challenge the Government's tax treatment of a third party, and twice before have we held that the speculative nature of a third party's response to changes in federal tax laws defeats standing. In Simon v. Eastern Ky. Welfare Rights, 426 U. S. 26 (1976), we found it "purely speculative whether the denials of service . . . fairly can be traced to [the IRS's] `encouragement' or instead result from decisions made by the hospitals without regard to the tax implications." Id., at 42-43. We found it "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." Id., at 43. In Allen v. Wright, 468 U. S. 737 (1984), we held that parents of black children attending public schools lacked standing to challenge IRS policies concerning tax exemptions for private schools. The parents alleged, inter alia, that "federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated." Id., at 752— 753. We concluded that "the injury alleged is not fairly traceable to the Government conduct . . . challenge[d] as unlawful," id., at 757, and that "it is entirely speculative . . . whether withdrawal of a tax exemption from any particular school would lead the school to change its policies," id., at 758. Likewise, here, it is purely speculative whether a tax [461] deferral would have prompted any sale, let alone one that reflected the tax benefit in the sale price.

The closest case the Court can appeal to as precedent for its finding of standing is Bryant v. Yellen, 447 U. S. 352 (1980). Even on its own terms, Bryant is distinguishable. As that case came to us, it involved a dispute between a class of some 800 landowners in the Imperial Valley, each of whom owned more than 160 acres, and a group of Imperial Valley residents who wished to purchase lands owned by that class. The point at issue was the application to those lands of a statutory provision that forbade delivery of water from a federal reclamation project to irrigable land held by a single owner in excess of 160 acres, and that limited the sale price of any lands so held in excess of 160 acres to a maximum amount, fixed by the Secretary of the Interior, based on fair market value in 1929, before the valley was irrigated by water from the Boulder Canyon Project. Id., at 366-367. That price would of course be "far below [the lands'] current market values." Id. , at 367, n. 17. The Court concluded that the would-be purchasers "had a sufficient stake in the outcome of the controversy to afford them standing." Id., at 368. It is true, as the Court today emphasizes, that the purchasers had not presented "detailed information about [their] financial resources," but the Court thought that unnecessary only because "purchasers of such land would stand to reap significant gains on resale." Id. , at 367, n. 17. Financing, in other words, would be easy to come by. Here, by contrast, not only do we have no notion whether Snake River has the cash in hand to afford IPP's bottom-line price, but we also have no reason to believe that financing of the purchase will be readily available. Potato processing plants, unlike agricultural land in the Imperial Valley, do not have a readily available resale market. On the other side of the equation, it was also much clearer in Bryant that if the suit came out in the would-be purchasers' favor, many of the landowners would be willing to sell. The alternative would be [462] withdrawing the land from agricultural production, whereas sale—even at bargain-basement prices for the land—would at least enable recoupment of the cost of improvements, such as drainage systems. Ibid. In the present case, by contrast, we have no reason to believe that IPP is not operating its processing plant at a profit, and will not continue to do so in the future; Snake River has proffered no evidence that IPP or any other processor would surely have sold if only the President had not canceled the tax deferral. The only uncertainty in Bryant was whether any of the respondents would wind up as buyers of any of the excess land; that seemed probable enough, since "respondents are residents of the Imperial Valley who desire to purchase the excess land for purposes of farming." Ibid. We have no basis to say that it is "likely" that Snake River would have purchased a processing facility if § 968 had not been canceled.

More fundamentally, however, the reasoning of Bryant should not govern the present case because it represents a crabbed view of the standing doctrine that has been superseded. Bryant was decided at the tail-end of "an era in which it was thought that the only function of the constitutional requirement of standing was `to assure that concrete adverseness which sharpens the presentation of issues,' " Spencer v. Kemna, 523 U. S. 1, 11 (1998), quoting Baker v. Carr, 369 U. S. 186, 204 (1962). Thus, the Bryant Court ultimately afforded the respondents standing simply because they "had a sufficient stake in the outcome of the controversy," 447 U. S., at 368, not because they had demonstrated injury in fact, causation, and redressability. "That parsimonious view of the function of Article III standing has since yielded to the acknowledgment that the constitutional requirement is a `means of "defin[ing] the role assigned to the judiciary in a tripartite allocation of power,"` and `a part of the basic charter . . . provid[ing] for the interaction between [the federal] government and the governments of the several States,' " Spencer, supra, at 11-12, quoting Valley Forge [463] Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 474, 476 (1982). While Snake River in the present case may indeed have enough of a "stake" to assure adverseness, the matter it brings before us is inappropriate for our resolution because its allegations do not establish an injury in fact, attributable to the Presidential action it challenges, and remediable by this Court's invalidation of that Presidential action.

Because, in my view, Snake River has no standing to bring this suit, we have no jurisdiction to resolve its challenge to the President's authority to cancel a "limited tax benefit."

III

I agree with the Court that the New York appellees have standing to challenge the President's cancellation of § 4722(c) of the Balanced Budget Act of 1997 as an "item of new direct spending." See ante, at 430-431. The tax liability they will incur under New York law is a concrete and particularized injury, fairly traceable to the President's action, and avoided if that action is undone. Unlike the Court, however, I do not believe that Executive cancellation of this item of direct spending violates the Presentment Clause.

The Presentment Clause requires, in relevant part, that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it." U. S. Const., Art. I, § 7, cl. 2. There is no question that enactment of the Balanced Budget Act complied with these requirements: the House and Senate passed the bill, and the President signed it into law. It was only after the requirements of the Presentment Clause had been satisfied that the President exercised his authority under the Line Item Veto Act to cancel the spending item. Thus, the Court's problem with the Act is not that it authorizes the President to veto parts of a bill and sign others into law, but rather that it authorizes [464] him to "cancel"—prevent from "having legal force or effect"—certain parts of duly enacted statutes.

Article I, § 7, of the Constitution obviously prevents the President from canceling a law that Congress has not authorized him to cancel. Such action cannot possibly be considered part of his execution of the law, and if it is legislative action, as the Court observes, "`repeal of statutes, no less than enactment, must conform with Art. I.' " Ante, at 438, quoting from INS v. Chadha, 462 U. S. 919, 954 (1983). But that is not this case. It was certainly arguable, as an original matter, that Art. I, § 7, also prevents the President from canceling a law which itself authorizes the President to cancel it. But as the Court acknowledges, that argument has long since been made and rejected. In 1809, Congress passed a law authorizing the President to cancel trade restrictions against Great Britain and France if either revoked edicts directed at the United States. Act of Mar. 1, 1809, § 11, 2 Stat. 528. Joseph Story regarded the conferral of that authority as entirely unremarkable in The Orono, 18 F. Cas. 830 (No. 10,585) (CCD Mass. 1812). The Tariff Act of 1890 authorized the President to "suspend, by proclamation to that effect" certain of its provisions if he determined that other countries were imposing "reciprocally unequal and unreasonable" duties. Act of Oct. 1, 1890, § 3, 26 Stat. 612. This Court upheld the constitutionality of that Act in Field v. Clark, 143 U. S. 649 (1892), reciting the history since 1798 of statutes conferring upon the President the power to, inter alia, "discontinue the prohibitions and restraints hereby enacted and declared," id., at 684, "suspend the operation of the aforesaid act," id., at 685, and "declare the provisions of this act to be inoperative," id., at 688.

As much as the Court goes on about Art. I, § 7, therefore, that provision does not demand the result the Court reaches. It no more categorically prohibits the Executive reduction of congressional dispositions in the course of implementing statutes that authorize such reduction, than it categorically [465] prohibits the Executive augmentation of congressional dispositions in the course of implementing statutes that authorize such augmentation—generally known as substantive rule making. There are, to be sure, limits upon the former just as there are limits upon the latter—and I am prepared to acknowledge that the limits upon the former may be much more severe. Those limits are established, however, not by some categorical prohibition of Art. I, § 7, which our cases conclusively disprove, but by what has come to be known as the doctrine of unconstitutional delegation of legislative authority: When authorized Executive reduction or augmentation is allowed to go too far, it usurps the nondelegable function of Congress and violates the separation of powers.

It is this doctrine, and not the Presentment Clause, that was discussed in the Field opinion, and it is this doctrine, and not the Presentment Clause, that is the issue presented by the statute before us here. That is why the Court is correct to distinguish prior authorizations of Executive cancellation, such as the one involved in Field, on the ground that they were contingent upon an Executive finding of fact, and on the ground that they related to the field of foreign affairs, an area where the President has a special "`degree of discretion and freedom,' " ante, at 445 (citation omitted). These distinctions have nothing to do with whether the details of Art. I, § 7, have been complied with, but everything to do with whether the authorizations went too far by transferring to the Executive a degree of political, lawmaking power that our traditions demand be retained by the Legislative Branch.

I turn, then, to the crux of the matter: whether Congress's authorizing the President to cancel an item of spending gives him a power that our history and traditions show must reside exclusively in the Legislative Branch. I may note, to begin with, that the Line Item Veto Act is not the first statute to authorize the President to "cancel" spending items. In Bowsher v. Synar, 478 U. S. 714 (1986), we addressed the [466] constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985, 2 U. S. C. § 901 et seq. (1982 ed., Supp. III), which required the President, if the federal budget deficit exceeded a certain amount, to issue a "sequestration" order mandating spending reductions specified by the Comptroller General, § 902. The effect of sequestration was that "amounts sequestered .. . shall be permanently cancelled." § 902(a)(4) (emphasis added). We held that the Act was unconstitutional, not because it impermissibly gave the Executive legislative power, but because it gave the Comptroller General, an officer of the Legislative Branch over whom Congress retained removal power, "the ultimate authority to determine the budget cuts to be made," 478 U. S., at 733, "functions . . . plainly entailing execution of the law in constitutional terms," id., at 732-733 (emphasis added). The President's discretion under the Line Item Veto Act is certainly broader than the Comptroller General's discretion was under the 1985 Act, but it is no broader than the discretion traditionally granted the President in his execution of spending laws.

Insofar as the degree of political, "lawmaking" power conferred upon the Executive is concerned, there is not a dime's worth of difference between Congress's authorizing the President to cancel a spending item, and Congress's authorizing money to be spent on a particular item at the President's discretion. And the latter has been done since the founding of the Nation. From 1789-1791, the First Congress made lump-sum appropriations for the entire Government—"sum[s] not exceeding" specified amounts for broad purposes. Act of Sept. 29, 1789, ch. 23, 1 Stat. 95; Act of Mar. 26, 1790, ch. 4, § 1, 1 Stat. 104; Act of Feb. 11, 1791, ch. 6, 1 Stat. 190. From a very early date Congress also made permissive individual appropriations, leaving the decision whether to spend the money to the President's unfettered discretion. In 1803, it appropriated $50,000 for the President to build "not exceeding fifteen gun boats, to be armed, [467] manned and fitted out, and employed for such purposes as in his opinion the public service may require," Act of Feb. 28, 1803, ch. 11, § 3, 2 Stat. 206. President Jefferson reported that "[t]he sum of fifty thousand dollars appropriated by Congress for providing gun boats remains unexpended. The favorable and peaceable turn of affairs on the Mississippi rendered an immediate execution of that law unnecessary," 13 Annals of Cong. 14 (1803). Examples of appropriations committed to the discretion of the President abound in our history. During the Civil War, an Act appropriated over $76 million to be divided among various items "as the exigencies of the service may require," Act of Feb. 25, 1862, ch. 32, 12 Stat. 344-345. During the Great Depression, Congress appropriated $950 million "for such projects and/or purposes and under such rules and regulations as the President in his discretion may prescribe," Act of Feb. 15, 1934, ch. 13, 48 Stat. 351, and $4 billion for general classes of projects, the money to be spent "in the discretion and under the direction of the President," Emergency Relief Appropriation Act of 1935, 49 Stat. 115. The constitutionality of such appropriations has never seriously been questioned. Rather, "[t]hat Congress has wide discretion in the matter of prescribing details of expenditures for which it appropriates must, of course, be plain. Appropriations and other acts of Congress are replete with instances of general appropriations of large amounts, to be allotted and expended as directed by designated government agencies." Cincinnati Soap Co. v. United States, 301 U. S. 308, 321-322 (1937).

Certain Presidents have claimed Executive authority to withhold appropriated funds even absent an express conferral of discretion to do so. In 1876, for example, President Grant reported to Congress that he would not spend money appropriated for certain harbor and river improvements, see Act of Aug. 14, 1876, ch. 267, 19 Stat. 132, because "[u]nder no circumstances [would he] allow expenditures upon works not clearly national," and in his view, the appropriations [468] were for "works of purely private or local interest, in no sense national," 4 Cong. Rec. 5628. President Franklin D. Roosevelt impounded funds appropriated for a flood control reservoir and levee in Oklahoma. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 638, 645; Hearings on S. 373 before the Ad Hoc Subcommittee on Impoundment of Funds of the Committee on Government Operations and the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 848-849 (1973). President Truman ordered the impoundment of hundreds of millions of dollars that had been appropriated for military aircraft. See Act of Oct. 29, 1949, ch. 787, 63 Stat. 987, 1013; Public Papers of the Presidents of the United States, Harry S. Truman, 1949, pp. 538-539 (W. Reid ed. 1964). President Nixon, the Mahatma Gandhi of all impounders, asserted at a press conference in 1973 that his "constitutional right" to impound appropriated funds was "absolutely clear." The President's News Conference of Jan. 31, 1973, 9 Weekly Comp. of Pres. Doc. 109-110 (1973). Our decision two years later in Train v. City of New York, 420 U. S. 35 (1975), proved him wrong, but it implicitly confirmed that Congress may confer discretion upon the Executive to withhold appropriated funds, even funds appropriated for a specific purpose. The statute at issue in Train authorized spending "not to exceed" specified sums for certain projects, and directed that such "[s]ums authorized to be appropriated . . . shall be allotted" by the Administrator of the Environmental Protection Agency, 33 U. S. C. §§ 1285, 1287 (1970 ed., Supp. III). Upon enactment of this statute, the President directed the Administrator to allot no more than a certain part of the amount authorized. 420 U. S., at 40. This Court held, as a matter of statutory interpretation, that the statute did not grant the Executive discretion to withhold the funds, but required allotment of the full amount authorized. Id., at 44-47.

The short of the matter is this: Had the Line Item Veto Act authorized the President to "decline to spend" any item [469] of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead—authorizing the President to "cancel" an item of spending—is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court. The President's action it authorizes in fact is not a line-item veto and thus does not offend Art. I, § 7; and insofar as the substance of that action is concerned, it is no different from what Congress has permitted the President to do since the formation of the Union.

IV

I would hold that the President's cancellation of § 4722(c) of the Balanced Budget Act of 1997 as an item of direct spending does not violate the Constitution. Because I find no party before us who has standing to challenge the President's cancellation of § 968 of the Taxpayer Relief Act of 1997, I do not reach the question whether that violates the Constitution.

For the foregoing reasons, I respectfully dissent.

Justice Breyer, with whom Justice O'Connor and Justice Scalia join as to Part III, dissenting.

I

I agree with the Court that the parties have standing, but I do not agree with its ultimate conclusion. In my view the Line Item Veto Act (Act) does not violate any specific textual constitutional command, nor does it violate any implicit [470] separation-of-powers principle. Consequently, I believe that the Act is constitutional.

II

I approach the constitutional question before us with three general considerations in mind. First, the Act represents a legislative effort to provide the President with the power to give effect to some, but not to all, of the expenditure and revenue-diminishing provisions contained in a single massive appropriations bill. And this objective is constitutionally proper.

When our Nation was founded, Congress could easily have provided the President with this kind of power. In that time period, our population was less than 4 million, see U. S. Dept. of Commerce, Census Bureau, Historical Statistics of the United States: Colonial Times to 1970, pt. 1, p. 8 (1975), federal employees numbered fewer than 5,000, see id., pt. 2, at 1103, annual federal budget outlays totaled approximately $4 million, see id., pt. 2, at 1104, and the entire operative text of Congress' first general appropriations law read as follows:

"Be it enacted . . . [t]hat there be appropriated for the service of the present year, to be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on import and tonnage, the following sums, viz. A sum not exceeding two hundred and sixteen thousand dollars for defraying the expenses of the civil list, under the late and present government; a sum not exceeding one hundred and thirty-seven thousand dollars for defraying the expenses of the department of war; a sum not exceeding one hundred and ninety thousand dollars for discharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninetysix thousand dollars for paying the pensions to invalids." Act of Sept. 29, 1789, ch. 23, § 1, 1 Stat. 95.

[471] At that time, a Congress, wishing to give a President the power to select among appropriations, could simply have embodied each appropriation in a separate bill, each bill subject to a separate Presidential veto.

Today, however, our population is about 250 million, see U. S. Dept. of Commerce, Census Bureau, 1990 Census, the Federal Government employs more than 4 million people, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Analytical Perspectives 207 (1997) (hereinafter Analytical Perspectives), the annual federal budget is $1.5 trillion, see Office of Management and Budget, Budget of the United States Government, Fiscal Year 1998: Budget 303 (1997) (hereinafter Budget), and a typical budget appropriations bill may have a dozen titles, hundreds of sections, and spread across more than 500 pages of the Statutes at Large. See, e. g., Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251. Congress cannot divide such a bill into thousands, or tens of thousands, of separate appropriations bills, each one of which the President would have to sign, or to veto, separately. Thus, the question is whether the Constitution permits Congress to choose a particular novel means to achieve this same, constitutionally legitimate, end.

Second, the case in part requires us to focus upon the Constitution's generally phrased structural provisions, provisions that delegate all "legislative" power to Congress and vest all "executive" power in the President. See Part IV, infra. The Court, when applying these provisions, has interpreted them generously in terms of the institutional arrangements that they permit. See, e. g., Mistretta v. United States, 488 U. S. 361, 412 (1989) (upholding delegation of authority to Sentencing Commission to promulgate Sentencing Guidelines); Crowell v. Benson, 285 U. S. 22, 53-54 (1932) (permitting non-Article III commission to adjudicate factual [472] disputes arising under federal dock workers' compensation statute). See generally, e. g., OPP Cotton Mills, Inc. v. Administrator of Wage and Hour Div., Dept. of Labor, 312 U. S. 126, 145 (1941) ("In an increasingly complex society Congress obviously could not perform its functions" without delegating details of regulatory scheme to executive agency); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concurring) (Constitution permits "interdependence" and flexible relations between branches in order to secure "workable government"); J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406 (1928) (Taft, C. J.) ("[T]he extent and character of . . . assistance [between the different branches] must be fixed according to common sense and the inherent necessities of the governmental coordination"); Crowell v. Benson, supra, at 53 ("[R]egard must be had" in cases "where constitutional limits are invoked, not to mere matters of form but to the substance of what is required").

Indeed, Chief Justice Marshall, in a well-known passage, explained,

"To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur." McCulloch v. Maryland, 4 Wheat. 316, 415 (1819).