CARTER v. UNITED STATES

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255 OCTOBER TERM, 1999
Syllabus
CARTER v. UNITED STATES
certiorari to the united states court of appeals for
the third circuit
No. 99–5716. Argued April 19, 2000—Decided June 12, 2000
Having donned a ski mask and entered a bank, petitioner Carter con-
fronted an exiting customer and pushed her back inside. She screamed,
startling others in the bank. Undeterred, Carter ran inside and leaped
over a counter and through one of the teller windows. A teller rushed
into the manager’s office. Meanwhile, Carter opened several teller
drawers and emptied the money into a bag. After removing almost
$16,000, he jumped back over the counter and fled. He was charged
with violating 18 U. S. C. § 2113(a), which punishes “[w]hoever, by force
and violence, or by intimidation, takes . . . any . . . thing of value [from a]
bank.” While not contesting the basic facts, Carter pleaded not guilty
on the theory that he had not taken the bank’s money “by force and
violence, or by intimidation,” as § 2113(a) requires. Before trial, he
moved for a jury instruction on the offense described by § 2113(b) as a
lesser included offense of the offense described by § 2113(a). Section
2113(b) entails less severe penalties than § 2113(a), punishing, inter alia,
“[w]hoever takes and carries away, with intent to steal or purloin,
any . . . thing of value exceeding $1,000 [from a] . . . bank.” The District
Court denied the motion. The jury, instructed on § 2113(a) alone, re-
turned a guilty verdict, pursuant to which the District Court entered
judgment. The Third Circuit affirmed.
Held: Because § 2113(b) requires three elements not required by § 2113(a),
it is not a lesser included offense of § 2113(a), and petitioner is prohibited
as a matter of law from obtaining a lesser included offense instruction
on the offense described by § 2113(b). Pp. 260–274.
(a) In Schmuck v. United States, 489 U. S. 705, 716, this Court held
that a defendant who requests a jury instruction on a lesser offense
under Federal Rule of Criminal Procedure 31(c) must demonstrate that
the elements of the lesser offense are a subset of the elements of the
charged offense. This elements test requires a textual comparison of
criminal statutes, which lends itself to certain and predictable out-
comes. Id., at 720. Here, the Government contends that three ele-
ments required by § 2113(b) are not required by § 2113(a). A “textual
comparison” of the elements of the two offenses suggests that the Gov-
ernment is correct. Whereas § 2113(b) requires (1) that the defendant
act “with intent to steal or purloin,” (2) that the defendant “tak[e] and

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256 CARTER v. UNITED STATES
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carr[y] away” the property, and (3) that the property have a “value ex-
ceeding $1,000,” § 2113(a) contains no such requirements. These extra
clauses in subsection (b) cannot be regarded as mere surplusage; they
mean something. Potter v. United States, 155 U. S. 438, 446. The
Court rejects Carter’s assertion that the foregoing application of the
elements test is too rigid. Although he is correct that normal princi-
ples of statutory construction apply, the Court rejects his claim that
such principles counsel a departure here from what is indicated by a
straightforward reading of the text. Pp. 260–263.
(b) The Court rejects Carter’s arguments pertinent to the general
relationship between §§ 2113(a) and (b). His first contention—that it
would be anomalous to impose criminal liability on a fence who receives
bank property from a § 2113(b) violator, as the text of § 2113(c) plainly
provides, but not on a fence who receives such property from a § 2113(a)
violator, unless § 2113(b) is a lesser included offense of § 2113(a)—is un-
persuasive because the anomaly, if it truly exists, is only an anomaly.
It is doubtful that it rises to the level of absurdity. Cf. Green v. Bock
Laundry Machine Co., 490 U. S. 504, 509–511, 527. In any event,
nothing in § 2113(c) purports to redefine the elements required by the
text of §§ 2113(a) and (b). Although more substantial, Carter’s second
argument—that, insofar as §§ 2113(a) and (b) are similar to common-law
robbery and larceny, the Court must assume that they require the same
elements as their common-law predecessors, absent Congress’ affirma-
tive indication of an intent to displace the common-law scheme—is also
unavailing because the canon on imputing common-law meaning ap-
plies only when Congress makes use of a statutory term with estab-
lished meaning at common law. See, e. g., Morissette v. United States,
342 U. S. 246, 263. Although “robbery” and “larceny” are terms with
such meanings, neither term appears in the text of § 2113(a) or § 2113(b).
While “robbery” appears in § 2113’s title, the title of a statute is of use
only when it sheds light on some ambiguous word or phrase in the stat-
ute itself. E. g., Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S.
206, 212. Carter does not claim that this title illuminates any such am-
biguous language. Pp. 263–267.
(c) The Court also rejects Carter’s specific arguments concerning
§ 2113(b)’s three “extra” elements. Pp. 267–274.
(i) Carter is mistaken when he argues that an “intent to steal or
purloin” requirement must be deemed implicit in § 2113(a) by virtue of
this Court’s cases interpreting criminal statutes silent as to mens rea
to include broadly applicable scienter requirements, see, e. g., United
States v. X-Citement Video, Inc., 513 U. S. 64, 70. The presumption
in favor of scienter generally requires a court to read into a statute
only that mens rea which is necessary to separate wrongful conduct

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from “otherwise innocent conduct.” Id., at 72. In this case, interpret-
ing § 2113(a) not to apply to a person who engages in innocent, if aber-
rant, activity is accomplished simply by requiring general intent—
i. e., proof of knowledge with respect to the crime’s actus reus (here,
the taking of property of another by force or violence or intimidation).
See, e. g., Staples v. United States, 511 U. S. 600, 611–612. And once
this mental state and actus reus are shown, the concerns underlying
the presumption in favor of scienter are fully satisfied, for a forceful
taking—even by a defendant taking under a good-faith claim of right—
falls outside the realm of the “otherwise innocent.” Thus, the pre-
sumption in favor of scienter does not justify reading a specific in-
tent requirement—“intent to steal or purloin”—into § 2113(a). Carter’s
reliance on § 2113(a)’s legislative history is unavailing in light of this
Court’s approach to statutory interpretation, which begins by exam-
ining the text, see, e. g., Estate of Cowart v. Nicklos Drilling Co., 505
U. S. 469, 475, not by psychoanalyzing those who enacted it, Bank
One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279.
Pp. 267–271.
(ii) Similarly, Carter’s claim that § 2113(b)’s “takes and carries
away” requirement should be deemed implicit in § 2113(a) also fails.
His argument that “takes” in § 2113(a) is equivalent to “takes and car-
ries away” in § 2113(b) is at war with the statute’s text. His suggestion
that the text is not dispositive because nothing in § 2113(a)’s evolution
suggests that Congress sought to discard the common-law asportation
requirement ignores the fact that the Court’s inquiry begins with the
textual product of Congress’ efforts, not with speculation as to the in-
ternal thought processes of its Members. Congress is free to outlaw
bank theft that does not involve asportation, and it hardly would have
been absurd for Congress to do so, since the taking-without-asportation
scenario has actually occurred. While the common law’s decision to
require asportation may have its virtues, Congress adopted a different
view in § 2113(a), and it is not for this Court to question that choice.
P. 272.
(iii) Finally, the Court disagrees with Carter’s claim that § 2113(b)’s
requirement that the property taken have a “value exceeding $1,000”
is a sentencing factor, not an element of the crime. First, § 2113(b)’s
structure strongly suggests that its two paragraphs—the first of which
uses the phrase in question, requiring that the property taken have
“value exceeding $1,000,” the second of which refers to property of
“value not exceeding $1,000”—describe distinct offenses. Each be-
gins with the word “[w]hoever,” proceeds to describe identically (apart
from the differing valuation requirements) the elements of the offense,
and concludes by stating the prescribed punishment. That these pro-

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258 CARTER v. UNITED STATES
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visions “stand on their own grammatical feet” strongly suggests that
Congress intended the valuation requirement to be an element of each
paragraph’s offense, rather than a sentencing factor of some base
§ 2113(b) offense. Jones v. United States, 526 U. S. 227, 234. Further-
more, the steeply higher penalties—an enhancement from a 1-year to
a 10-year maximum penalty on proof of valuation exceeding $1,000—
leads to the conclusion that the valuation requirement is an element of
§ 2113(b)’s first paragraph. See, e. g., Castillo v. United States, ante,
at 127. Finally, the constitutional questions that would be raised by
interpreting the valuation requirement to be a sentencing factor per-
suade the Court to adopt the view that the requirement is an element.
See Jones, supra, at 239–252. Pp. 272–274.
185 F. 3d 863, affirmed.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Ginsburg, J.,
filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ.,
joined, post, p. 275.
Donald J. McCauley argued the cause for petitioner.
With him on the briefs were Richard Coughlin, Jeffrey T.
Green, and Joseph S. Miller.
David C. Frederick argued the cause for the United
States. With him on the brief were Solicitor General Wax-
man, Assistant Attorney General Robinson, Deputy Solici-
tor General Dreeben, and Thomas E. Booth.*
Justice Thomas delivered the opinion of the Court.
In Schmuck v. United States, 489 U. S. 705 (1989), we held
that a defendant who requests a jury instruction on a lesser
offense under Rule 31(c) of the Federal Rules of Criminal
Procedure must demonstrate that “the elements of the lesser
offense are a subset of the elements of the charged offense.”
Id., at 716. This case requires us to apply this elements test
to the offenses described by 18 U. S. C. §§ 2113(a) and (b)
*Joshua L. Dratel filed a brief for the National Association of Criminal
Defense Lawyers et al. as amici curiae urging reversal.

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(1994 ed. and Supp. IV). The former punishes “[w]hoever,
by force and violence, or by intimidation, takes . . . from the
person or presence of another . . . any . . . thing of value
belonging to, or in the . . . possession of, any bank . . . .”
The latter, which entails less severe penalties, punishes,
inter alia, “[w]hoever takes and carries away, with intent
to steal or purloin, any . . . thing of value exceeding $1,000
belonging to, or in the . . . possession of, any bank . . . .”
We hold that § 2113(b) requires an element not required by
§ 2113(a)—three in fact—and therefore is not a lesser in-
cluded offense of § 2113(a). Petitioner is accordingly pro-
hibited as a matter of law from obtaining a lesser included
offense instruction on the offense described by § 2113(b).
I
On September 9, 1997, petitioner Floyd J. Carter donned
a ski mask and entered the Collective Federal Savings Bank
in Hamilton Township, New Jersey. Carter confronted a
customer who was exiting the bank and pushed her back
inside. She screamed, startling others in the bank. Unde-
terred, Carter ran into the bank and leaped over the cus-
tomer service counter and through one of the teller windows.
One of the tellers rushed into the manager’s office. Mean-
while, Carter opened several teller drawers and emptied the
money into a bag. After having removed almost $16,000 in
currency, Carter jumped back over the counter and fled from
the scene. Later that day, the police apprehended him.
A grand jury indicted Carter, charging him with violat-
ing § 2113(a). While not contesting the basic facts of the
episode, Carter pleaded not guilty on the theory that he
had not taken the bank’s money “by force and violence,
or by intimidation,” as § 2113(a) requires. Before trial, Car-
ter moved that the court instruct the jury on the offense
described by § 2113(b) as a lesser included offense of the of-
fense described by § 2113(a). The District Court, relying

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260 CARTER v. UNITED STATES
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on United States v. Mosley, 126 F. 3d 200 (CA3 1997),1 de-
nied the motion in a preliminary ruling. At the close of the
Government’s case, the District Court denied Carter’s mo-
tion for a judgment of acquittal and indicated that the pre-
liminary ruling denying the lesser included offense instruc-
tion would stand. The jury, instructed on § 2113(a) alone,
returned a guilty verdict, and the District Court entered
judgment pursuant to that verdict.
The Court of Appeals for the Third Circuit affirmed in an
unpublished opinion, relying on its earlier decision in Mosley.
Judgment order reported at 185 F. 3d 863 (1999). While the
Ninth Circuit agrees with the Third that a lesser offense
instruction is precluded in this context, see United States v.
Gregory, 891 F. 2d 732, 734 (CA9 1989), other Circuits have
held to the contrary, see United States v. Walker, 75 F. 3d
178, 180 (CA4 1996); United States v. Brittain, 41 F. 3d 1409,
1410 (CA10 1994). We granted certiorari to resolve the con-
flict, 528 U. S. 1060 (1999), and now affirm.
II
In Schmuck, supra, we were called upon to interpret
Federal Rule of Criminal Procedure 31(c)’s provision that
“[t]he defendant may be found guilty of an offense neces-
sarily included in the offense charged.” We held that this
provision requires application of an elements test, under
which “one offense is not ‘necessarily included’ in another
unless the elements of the lesser offense are a subset of the
elements of the charged offense.” 489 U. S., at 716.2 The
1 We granted certiorari in Mosley to address the issue that we resolve
today, Mosley v. United States, 523 U. S. 1019 (1997), but dismissed the
petition in that case upon the death of the petitioner, 525 U. S. 120 (1998)
(per curiam).
2 By “lesser offense,” Schmuck meant lesser in terms of magnitude of
punishment. When the elements of such a “lesser offense” are a subset
of the elements of the charged offense, the “lesser offense” attains the
status of a “lesser included offense.”

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elements test requires “a textual comparison of criminal
statutes,” an approach that, we explained, lends itself to
“certain and predictable” outcomes. Id., at 720.3
Applying the test, we held that the offense of tampering
with an odometer, 15 U. S. C. §§ 1984 and 1990c(a) (1982 ed.),
is not a lesser included offense of mail fraud, 18 U. S. C.
§ 1341. We explained that mail fraud requires two ele-
ments—(1) having devised or intending to devise a scheme
to defraud (or to perform specified fraudulent acts), and
(2) use of the mail for the purpose of executing, or attempting
to execute, the scheme (or specified fraudulent acts). The
lesser offense of odometer tampering, however, requires the
element of knowingly and willfully causing an odometer to
be altered, an element that is absent from the offense of mail
fraud. Accordingly, the elements of odometer tampering
are not a subset of the elements of mail fraud, and a de-
fendant charged with the latter is not entitled to an in-
struction on the former under Rule 31(c). Schmuck, supra,
at 721–722.
Turning to the instant case, the Government contends
that three elements required by § 2113(b)’s first paragraph
are not required by § 2113(a): (1) specific intent to steal; (2)
asportation; and (3) valuation exceeding $1,000. The stat-
ute provides:
Ҥ 2113. Bank robbery and incidental crimes
“(a) Whoever, by force and violence, or by intimida-
tion, takes, or attempts to take, from the person or
presence of another, or obtains or attempts to obtain
by extortion any property or money or any other thing
of value belonging to, or in the care, custody, control,
3 A defendant must also satisfy the “independent prerequisite . . . that
the evidence at trial . . . be such that a jury could rationally find the
defendant guilty of the lesser offense, yet acquit him of the greater.”
Schmuck, 489 U. S., at 716, n. 8 (citing Keeble v. United States, 412 U. S.
205, 208 (1973)). In light of our holding that petitioner fails to satisfy the
elements test, we need not address the latter requirement in this case.

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management, or possession of, any bank, credit union, or
any savings and loan association . . .
. . . . .
“Shall be fined under this title or imprisoned not more
than twenty years, or both.
“(b) Whoever takes and carries away, with intent to
steal or purloin, any property or money or any other
thing of value exceeding $1,000 belonging to, or in the
care, custody, control, management, or possession of any
bank, credit union, or any savings and loan association,
shall be fined under this title or imprisoned not more
than ten years, or both; or
“Whoever takes and carries away, with intent to steal
or purloin, any property or money or any other thing of
value not exceeding $1,000 belonging to, or in the care,
custody, control, management, or possession of any bank,
credit union, or any savings and loan association, shall
be fined not more than $1,000 or imprisoned not more
than one year, or both.”
A “textual comparison” of the elements of these offenses
suggests that the Government is correct. First, whereas
subsection (b) requires that the defendant act “with in-
tent to steal or purloin,” subsection (a) contains no simi-
lar requirement. Second, whereas subsection (b) requires
that the defendant “tak[e] and carr[y] away” the property,
subsection (a) only requires that the defendant “tak[e]”
the property. Third, whereas the first paragraph of sub-
section (b) requires that the property have a “value ex-
ceeding $1,000,” subsection (a) contains no valuation require-
ment. These extra clauses in subsection (b) “cannot be
regarded as mere surplusage; [they] mea[n] something.”
Potter v. United States, 155 U. S. 438, 446 (1894).
Carter urges that the foregoing application of Schmuck’s
elements test is too rigid and submits that ordinary princi-
ples of statutory interpretation are relevant to the Schmuck
inquiry. We do not dispute the latter proposition. The

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Schmuck test, after all, requires an exercise in statutory
interpretation before the comparison of elements may be
made, and it is only sensible that normal principles of statu-
tory construction apply. We disagree, however, with peti-
tioner’s conclusion that such principles counsel a departure
in this case from what is indicated by a straightforward read-
ing of the text.
III
We begin with the arguments pertinent to the general re-
lationship between §§ 2113(a) and (b). Carter first contends
that the structure of § 2113 supports the view that subsec-
tion (b) is a lesser included offense of subsection (a). He
points to subsection (c) of § 2113, which imposes criminal
liability on a person who knowingly “receives, possesses,
conceals, stores, barters, sells, or disposes of, any property
or money or other thing of value which has been taken or
stolen from a bank . . . in violation of subsection (b).” (Em-
phasis added.) It would be anomalous, posits Carter, for
subsection (c) to apply—as its text plainly provides—only to
the fence who receives property from a violator of subsec-
tion (b) but not to the fence who receives property from
a violator of subsection (a). The anomaly disappears, he
concludes, only if subsection (b) is always violated when
subsection (a) is violated—i. e., only if subsection (b) is a
lesser included offense of subsection (a).
But Carter’s anomaly—even if it truly exists—is only an
anomaly. Petitioner does not claim, and we tend to doubt,
that it rises to the level of absurdity. Cf. Green v. Bock
Laundry Machine Co., 490 U. S. 504, 509–511 (1989); id., at
527 (Scalia, J., concurring in judgment). For example, it
may be that violators of subsection (a) generally act alone,
while violators of subsection (b) are commonly assisted by
fences. In such a state of affairs, a sensible Congress may
have thought it necessary to punish only the fences of prop-
erty taken in violation of subsection (b). Or Congress may
have thought that a defendant who violates subsection (a)

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264 CARTER v. UNITED STATES
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usually—if not inevitably—also violates subsection (b), so
that the fence may be punished by reference to that latter
violation. In any event, nothing in subsection (c) purports
to redefine the elements required by the text of subsections
(a) and (b).
Carter’s second argument is more substantial. He sub-
mits that, insofar as subsections (a) and (b) are similar to
the common-law crimes of robbery and larceny, we must as-
sume that subsections (a) and (b) require the same elements
as their common-law predecessors, at least absent Congress’
affirmative indication (whether in text or legislative history)
of an intent to displace the common-law scheme. While we
(and the Government) agree that the statutory crimes at
issue here bear a close resemblance to the common-law
crimes of robbery and larceny, see Brief for United States 29
(citing 4 W. Blackstone, Commentaries *229, *232); accord,
post, at 278–279, that observation is beside the point. The
canon on imputing common-law meaning applies only when
Congress makes use of a statutory term with established
meaning at common law, and Carter does not point to any
such term in the text of the statute.
This limited scope of the canon on imputing common-law
meaning has long been understood. In Morissette v. United
States, 342 U. S. 246 (1952), for example, we articulated the
canon in this way:
“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of cen-
turies of practice, it presumably knows and adopts the
cluster of ideas that were attached to each borrowed
word in the body of learning from which it was taken
and the meaning its use will convey to the judicial mind
unless otherwise instructed. In such case, absence of
contrary direction may be taken as satisfaction with
widely accepted definitions, not as a departure from
them.” Id., at 263 (emphasis added).

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In other words, a “cluster of ideas” from the common law
should be imported into statutory text only when Congress
employs a common-law term, and not when, as here, Con-
gress simply describes an offense analogous to a common-
law crime without using common-law terms.
We made this clear in United States v. Wells, 519 U. S.
482 (1997). At issue was whether 18 U. S. C. § 1014—which
punishes a person who “knowingly makes any false state-
ment or report . . . for the purpose of influencing in any
way the action” of a Federal Deposit Insurance Corporation
insured bank “upon any application, advance, . . . commit-
ment, or loan”—requires proof of the materiality of the “false
statement.” The defendants contended that since material-
ity was a required element of “false statement”-type offenses
at common law, it must also be required by § 1014. Although
Justice Stevens in dissent thought the argument to be
meritorious, we rejected it:
“[F]undamentally, we disagree with our colleague’s
apparent view that any term that is an element of a
common-law crime carries with it every other aspect of
that common-law crime when the term is used in a stat-
ute. Justice Stevens seems to assume that because
‘false statement’ is an element of perjury, and perjury
criminalizes only material statements, a statute crimi-
nalizing ‘false statements’ covers only material state-
ments. By a parity of reasoning, because common-law
perjury involved statements under oath, a statute crimi-
nalizing a false statement would reach only statements
under oath. It is impossible to believe that Congress
intended to impose such restrictions sub silentio, how-
ever, and so our rule on imputing common-law mean-
ing to statutory terms does not sweep so broadly.” 519
U. S., at 492, n. 10 (emphasis added; citation omitted).4
4 The dissent claims that our decision in United States v. Wells, 519 U. S.
482 (1997), is not in point because we went on in Wells to discuss the
evolution of the statute (specifically, a recodification of numerous sections),

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266 CARTER v. UNITED STATES
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Similarly, in United States v. Turley, 352 U. S. 407 (1957),
we declined to look to the analogous common-law crime be-
cause the statutory term at issue—“stolen”—had no mean-
ing at common law. See id., at 411–412 (“[W]hile ‘stolen’
is constantly identified with larceny, the term was never at
common law equated or exclusively dedicated to larceny”
(internal quotation marks omitted)).
By contrast, we have not hesitated to turn to the common
law for guidance when the relevant statutory text does con-
tain a term with an established meaning at common law. In
Neder v. United States, 527 U. S. 1 (1999), for example, we
addressed whether materiality is required by federal stat-
utes punishing a “scheme or artifice to defraud.” Id., at 20,
and 20–21, nn. 3–4 (citing 18 U. S. C. §§ 1341, 1343, 1344).
Unlike the statute in Wells, which contained no common-
law term, these statutes did include a common-law term—
“defraud.” 527 U. S., at 22. Because common-law fraud re-
quired proof of materiality, we applied the canon to hold that
these federal statutes implicitly contain a materiality re-
quirement as well. Id., at 23. Similarly, in Evans v. United
States, 504 U. S. 255, 261–264 (1992), we observed that “ex-
tortion” in 18 U. S. C. § 1951 was a common-law term, and
proceeded to interpret this term by reference to its meaning
at common law.
Here, it is undisputed that “robbery” and “larceny” are
terms with established meanings at common law. But nei-
which revealed Congress’ apparent care in retaining a materiality require-
ment in certain sections while omitting it in others, such as the one before
us in Wells. According to the dissent, a similar statutory evolution is not
present here. See post, at 286. But, even assuming the dissent is correct
in this latter regard, the holding in Wells simply cannot be deemed to
rest on our discussion of the statute’s evolution. Rather, we characterized
that discussion as supporting a result we had already reached on textual
grounds. See 519 U. S., at 492 (“Statutory history confirms the natural
reading”).

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ther term appears in the text of § 2113(a) or § 2113(b).5
While the term “robbery” does appear in § 2113’s title, the
title of a statute “ ‘[is] of use only when [it] shed[s] light on
some ambiguous word or phrase’ ” in the statute itself.
Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206,
212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co.,
331 U. S. 519, 528–529 (1947) (modifications in original)).
And Carter does not claim that this title illuminates any
such ambiguous language. Accordingly, the canon on im-
puting common-law meaning has no bearing on this case.
IV
We turn now to Carter’s more specific arguments con-
cerning the “extra” elements of § 2113(b). While conceding
the absence of three of § 2113(b)’s requirements from the
text of § 2113(a)—(1) “intent to steal or purloin”; (2) “takes
and carries away,” i. e., asportation; and (3) “value exceed-
ing $1,000” (first paragraph)—Carter claims that the first
two should be deemed implicit in § 2113(a), and that the third
is not an element at all.
A
As to “intent to steal or purloin,” it will be recalled that
the text of subsection (b) requires a specific “intent to
steal or purloin,” whereas subsection (a) contains no explicit
mens rea requirement of any kind. Carter nevertheless ar-
gues that such a specific intent requirement must be deemed
implicitly present in § 2113(a) by virtue of “our cases in-
terpreting criminal statutes to include broadly applicable
scienter requirements, even where the statute by its terms
5 Congress could have simply punished “robbery” or “larceny” as some
States have done (and as Congress itself has done elsewhere, see, e. g.,
18 U. S. C. §§ 2112, 2114, 2115), thereby leaving the definition of these
terms to the common law, but Congress instead followed the more preva-
lent legislative practice of spelling out elements of these crimes. See 2
W. LaFave & A. Scott, Substantive Criminal Law § 8.11, p. 438, n. 6 (1986).

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268 CARTER v. UNITED STATES
Opinion of the Court
does not contain them.” United States v. X-Citement Video,
Inc., 513 U. S. 64, 70 (1994).6 Properly applied to § 2113,
however, the presumption in favor of scienter demands only
that we read subsection (a) as requiring proof of general
intent—that is, that the defendant possessed knowledge
with respect to the actus reus of the crime (here, the taking
of property of another by force and violence or intimidation).
Before explaining why this is so under our cases, an exam-
ple, United States v. Lewis, 628 F. 2d 1276, 1279 (CA10 1980),
cert. denied, 450 U. S. 924 (1981), will help to make the dis-
tinction between “general” and “specific” intent less esoteric.
In Lewis, a person entered a bank and took money from a
teller at gunpoint, but deliberately failed to make a quick
getaway from the bank in the hope of being arrested so that
he would be returned to prison and treated for alcoholism.
Though this defendant knowingly engaged in the acts of
using force and taking money (satisfying “general intent”),
he did not intend permanently to deprive the bank of its
possession of the money (failing to satisfy “specific intent”).7
See generally 1 W. LaFave & A. Scott, Substantive Criminal
6 This interpretive principle exists quite apart from the canon on im-
puting common-law meaning. See, e. g., X-Citement Video, 513 U. S., at
70 (applying presumption in favor of scienter to statute proscribing the
shipping or receiving of visual depictions of minors engaging in sexually
explicit conduct, without first inquiring as to the existence of a common-
law antecedent to this offense); Staples v. United States, 511 U. S. 600
(1994) (similar).
7 The dissent claims that the Lewis court determined that the jury could
have found specific intent to steal on the facts presented, and thus disputes
our characterization of the case as illustrating a situation where a defend-
ant acts only with general intent. Post, at 283–284 (citing Lewis, 628
F. 2d, at 1279). The dissent fails to acknowledge, however, that the Lewis
court made this determination only because some evidence suggested that,
if the defendant had not been arrested, he would have kept the stolen
money. Ibid. The Lewis court, implicitly acknowledging the possibility
that some defendant (if not Lewis) might unconditionally intend to turn
himself in after completing a bank theft, proceeded to hold, in the alterna-
tive, that § 2113(a) covers a defendant who acts only with general intent.
See ibid.

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269 Cite as: 530 U. S. 255 (2000)
Opinion of the Court
Law § 3.5, p. 315 (1986) (distinguishing general from specific
intent).
The presumption in favor of scienter requires a court to
read into a statute only that mens rea which is necessary
to separate wrongful conduct from “otherwise innocent
conduct.” X-Citement Video, supra, at 72. In Staples v.
United States, 511 U. S. 600 (1994), for example, to avoid
criminalizing the innocent activity of gun ownership, we
interpreted a federal firearms statute to require proof that
the defendant knew that the weapon he possessed had the
characteristics bringing it within the scope of the statute.
Id., at 611–612. See also, e. g., Liparota v. United States,
471 U. S. 419, 426 (1985); Morissette, 342 U. S., at 270–271.
By contrast, some situations may call for implying a specific
intent requirement into statutory text. Suppose, for ex-
ample, a statute identical to § 2113(b) but without the words
“intent to steal or purloin.” Such a statute would run the
risk of punishing seemingly innocent conduct in the case of
a defendant who peaceably takes money believing it to be
his. Reading the statute to require that the defendant pos-
sess general intent with respect to the actus reus—i. e., that
he know that he is physically taking the money—would fail
to protect the innocent actor. The statute therefore would
need to be read to require not only general intent, but also
specific intent—i. e., that the defendant take the money with
“intent to steal or purloin.”
In this case, as in Staples, a general intent requirement
suffices to separate wrongful from “otherwise innocent” con-
duct. Section 2113(a) certainly should not be interpreted
to apply to the hypothetical person who engages in forceful
taking of money while sleepwalking (innocent, if aberrant
activity), but this result is accomplished simply by requir-
ing, as Staples did, general intent—i. e., proof of knowledge
with respect to the actus reus of the crime. And once this
mental state and actus reus are shown, the concerns under-
lying the presumption in favor of scienter are fully satis-

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270 CARTER v. UNITED STATES
Opinion of the Court
fied, for a forceful taking—even by a defendant who takes
under a good-faith claim of right—falls outside the realm of
the “otherwise innocent.” Thus, the presumption in favor
of scienter does not justify reading a specific intent require-
ment—“intent to steal or purloin”—into § 2113(a).8
Independent of his reliance upon the presumption in favor
of scienter, Carter argues that the legislative history of § 2113
supports the notion that an “intent to steal” requirement
should be read into § 2113(a). Carter points out that, in
1934, Congress enacted what is now § 2113(a), but with the
adverb “feloniously” (which all agree is equivalent to “intent
to steal”) modifying the verb “takes.” Act of May 18, 1934,
ch. 304, § 2(a), 48 Stat. 783. In 1937, Congress added what
is now § 2113(b). Act of Aug. 24, 1937, ch. 747, 50 Stat. 749.
Finally, in 1948, Congress made two changes to § 2113, de-
leting “feloniously” from what is now § 2113(a) and dividing
the “robbery” and “larceny” offenses into their own separate
subsections. 62 Stat. 796.
Carter concludes that the 1948 deletion of “feloniously”
was merely a stylistic change, and that Congress had no
intention, in deleting that word, to drop the requirement
that the defendant “feloniously” take the property—that is,
with intent to steal.9 Such reasoning, however, misunder-
8 Numerous Courts of Appeals agree. While holding that § 2113(a)’s
version of bank robbery is not a specific intent crime, these courts have
construed the statute to contain a general intent requirement. See
United States v. Gonyea, 140 F. 3d 649, 653–654, and n. 10 (CA6 1998)
(collecting cases).
9 Relatedly, Carter argues that, even if a sensible Congress might have
deleted “feloniously,” the 1948 Congress did not adequately explain an
intention to do so in the legislative history to the 1948 Act. He points
to the House Report, which states that Congress intended only to make
“changes in phraseology.” H. R. Rep. No. 304, 80th Cong., 1st Sess., A135
(1947). Carter further suggests that the phraseology concern with “felo-
niously” was that Congress in the 1948 codification generally desired to
delete references to felonies and misdemeanors in view of the statutory
definition of those terms in the former 18 U. S. C. § 1. Carter fails, how-

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271 Cite as: 530 U. S. 255 (2000)
Opinion of the Court
stands our approach to statutory interpretation. In ana-
lyzing a statute, we begin by examining the text, see, e. g.,
Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475
(1992), not by “psychoanalyzing those who enacted it,” Bank
One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S.
264, 279 (1996) (Scalia, J., concurring in part and concur-
ring in judgment). While “feloniously” no doubt would be
sufficient to convey a specific intent requirement akin to the
one spelled out in subsection (b), the word simply does not
appear in subsection (a).
Contrary to the dissent’s suggestion, post, at 283–284, this
reading is not a fanciful one. The absence of a specific intent
requirement from subsection (a), for example, permits the
statute to reach cases like Lewis, see supra, at 268, where
an ex-convict robs a bank because he wants to be appre-
hended and returned to prison. (The Government repre-
sents that indictments on this same fact pattern (which in-
variably plead out and hence do not result in reported
decisions) are brought “as often as every year,” Brief for
United States 22, n. 13.) It can hardly be said, therefore,
that it would have been absurd to delete “feloniously” in
order to reach such defendants. And once we have made
that determination, our inquiry into legislative motivation
is at an end. Cf. Bock Laundry Machine Co., 490 U. S., at
510–511.10
ever, to acknowledge that the House Report does not give that reason for
the deletion of “feloniously” from § 2113, even though it explicitly does so
in connection with the simultaneous elimination of similar language from
other sections. See, e. g., H. R. Rep. No. 304, supra, at A67 (“References
to offenses as felonies or misdemeanors were omitted in view of definitive
section 1 of this title”) (explaining revisions to 18 U. S. C. § 751). As is
often the case, the legislative history, even if it is relevant, supports con-
flicting inferences and provides scant illumination.
10 Carter claims further support in Prince v. United States, 352 U. S. 322
(1957), for his view that § 2113(a) implicitly requires a specific “intent to
steal.” But Prince did not discuss the elements of that subsection, let
alone compare them to the elements of subsection (b).

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272 CARTER v. UNITED STATES
Opinion of the Court
B
Turning to the second element in dispute, it will be re-
called that, whereas subsection (b) requires that the de-
fendant “tak[e] and carr[y] away the property,” subsection
(a) requires only that the defendant “tak[e]” the property.
Carter contends that the “takes” in subsection (a) is equiva-
lent to “takes and carries away” in subsection (b). While
Carter seems to acknowledge that the argument is at war
with the text of the statute, he urges that text should not be
dispositive here because nothing in the evolution of § 2113(a)
suggests that Congress sought to discard the asportation
requirement from that subsection.
But, again, our inquiry focuses on an analysis of the textual
product of Congress’ efforts, not on speculation as to the
internal thought processes of its Members. Congress is cer-
tainly free to outlaw bank theft that does not involve aspor-
tation, and it hardly would have been absurd for Congress
to do so, since the taking-without-asportation scenario is no
imagined hypothetical. See, e. g., State v. Boyle, 970 S. W.
2d 835, 836, 838–839 (Mo. Ct. App. 1998) (construing state
statutory codification of common-law robbery to apply to de-
fendant who, after taking money by threat of force, dropped
the money on the spot). Indeed, a leading treatise applauds
the deletion of the asportation requirement from the ele-
ments of robbery. See 2 LaFave & Scott, Substantive Crim-
inal Law § 8.11, at 439. No doubt the common law’s decision
to require asportation also has its virtues. But Congress
adopted a different view in § 2113(a), and it is not for us to
question that choice.
C
There remains the requirement in § 2113(b)’s first para-
graph that the property taken have a “value exceeding
$1,000”—a requirement notably absent from § 2113(a). Car-
ter, shifting gears from his previous arguments, concedes
the textual point but claims that the valuation require-

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273 Cite as: 530 U. S. 255 (2000)
Opinion of the Court
ment does not affect the Schmuck elements analysis because
it is a sentencing factor, not an element. We disagree. The
structure of subsection (b) strongly suggests that its two
paragraphs—the first of which requires that the property
taken have “value exceeding $1,000,” the second of which
refers to property of “value not exceeding $1,000”—describe
distinct offenses. Each begins with the word “[w]hoever,”
proceeds to describe identically (apart from the differing
valuation requirements) the elements of the offense, and
concludes by stating the prescribed punishment. That these
provisions “stand on their own grammatical feet” strongly
suggests that Congress intended the valuation requirement
to be an element of each paragraph’s offense, rather than a
sentencing factor of some base § 2113(b) offense. Jones v.
United States, 526 U. S. 227, 234 (1999). Even aside from
the statute’s structure, the “steeply higher penalties”—an
enhancement from a 1-year to a 10-year maximum penalty
on proof of valuation exceeding $1,000—leads us to conclude
that the valuation requirement is an element of the first
paragraph of subsection (b). See Castillo v. United States,
ante, at 127; Jones, 526 U. S., at 233. Finally, the constitu-
tional questions that would be raised by interpreting the val-
uation requirement to be a sentencing factor persuade us to
adopt the view that the valuation requirement is an element.
See id., at 239–252.
The dissent agrees that the valuation requirement of
subsection (b)’s first paragraph is an element, but nonethe-
less would hold that subsection (b) is a lesser included of-
fense of subsection (a). Post, at 287–289. The dissent rea-
sons that the “value not exceeding $1,000” component of
§ 2113(b)’s second paragraph is not an element of the offense
described in that paragraph. Hence, the matter of value
does not prevent § 2113(b)’s second paragraph from being
a lesser included offense of § 2113(a). And if a defendant
wishes to receive an instruction on the first paragraph of
§ 2113(b)—which entails more severe penalties than the sec-

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274 CARTER v. UNITED STATES
Opinion of the Court
ond paragraph, but is a more realistic option from the jury’s
standpoint in a case such as this one where the value of the
property clearly exceeds $1,000—the dissent sees no reason
to bar him from making that election, even though the “value
exceeding $1,000” element of § 2113(b)’s first paragraph is
clearly absent from § 2113(a).
This novel maneuver creates a problem, however. Since
subsection (a) contains no valuation requirement, a defend-
ant indicted for violating that subsection who requests an
instruction under subsection (b)’s first paragraph would ef-
fectively “waive . . . his [Fifth Amendment] right to notice
by indictment of the ‘value exceeding $1,000’ element.”
Post, at 289. But this same course would not be available
to the prosecutor who seeks the insurance policy of a lesser
included offense instruction under that same paragraph after
determining that his case may have fallen short of proving
the elements of subsection (a). For, whatever authority de-
fense counsel may possess to waive a defendant’s constitu-
tional rights, see generally New York v. Hill, 528 U. S. 110
(2000), a prosecutor has no such power. Thus, the prosecu-
tor would be disabled from obtaining a lesser included of-
fense instruction under Rule 31(c), a result plainly contrary
to Schmuck, in which we explicitly rejected an interpretive
approach to the Rule that would have permitted “the de-
fendant, by in effect waiving his right to notice, . . . [to] ob-
tain a lesser [included] offense instruction in circumstances
where the constitutional restraint of notice to the defend-
ant would prevent the prosecutor from seeking an identical
instruction,” 489 U. S., at 718.
* * *
We hold that § 2113(b) is not a lesser included offense of
§ 2113(a), and therefore that petitioner is not entitled to a
jury instruction on § 2113(b). The judgment of the Third
Circuit is affirmed.
It is so ordered.

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275 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
Justice Ginsburg, with whom Justice Stevens, Jus-
tice Souter, and Justice Breyer join, dissenting.
At common law, robbery meant larceny plus force, vio-
lence, or putting in fear. Because robbery was an aggra-
vated form of larceny at common law, larceny was a lesser
included offense of robbery. Congress, I conclude, did not
depart from that traditional understanding when it ren-
dered “Bank robbery and incidental crimes” federal offenses.
Accordingly, I would hold that petitioner Carter is not pro-
hibited as a matter of law from obtaining an instruction
on bank larceny as a lesser included offense. The Court
holds that Congress, in 18 U. S. C. § 2113, has dislodged bank
robbery and bank larceny from their common-law mooring.
I dissent from that determination.
I
The Court presents three reasons in support of its con-
clusion that a lesser included offense instruction was prop-
erly withheld in this case under the elements-based test
of Schmuck v. United States, 489 U. S. 705 (1989). First, the
Court holds that bank larceny contains an “intent to steal”
requirement that bank robbery lacks. Ante, at 267–271.
Second, the Court concludes that larceny contains a require-
ment of carrying away, or “asportation,” while robbery does
not. Ante, at 272. And third, the Court states that the
“value exceeding $1,000” requirement in the first paragraph
of the larceny statute is an element for which no equivalent
exists in the robbery statute. Ante, at 272–274. The
Court’s first and second points, I conclude, are mistaken. As
for the third, I agree with the Court that the “value exceed-
ing $1,000” requirement is an element essential to sustain a
conviction for the higher degree of bank larceny. I would
hold, however, that Carter was not disqualified on that ac-
count from obtaining the lesser included offense instruction
he sought.

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276 CARTER v. UNITED STATES
Ginsburg, J., dissenting
I note at the outset that the structure of § 2113 points
strongly toward the conclusion that bank larceny is a lesser
included offense of bank robbery. Section 2113(c) imposes
criminal liability on any person who knowingly “receives,
possesses, conceals, stores, barters, sells, or disposes of, any
property or money or other thing of value which has been
taken or stolen from a bank . . . in violation of subsection
(b).” If bank larceny, covered in § 2113(b), contains an intent
or asportation element not included in bank robbery, covered
in § 2113(a), then § 2113(c) creates an anomaly. As the Court
concedes, ante, at 263–264, under today’s decision the fence
who gets his loot from a bank larcenist will necessarily re-
ceive property “stolen . . . in violation of subsection (b),” but
the one who gets his loot from a bank robber will not. Once
it is recognized that bank larceny is a lesser included offense
of bank robbery, however, the anomaly vanishes. Because
anyone who violates § 2113(a) necessarily commits the lesser
included offense described in § 2113(b), a person who know-
ingly receives stolen property from a bank robber is just as
guilty under § 2113(c) as one who knowingly receives stolen
property from a bank larcenist.1
I emphasize as well that the title of § 2113 is “Bank rob-
bery and incidental crimes.” This Court has repeatedly rec-
ognized that “ ‘the title of a statute and the heading of a
section’ are ‘tools available for the resolution of a doubt’
1 I further note, and the Court does not dispute, that under today’s hold-
ing the Double Jeopardy Clause would not bar the Government from
bringing a bank larceny prosecution against a defendant who has already
been acquitted—or, indeed, convicted—by a jury of bank robbery on the
same facts. See Blockburger v. United States, 284 U. S. 299 (1932) (Dou-
ble Jeopardy Clause does not bar consecutive prosecutions for a single act
if each charged offense requires proof of an element that the other does
not); Tr. of Oral Arg. 46–47 (in response to Court’s inquiry, counsel for the
Government stated that, under the Government’s construction of § 2113, if
a jury acquitted a defendant on an indictment for bank robbery, it would
be open to the prosecution thereafter to seek the defendant’s reindictment
for bank larceny).

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277 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
about the meaning of a statute.” Almendarez-Torres v.
United States, 523 U. S. 224, 234 (1998) (quoting Trainmen
v. Baltimore & Ohio R. Co., 331 U. S. 519, 528–529 (1947)).2
Robbery, all agree, was an offense at common law, and this
Court has consistently instructed that courts should ordi-
narily read federal criminal laws in accordance with their
common-law origins, if Congress has not directed otherwise.
See Neder v. United States, 527 U. S. 1, 21 (1999) (“[W]here
Congress uses terms that have accumulated settled meaning
under the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the
established meaning of these terms.” (internal quotation
marks and modifications omitted)); Evans v. United States,
504 U. S. 255, 259 (1992) (“It is a familiar ‘maxim that a statu-
tory term is generally presumed to have its common-law
meaning.’ ”) (quoting Taylor v. United States, 495 U. S. 575,
592 (1990)); United States v. Turley, 352 U. S. 407, 411 (1957)
(“We recognize that where a federal criminal statute uses a
common-law term of established meaning without otherwise
defining it, the general practice is to give that term its
common-law meaning.”). As we explained in Morissette v.
United States, 342 U. S. 246 (1952):
“[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries
of practice, it presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in
the body of learning from which it was taken and the
meaning its use will convey to the judicial mind unless
otherwise instructed. In such case, absence of contrary
2 The majority says that courts may use a statutory title or heading only
to “shed light on some ambiguous word or phrase,” but not as a guide to a
statute’s overall meaning. See ante, at 267. Our cases have never before
imposed such a wooden and arbitrary limitation, and for good reason: A
statute’s meaning can be elusive, and its title illuminating, even where
a court cannot pinpoint a discrete word or phrase as the source of the
ambiguity.

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278 CARTER v. UNITED STATES
Ginsburg, J., dissenting
direction may be taken as satisfaction with widely ac-
cepted definitions, not as a departure from them.” Id.,
at 263.
In interpreting § 2113, then, I am guided by the common-
law understanding of “robbery and incidental crimes.” At
common law, as the Government concedes, robbery was an
aggravated form of larceny. Specifically, the common law
defined larceny as “the felonious taking, and carrying
away, of the personal goods of another.” 4 W. Blackstone,
Commentaries on the Laws of England 230 (1769) (Black-
stone) (internal quotation marks omitted). Robbery, in
turn, was larceny effected by taking property from the per-
son or presence of another by means of force or putting in
fear. Brief for United States 29–30 (citing 2 W. LaFave &
A. Scott, Substantive Criminal Law § 8.11, pp. 437–438 (1986)
(LaFave & Scott)). Larceny was therefore a lesser included
offense of robbery at common law. See 4 Blackstone 241
(robbery is “[o]pen and violent larciny from the person” (em-
phasis deleted)); 2 E. East, Pleas of the Crown § 124, p. 707
(1803) (robbery is a species of “aggravated larceny”); 2
W. Russell & C. Greaves, Crimes and Misdemeanors *101
(“robbery is an aggravated species of larceny”).
Closer inspection of the common-law elements of both
crimes confirms the relationship. The elements of common-
law larceny were also elements of robbery. First and most
essentially, robbery, like larceny, entailed an intentional
taking. See 4 Blackstone 241 (robbery is “the felonious and
forcible taking, from the person of another, of goods or
money to any value, by putting him in fear”); 2 East, supra,
at 707 (robbery is the “felonious taking of money or goods,
to any value, from the person of another, or in his presence,
against his will, by violence or putting him in fear”). Sec-
ond, as the above quotations indicate, the taking in a robbery
had to be “felonious,” a common-law term of art signifying
an intent to steal. See 4 Blackstone 232 (“This taking, and
carrying away, must also be felonious; that is, done animo

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279 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
furandi [with intent to steal]: or, as the civil law expresses
it, lucri causa [for the sake of gain].”); Black’s Law Dic-
tionary 555 (5th ed. 1979) (“Felonious” is “[a] technical word
of law which means done with intent to commit crime”).
And third, again like larceny, robbery contained an asporta-
tion requirement. See 2 LaFave & Scott § 8.11, at 439
(“Just as larceny requires that the thief both ‘take’ (secure
dominion over) and ‘carry away’ (move slightly) the prop-
erty in question, so too robbery under the traditional view
requires both a taking and an asportation (in the sense
of at least a slight movement) of the property.” (footnotes
omitted)). Unlike larceny, however, robbery included one
further essential component: an element of force, vio-
lence, or intimidation. See 4 Blackstone 242 (“[P]utting in
fear is the criterion that distinguishes robbery from other
larcinies.”).3
Precedent thus instructs us to presume that Congress has
adhered to the altogether clear common-law understanding
3 English courts continue to recognize larceny as a lesser included of-
fense of robbery. See, e. g., Regina v. Skivington, 51 Crim. App. 167, 170
(C. A. 1967) (“[L]arceny is an ingredient of robbery, and if the honest belief
that a man has a claim of right is a defence to larceny, then it negatives
one of the ingredients in the offense of robbery . . . .”). After the enact-
ment of the Theft Act, 1968, which consolidated the crimes of larceny,
embezzlement, and fraudulent conversion into the single crime of theft,
see Director of Public Prosecutions v. Gomez, 96 Crim. App. 359, 377
(H. L. 1992) (Lord Lowry, dissenting), English courts reaffirmed that theft
remains a lesser included offense of robbery, see Regina v. Guy, 93 Crim.
App. 108, 111 (C. A. 1991) (“[Section 8(1) of the Theft Act, 1968] makes it
clear that robbery is theft with an additional ingredient, namely the use
of force, or putting or seeking to put any person in fear of being sub-
jected to force. Therefore anyone guilty of robbery must, by statutory
definition, also be guilty of theft.”).
Leading commentators agree that larceny is a lesser included offense
of robbery. See, e. g., 2 LaFave & Scott § 8.11, at 437 (“Robbery . . . may
be thought of as aggravated larceny . . . .”); 3 C. Wright, Federal Practice
and Procedure § 515, p. 22 (2d ed. 1982) (“Robbery necessarily includes
larceny . . . .”).

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280 CARTER v. UNITED STATES
Ginsburg, J., dissenting
that larceny is a lesser included offense of robbery, unless
Congress has affirmatively indicated its design, in codifying
the crimes of robbery and larceny, to displace their common-
law meanings and relationship.
Far from signaling an intent to depart from the common
law, the codification of § 2113’s predecessor statute suggests
that Congress intended to adhere to the traditional rank-
ing of larceny as a lesser included offense of robbery. There
is no indication at any point during the codification of the
two crimes that Congress meant to install new conceptions
of larceny and robbery severed from their common-law
foundations.
Prior to 1934, federal law did not criminalize bank rob-
bery or larceny; these crimes were punishable only under
state law. Congress enacted the precursor to § 2113(a) in
response to an outbreak of bank robberies committed by
John Dillinger and others who evaded capture by state
authorities by moving from State to State. See Jerome v.
United States, 318 U. S. 101, 102 (1943) (1934 Act aimed
at “interstate operations by gangsters against banks—ac-
tivities with which local authorities were frequently unable
to cope”). In bringing federal law into this area, Congress
did not aim to reshape robbery by altering the common-
law definition of that crime. On the contrary, Congress
chose language that practically jumped out of Blackstone’s
Commentaries:
“Whoever, by force and violence, or by putting in
fear, feloniously takes, or feloniously attempts to take,
from the person or presence of another any property
or money or any other thing of value belonging to, or
in the care, custody, control, management, or possession
of, any bank shall be fined not more than $5,000 or im-
prisoned not more than twenty years, or both.” Act of
May 18, 1934, ch. 304, § 2(a), 48 Stat. 783.

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281 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
It soon became apparent, however, that this legislation
left a gap: It did not reach the thief who intentionally, though
not violently, stole money from a bank. Within a few years,
federal law enforcers endeavored to close the gap. In a
letter to the Speaker of the House, the Attorney General
conveyed the Executive Branch’s official position: “The fact
that the statute is limited to robbery and does not include
larceny and burglary has led to some incongruous results.”
See H. R. Rep. No. 732, 75th Cong., 1st Sess., 1 (1937) (re-
printing letter). In particular, the Attorney General cited
the example of a thief apprehended after taking $11,000 from
a bank while a teller was temporarily absent. Id., at 1–2.
He therefore asked Congress to amend the bank robbery
statute, specifically to add a larceny provision shorn of any
force, violence, or fear requirement. Id., at 2. Congress
responded by passing an Act “[t]o amend the bank robbery
statute to include burglary and larceny.” Act of Aug. 24,
1937, ch. 747, 50 Stat. 749. The Act’s new larceny provi-
sion, which Congress placed in the very same section as the
robbery provision, punished “whoever shall take and carry
away, with intent to steal or purloin,” property, money, or
anything of value from a bank. Ibid. There is not the
slightest sign that, when this new larceny provision was
proposed in terms tracking the common-law formulation, the
Attorney General advocated any change in the definition of
robbery from larceny plus to something less. Nor is there
any sign that Congress meant to order such a change. The
Act left in place the 1934 Act’s definition of bank robbery,
which continued to include the word “feloniously,” requiring
(as the Court concedes, ante, at 270) proof by the Govern-
ment of an intent to steal. 50 Stat. 749.
In its 1948 codification of federal crimes, Congress delin-
eated the bank robbery and larceny provisions of §§ 2113(a)
and 2113(b) and placed these provisions under the title “Bank
robbery and incidental crimes.” Act of June 25, 1948, § 2113,

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282 CARTER v. UNITED STATES
Ginsburg, J., dissenting
62 Stat. 796–797. In this codification, Congress deleted the
word “feloniously” from the robbery provision, leaving the
statute in substantially its present form.
II
That 1948 deletion forms the basis of the Government’s
prime argument against characterizing § 2113(b) as a lesser
included offense of § 2113(a), namely, that robbery, unlike
larceny, no longer requires a specific intent to steal. The
Government concedes that to gain a conviction for rob-
bery at common law, the prosecutor had to prove the per-
petrator’s intent to steal. The Government therefore ac-
knowledges that when Congress uses the terms “rob” or
“robbery” “without further elaboration,” Congress intends
to retain the common-law meaning of robbery. Brief for
United States 16, n. 9. But the Government contends that
the 1948 removal of “feloniously” from § 2113(a) showed
Congress’ purpose to dispense with any requirement of in-
tent to steal.
It is true that the larceny provision contains the words
“intent to steal” while the current robbery provision does
not.4 But the element-based comparison called for by
Schmuck is not so rigid as to require that the compared
statutes contain identical words. Nor does Schmuck coun-
sel deviation from our traditional practice of interpreting
federal criminal statutes consistently with their common-law
origins in the absence of affirmative congressional indication
to the contrary. Guided by the historical understanding of
the relationship between robbery and larceny both at com-
mon law and as brought into the federal criminal code,
I conclude that the offense of bank robbery under § 2113(a),
like the offense of bank larceny under § 2113(b), has always
included and continues to include a requirement of intent
to steal.
4 Notably, the Court would read a requirement of intent to steal into
§ 2113(b) even if that provision did not contain such words. Ante, at 269.

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This traditional reading of the robbery statute makes com-
mon sense. The Government agrees that to be convicted
of robbery, the defendant must resort to force and violence,
or intimidation, to accomplish his purpose. But what pur-
pose could this be other than to steal? The Government
describes two scenarios in which, it maintains, a person could
commit bank robbery while nonetheless lacking intent to
steal. One scenario involves a terrorist who temporarily
takes a bank’s money or property aiming only to disrupt the
bank’s business; the other involves an ex-convict, unable to
cope with life in a free society, who robs a bank because he
wants to be apprehended and returned to prison. Brief for
United States 22, n. 13.
The Government does not point to any cases involving
its terrorist scenario, and I know of none. To illustrate its
ex-convict scenario, the Government cites United States v.
Lewis, 628 F. 2d 1276 (CA10 1980), which appears to be the
only reported federal case presenting this staged situation.
The facts of Lewis—a case on which the Court relies heavily,
see ante, at 268, 271—were strange, to say the least. Hop-
ing to be sent back to prison where he could receive treat-
ment for his alcoholism and have time to pursue his writing
hobby, Lewis called a local detective and informed him of his
intention to rob a bank. 628 F. 2d, at 1277. He also dis-
cussed his felonious little plans with the police chief, under-
cover police officers, and a psychologist. Ibid. He even
allowed his picture to be taken so that it could be posted
in local banks for identification. Ibid. Following his much-
awaited heist, Lewis was arrested in the bank’s outer foyer
by officers who had him under surveillance. Id., at 1278.
I am not sure whether a defendant exhibiting this kind
of “bizarre behavior,” ibid., should in fact be deemed to
lack a specific intent to steal. (The Tenth Circuit, I note,
determined that specific intent was present in Lewis, for
“[t]he jury, charged with the duty to infer from conflicting
evidence the defendant’s intent, could have concluded that

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284 CARTER v. UNITED STATES
Ginsburg, J., dissenting
if Lewis was not arrested he would have kept the money and
spent it.” Id., at 1279.) But whatever its proper disposi-
tion, this sort of case is extremely rare—the Government
represents that, nationwide, such indictments are brought no
more than once per year. Brief for United States 22, n. 13.
Moreover, unlike a John Dillinger who foils state enforcers
by robbing banks in Chicago and lying low in South Bend,
the thief who orchestrates his own capture at the hands
of the local constable hardly poses the kind of problem that
one would normally expect to trigger a federal statutory
response. In sum, I resist the notion—apparently embraced
by the Court, see ante, at 271—that Congress’ purpose in
deleting the word “feloniously” from § 2113(a) was to grant
homesick ex-convicts like Lewis their wish to return to
prison. Nor can I credit the suggestion that Congress’ con-
cern was to cover the Government’s fictional terrorist, or
the frustrated account holder who “withdraws” $100 by
force or violence, believing the money to be rightfully his,
or the thrill seeker who holds up a bank with the intent of
driving around the block in a getaway car and then returning
the loot, or any other defendant whose exploits are seldom
encountered outside the pages of law school exams.
Indeed, there is no cause to suspect that the 1948 dele-
tion of “feloniously” was intended to effect any substantive
change at all. Nothing indicates that Congress removed
that word in response to any assertion or perception of
prosecutorial need. Nor is there any other reason to be-
lieve that it was Congress’ design to alter the elements of
the offense of robbery. Rather, the legislative history
suggests that Congress intended only to make “changes in
phraseology.” H. R. Rep. No. 304, 80th Cong., 1st Sess.,
A135 (1947). See Prince v. United States, 352 U. S. 322,
326, n. 5 (1957) (“The legislative history indicates that no
substantial change was made in this [1948] revision” of
§ 2113); Morissette, 342 U. S., at 269, n. 28 (“The 1948 Re-
vision was not intended to create new crimes but to recodify

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285 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
those then in existence.”). As the Third Circuit has rec-
ognized, “it seems that the deletion of ‘feloniously’ was a re-
sult of Congress’ effort to delete references to felonies and
misdemeanors from the code, inasmuch as both terms were
defined in 18 U. S. C. § 1,” a statute that has since been
repealed.5 United States v. Mosley, 126 F. 3d 200, 205 (CA3
1997). See also United States v. Richardson, 687 F. 2d 952,
957 (CA7 1982) (giving the same account of the 1948 revi-
sion). I would not attribute to Congress a design to create
a robbery offense stripped of the requirement of larcenous
intent in the absence of any affirmative indication of such
a design. 6
Our decision in Prince supports this conclusion. The peti-
tioner in that case had entered a bank, displayed a revolver,
and robbed the bank. He was convicted of robbery and of
entering the bank with the intent to commit a felony, both
crimes prohibited by § 2113(a). The trial judge sentenced
him, consecutively, to 20 years for the robbery and 15 years
for the entering-with-intent crime. 352 U. S., at 324. This
Court reversed the sentencing decision. The entering-with-
intent crime, we held, merges with the robbery crime once
the latter crime is consummated. Thus, we explained, the
punishment could not exceed 20 years, the sentence au-
thorized for a consummated robbery. Id., at 329. In reach-
ing our decision in Prince, we noted that, when the federal
bank robbery proscription was enlarged in 1937 to add the
entering-with-intent and larceny provisions, “[i]t was mani-
festly the purpose of Congress to establish lesser offenses.”
5 The various classes of federal felonies and misdemeanors are now
defined at 18 U. S. C. § 3559.
6 Congress could have provided such an affirmative indication in any
number of ways. The simplest would have been to say so in the statute,
e. g.: “It shall not be a defense that the accused person lacked an intent
to steal.” Cf. 18 U. S. C. § 645 (criminalizing embezzlement by judicial
officers, and providing that “[i]t shall not be a defense that the accused
person had any interest in [the embezzled] moneys or fund”).

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286 CARTER v. UNITED STATES
Ginsburg, J., dissenting
Id., at 327. We further stated that the “heart of the [enter-
ing] crime is the intent to steal,” and that “[t]his mental ele-
ment merges into the completed crime if the robbery is con-
summated.” Id., at 328. Prince thus conveys the Court’s
comprehension that an intent to steal is central not only to
the entry and larceny crimes, but to robbery as well.
United States v. Wells, 519 U. S. 482 (1997), relied on by
the Court, ante, at 265, is not in point. In that case, we
held that the offense of making a false statement to a fed-
erally insured bank, 18 U. S. C. § 1014, did not include a re-
quirement of materiality. We reached that holding only
after concluding that the defendants in that case had not
“come close to showing that at common law the term ‘false
statement’ acquired any implication of materiality that came
with it into § 1014.” 519 U. S., at 491. Indeed, the defend-
ants made “no claims about the settled meaning of ‘false
statement’ at common law.” Ibid. Moreover, we held that
“Congress did not codify the crime of perjury or compara-
ble common-law crimes in § 1014; . . . it simply consolidated
13 statutory provisions relating to financial institutions” to
create a single regulatory offense. Ibid. Three of those
13 provisions, we observed, had contained express material-
ity requirements and lost them in the course of consolidation.
Id., at 492–493. From this fact, we inferred that “Congress
deliberately dropped the term ‘materiality’ without intend-
ing materiality to be an element of § 1014.” Id., at 493.
Here, by contrast, it is clear that Congress’ aim was to codify
the common-law offenses of bank robbery and bank larceny;
that intent to steal was an element of common-law rob-
bery brought into § 2113(a) via the word “feloniously”; and
that Congress’ deletion of that word was not intended to
have any substantive effect, much less to dispense with the
requirement of intent to steal.
Having accepted the Government’s argument concerning
intent to steal, the Court goes on to agree with the Gov-
ernment that robbery, unlike larceny, does not require that

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Ginsburg, J., dissenting
the defendant carry away the property. As with intent to
steal, the historical linkage of the two crimes reveals the
Court’s error. It is true that § 2113(b) includes the phrase
“takes and carries away” while § 2113(a) says only “takes.”
Both crimes, however, included an asportation require-
ment at common law. See supra, at 279. Indeed, the text
of §§ 2113(a) and (b)—which the Court maintains must be the
primary focus of lesser included offense analysis—mirrors
the language of the common law quite precisely. At common
law, larceny was typically described as a crime involving
both a “taking” and a “carrying away.” See 4 Blackstone
231 (helpfully reminding us that “cepit et asportavit was the
old law-latin”). Robbery, on the other hand, was often de-
fined in “somewhat undetailed language,” LaFave & Scott
§ 8.11, at 438, n. 6, that made no mention of “carrying away,”
see 4 Blackstone 231, but was nevertheless consistently
interpreted to encompass an element of asportation. The
Court overlooks completely this feature of the common-
law terminology. I note, moreover, that the asportation re-
quirement, both at common law and under § 2113, is an ex-
tremely modest one: even a slight movement will do. See
LaFave & Scott § 8.11, at 439; 2 Russell & Greaves, Crimes
and Misdemeanors, at *152–*153. The text of §§ 2113(a)
and (b) thus tracks the common law. The Court’s conclusory
statement notwithstanding, nothing in the evolution of the
statute suggests that “Congress adopted a different view
in § 2113(a),” ante, at 272, deliberately doing away with the
minimal asportation requirement in prosecutions for bank
robbery. I would hold, therefore, that both crimes continue
to contain an asportation requirement.
Finally, the Court concludes that the “value exceeding
$1,000” requirement of the first paragraph of § 2113(b) is an ele-
ment of the offense described in that paragraph. I agree with
this conclusion and with the reasoning in support of it. See
ante, at 273. It bears emphasis, however, that the lesser
degree of bank larceny defined in § 2113(b)’s second para-

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288 CARTER v. UNITED STATES
Ginsburg, J., dissenting
graph contains no dollar value element even arguably im-
peding its classification as a lesser included offense of bank
robbery. The Government does not contend that the “value
not exceeding $1,000” component of that paragraph is an
element of the misdemeanor offense, and such a contention
would make scant sense. Surely Congress did not intend
that a defendant charged only with the lower grade of bank
larceny could successfully defend against that charge by
showing that he stole more than $1,000. In other words,
if a defendant commits larceny without exhibiting the dis-
tinguishing characteristics of robbery (force and violence, or
intimidation), he has necessarily committed at least the
lesser degree of larceny, whether he has taken $500 or $5,000.
Under Schmuck, then, a defendant charged with bank rob-
bery in violation of § 2113(a) is not barred as a matter of law
from obtaining a jury instruction on bank larceny as defined
in the second paragraph of § 2113(b).
I see no reason why a defendant charged with bank
robbery, which securely encompasses as a lesser included
offense the statutory equivalent of petit larceny, should
automatically be denied an instruction on the statutory
equivalent of grand larceny if he wants one. It is clear that
petit and grand larceny were two grades of the same offense
at common law. See 4 Blackstone 229 (petit and grand
larceny are “considerably distinguished in their punishment,
but not otherwise”). And, as earlier explained, supra, at
278–279, robbery at common law was an aggravated form of
that single offense. One of the key purposes of Schmuck’s
elements test is to allow easy comparison between two dis-
crete crimes. See 489 U. S., at 720–721. That purpose
would be frustrated if an element that exists only to distin-
guish a more culpable from a less culpable grade of the same
crime were sufficient to prevent the defendant from getting
a lesser included offense instruction as to the more culpable
grade. I would therefore hold that a defendant charged
with the felony of bank robbery is not barred as a matter of

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289 Cite as: 530 U. S. 255 (2000)
Ginsburg, J., dissenting
law from requesting and receiving an instruction describing
as a lesser included offense the felony grade of bank larceny.7
To be sure, any request by the defendant for an instruc-
tion covering the higher grade of bank larceny would be
tantamount to a waiver of his right to notice by indict-
ment of the “value exceeding $1,000” element. See Stirone
v. United States, 361 U. S. 212, 215 (1960) (Fifth Amend-
ment requires the Government to get a grand jury in-
dictment before it may prosecute any felony). The con-
stitutional requirement of notice would likely prevent the
prosecution from obtaining the same instruction without
the defendant’s consent. I would limit any such asymmetry,
however, to the unusual circumstance presented here, where
an element serves only to distinguish a more culpable from
a less culpable grade of the very same common-law crime
and where the less culpable grade is, in turn, a lesser in-
cluded offense of the crime charged.
* * *
In sum, I would hold that a defendant charged with
bank robbery as defined in 18 U. S. C. § 2113(a) is not barred
as a matter of law from obtaining a jury instruction on
bank larceny as defined in 18 U. S. C. § 2113(b). In reach-
ing the opposite conclusion, the Court gives short shrift to
the common-law origin and statutory evolution of § 2113.
The Court’s woodenly literal construction gives rise to prac-
tical anomalies, see supra, at 276, and n. 1, and effectively
shrinks the jury’s choices while enlarging the prosecutor’s
options. I dissent.
7 The court could instruct the jury as to the common elements of both
grades of bank larceny, and then add that in order to return a convic-
tion of the higher grade, the jury must also find that the value of the
stolen property exceeded $1,000. See Tr. of Oral Arg. 35; 3 L. Sand,
J. Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions
¶ 53.03, p. 53–55 (1999) (“The issue of valuation should be considered by
the jury only after they have determined that the defendant is guilty of
some type of bank larceny within the meaning of section 2113(b).”).

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290 OCTOBER TERM, 1999
Syllabus
SANTA FE INDEPENDENT SCHOOL DISTRICT v.
DOE, individually and as next friend for
her minor children, et al.
certiorari to the united states court of appeals for
the fifth circuit
No. 99–62. Argued March 29, 2000—Decided June 19, 2000
Prior to 1995, a student elected as Santa Fe High School’s student council
chaplain delivered a prayer over the public address system before each
home varsity football game. Respondents, Mormon and Catholic stu-
dents or alumni and their mothers, filed a suit challenging this practice
and others under the Establishment Clause of the First Amendment.
While the suit was pending, petitioner school district (District) adopted
a different policy, which authorizes two student elections, the first to
determine whether “invocations” should be delivered at games, and the
second to select the spokesperson to deliver them. After the students
held elections authorizing such prayers and selecting a spokesperson,
the District Court entered an order modifying the policy to permit only
nonsectarian, nonproselytizing prayer. The Fifth Circuit held that,
even as modified by the District Court, the football prayer policy was
invalid.
Held: The District’s policy permitting student-led, student-initiated prayer
at football games violates the Establishment Clause. Pp. 301–317.
(a) The Court’s analysis is guided by the principles endorsed in Lee
v. Weisman, 505 U. S. 577. There, in concluding that a prayer delivered
by a rabbi at a graduation ceremony violated the Establishment Clause,
the Court held that, at a minimum, the Constitution guarantees that
government may not coerce anyone to support or participate in re-
ligion or its exercise, or otherwise act in a way that establishes a state
religion or religious faith, or tends to do so, id., at 587. The District
argues unpersuasively that these principles are inapplicable because
the policy’s messages are private student speech, not public speech.
The delivery of a message such as the invocation here—on school prop-
erty, at school-sponsored events, over the school’s public address sys-
tem, by a speaker representing the student body, under the super-
vision of school faculty, and pursuant to a school policy that explicitly
and implicitly encourages public prayer—is not properly characterized
as “private” speech. Although the District relies heavily on this
Court’s cases addressing public forums, e. g., Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819, it is clear that the District’s

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291 Cite as: 530 U. S. 290 (2000)
Syllabus
pregame ceremony is not the type of forum discussed in such cases.
The District simply does not evince an intent to open its ceremony to
indiscriminate use by the student body generally, see, e. g., Hazelwood
School Dist. v. Kuhlmeier, 484 U. S. 260, 270, but, rather, allows only
one student, the same student for the entire season, to give the invoca-
tion, which is subject to particular regulations that confine the content
and topic of the student’s message. The majoritarian process imple-
mented by the District guarantees, by definition, that minority candi-
dates will never prevail and that their views will be effectively silenced.
See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S.
217, 235. Moreover, the District has failed to divorce itself from the
invocations’ religious content. The policy involves both perceived and
actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that
the student elections take place because the District “has chosen to
permit” student-delivered invocations, that the invocation “shall” be
conducted “by the high school student council” “[u]pon advice and direc-
tion of the high school principal,” and that it must be consistent with
the policy’s goals, which include “solemniz[ing] the event.” A religious
message is the most obvious method of solemnizing an event. Indeed,
the only type of message expressly endorsed in the policy is an “invoca-
tion,” a term which primarily describes an appeal for divine assistance
and, as used in the past at Santa Fe High School, has always entailed a
focused religious message. A conclusion that the message is not “pri-
vate speech” is also established by factors beyond the policy’s text,
including the official setting in which the invocation is delivered, see,
e. g., Wallace v. Jaffree, 472 U. S. 38, 73, 76, by the policy’s sham secular
purposes, see id., at 75, and by its history, which indicates that the Dis-
trict intended to preserve its long-sanctioned practice of prayer before
football games, see Lee, 505 U. S., at 596. Pp. 301–310.
(b) The Court rejects the District’s argument that its policy is dis-
tinguishable from the graduation prayer in Lee because it does not
coerce students to participate in religious observances. The first part
of this argument—that there is no impermissible government coercion
because the pregame messages are the product of student choices—fails
for the reasons discussed above explaining why the mechanism of the
dual elections and student speaker do not turn public speech into pri-
vate speech. The issue resolved in the first election was whether a
student would deliver prayer at varsity football games, and the contro-
versy in this case demonstrates that the students’ views are not unani-
mous on that issue. One of the Establishment Clause’s purposes is to
remove debate over this kind of issue from governmental supervision
or control. See Lee, 505 U. S., at 589. Although the ultimate choice
of student speaker is attributable to the students, the District’s de-

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292 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Syllabus
cision to hold the constitutionally problematic election is clearly a choice
attributable to the State, id., at 587. The second part of the District’s
argument—that there is no coercion here because attendance at an ex-
tracurricular event, unlike a graduation ceremony, is voluntary—is un-
persuasive. For some students, such as cheerleaders, members of the
band, and the team members themselves, attendance at football games
is mandated, sometimes for class credit. The District’s argument also
minimizes the immense social pressure, or truly genuine desire, felt
by many students to be involved in the extracurricular event that is
American high school football. Id., at 593. The Constitution demands
that schools not force on students the difficult choice between attending
these games and avoiding personally offensive religious rituals. See
id., at 596. Pp. 310–313.
(c) The Court also rejects the District’s argument that respondents’
facial challenge to the policy necessarily must fail because it is pre-
mature: No invocation has as yet been delivered under the policy. This
argument assumes that the Court is concerned only with the serious
constitutional injury that occurs when a student is forced to participate
in an act of religious worship because she chooses to attend a school
event. But the Constitution also requires that the Court keep in mind
the myriad, subtle ways in which Establishment Clause values can be
eroded, Lynch v. Donnelly, 465 U. S. 668, 694, and guard against other
different, yet equally important, constitutional injuries. One is the
mere passage by the District of a policy that has the purpose and per-
ception of government establishment of religion. See, e. g., Bowen v.
Kendrick, 487 U. S. 589, 602; Lemon v. Kurtzman, 403 U. S. 602, 612.
As discussed above, the policy’s text and the circumstances surrounding
its enactment reveal that it has such a purpose. Another constitutional
violation warranting the Court’s attention is the District’s implementa-
tion of an electoral process that subjects the issue of prayer to a ma-
joritarian vote. Through its election scheme, the District has estab-
lished a governmental mechanism that turns the school into a forum
for religious debate and empowers the student body majority to sub-
ject students of minority views to constitutionally improper messages.
The award of that power alone is not acceptable. Cf. Board of Regents
of Univ. of Wis. System v. Southworth, 529 U. S. 217. For the foregoing
reasons, the policy is invalid on its face. Pp. 313–317.
168 F. 3d 806, affirmed.
Stevens, J., delivered the opinion of the Court, in which O’Connor,
Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist,

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293 Cite as: 530 U. S. 290 (2000)
Syllabus
C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined,
post, p. 318.
Jay Alan Sekulow argued the cause for petitioner. With
him on the briefs were Colby M. May, James M. Henderson,
Sr., Mark N. Troobnick, Walter M. Weber, Paul D. Clement,
John G. Stepanovich, Thomas P. Monaghan, Stuart J. Roth,
John P. Tuskey, Joel H. Thornton, David A. Cortman, and
Kelly Shackelford.
John Cornyn, Attorney General of Texas, argued the
cause for the State of Texas et al. as amici curiae urging
reversal. With him on the brief were Andy Taylor, First
Assistant Attorney General, Linda S. Eads, Deputy Attor-
ney General, Gregory S. Coleman, Solicitor General, Julie
Caruthers Parsley, Deputy Solicitor General, and Meredith
B. Parenti, Assistant Solicitor General.
Anthony P. Griffin argued the cause for respondents.
With him on the briefs were Douglas Laycock and Steven
R. Shapiro.*
*Briefs of amici curiae urging reversal were filed for the Christian
Legal Society by Steffen N. Johnson, Stephen M. Shapiro, Michael W.
McConnell, and Kimberlee W. Colby; for Liberty Counsel et al. by Mathew
D. Staver and Jerry Falwell, Jr.; for the Northstar Legal Center by Jor-
dan W. Lorence; for Spearman Independent School District et al. by Roger
D. Hepworth; for the Texas Association of School Boards Legal Assistance
Fund by David M. Feldman and Myra C. Schexnayder; for the Texas
Justice Foundation et al. by Linda L. Schlueter; for Senator James M.
Inhofe et al. by Barry C. Hodge; for Congressman Steve Largent et al. by
Brett M. Kavanaugh; for Marian Ward et al. by Kelly J. Coghlan; and for
Texas Public School Students et al. by John L. Carter.
Briefs of amici curiae urging affirmance were filed for the American
Jewish Congress et al. by Walter E. Dellinger and Marc D. Stern; and for
the Baptist Joint Committee on Public Affairs et al. by Derek H. Davis
and Melissa Rogers.
Briefs of amici curiae were filed for the Rutherford Institute by John
W. Whitehead, Steven H. Aden, and James A. Hayes, Jr.; and for the Stu-
dent Press Law Center by Richard A. Simpson and S. Mark Goodman.

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Justice Stevens delivered the opinion of the Court.
Prior to 1995, the Santa Fe High School student who occu-
pied the school’s elective office of student council chaplain
delivered a prayer over the public address system before
each varsity football game for the entire season. This prac-
tice, along with others, was challenged in District Court as
a violation of the Establishment Clause of the First Amend-
ment. While these proceedings were pending in the Dis-
trict Court, the school district adopted a different policy that
permits, but does not require, prayer initiated and led by a
student at all home games. The District Court entered an
order modifying that policy to permit only nonsectarian, non-
proselytizing prayer. The Court of Appeals held that, even
as modified by the District Court, the football prayer policy
was invalid. We granted the school district’s petition for
certiorari to review that holding.
I
The Santa Fe Independent School District (District) is a
political subdivision of the State of Texas, responsible for the
education of more than 4,000 students in a small community
in the southern part of the State. The District includes the
Santa Fe High School, two primary schools, an intermediate
school and the junior high school. Respondents are two sets
of current or former students and their respective mothers.
One family is Mormon and the other is Catholic. The Dis-
trict Court permitted respondents (Does) to litigate anony-
mously to protect them from intimidation or harassment.1
1 A decision, the Fifth Circuit Court of Appeals noted, that many Dis-
trict officials “apparently neither agreed with nor particularly respected.”
168 F. 3d 806, 809, n. 1 (CA5 1999). About a month after the complaint
was filed, the District Court entered an order that provided, in part:
“[A]ny further attempt on the part of District or school administration,
officials, counsellors, teachers, employees or servants of the School Dis-
trict, parents, students or anyone else, overtly or covertly to ferret out
the identities of the Plaintiffs in this cause, by means of bogus petitions,
questionnaires, individual interrogation, or downright ‘snooping’, will

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Respondents commenced this action in April 1995 and
moved for a temporary restraining order to prevent the Dis-
trict from violating the Establishment Clause at the im-
minent graduation exercises. In their complaint the Does
alleged that the District had engaged in several proselytiz-
ing practices, such as promoting attendance at a Baptist re-
vival meeting, encouraging membership in religious clubs,
chastising children who held minority religious beliefs, and
distributing Gideon Bibles on school premises. They also
alleged that the District allowed students to read Christian
invocations and benedictions from the stage at graduation
ceremonies,2 and to deliver overtly Christian prayers over
the public address system at home football games.
On May 10, 1995, the District Court entered an interim
order addressing a number of different issues.3 With re-
cease immediately. ANYONE TAKING ANY ACTION ON SCHOOL
PROPERTY, DURING SCHOOL HOURS, OR WITH SCHOOL RE-
SOURCES OR APPROVAL FOR PURPOSES OF ATTEMPTING TO
ELICIT THE NAMES OR IDENTITIES OF THE PLAINTIFFS IN
THIS CAUSE OF ACTION, BY OR ON BEHALF OF ANY OF THESE
INDIVIDUALS, WILL FACE THE HARSHEST POSSIBLE CON-
TEMPT SANCTIONS FROM THIS COURT, AND MAY ADDITION-
ALLY FACE CRIMINAL LIABILITY. The Court wants these proceed-
ings addressed on their merits, and not on the basis of intimidation or
harassment of the participants on either side.” App. 34–35.
2 At the 1994 graduation ceremony the senior class president delivered
this invocation:
“Please bow your heads.
“Dear heavenly Father, thank you for allowing us to gather here safely
tonight. We thank you for the wonderful year you have allowed us to
spend together as students of Santa Fe. We thank you for our teachers
who have devoted many hours to each of us. Thank you, Lord, for our
parents and may each one receive the special blessing. We pray also for
a blessing and guidance as each student moves forward in the future.
Lord, bless this ceremony and give us all a safe journey home. In Jesus’
name we pray.” Id., at 19.
3 For example, it prohibited school officials from endorsing or partici-
pating in the baccalaureate ceremony sponsored by the Santa Fe Minis-
terial Alliance, and ordered the District to establish policies to deal with

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296 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Opinion of the Court
spect to the impending graduation, the order provided that
“non-denominational prayer” consisting of “an invocation
and/or benediction” could be presented by a senior student
or students selected by members of the graduating class.
The text of the prayer was to be determined by the students,
without scrutiny or preapproval by school officials. Refer-
ences to particular religious figures “such as Mohammed,
Jesus, Buddha, or the like” would be permitted “as long
as the general thrust of the prayer is non-proselytizing.”
App. 32.
In response to that portion of the order, the District
adopted a series of policies over several months dealing with
prayer at school functions. The policies enacted in May and
July for graduation ceremonies provided the format for the
August and October policies for football games. The May
policy provided:
“ ‘The board has chosen to permit the graduating senior
class, with the advice and counsel of the senior class
principal or designee, to elect by secret ballot to choose
whether an invocation and benediction shall be part of
the graduation exercise. If so chosen the class shall
elect by secret ballot, from a list of student volunteers,
students to deliver nonsectarian, nonproselytizing invo-
cations and benedictions for the purpose of solemnizing
“manifest First Amendment infractions of teachers, counsellors, or other
District or school officials or personnel, such as ridiculing, berating or
holding up for inappropriate scrutiny or examination the beliefs of any
individual students. Similarly, the School District will establish or clarify
existing procedures for excluding overt or covert sectarian and prose-
lytizing religious teaching, such as the use of blatantly denominational
religious terms in spelling lessons, denominational religious songs and
poems in English or choir classes, denominational religious stories and
parables in grammar lessons and the like, while at the same time allow-
ing for frank and open discussion of moral, religious, and societal views
and beliefs, which are non-denominational and non-judgmental.” Id.,
at 34.

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their graduation ceremonies.’ ” 168 F. 3d 806, 811 (CA5
1999) (emphasis deleted).
The parties stipulated that after this policy was adopted,
“the senior class held an election to determine whether to
have an invocation and benediction at the commencement
[and that the] class voted, by secret ballot, to include prayer
at the high school graduation.” App. 52. In a second vote
the class elected two seniors to deliver the invocation and
benediction.4
In July, the District enacted another policy eliminating
the requirement that invocations and benedictions be “non-
sectarian and nonproselytising,” but also providing that if
the District were to be enjoined from enforcing that policy,
the May policy would automatically become effective.
The August policy, which was titled “Prayer at Football
Games,” was similar to the July policy for graduations. It
also authorized two student elections, the first to determine
whether “invocations” should be delivered, and the second to
select the spokesperson to deliver them. Like the July pol-
icy, it contained two parts, an initial statement that omitted
any requirement that the content of the invocation be “non-
sectarian and nonproselytising,” and a fallback provision that
automatically added that limitation if the preferred policy
should be enjoined. On August 31, 1995, according to the
parties’ stipulation: “[T]he district’s high school students
voted to determine whether a student would deliver prayer
at varsity football games. . . . The students chose to allow a
4 The student giving the invocation thanked the Lord for keeping the
class safe through 12 years of school and for gracing their lives with two
special people and closed: “Lord, we ask that You keep Your hand upon us
during this ceremony and to help us keep You in our hearts through the
rest of our lives. In God’s name we pray. Amen.” Id., at 53. The stu-
dent benediction was similar in content and closed: “Lord, we ask for Your
protection as we depart to our next destination and watch over us as we
go our separate ways. Grant each of us a safe trip and keep us secure
throughout the night. In Your name we pray. Amen.” Id., at 54.

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student to say a prayer at football games.” Id., at 65. A
week later, in a separate election, they selected a student
“to deliver the prayer at varsity football games.” Id., at 66.
The final policy (October policy) is essentially the same as
the August policy, though it omits the word “prayer” from
its title, and refers to “messages” and “statements” as well
as “invocations.” 5 It is the validity of that policy that is
before us.6
5 Despite these changes, the school did not conduct another election,
under the October policy, to supersede the results of the August policy
election.
6 It provides:
“STUDENT ACTIVITIES:
“PRE-GAME CEREMONIES AT FOOTBALL GAMES
“The board has chosen to permit students to deliver a brief invocation
and/or message to be delivered during the pre-game ceremonies of home
varsity football games to solemnize the event, to promote good sportsman-
ship and student safety, and to establish the appropriate environment for
the competition.
“Upon advice and direction of the high school principal, each spring, the
high school student council shall conduct an election, by the high school
student body, by secret ballot, to determine whether such a statement or
invocation will be a part of the pre-game ceremonies and if so, shall elect
a student, from a list of student volunteers, to deliver the statement or
invocation. The student volunteer who is selected by his or her class-
mates may decide what message and/or invocation to deliver, consistent
with the goals and purposes of this policy.
“If the District is enjoined by a court order from the enforcement of this
policy, then and only then will the following policy automatically become
the applicable policy of the school district.
“The board has chosen to permit students to deliver a brief invocation
and/or message to be delivered during the pre-game ceremonies of home
varsity football games to solemnize the event, to promote good sportsman-
ship and student safety, and to establish the appropriate environment for
the competition.
“Upon advice and direction of the high school principal, each spring,
the high school student council shall conduct an election, by the high
school student body, by secret ballot, to determine whether such a mes-

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The District Court did enter an order precluding enforce-
ment of the first, open-ended policy. Relying on our decision
in Lee v. Weisman, 505 U. S. 577 (1992), it held that the
school’s “action must not ‘coerce anyone to support or partici-
pate in’ a religious exercise.” App. to Pet. for Cert. E7.
Applying that test, it concluded that the graduation prayers
appealed “to distinctively Christian beliefs,” 7 and that de-
livering a prayer “over the school’s public address system
prior to each football and baseball game coerces student
participation in religious events.” 8 Both parties appealed,
the District contending that the enjoined portion of the Octo-
ber policy was permissible and the Does contending that
both alternatives violated the Establishment Clause. The
Court of Appeals majority agreed with the Does.
The decision of the Court of Appeals followed Fifth Circuit
precedent that had announced two rules. In Jones v. Clear
Creek Independent School Dist., 977 F. 2d 963 (1992), that
court held that student-led prayer that was approved by a
vote of the students and was nonsectarian and nonproselytiz-
ing was permissible at high school graduation ceremonies.
On the other hand, in later cases the Fifth Circuit made it
clear that the Clear Creek rule applied only to high school
sage or invocation will be a part of the pre-game ceremonies and if so,
shall elect a student, from a list of student volunteers, to deliver the state-
ment or invocation. The student volunteer who is selected by his or her
classmates may decide what statement or invocation to deliver, consistent
with the goals and purposes of this policy. Any message and/or invoca-
tion delivered by a student must be nonsectarian and nonproselytizing.”
Id., at 104–105.
7 “The graduation prayers at issue in the instant case, in contrast, are
infused with explicit references to Jesus Christ and otherwise appeal to
distinctively Christian beliefs. The Court accordingly finds that use of
these prayers during graduation ceremonies, considered in light of the
overall manner in which they were delivered, violated the Establishment
Clause.” App. to Pet. for Cert. E8.
8 Id., at E8–E9.

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graduations and that school-encouraged prayer was consti-
tutionally impermissible at school-related sporting events.
Thus, in Doe v. Duncanville Independent School Dist., 70
F. 3d 402 (1995), it had described a high school graduation
as “a significant, once in-a-lifetime event” to be contrasted
with athletic events in “a setting that is far less solemn and
extraordinary.” Id., at 406–407.9
In its opinion in this case, the Court of Appeals explained:
“The controlling feature here is the same as in Dun-
canville: The prayers are to be delivered at football
games—hardly the sober type of annual event that can
be appropriately solemnized with prayer. The distinc-
tion to which [the District] points is simply one with-
out difference. Regardless of whether the prayers are
selected by vote or spontaneously initiated at these
frequently-recurring, informal, school-sponsored events,
school officials are present and have the authority to
stop the prayers. Thus, as we indicated in Duncan-
ville, our decision in Clear Creek II hinged on the sin-
gular context and singularly serious nature of a gradua-
tion ceremony. Outside that nurturing context, a Clear
Creek Prayer Policy cannot survive. We therefore re-
verse the district court’s holding that [the District’s]
alternative Clear Creek Prayer Policy can be extended
to football games, irrespective of the presence of the
nonsectarian, nonproselytizing restrictions.” 168 F. 3d,
at 823.
The dissenting judge rejected the majority’s distinction
between graduation ceremonies and football games. In his
9 Because the dissent overlooks this case, it incorrectly assumes that a
“prayer-only policy” at football games was permissible in the Fifth Circuit.
See post, at 323 (opinion of Rehnquist, C. J.).

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opinion the District’s October policy created a limited public
forum that had a secular purpose 10 and provided neutral
accommodation of noncoerced, private, religious speech.11
We granted the District’s petition for certiorari, limited to
the following question: “Whether petitioner’s policy permit-
ting student-led, student-initiated prayer at football games
violates the Establishment Clause.” 528 U. S. 1002 (1999).
We conclude, as did the Court of Appeals, that it does.
II
The first Clause in the First Amendment to the Federal
Constitution provides that “Congress shall make no law re-
specting an establishment of religion, or prohibiting the
free exercise thereof.” The Fourteenth Amendment im-
poses those substantive limitations on the legislative power
of the States and their political subdivisions. Wallace v.
Jaffree, 472 U. S. 38, 49–50 (1985). In Lee v. Weisman, 505
U. S. 577 (1992), we held that a prayer delivered by a rabbi
at a middle school graduation ceremony violated that Clause.
Although this case involves student prayer at a different
10 “There are in fact several secular reasons for allowing a brief, serious
message before football games—some of which [the District] has listed in
its policy. At sporting events, messages and/or invocations can promote,
among other things, honest and fair play, clean competition, individual
challenge to be one’s best, importance of team work, and many more goals
that the majority could conceive would it only pause to do so.
“Having again relinquished all editorial control, [the District] has cre-
ated a limited public forum for the students to give brief statements or
prayers concerning the value of those goals and the methods for achieving
them.” 168 F. 3d, at 835.
11 “The majority fails to realize that what is at issue in this facial chal-
lenge to this school policy is the neutral accommodation of non-coerced,
private, religious speech, which allows students, selected by students, to
express their personal viewpoints. The state is not involved. The school
board has neither scripted, supervised, endorsed, suggested, nor edited
these personal viewpoints. Yet the majority imposes a judicial curse
upon sectarian religious speech.” Id., at 836.

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type of school function, our analysis is properly guided by
the principles that we endorsed in Lee.
As we held in that case:
“The principle that government may accommodate
the free exercise of religion does not supersede the
fundamental limitations imposed by the Establishment
Clause. It is beyond dispute that, at a minimum, the
Constitution guarantees that government may not co-
erce anyone to support or participate in religion or its
exercise, or otherwise act in a way which ‘establishes a
[state] religion or religious faith, or tends to do so.’ ”
Id., at 587 (citations omitted) (quoting Lynch v. Don-
nelly, 465 U. S. 668, 678 (1984)).
In this case the District first argues that this principle
is inapplicable to its October policy because the messages
are private student speech, not public speech. It reminds
us that “there is a crucial difference between government
speech endorsing religion, which the Establishment Clause
forbids, and private speech endorsing religion, which the
Free Speech and Free Exercise Clauses protect.” Board
of Ed. of Westside Community Schools (Dist. 66) v. Mergens,
496 U. S. 226, 250 (1990) (opinion of O’Connor, J.). We cer-
tainly agree with that distinction, but we are not persuaded
that the pregame invocations should be regarded as “pri-
vate speech.”
These invocations are authorized by a government policy
and take place on government property at government-
sponsored school-related events. Of course, not every mes-
sage delivered under such circumstances is the government’s
own. We have held, for example, that an individual’s contri-
bution to a government-created forum was not government
speech. See Rosenberger v. Rector and Visitors of Univ.
of Va., 515 U. S. 819 (1995). Although the District relies
heavily on Rosenberger and similar cases involving such

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forums,12 it is clear that the pregame ceremony is not the
type of forum discussed in those cases.13 The Santa Fe
school officials simply do not “evince either ‘by policy or by
practice,’ any intent to open the [pregame ceremony] to
‘indiscriminate use,’ . . . by the student body generally.”
Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270
(1988) (quoting Perry Ed. Assn. v. Perry Local Educators’
Assn., 460 U. S. 37, 47 (1983)). Rather, the school allows
only one student, the same student for the entire season,
to give the invocation. The statement or invocation, more-
over, is subject to particular regulations that confine the
content and topic of the student’s message, see infra, at 306–
307, 309. By comparison, in Perry we rejected a claim that
the school had created a limited public forum in its school
mail system despite the fact that it had allowed far more
speakers to address a much broader range of topics than the
policy at issue here.14 As we concluded in Perry, “selective
access does not transform government property into a public
forum.” 460 U. S., at 47.
12 See, e. g., Brief for Petitioner 44–48, citing Rosenberger v. Rector and
Visitors of Univ. of Va., 515 U. S. 819 (1995) (limited public forum);
Widmar v. Vincent, 454 U. S. 263 (1981) (limited public forum); Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753 (1995) (tradi-
tional public forum); Lamb’s Chapel v. Center Moriches Union Free
School Dist., 508 U. S. 384 (1993) (limited public forum). Although the
District relies on these public forum cases, it does not actually argue that
the pregame ceremony constitutes such a forum.
13 A conclusion that the District had created a public forum would
help shed light on whether the resulting speech is public or private,
but we also note that we have never held the mere creation of a public
forum shields the government entity from scrutiny under the Establish-
ment Clause. See, e. g., Pinette, 515 U. S., at 772 (O’Connor, J., con-
curring in part and concurring in judgment) (“I see no necessity to carve
out . . . an exception to the endorsement test for the public forum
context”).
14 The school’s internal mail system in Perry was open to various private
organizations such as “[l]ocal parochial schools, church groups, YMCA’s,
and Cub Scout units.” 460 U. S., at 39, n. 2.

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Granting only one student access to the stage at a time
does not, of course, necessarily preclude a finding that a
school has created a limited public forum. Here, however,
Santa Fe’s student election system ensures that only those
messages deemed “appropriate” under the District’s policy
may be delivered. That is, the majoritarian process imple-
mented by the District guarantees, by definition, that mi-
nority candidates will never prevail and that their views will
be effectively silenced.
Recently, in Board of Regents of Univ. of Wis. System v.
Southworth, 529 U. S. 217 (2000), we explained why student
elections that determine, by majority vote, which expres-
sive activities shall receive or not receive school benefits are
constitutionally problematic:
“To the extent the referendum substitutes majority
determinations for viewpoint neutrality it would un-
dermine the constitutional protection the program re-
quires. The whole theory of viewpoint neutrality is
that minority views are treated with the same respect
as are majority views. Access to a public forum, for
instance, does not depend upon majoritarian consent.
That principle is controlling here.” Id., at 235.
Like the student referendum for funding in Southworth, this
student election does nothing to protect minority views but
rather places the students who hold such views at the mercy
of the majority.15 Because “fundamental rights may not be
15 If instead of a choice between an invocation and no pregame mes-
sage, the first election determined whether a political speech should be
made, and the second election determined whether the speaker should
be a Democrat or a Republican, it would be rather clear that the public
address system was being used to deliver a partisan message reflecting
the viewpoint of the majority rather than a random statement by a pri-
vate individual.
The fact that the District’s policy provides for the election of the
speaker only after the majority has voted on her message identifies an
obvious distinction between this case and the typical election of a “stu-

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submitted to vote; they depend on the outcome of no elec-
tions,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624,
638 (1943), the District’s elections are insufficient safeguards
of diverse student speech.
In Lee, the school district made the related argument that
its policy of endorsing only “civic or nonsectarian” prayer
was acceptable because it minimized the intrusion on the
audience as a whole. We rejected that claim by explaining
that such a majoritarian policy “does not lessen the offense
or isolation to the objectors. At best it narrows their num-
ber, at worst increases their sense of isolation and affront.”
505 U. S., at 594. Similarly, while Santa Fe’s majoritarian
election might ensure that most of the students are repre-
sented, it does nothing to protect the minority; indeed, it
likely serves to intensify their offense.
Moreover, the District has failed to divorce itself from
the religious content in the invocations. It has not suc-
ceeded in doing so, either by claiming that its policy is
“ ‘one of neutrality rather than endorsement’ ” 16 or by char-
acterizing the individual student as the “circuit-breaker” 17
in the process. Contrary to the District’s repeated asser-
tions that it has adopted a “hands-off ” approach to the pre-
game invocation, the realities of the situation plainly reveal
that its policy involves both perceived and actual endorse-
ment of religion. In this case, as we found in Lee, the “de-
gree of school involvement” makes it clear that the pre-
game prayers bear “the imprint of the State and thus put
school-age children who objected in an untenable position.”
Id., at 590.
The District has attempted to disentangle itself from
the religious messages by developing the two-step student
dent body president, or even a newly elected prom king or queen.”
Post, at 321.
16 Brief for Petitioner 19 (quoting Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion)).
17 Tr. of Oral Arg. 7.

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election process. The text of the October policy, however,
exposes the extent of the school’s entanglement. The elec-
tions take place at all only because the school “board has
chosen to permit students to deliver a brief invocation and/or
message.” App. 104 (emphasis added). The elections thus
“shall” be conducted “by the high school student council” and
“[u]pon advice and direction of the high school principal.”
Id., at 104–105. The decision whether to deliver a message
is first made by majority vote of the entire student body,
followed by a choice of the speaker in a separate, similar
majority election. Even though the particular words used
by the speaker are not determined by those votes, the policy
mandates that the “statement or invocation” be “consistent
with the goals and purposes of this policy,” which are “to
solemnize the event, to promote good sportsmanship and
student safety, and to establish the appropriate environment
for the competition.” Ibid.
In addition to involving the school in the selection of the
speaker, the policy, by its terms, invites and encourages re-
ligious messages. The policy itself states that the purpose
of the message is “to solemnize the event.” A religious
message is the most obvious method of solemnizing an event.
Moreover, the requirements that the message “promote good
sportsmanship” and “establish the appropriate environment
for competition” further narrow the types of message
deemed appropriate, suggesting that a solemn, yet nonreli-
gious, message, such as commentary on United States for-
eign policy, would be prohibited.18 Indeed, the only type of
message that is expressly endorsed in the text is an “invoca-
tion”—a term that primarily describes an appeal for divine
18 The Chief Justice’s hypothetical of the student body president
asked by the school to introduce a guest speaker with a biography of her
accomplishments, see post, at 325 (dissenting opinion), obviously would
pose no problems under the Establishment Clause.

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assistance.19 In fact, as used in the past at Santa Fe High
School, an “invocation” has always entailed a focused reli-
gious message. Thus, the expressed purposes of the policy
encourage the selection of a religious message, and that is
precisely how the students understand the policy. The re-
sults of the elections described in the parties’ stipulation 20
make it clear that the students understood that the central
question before them was whether prayer should be a part
of the pregame ceremony.21 We recognize the important
role that public worship plays in many communities, as well
as the sincere desire to include public prayer as a part of
various occasions so as to mark those occasions’ significance.
But such religious activity in public schools, as elsewhere,
must comport with the First Amendment.
The actual or perceived endorsement of the message,
moreover, is established by factors beyond just the text of
the policy. Once the student speaker is selected and the
message composed, the invocation is then delivered to a
large audience assembled as part of a regularly scheduled,
school-sponsored function conducted on school property.
The message is broadcast over the school’s public address
system, which remains subject to the control of school of-
ficials. It is fair to assume that the pregame ceremony is
19 See, e. g., Webster’s Third New International Dictionary 1190 (1993)
(defining “invocation” as “a prayer of entreaty that is usu[ally] a call for
the divine presence and is offered at the beginning of a meeting or service
of worship”).
20 See supra, at 297–298, and n. 4.
21 Even if the plain language of the October policy were facially neutral,
“the Establishment Clause forbids a State to hide behind the application
of formally neutral criteria and remain studiously oblivious to the effects
of its actions.” Capitol Square Review and Advisory Bd. v. Pinette, 515
U. S., at 777 (O’Connor, J., concurring in part and concurring in judg-
ment); see also Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 534–535 (1993) (making the same point in the Free Exercise Clause
context).

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clothed in the traditional indicia of school sporting events,
which generally include not just the team, but also cheer-
leaders and band members dressed in uniforms sporting the
school name and mascot. The school’s name is likely written
in large print across the field and on banners and flags. The
crowd will certainly include many who display the school
colors and insignia on their school T-shirts, jackets, or hats
and who may also be waving signs displaying the school
name. It is in a setting such as this that “[t]he board has
chosen to permit” the elected student to rise and give the
“statement or invocation.”
In this context the members of the listening audience
must perceive the pregame message as a public expression
of the views of the majority of the student body delivered
with the approval of the school administration. In cases in-
volving state participation in a religious activity, one of the
relevant questions is “whether an objective observer, ac-
quainted with the text, legislative history, and implementa-
tion of the statute, would perceive it as a state endorsement
of prayer in public schools.” Wallace, 472 U. S., at 73, 76
(O’Connor, J., concurring in judgment); see also Capitol
Square Review and Advisory Bd. v. Pinette, 515 U. S. 753,
777 (1995) (O’Connor, J., concurring in part and concurring
in judgment). Regardless of the listener’s support for, or
objection to, the message, an objective Santa Fe High School
student will unquestionably perceive the inevitable pregame
prayer as stamped with her school’s seal of approval.
The text and history of this policy, moreover, reinforce
our objective student’s perception that the prayer is, in ac-
tuality, encouraged by the school. When a governmental
entity professes a secular purpose for an arguably religious
policy, the government’s characterization is, of course, en-
titled to some deference. But it is nonetheless the duty of
the courts to “distinguis[h] a sham secular purpose from a
sincere one.” Wallace, 472 U. S., at 75 (O’Connor, J., con-
curring in judgment).

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According to the District, the secular purposes of the pol-
icy are to “foste[r] free expression of private persons . . .
as well [as to] solemniz[e] sporting events, promot[e] good
sportsmanship and student safety, and establis[h] an appro-
priate environment for competition.” Brief for Petitioner
14. We note, however, that the District’s approval of only
one specific kind of message, an “invocation,” is not neces-
sary to further any of these purposes. Additionally, the fact
that only one student is permitted to give a content-limited
message suggests that this policy does little to “foste[r] free
expression.” Furthermore, regardless of whether one con-
siders a sporting event an appropriate occasion for solemnity,
the use of an invocation to foster such solemnity is imper-
missible when, in actuality, it constitutes prayer sponsored
by the school. And it is unclear what type of message would
be both appropriately “solemnizing” under the District’s pol-
icy and yet nonreligious.
Most striking to us is the evolution of the current policy
from the long-sanctioned office of “Student Chaplain” to the
candidly titled “Prayer at Football Games” regulation. This
history indicates that the District intended to preserve the
practice of prayer before football games. The conclusion
that the District viewed the October policy simply as a con-
tinuation of the previous policies is dramatically illustrated
by the fact that the school did not conduct a new election,
pursuant to the current policy, to replace the results of the
previous election, which occurred under the former policy.
Given these observations, and in light of the school’s history
of regular delivery of a student-led prayer at athletic events,
it is reasonable to infer that the specific purpose of the policy
was to preserve a popular “state-sponsored religious prac-
tice.” Lee, 505 U. S., at 596.
School sponsorship of a religious message is impermissi-
ble because it sends the ancillary message to members of
the audience who are nonadherants “that they are outsid-
ers, not full members of the political community, and an ac-

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310 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
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companying message to adherants that they are insiders,
favored members of the political community.” Lynch, 465
U. S., at 688 (O’Connor, J., concurring). The delivery of
such a message—over the school’s public address system, by
a speaker representing the student body, under the supervi-
sion of school faculty, and pursuant to a school policy that
explicitly and implicitly encourages public prayer—is not
properly characterized as “private” speech.
III
The District next argues that its football policy is distin-
guishable from the graduation prayer in Lee because it does
not coerce students to participate in religious observances.
Its argument has two parts: first, that there is no impermis-
sible government coercion because the pregame messages
are the product of student choices; and second, that there
is really no coercion at all because attendance at an extra-
curricular event, unlike a graduation ceremony, is voluntary.
The reasons just discussed explaining why the alleged
“circuit-breaker” mechanism of the dual elections and stu-
dent speaker do not turn public speech into private speech
also demonstrate why these mechanisms do not insulate the
school from the coercive element of the final message. In
fact, this aspect of the District’s argument exposes anew the
concerns that are created by the majoritarian election sys-
tem. The parties’ stipulation clearly states that the issue
resolved in the first election was “whether a student would
deliver prayer at varsity football games,” App. 65, and the
controversy in this case demonstrates that the views of the
students are not unanimous on that issue.
One of the purposes served by the Establishment Clause
is to remove debate over this kind of issue from govern-
mental supervision or control. We explained in Lee that the
“preservation and transmission of religious beliefs and wor-
ship is a responsibility and a choice committed to the private
sphere.” 505 U. S., at 589. The two student elections au-

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thorized by the policy, coupled with the debates that pre-
sumably must precede each, impermissibly invade that pri-
vate sphere. The election mechanism, when considered in
light of the history in which the policy in question evolved,
reflects a device the District put in place that determines
whether religious messages will be delivered at home foot-
ball games. The mechanism encourages divisiveness along
religious lines in a public school setting, a result at odds with
the Establishment Clause. Although it is true that the ulti-
mate choice of student speaker is “attributable to the stu-
dents,” Brief for Petitioner 40, the District’s decision to hold
the constitutionally problematic election is clearly “a choice
attributable to the State,” Lee, 505 U. S., at 587.
The District further argues that attendance at the com-
mencement ceremonies at issue in Lee “differs dramatically”
from attendance at high school football games, which it con-
tends “are of no more than passing interest to many stu-
dents” and are “decidedly extracurricular,” thus dissipating
any coercion. Brief for Petitioner 41. Attendance at a high
school football game, unlike showing up for class, is certainly
not required in order to receive a diploma. Moreover, we
may assume that the District is correct in arguing that the
informal pressure to attend an athletic event is not as strong
as a senior’s desire to attend her own graduation ceremony.
There are some students, however, such as cheerleaders,
members of the band, and, of course, the team members
themselves, for whom seasonal commitments mandate their
attendance, sometimes for class credit. The District also
minimizes the importance to many students of attending and
participating in extracurricular activities as part of a com-
plete educational experience. As we noted in Lee, “[l]aw
reaches past formalism.” 505 U. S., at 595. To assert that
high school students do not feel immense social pressure,
or have a truly genuine desire, to be involved in the extra-
curricular event that is American high school football is
“formalistic in the extreme.” Ibid. We stressed in Lee the

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obvious observation that “adolescents are often susceptible
to pressure from their peers towards conformity, and that
the influence is strongest in matters of social convention.”
Id., at 593. High school home football games are traditional
gatherings of a school community; they bring together stu-
dents and faculty as well as friends and family from years
present and past to root for a common cause. Undoubtedly,
the games are not important to some students, and they vol-
untarily choose not to attend. For many others, however,
the choice between attending these games and avoiding per-
sonally offensive religious rituals is in no practical sense an
easy one. The Constitution, moreover, demands that the
school may not force this difficult choice upon these students
for “[i]t is a tenet of the First Amendment that the State
cannot require one of its citizens to forfeit his or her rights
and benefits as the price of resisting conformance to state-
sponsored religious practice.” Id., at 596.
Even if we regard every high school student’s decision to
attend a home football game as purely voluntary, we are
nevertheless persuaded that the delivery of a pregame
prayer has the improper effect of coercing those present to
participate in an act of religious worship. For “the govern-
ment may no more use social pressure to enforce orthodoxy
than it may use more direct means.” Id., at 594. As in Lee,
“[w]hat to most believers may seem nothing more than a rea-
sonable request that the nonbeliever respect their religious
practices, in a school context may appear to the nonbeliever
or dissenter to be an attempt to employ the machinery of the
State to enforce a religious orthodoxy.” Id., at 592. The
constitutional command will not permit the District “to exact
religious conformity from a student as the price” of joining
her classmates at a varsity football game.22
22 “We think the Government’s position that this interest suffices to force
students to choose between compliance or forfeiture demonstrates funda-
mental inconsistency in its argumentation. It fails to acknowledge that
what for many of Deborah’s classmates and their parents was a spiritual

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The Religion Clauses of the First Amendment prevent
the government from making any law respecting the estab-
lishment of religion or prohibiting the free exercise thereof.
By no means do these commands impose a prohibition on all
religious activity in our public schools. See, e. g., Lamb’s
Chapel v. Center Moriches Union Free School Dist., 508
U. S. 384, 395 (1993); Board of Ed. of Westside Community
Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Wallace,
472 U. S., at 59. Indeed, the common purpose of the Reli-
gion Clauses “is to secure religious liberty.” Engel v. Vi-
tale, 370 U. S. 421, 430 (1962). Thus, nothing in the Consti-
tution as interpreted by this Court prohibits any public
school student from voluntarily praying at any time before,
during, or after the schoolday. But the religious liberty
protected by the Constitution is abridged when the State
affirmatively sponsors the particular religious practice of
prayer.
IV
Finally, the District argues repeatedly that the Does
have made a premature facial challenge to the October policy
that necessarily must fail. The District emphasizes, quite
correctly, that until a student actually delivers a solemniz-
ing message under the latest version of the policy, there can
be no certainty that any of the statements or invocations will
be religious. Thus, it concludes, the October policy neces-
sarily survives a facial challenge.
This argument, however, assumes that we are concerned
only with the serious constitutional injury that occurs when
a student is forced to participate in an act of religious wor-
imperative was for Daniel and Deborah Weisman religious conformance
compelled by the State. While in some societies the wishes of the major-
ity might prevail, the Establishment Clause of the First Amendment is
addressed to this contingency and rejects the balance urged upon us. The
Constitution forbids the State to exact religious conformity from a student
as the price of attending her own high school graduation. This is the
calculus the Constitution commands.” Lee, 505 U. S., at 595–596.

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314 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Opinion of the Court
ship because she chooses to attend a school event. But the
Constitution also requires that we keep in mind “the myriad,
subtle ways in which Establishment Clause values can be
eroded,” Lynch, 465 U. S., at 694 (O’Connor, J., concurring),
and that we guard against other different, yet equally im-
portant, constitutional injuries. One is the mere passage by
the District of a policy that has the purpose and perception
of government establishment of religion. Another is the
implementation of a governmental electoral process that
subjects the issue of prayer to a majoritarian vote.
The District argues that the facial challenge must fail
because “Santa Fe’s Football Policy cannot be invalidated
on the basis of some ‘possibility or even likelihood’ of an un-
constitutional application.” Brief for Petitioner 17 (quoting
Bowen v. Kendrick, 487 U. S. 589, 613 (1988)). Our Estab-
lishment Clause cases involving facial challenges, however,
have not focused solely on the possible applications of the
statute, but rather have considered whether the statute
has an unconstitutional purpose. Writing for the Court in
Bowen, The Chief Justice concluded that “[a]s in previous
cases involving facial challenges on Establishment Clause
grounds, e. g., Edwards v. Aguillard, [482 U. S. 578 (1987)];
Mueller v. Allen, 463 U. S. 388 (1983), we assess the constitu-
tionality of an enactment by reference to the three factors
first articulated in Lemon v. Kurtzman, 403 U. S. 602, 612
(1971) . . . , which guides ‘[t]he general nature of our inquiry
in this area,’ Mueller v. Allen, supra, at 394.” 487 U. S., at
602. Under the Lemon standard, a court must invalidate a
statute if it lacks “a secular legislative purpose.” Lemon v.
Kurtzman, 403 U. S. 602, 612 (1971). It is therefore proper,
as part of this facial challenge, for us to examine the purpose
of the October policy.
As discussed, supra, at 306–307, 309, the text of the October
policy alone reveals that it has an unconstitutional purpose.
The plain language of the policy clearly spells out the extent
of school involvement in both the election of the speaker

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and the content of the message. Additionally, the text of
the October policy specifies only one, clearly preferred mes-
sage—that of Santa Fe’s traditional religious “invocation.”
Finally, the extremely selective access of the policy and other
content restrictions confirm that it is not a content-neutral
regulation that creates a limited public forum for the expres-
sion of student speech. Our examination, however, need not
stop at an analysis of the text of the policy.
This case comes to us as the latest step in developing liti-
gation brought as a challenge to institutional practices that
unquestionably violated the Establishment Clause. One of
those practices was the District’s long-established tradition
of sanctioning student-led prayer at varsity football games.
The narrow question before us is whether implementation
of the October policy insulates the continuation of such pray-
ers from constitutional scrutiny. It does not. Our inquiry
into this question not only can, but must, include an ex-
amination of the circumstances surrounding its enactment.
Whether a government activity violates the Establishment
Clause is “in large part a legal question to be answered on
the basis of judicial interpretation of social facts. . . . Every
government practice must be judged in its unique circum-
stances . . . .” Lynch, 465 U. S., at 693–694 (O’Connor, J., con-
curring). Our discussion in the previous sections, supra, at
307–310, demonstrates that in this case the District’s direct
involvement with school prayer exceeds constitutional limits.
The District, nevertheless, asks us to pretend that we
do not recognize what every Santa Fe High School student
understands clearly—that this policy is about prayer. The
District further asks us to accept what is obviously untrue:
that these messages are necessary to “solemnize” a football
game and that this single-student, year-long position is es-
sential to the protection of student speech. We refuse to
turn a blind eye to the context in which this policy arose,
and that context quells any doubt that this policy was imple-
mented with the purpose of endorsing school prayer.

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Therefore, the simple enactment of this policy, with the
purpose and perception of school endorsement of student
prayer, was a constitutional violation. We need not wait for
the inevitable to confirm and magnify the constitutional in-
jury. In Wallace, for example, we invalidated Alabama’s as
yet unimplemented and voluntary “moment of silence” stat-
ute based on our conclusion that it was enacted “for the sole
purpose of expressing the State’s endorsement of prayer ac-
tivities for one minute at the beginning of each school day.”
472 U. S., at 60; see also Church of Lukumi Babalu Aye, Inc.
v. Hialeah, 508 U. S. 520, 532 (1993). Therefore, even if no
Santa Fe High School student were ever to offer a religious
message, the October policy fails a facial challenge because
the attempt by the District to encourage prayer is also at
issue. Government efforts to endorse religion cannot evade
constitutional reproach based solely on the remote possibility
that those attempts may fail.
This policy likewise does not survive a facial challenge
because it impermissibly imposes upon the student body a
majoritarian election on the issue of prayer. Through its
election scheme, the District has established a governmental
electoral mechanism that turns the school into a forum for
religious debate. It further empowers the student body
majority with the authority to subject students of minority
views to constitutionally improper messages. The award
of that power alone, regardless of the students’ ultimate
use of it, is not acceptable.23 Like the referendum in Board
of Regents of Univ. of Wis. System v. Southworth, 529 U. S.
23 The Chief Justice accuses us of “essentially invalidat[ing] all stu-
dent elections,” see post, at 321. This is obvious hyperbole. We have
concluded that the resulting religious message under this policy would be
attributable to the school, not just the student, see supra, at 301–310.
For this reason, we now hold only that the District’s decision to allow the
student majority to control whether students of minority views are sub-
jected to a school-sponsored prayer violates the Establishment Clause.

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217 (2000), the election mechanism established by the Dis-
trict undermines the essential protection of minority view-
points. Such a system encourages divisiveness along re-
ligious lines and threatens the imposition of coercion
upon those students not desiring to participate in a reli-
gious exercise. Simply by establishing this school-related
procedure, which entrusts the inherently nongovernmental
subject of religion to a majoritarian vote, a constitutional
violation has occurred.24 No further injury is required for
the policy to fail a facial challenge.
To properly examine this policy on its face, we “must be
deemed aware of the history and context of the community
and forum,” Pinette, 515 U. S., at 780 (O’Connor, J., concur-
ring in part and concurring in judgment). Our examination
of those circumstances above leads to the conclusion that
this policy does not provide the District with the constitu-
tional safe harbor it sought. The policy is invalid on its face
because it establishes an improper majoritarian election on
religion, and unquestionably has the purpose and creates the
perception of encouraging the delivery of prayer at a series
of important school events.
The judgment of the Court of Appeals is, accordingly,
affirmed.
It is so ordered.
24 The Chief Justice contends that we have “misconstrue[d] the na-
ture . . . [of] the policy as being an election on ‘prayer’ and ‘religion,’ ”
post, at 320. We therefore reiterate that the District has stipulated to
the facts that the most recent election was held “to determine whether a
student would deliver prayer at varsity football games,” that the “stu-
dents chose to allow a student to say a prayer at football games,” and that
a second election was then held “to determine which student would de-
liver the prayer.” App. 65–66 (emphases added). Furthermore, the pol-
icy was titled “Prayer at Football Games.” Id., at 99 (emphasis added).
Although the District has since eliminated the word “prayer” from the
policy, it apparently viewed that change as sufficiently minor as to make
holding a new election unnecessary.

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318 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Rehnquist, C. J., dissenting
Chief Justice Rehnquist, with whom Justice Scalia
and Justice Thomas join, dissenting.
The Court distorts existing precedent to conclude that the
school district’s student-message program is invalid on its
face under the Establishment Clause. But even more dis-
turbing than its holding is the tone of the Court’s opinion; it
bristles with hostility to all things religious in public life.
Neither the holding nor the tone of the opinion is faithful to
the meaning of the Establishment Clause, when it is recalled
that George Washington himself, at the request of the very
Congress which passed the Bill of Rights, proclaimed a day
of “public thanksgiving and prayer, to be observed by ac-
knowledging with grateful hearts the many and signal favors
of Almighty God.” Presidential Proclamation, 1 Messages
and Papers of the Presidents, 1789–1897, p. 64 (J. Richardson
ed. 1897).
We do not learn until late in the Court’s opinion that re-
spondents in this case challenged the district’s student-
message program at football games before it had been put
into practice. As the Court explained in United States v.
Salerno, 481 U. S. 739, 745 (1987), the fact that a policy might
“operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.”
See also Bowen v. Kendrick, 487 U. S. 589, 612 (1988).
While there is an exception to this principle in the First
Amendment overbreadth context because of our concern that
people may refrain from speech out of fear of prosecution,
Los Angeles Police Dept. v. United Reporting Publishing
Corp., 528 U. S. 32, 38–40 (1999), there is no similar justi-
fication for Establishment Clause cases. No speech will
be “chilled” by the existence of a government policy that
might unconstitutionally endorse religion over nonreligion.
Therefore, the question is not whether the district’s policy
may be applied in violation of the Establishment Clause, but
whether it inevitably will be.

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Rehnquist, C. J., dissenting
The Court, venturing into the realm of prophecy, decides
that it “need not wait for the inevitable” and invalidates the
district’s policy on its face. See ante, at 316. To do so, it
applies the most rigid version of the oft-criticized test of
Lemon v. Kurtzman, 403 U. S. 602 (1971).1
Lemon has had a checkered career in the decisional law
of this Court. See, e. g., Lamb’s Chapel v. Center Moriches
Union Free School Dist., 508 U. S. 384, 398–399 (1993)
(Scalia, J., concurring in judgment) (collecting opinions
criticizing Lemon); Wallace v. Jaffree, 472 U. S. 38, 108–114
(1985) (Rehnquist, J., dissenting) (stating that Lemon’s
“three-part test represents a determined effort to craft a
workable rule from a historically faulty doctrine; but the
rule can only be as sound as the doctrine it attempts to serv-
ice” (internal quotation marks omitted)); Committee for Pub-
lic Ed. and Religious Liberty v. Regan, 444 U. S. 646, 671
(1980) (Stevens, J., dissenting) (deriding “the sisyphean
task of trying to patch together the blurred, indistinct, and
variable barrier described in Lemon”). We have even gone
so far as to state that it has never been binding on us.
Lynch v. Donnelly, 465 U. S. 668, 679 (1984) (“[W]e have re-
peatedly emphasized our unwillingness to be confined to any
single test or criterion in this sensitive area. . . . In two cases,
the Court did not even apply the Lemon ‘test’ [citing Marsh
1 The Court rightly points out that in facial challenges in the Establish-
ment Clause context, we have looked to Lemon’s three factors to “guid[e]
[t]he general nature of our inquiry.” Ante, at 314 (internal quotation
marks omitted) (citing Bowen v. Kendrick, 487 U. S. 589, 602 (1988)). In
Bowen, we looked to Lemon as such a guide and determined that a federal
grant program was not invalid on its face, noting that “[i]t has not been
the Court’s practice, in considering facial challenges to statutes of this
kind, to strike them down in anticipation that particular applications may
result in unconstitutional use of funds.” 487 U. S., at 612 (internal quota-
tion marks omitted). But here the Court, rather than looking to Lemon
as a guide, applies Lemon’s factors stringently and ignores Bowen’s admo-
nition that mere anticipation of unconstitutional applications does not war-
rant striking a policy on its face.

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320 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Rehnquist, C. J., dissenting
v. Chambers, 463 U. S. 783 (1983), and Larson v. Valente, 456
U. S. 228 (1982)]”). Indeed, in Lee v. Weisman, 505 U. S. 577
(1992), an opinion upon which the Court relies heavily today,
we mentioned, but did not feel compelled to apply, the Lemon
test. See also Agostini v. Felton, 521 U. S. 203, 233 (1997)
(stating that Lemon’s entanglement test is merely “an aspect
of the inquiry into a statute’s effect”); Hunt v. McNair, 413
U. S. 734, 741 (1973) (stating that the Lemon factors are “no
more than helpful signposts”).
Even if it were appropriate to apply the Lemon test here,
the district’s student-message policy should not be invali-
dated on its face. The Court applies Lemon and holds that
the “policy is invalid on its face because it establishes an
improper majoritarian election on religion, and unquestion-
ably has the purpose and creates the perception of encourag-
ing the delivery of prayer at a series of important school
events.” Ante, at 317. The Court’s reliance on each of
these conclusions misses the mark.
First, the Court misconstrues the nature of the “majori-
tarian election” permitted by the policy as being an election
on “prayer” and “religion.” 2 See ante, at 314, 317. To the
contrary, the election permitted by the policy is a two-fold
process whereby students vote first on whether to have a
student speaker before football games at all, and second, if
the students vote to have such a speaker, on who that
speaker will be. App. 104–105. It is conceivable that the
election could become one in which student candidates cam-
paign on platforms that focus on whether or not they will
2 The Court attempts to support its misinterpretation of the nature of
the election process by noting that the district stipulated to facts about
the most recent election. See ante, at 317, n. 24. Of course, the most
recent election was conducted under the previous policy—a policy that
required an elected student speaker to give a pregame invocation. See
App. 65–66, 99–100. There has not been an election under the policy at
issue here, which expressly allows the student speaker to give a message
as opposed to an invocation.

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321 Cite as: 530 U. S. 290 (2000)
Rehnquist, C. J., dissenting
pray if elected. It is also conceivable that the election could
lead to a Christian prayer before 90 percent of the football
games. If, upon implementation, the policy operated in this
fashion, we would have a record before us to review whether
the policy, as applied, violated the Establishment Clause or
unduly suppressed minority viewpoints. But it is possible
that the students might vote not to have a pregame speaker,
in which case there would be no threat of a constitutional
violation. It is also possible that the election would not
focus on prayer, but on public speaking ability or social popu-
larity. And if student campaigning did begin to focus on
prayer, the school might decide to implement reasonable
campaign restrictions.3
But the Court ignores these possibilities by holding that
merely granting the student body the power to elect a
speaker that may choose to pray, “regardless of the students’
ultimate use of it, is not acceptable.” Ante, at 316. The
Court so holds despite that any speech that may occur as
a result of the election process here would be private, not
government, speech. The elected student, not the govern-
ment, would choose what to say. Support for the Court’s
holding cannot be found in any of our cases. And it essen-
tially invalidates all student elections. A newly elected stu-
dent body president, or even a newly elected prom king or
queen, could use opportunities for public speaking to say
prayers. Under the Court’s view, the mere grant of power
3 The Court’s reliance on language regarding the student referendum in
Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217
(2000), to support its conclusion with respect to the election process is
misplaced. That case primarily concerned free speech, and, more particu-
larly, mandated financial support of a public forum. But as stated above,
if this case were in the “as applied” context and we were presented with
the appropriate record, our language in Southworth could become more
applicable. In fact, Southworth itself demonstrates the impropriety of
making a decision with respect to the election process without a record of
its operation. There we remanded in part for a determination of how the
referendum functions. See id., at 235–236.

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322 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Rehnquist, C. J., dissenting
to the students to vote for such offices, in light of the fear
that those elected might publicly pray, violates the Estab-
lishment Clause.
Second, with respect to the policy’s purpose, the Court
holds that “the simple enactment of this policy, with the pur-
pose and perception of school endorsement of student prayer,
was a constitutional violation.” Ante, at 316. But the pol-
icy itself has plausible secular purposes: “[T]o solemnize the
event, to promote good sportsmanship and student safety,
and to establish the appropriate environment for the compe-
tition.” App. 104–105. Where a governmental body “ex-
presses a plausible secular purpose” for an enactment,
“courts should generally defer to that stated intent.” Wal-
lace, 472 U. S., at 74–75 (O’Connor, J., concurring in judg-
ment); see also Mueller v. Allen, 463 U. S. 388, 394–395
(1983) (stressing this Court’s “reluctance to attribute uncon-
stitutional motives to the States, particularly when a plausi-
ble secular purpose for the State’s program may be discerned
from the face of the statute”). The Court grants no defer-
ence to—and appears openly hostile toward—the policy’s
stated purposes, and wastes no time in concluding that they
are a sham.
For example, the Court dismisses the secular purpose of
solemnization by claiming that it “invites and encourages re-
ligious messages.” Ante, at 306; Cf. Lynch, 465 U. S., at 693
(O’Connor, J., concurring) (discussing the “legitimate secu-
lar purposes of solemnizing public occasions”). The Court
so concludes based on its rather strange view that a “reli-
gious message is the most obvious means of solemnizing an
event.” Ante, at 306. But it is easy to think of solemn mes-
sages that are not religious in nature, for example urging
that a game be fought fairly. And sporting events often
begin with a solemn rendition of our national anthem, with
its concluding verse “And this be our motto: ‘In God is our
trust.’ ” Under the Court’s logic, a public school that spon-

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323 Cite as: 530 U. S. 290 (2000)
Rehnquist, C. J., dissenting
sors the singing of the national anthem before football games
violates the Establishment Clause. Although the Court ap-
parently believes that solemnizing football games is an ille-
gitimate purpose, the voters in the school district seem to
disagree. Nothing in the Establishment Clause prevents
them from making this choice.4
The Court bases its conclusion that the true purpose of the
policy is to endorse student prayer on its view of the school
district’s history of Establishment Clause violations and the
context in which the policy was written, that is, as “the latest
step in developing litigation brought as a challenge to institu-
tional practices that unquestionably violated the Establish-
ment Clause.” Ante, at 308–309, 315. But the context—
attempted compliance with a District Court order—actually
demonstrates that the school district was acting diligently to
come within the governing constitutional law. The District
Court ordered the school district to formulate a policy con-
sistent with Fifth Circuit precedent, which permitted a
school district to have a prayer-only policy. See Jones v.
Clear Creek Independent School Dist., 977 F. 2d 963 (CA5
1992). But the school district went further than required by
the District Court order and eventually settled on a policy
that gave the student speaker a choice to deliver either an
4 The Court also determines that the use of the term “invocation” in the
policy is an express endorsement of that type of message over all others.
See ante, at 306–307. A less cynical view of the policy’s text is that it
permits many types of messages, including invocations. That a policy tol-
erates religion does not mean that it improperly endorses it. Indeed, as
the majority reluctantly admits, the Free Exercise Clause mandates such
tolerance. See ante, at 313 (“[N]othing in the Constitution as interpreted
by this Court prohibits any public school student from voluntarily praying
at any time before, during, or after the schoolday”); see also Lynch v.
Donnelly, 465 U. S. 668, 673 (1984) (“Nor does the Constitution require
complete separation of church and state; it affirmatively mandates accom-
modation, not merely tolerance, of all religions, and forbids hostility to-
ward any”).

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324 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Rehnquist, C. J., dissenting
invocation or a message. In so doing, the school district ex-
hibited a willingness to comply with, and exceed, Establish-
ment Clause restrictions. Thus, the policy cannot be viewed
as having a sectarian purpose.5
The Court also relies on our decision in Lee v. Weisman,
505 U. S. 577 (1992), to support its conclusion. In Lee, we
concluded that the content of the speech at issue, a gradua-
tion prayer given by a rabbi, was “directed and controlled”
by a school official. Id., at 588. In other words, at issue in
Lee was government speech. Here, by contrast, the poten-
tial speech at issue, if the policy had been allowed to proceed,
would be a message or invocation selected or created by a
student. That is, if there were speech at issue here, it would
be private speech. The “crucial difference between govern-
ment speech endorsing religion, which the Establishment
Clause forbids, and private speech endorsing religion, which
the Free Speech and Free Exercise Clauses protect,” applies
with particular force to the question of endorsement.
Board of Ed. of Westside Community Schools (Dist. 66) v.
Mergens, 496 U. S. 226, 250 (1990) (plurality opinion) (empha-
sis in original).
Had the policy been put into practice, the students may
have chosen a speaker according to wholly secular criteria—
like good public speaking skills or social popularity—and the
student speaker may have chosen, on her own accord, to de-
liver a religious message. Such an application of the policy
5 Wallace v. Jaffree, 472 U. S. 38 (1985), is distinguishable on these
grounds. There we struck down an Alabama statute that added an ex-
press reference to prayer to an existing statute providing a moment of
silence for meditation. Id., at 59. Here the school district added a secu-
lar alternative to a policy that originally provided only for prayer. More
importantly, in Wallace, there was “unrebutted evidence” that pointed to
a wholly religious purpose, id., at 58, and Alabama “conceded in the courts
below that the purpose of the statute was to make prayer part of daily
classroom activity,” id., at 77–78 (O’Connor, J., concurring in judgment).
There is no such evidence or concession here.

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325 Cite as: 530 U. S. 290 (2000)
Rehnquist, C. J., dissenting
would likely pass constitutional muster. See Lee, supra, at
630, n. 8 (Souter, J., concurring) (“If the State had chosen
its graduation day speakers according to wholly secular cri-
teria, and if one of those speakers (not a state actor) had
individually chosen to deliver a religious message, it would
be harder to attribute an endorsement of religion to the
State”).
Finally, the Court seems to demand that a government
policy be completely neutral as to content or be considered
one that endorses religion. See ante, at 305. This is un-
doubtedly a new requirement, as our Establishment Clause
jurisprudence simply does not mandate “content neutrality.”
That concept is found in our First Amendment speech cases
and is used as a guide for determining when we apply strict
scrutiny. For example, we look to “content neutrality” in
reviewing loudness restrictions imposed on speech in public
forums, see Ward v. Rock Against Racism, 491 U. S. 781
(1989), and regulations against picketing, see Boos v. Barry,
485 U. S. 312 (1988). The Court seems to think that the fact
that the policy is not content neutral somehow controls the
Establishment Clause inquiry. See ante, at 305.
But even our speech jurisprudence would not require that
all public school actions with respect to student speech be
content neutral. See, e. g., Bethel School Dist. No. 403 v.
Fraser, 478 U. S. 675 (1986) (allowing the imposition of sanc-
tions against a student speaker who, in nominating a fellow
student for elective office during an assembly, referred to his
candidate in terms of an elaborate sexually explicit meta-
phor). Schools do not violate the First Amendment every
time they restrict student speech to certain categories. But
under the Court’s view, a school policy under which the stu-
dent body president is to solemnize the graduation ceremony
by giving a favorable introduction to the guest speaker
would be facially unconstitutional. Solemnization “invites
and encourages” prayer and the policy’s content limitations

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326 SANTA FE INDEPENDENT SCHOOL DIST. v. DOE
Rehnquist, C. J., dissenting
prohibit the student body president from giving a solemn,
yet nonreligious, message like “commentary on United
States foreign policy.” See ante, at 306.
The policy at issue here may be applied in an unconstitu-
tional manner, but it will be time enough to invalidate it if
that is found to be the case. I would reverse the judgment
of the Court of Appeals.

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327 OCTOBER TERM, 1999
Syllabus
MILLER, SUPERINTENDENT, PENDLETON COR-
RECTIONAL FACILITY, et al. v. FRENCH et al.
certiorari to the united states court of appeals for
the seventh circuit
No. 99–224. Argued April 18, 2000—Decided June 19, 2000*
In 1975, prison inmates at Indiana’s Pendleton Correctional Facility
brought a class action, and the District Court issued an injunction,
which remains in effect, to remedy violations of the Eighth Amendment
regarding conditions of confinement. Congress subsequently enacted
the Prison Litigation Reform Act of 1995 (PLRA), which, as relevant
here, sets a standard for the entry and termination of prospective relief
in civil actions challenging prison conditions. Specifically, 18 U. S. C.
§ 3626(b)(2) provides that a defendant or intervenor may move to termi-
nate prospective relief under an existing injunction that does not meet
that standard; § 3626(b)(3) provides that a court may not terminate such
relief if it makes certain findings; and § 3626(e)(2) dictates that a mo-
tion to terminate such relief “shall operate as a stay” of that relief be-
ginning 30 days after the motion is filed and ending when the court
rules on the motion. In 1997, petitioner prison officials (hereinafter
State) filed a motion to terminate the remedial order under § 3626(b).
Respondent prisoners moved to enjoin the operation of the automatic
stay, arguing that § 3626(e)(2) violates due process and separation of
powers principles. The District Court enjoined the stay, the State ap-
pealed, and the United States intervened to defend § 3626(e)(2)’s consti-
tutionality. In affirming, the Seventh Circuit concluded that § 3626(e)(2)
precluded courts from exercising their equitable powers to enjoin the
stay, but that the statute, so construed, was unconstitutional on separa-
tion of powers grounds.
Held:
1. Congress clearly intended to make operation of the PLRA’s auto-
matic stay provision mandatory, precluding courts from exercising
their equitable power to enjoin the stay. The Government contends
that (1) the Court should not interpret a statute as displacing courts’
traditional equitable authority to preserve the status quo pending
resolution on the merits absent the clearest command to the contrary
and (2) reading § 3626(e)(2) to remove that equitable power would
*Together with No. 99–582, United States v. French et al., also on cer-
tiorari to the same court.

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328 MILLER v. FRENCH
Syllabus
raise serious separation of powers questions, and therefore should
be avoided under the canon of constitutional doubt. But where, as
here, Congress has made its intent clear, this Court must give effect
to that intent. Sinclair Refining Co. v. Atkinson, 370 U. S. 195, 215.
Under § 3626(e)(2), a stay is automatic once a state defendant has filed
a § 3626(b) motion, and the command that it “shall operate as a stay
during” the specified time period indicates that it is mandatory through-
out that period. The statute’s plain meaning would be subverted were
§ 3626(e)(2) interpreted merely as a burden-shifting mechanism that
does not prevent courts from suspending the stay. Viewing the auto-
matic stay provision in the context of § 3626 as a whole confirms the
Court’s conclusion. Section 3626(e)(4) provides for an appeal from an
order preventing the automatic stay’s operation, not from the denial of
a motion to enjoin a stay. This provision’s one-way nature only makes
sense if the stay is required to operate during a specific time period,
such that any attempt by a district court to circumvent the mandatory
stay is immediately reviewable. Mandamus is not a more appropriate
remedy because it is granted only in the exercise of sound discretion.
Given that curbing the courts’ equitable discretion was a principal objec-
tive of the PLRA, it would have been odd for Congress to have left
§ 3626(e)(2)’s enforcement to that discretion. Section 3626(e)(3) also
does not support the Government’s view, for it only permits the stay’s
starting point to be delayed for up to 90 days; it does not affect the
stay’s operation once it begins. While construing § 3626(e)(2) to remove
courts’ equitable discretion raises constitutional questions, the canon
of constitutional doubt permits the Court to avoid such questions only
where the saving construction is not plainly contrary to Congress’ in-
tent. Pp. 336–341.
2. Section 3626(e) does not violate separation of powers principles.
The Constitution prohibits one branch of the Government from en-
croaching on the central prerogatives of another. Article III gives the
Federal Judiciary the power, not merely to rule on cases, but to decide
them, subject to review only by superior Article III courts. Plaut v.
Spendthrift Farm, Inc., 514 U. S. 211, 218–219. Respondents contend
that § 3626(e)(2) violates the separation of powers principle by legisla-
tively suspending a final judgment of an Article III court in violation
of Plaut and Hayburn’s Case, 2 Dall. 409. Unlike the situation in Hay-
burn’s Case, § 3626(e)(2) does not involve direct review of a judicial de-
cision by the Legislative or Executive Branch. Nor does it involve the
reopening of a final judgment, as was addressed in Plaut. Plaut was
careful to distinguish legislation that attempted to reopen the dismissal
of a money damages suit from that altering the prospective effect of
injunctions entered by Article III courts. Prospective relief under

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329 Cite as: 530 U. S. 327 (2000)
Syllabus
a continuing, executory decree remains subject to alteration due to
changes in the underlying law. Cf. Landgraf v. USI Film Products,
511 U. S. 244, 273. This conclusion follows from the Court’s decision
in Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 432
(Wheeling Bridge II), that prospective relief it issued in Pennsylvania
v. Wheeling & Belmont Bridge Co., 13 How. 518 (Wheeling Bridge I),
became unenforceable after Congress altered the law underlying the
ongoing relief. Applied here, the Wheeling Bridge II principles dem-
onstrate that § 3626(e)(2)’s automatic stay does not unconstitutionally
suspend or reopen an Article III court’s judgment. It does not tell
judges when, how, or what to do, but reflects the change implemented
by § 3626(b), which establishes new standards for prospective relief.
As Plaut and Wheeling Bridge II instruct, when Congress changes the
law underlying the judgment awarding such relief, that relief is no
longer enforceable to the extent it is inconsistent with the new law.
Although the remedial injunction here is a final judgment for purposes
of appeal, it is not the last word of the judicial department, for it is
subject to the court’s continuing supervisory jurisdiction, and there-
fore may be altered according to subsequent changes in the law. For
the same reasons, § 3626(e)(2) does not violate the separation of powers
principle articulated in United States v. Klein, 13 Wall. 128, where the
Court found unconstitutional a statute purporting to prescribe rules
of decision to the Federal Judiciary in cases pending before it. That
§ 3626(e)(2) does not itself amend the legal standard does not help re-
spondents; when read in the context of § 3626 as a whole, the provision
does not prescribe a rule of decision but imposes the consequences of
the court’s application of the new legal standard. Finally, Congress’
imposition of the time limit in § 3626(e)(2) does not offend the structural
concerns underlying the separation of powers. Whether that time is
so short that it deprives litigants of an opportunity to be heard is a
due process question not before this Court. Nor does the Court have
occasion to decide here whether there could be a time constraint on
judicial action that was so severe that it implicated structural separation
of powers concerns. Pp. 341–350.
178 F. 3d 437, reversed and remanded.
O’Connor, J., delivered the opinion of the Court, in which Rehn-
quist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined, and in
which Souter and Ginsburg, JJ., joined as to Parts I and II. Souter,
J., filed an opinion concurring in part and dissenting in part, in which
Ginsburg, J., joined, post, p. 350. Breyer, J., filed a dissenting opinion,
in which Stevens, J., joined, post, p. 353.

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330 MILLER v. FRENCH
Counsel
Jon Laramore, Deputy Attorney General of Indiana, ar-
gued the cause for petitioners in No. 99–224. With him on
the briefs were Karen M. Freeman-Wilson, Attorney Gen-
eral, Jeffrey A. Modisett, former Attorney General, and
Wayne E. Uhl and Geoffrey G. Slaughter, Deputy Attor-
neys General.
Deputy Solicitor General Underwood argued the cause for
the United States in No. 99–582. With her on the briefs
were Solicitor General Waxman, Acting Assistant Attorney
General Lee, Irving L. Gornstein, and Mark L. Gross.
Kenneth J. Falk argued the cause for respondents in both
cases. With him on the brief were Jacquelyn E. Bowie,
Hamid R. Kashani, Steven R. Shapiro, and Elizabeth
Alexander.†
†Briefs of amici curiae urging reversal were filed for the State of Texas
et al. by John Cornyn, Attorney General of Texas, Andy Taylor, First
Assistant Attorney General, Shane Phelps, Deputy Attorney General,
Gregory S. Coleman, Solicitor General, Charles K. Eldred, Assistant At-
torney General, and Robert Rigsby, Acting Corporation Counsel of the
District of Columbia, and by the Attorneys General for their respective
States as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska,
Robert A. Russell, Jr., of Arkansas, Bill Lockyer of California, M. Jane
Brady of Delaware, Robert A. Butterworth of Florida, James E. Ryan of
Illinois, Carla J. Stovall of Kansas, J. Joseph Curran, Jr., of Maryland,
Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah
W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg
of Nebraska, Frankie Sue Del Papa of Nevada, Philip T. McLaughlin of
New Hampshire, John J. Farmer, Jr., of New Jersey, Betty D. Montgom-
ery of Ohio, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of
Pennsylvania, Charlie Condon of South Carolina, Mark Barnett of South
Dakota, Paul G. Summers of Tennessee, Jan Graham of Utah, Christine
O. Gregoire of Washington, and Gay Woodhouse of Wyoming; for Ameri-
cans for Effective Law Enforcement, Inc., et al. by Wayne W. Schmidt,
Bernard J. Farber, James P. Manak, and Richard Weintraub; for the
Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L.
Hobson; for the National Governors’ Association et al. by Richard Ruda
and James I. Crowley; and for the Washington Legal Foundation et al. by
Paul D. Clement, Daniel J. Popeo, and R. Shawn Gunnarson.
Briefs of amici curiae urging affirmance were filed for Public Citizen
by Alan B. Morrison and David C. Vladeck; for Arizona State Prison

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331 Cite as: 530 U. S. 327 (2000)
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
The Prison Litigation Reform Act of 1995 (PLRA) es-
tablishes standards for the entry and termination of pro-
spective relief in civil actions challenging prison conditions.
§§ 801–810, 110 Stat. 1321–66 to 1321–77. If prospective
relief under an existing injunction does not satisfy these
standards, a defendant or intervenor is entitled to “im-
mediate termination” of that relief. 18 U. S. C. § 3626(b)(2)
(1994 ed., Supp. IV). And under the PLRA’s “automatic
stay” provision, a motion to terminate prospective relief
“shall operate as a stay” of that relief during the period
beginning 30 days after the filing of the motion (extendable
to up to 90 days for “good cause”) and ending when the court
rules on the motion. §§ 3626(e)(2), (3). The superintendent
of Indiana’s Pendleton Correctional Facility, which is cur-
rently operating under an ongoing injunction to remedy vio-
lations of the Eighth Amendment regarding conditions of
confinement, filed a motion to terminate prospective relief
under the PLRA. Respondent prisoners moved to enjoin
the operation of the automatic stay provision of § 3626(e)(2),
arguing that it is unconstitutional. The District Court en-
joined the stay, and the Court of Appeals for the Seventh
Circuit affirmed. We must decide whether a district court
may enjoin the operation of the PLRA’s automatic stay pro-
vision and, if not, whether that provision violates separation
of powers principles.
I
A
This litigation began in 1975, when four inmates at what
is now the Pendleton Correctional Facility brought a class
System Inmates by John P. Frank; and for Erwin Chemerinsky et al. by
Mr. Chemerinsky, pro se.
Sarah B. Vandenbraak, Michael D. Hess, Leonard J. Koerner, and
Lorna B. Goodman filed a brief for the Association of State Correctional
Administrators et al. as amici curiae.

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332 MILLER v. FRENCH
Opinion of the Court
action under Rev. Stat. § 1979, 42 U. S. C. § 1983, on behalf
of all persons who were, or would be, confined at the facility
against the predecessors in office of petitioners (hereinafter
State). 1 Record, Doc. No. 1, p. 2. After a trial, the Dis-
trict Court found that living conditions at the prison violated
both state and federal law, including the Eighth Amend-
ment’s prohibition against cruel and unusual punishment,
and the court issued an injunction to correct those viola-
tions. French v. Owens, 538 F. Supp. 910 (SD Ind. 1982),
aff ’d in part, vacated and remanded in part, 777 F. 2d 1250
(CA7 1985). While the State’s appeal was pending, this
Court decided Pennhurst State School and Hospital v. Hal-
derman, 465 U. S. 89 (1984), which held that the Eleventh
Amendment deprives federal courts of jurisdiction over
claims for injunctive relief against state officials based on
state law. Accordingly, the Court of Appeals for the Sev-
enth Circuit remanded the action to the District Court for
reconsideration. 777 F. 2d, at 1251. On remand, the Dis-
trict Court concluded that most of the state law violations
also ran afoul of the Eighth Amendment, and it issued an
amended remedial order to address those constitutional vio-
lations. The order also accounted for improvements in liv-
ing conditions at the Pendleton facility that had occurred in
the interim. Ibid.
The Court of Appeals affirmed the amended remedial
order as to those aspects governing overcrowding and double
celling, the use of mechanical restraints, staffing, and the
quality of food and medical services, but it vacated those
portions pertaining to exercise and recreation, protective
custody, and fire and occupational safety standards. Id., at
1258. This ongoing injunctive relief has remained in effect
ever since, with the last modification occurring in October
1988, when the parties resolved by joint stipulation the re-
maining issues related to fire and occupational safety stand-
ards. 1 Record, Doc. No. 14.

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333 Cite as: 530 U. S. 327 (2000)
Opinion of the Court
B
In 1996, Congress enacted the PLRA. As relevant here,
the PLRA establishes standards for the entry and termi-
nation of prospective relief in civil actions challenging con-
ditions at prison facilities. Specifically, a court “shall not
grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further
than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the vio-
lation of the Federal right.” 18 U. S. C. § 3626(a)(1)(A) (1994
ed., Supp. IV). The same criteria apply to existing injunc-
tions, and a defendant or intervenor may move to terminate
prospective relief that does not meet this standard. See
§ 3626(b)(2). In particular, § 3626(b)(2) provides:
“In any civil action with respect to prison conditions, a
defendant or intervener shall be entitled to the im-
mediate termination of any prospective relief if the re-
lief was approved or granted in the absence of a finding
by the court that the relief is narrowly drawn, extends
no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary
to correct the violation of the Federal right.”
A court may not terminate prospective relief, however, if
it “makes written findings based on the record that pro-
spective relief remains necessary to correct a current and
ongoing violation of the Federal right, extends no fur-
ther than necessary to correct the violation of the Federal
right, and that the prospective relief is narrowly drawn and
the least intrusive means necessary to correct the violation.”
§ 3626(b)(3). The PLRA also requires courts to rule
“promptly” on motions to terminate prospective relief, with
mandamus available to remedy a court’s failure to do so.
§ 3626(e)(1).
Finally, the provision at issue here, § 3626(e)(2), dictates
that, in certain circumstances, prospective relief shall be

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334 MILLER v. FRENCH
Opinion of the Court
stayed pending resolution of a motion to terminate. Spe-
cifically, subsection (e)(2), entitled “Automatic Stay,” states:
“Any motion to modify or terminate prospective relief
made under subsection (b) shall operate as a stay during
the period—
“(A)(i) beginning on the 30th day after such motion is
filed, in the case of a motion made under paragraph (1)
or (2) of subsection (b); . . .
“(ii) . . . and
“(B) ending on the date the court enters a final order
ruling on the motion.”
As one of several 1997 amendments to the PLRA, Congress
permitted courts to postpone the entry of the automatic stay
for not more than 60 days for “good cause,” which cannot
include general congestion of the court’s docket. § 123, 111
Stat. 2470, codified at 18 U. S. C. § 3626(e)(3).*
C
On June 5, 1997, the State filed a motion under § 3626(b)
to terminate the prospective relief governing the condi-
tions of confinement at the Pendleton Correctional Facil-
ity. 1 Record, Doc. No. 16. In response, the prisoner class
moved for a temporary restraining order or preliminary in-
junction to enjoin the operation of the automatic stay, ar-
guing that § 3626(e)(2) is unconstitutional as both a violation
of the Due Process Clause of the Fifth Amendment and sep-
aration of powers principles. The District Court granted
*As originally enacted, § 3626(e)(2) provided that “[a]ny prospective re-
lief subject to a pending motion [for termination] shall be automatically
stayed during the period . . . beginning on the 30th day after such motion
is filed . . . and ending on the date the court enters a final order ruling on
the motion.” § 802, 110 Stat. 1321–68 to 1321–69. The 1997 amendments
to the PLRA revised the automatic stay provision to its current form,
and Congress specified that the 1997 amendments “shall apply to pending
cases.” 18 U. S. C. § 3626 note (1994 ed., Supp. IV).

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the prisoners’ motion, enjoining the automatic stay. See id.,
Doc. No. 23; see also French v. Duckworth, 178 F. 3d 437,
440–441 (CA7 1999). The State appealed, and the United
States intervened pursuant to 28 U. S. C. § 2403(a) to defend
the constitutionality of § 3626(e)(2).
The Court of Appeals for the Seventh Circuit affirmed the
District Court’s order, concluding that although § 3626(e)(2)
precluded courts from exercising their equitable powers to
enjoin operation of the automatic stay, the statute, so con-
strued, was unconstitutional on separation of powers grounds.
See 178 F. 3d, at 447–448. The court reasoned that Con-
gress drafted § 3626(e)(2) in unequivocal terms, clearly pro-
viding that a motion to terminate under § 3626(b)(2) “shall
operate” as a stay during a specified time period. Id., at
443. While acknowledging that courts should not lightly as-
sume that Congress meant to restrict the equitable powers
of the federal courts, the Court of Appeals found “it im-
possible to read this language as doing anything less than
that.” Ibid. Turning to the constitutional question, the
court characterized § 3626(e)(2) as “a self-executing legisla-
tive determination that a specific decree of a federal court . . .
must be set aside at least for a period of time.” Id., at 446.
As such, it concluded that § 3626(e)(2) directly suspends a
court order in violation of the separation of powers doctrine
under Plaut v. Spendthrift Farm, Inc., 514 U. S. 211 (1995),
and mandates a particular rule of decision, at least during
the pendency of the § 3626(b)(2) termination motion, con-
trary to United States v. Klein, 13 Wall. 128 (1872). See 178
F. 3d, at 446. Having concluded that § 3626(e)(2) is uncon-
stitutional on separation of powers grounds, the Court of
Appeals did not reach the prisoners’ due process claims.
Over the dissent of three judges, the court denied rehearing
en banc. See id., at 448–453 (Easterbrook, J., dissenting
from denial of rehearing en banc).
We granted certiorari, 528 U. S. 1045 (1999), to resolve
a conflict among the Courts of Appeals as to whether

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§ 3626(e)(2) permits federal courts, in the exercise of their
traditional equitable authority, to enjoin operation of the
PLRA’s automatic stay provision and, if not, to review the
Court of Appeals’ judgment that § 3626(e)(2), so construed,
is unconstitutional. Compare Ruiz v. Johnson, 178 F. 3d 385
(CA5 1999) (holding that district courts retain the equitable
discretion to suspend the automatic stay and that § 3626(e)(2)
is therefore constitutional); Hadix v. Johnson, 144 F. 3d
925 (CA6 1998) (same), with 178 F. 3d 437 (CA7 1999) (case
below).
II
We address the statutory question first. Both the State
and the prisoner class agree, as did the majority and dis-
senting judges below, that § 3626(e)(2) precludes a district
court from exercising its equitable powers to enjoin the
automatic stay. The Government argues, however, that
§ 3626(e)(2) should be construed to leave intact the federal
courts’ traditional equitable discretion to “stay the stay,”
invoking two canons of statutory construction. First, the
Government contends that we should not interpret a statute
as displacing courts’ traditional equitable authority to pre-
serve the status quo pending resolution on the merits “[a]b-
sent the clearest command to the contrary.” Califano v.
Yamasaki, 442 U. S. 682, 705 (1979). Second, the Govern-
ment asserts that reading § 3626(e)(2) to remove that equita-
ble power would raise serious separation of powers ques-
tions, and therefore should be avoided under the canon of
constitutional doubt. Like the Court of Appeals, we do not
lightly assume that Congress meant to restrict the equitable
powers of the federal courts, and we agree that constitution-
ally doubtful constructions should be avoided where “fairly
possible.” Communications Workers v. Beck, 487 U. S. 735,
762 (1988). But where Congress has made its intent clear,
“we must give effect to that intent.” Sinclair Refining Co.
v. Atkinson, 370 U. S. 195, 215 (1962).

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The text of § 3626(e)(2) provides that “[a]ny motion to . . .
terminate prospective relief made under subsection (b) shall
operate as a stay” during a fixed period of time, i. e., from
30 (or 90) days after the motion is filed until the court enters
a final order ruling on the motion. 18 U. S. C. § 3626(e)(2)
(1994 ed., Supp. IV) (emphasis added). The stay is “auto-
matic” once a state defendant has filed a § 3626(b) motion,
and the statutory command that such a motion “shall operate
as a stay during the [specified time] period” indicates that
the stay is mandatory throughout that period of time. See
Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523
U. S. 26, 35 (1998) (“[T]he mandatory ‘shall’ . . . normally
creates an obligation impervious to judicial discretion”).
Nonetheless, the Government contends that reading the
statute to preserve courts’ traditional equitable powers to
enter appropriate injunctive relief is consistent with this
text because, in its view, § 3626(e)(2) is simply a burden-
shifting mechanism. That is, the purpose of the automatic
stay provision is merely to relieve defendants of the burden
of establishing the prerequisites for a stay and to elimi-
nate courts’ discretion to deny a stay, even if those pre-
requisites are established, based on the public interest or
hardship to the plaintiffs. Thus, under this reading, nothing
in § 3626(e)(2) prevents courts from subsequently suspending
the automatic stay by applying the traditional standards for
injunctive relief.
Such an interpretation, however, would subvert the plain
meaning of the statute, making its mandatory language
merely permissive. Section 3626(e)(2) states that a motion
to terminate prospective relief “shall operate as a stay dur-
ing” the specified time period from 30 (or 90) days after the
filing of the § 3626(b) motion until the court rules on that
motion. (Emphasis added.) Thus, not only does the statute
employ the mandatory term “shall,” but it also specifies the
points at which the operation of the stay is to begin and end.
In other words, contrary to Justice Breyer’s suggestion

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that the language of § 3626(e)(2) “says nothing . . . about the
district court’s power to modify or suspend the operation of
the ‘stay,’ ” post, at 358 (dissenting opinion), § 3626(e)(2) un-
equivocally mandates that the stay “shall operate during”
this specific interval. To allow courts to exercise their equi-
table discretion to prevent the stay from “operating” during
this statutorily prescribed period would be to contradict
§ 3626(e)(2)’s plain terms. It would mean that the motion to
terminate merely may operate as a stay, despite the statute’s
command that it “shall” have such effect. If Congress had
intended to accomplish nothing more than to relieve state
defendants of the burden of establishing the prerequisites
for a stay, the language of § 3626(e)(2) is, at best, an awkward
and indirect means to achieve that result.
Viewing the automatic stay provision in the context of
§ 3626 as a whole further confirms that Congress intended
to prohibit federal courts from exercising their equitable
authority to suspend operation of the automatic stay. The
specific appeal provision contained in § 3626(e) states that
“[a]ny order staying, suspending, delaying, or barring the
operation of the automatic stay” of § 3626(e)(2) “shall be ap-
pealable” pursuant to 28 U. S. C. § 1292(a)(1). § 3626(e)(4).
At first blush, this provision might be read as supporting the
view that Congress expressly recognized the possibility that
a district court could exercise its equitable discretion to en-
join the stay. The two Courts of Appeals that have con-
strued § 3626(e)(2) as preserving the federal courts’ equitable
powers have reached that conclusion based on this reading of
§ 3626(e)(4). See Ruiz v. Johnson, 178 F. 3d, at 394; Hadix v.
Johnson, 144 F. 3d, at 938. They reasoned that Congress
would not have provided for expedited review of such orders
had it not intended that district courts would retain the
power to enter the orders in the first place. See ibid. In
other words, “Congress understood that there would be some
cases in which a conscientious district court acting in good
faith would perceive that equity required that it suspend”

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the § 3626(e)(2) stay, and “Congress therefore permitted the
district court to do so, subject to appellate review.” Ruiz v.
Johnson, supra, at 394.
The critical flaw in this construction, however, is that
§ 3626(e)(4) only provides for an appeal from an order pre-
venting the operation of the automatic stay. § 3626(e)(4)
(“Any order staying, suspending, delaying, or barring the
operation of the automatic stay” under § 3626(e)(2) “shall be
appealable”). If the rationale for the provision were that in
some situations equity demands that the automatic stay be
suspended, then presumably the denial of a motion to enjoin
the stay should also be appealable. The one-way nature of
the appeal provision only makes sense if the automatic stay
is required to operate during a specific time period, such that
any attempt by a district court to circumvent the mandatory
stay is immediately reviewable.
The Government contends that if Congress’ goal were to
prevent courts from circumventing the PLRA’s plain com-
mands, mandamus would have been a more appropriate rem-
edy than appellate review. But that proposition is doubtful,
as mandamus is an extraordinary remedy that is “granted
only in the exercise of sound discretion.” Whitehouse v.
Illinois Central R. Co., 349 U. S. 366, 373 (1955). Given that
curbing the equitable discretion of district courts was one of
the PLRA’s principal objectives, it would have been odd for
Congress to have left enforcement of § 3626(e)(2) to that very
same discretion. Instead, Congress sensibly chose to make
available an immediate appeal to resolve situations in which
courts mistakenly believe—under the novel scheme created
by the PLRA—that they have the authority to enjoin the
automatic stay, rather than the extraordinary remedy of
mandamus, which requires a showing of a “clear and indis-
putable” right to the issuance of the writ. See Mallard v.
United States Dist. Court for Southern Dist. of Iowa, 490
U. S. 296, 309 (1989). In any event, § 3626(e) as originally
enacted did not provide for interlocutory review. It was

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only after some courts refused to enter the automatic stay,
and after the Court of Appeals for the Fifth Circuit would
not review such a refusal, that Congress amended § 3626(e)
to provide for interlocutory review. See In re Scott, 163
F. 3d 282, 284 (CA5 1998); Ruiz v. Johnson, supra, at 388;
see also 18 U. S. C. § 3626(e)(4) (1994 ed., Supp. IV).
Finally, the Government finds support for its view in
§ 3626(e)(3). That provision authorizes an extension, for
“good cause,” of the starting point for the automatic stay,
from 30 days after the § 3626(b) motion is filed until 90 days
after that motion is filed. The Government explains that,
by allowing the court to prevent the entry of the stay for
up to 60 days under the relatively generous “good cause”
standard, Congress by negative implication has preserved
courts’ discretion to suspend the stay after that time under
the more stringent standard for injunctive relief. To be
sure, allowing a delay in entry of the stay for 60 days based
on a good cause standard does not by itself necessarily imply
that any other reason for preventing the operation of the
stay—for example, on the basis of traditional equitable prin-
ciples—is precluded. But § 3626(e)(3) cannot be read in iso-
lation. When §§ 3626(e)(2) and (3) are read together, it is
clear that the district court cannot enjoin the operation of
the automatic stay. The § 3626(b) motion “shall operate as a
stay during” a specific time period. Section 3626(e)(3) only
adjusts the starting point for the stay, and it merely permits
that starting point to be delayed. Once the 90-day period
has passed, the § 3626(b) motion “shall operate as a stay”
until the court rules on the § 3626(b) motion. During that
time, any attempt to enjoin the stay is irreconcilable with
the plain language of the statute.
Thus, although we should not construe a statute to dis-
place courts’ traditional equitable authority absent the
“clearest command,” Califano v. Yamasaki, 442 U. S., at
705, or an “inescapable inference” to the contrary, Porter
v. Warner Holding Co., 328 U. S. 395, 398 (1946), we are con-

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vinced that Congress’ intent to remove such discretion is
unmistakable in § 3626(e)(2). And while this construction
raises constitutional questions, the canon of constitutional
doubt permits us to avoid such questions only where the
saving construction is not “plainly contrary to the intent of
Congress.” Edward J. DeBartolo Corp. v. Florida Gulf
Coast Building & Constr. Trades Council, 485 U. S. 568, 575
(1988). “We cannot press statutory construction ‘to the
point of disingenuous evasion’ even to avoid a constitutional
question.” United States v. Locke, 471 U. S. 84, 96 (1985)
(quoting George Moore Ice Cream Co. v. Rose, 289 U. S. 373,
379 (1933)); see also Pennsylvania Dept. of Corrections v.
Yeskey, 524 U. S. 206, 212 (1998) (constitutional doubt canon
does not apply where the statute is unambiguous); Commod-
ity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841
(1986) (constitutional doubt canon “does not give a court the
prerogative to ignore the legislative will”). Like the Court
of Appeals, we find that § 3626(e)(2) is unambiguous, and ac-
cordingly, we cannot adopt Justice Breyer’s “more flexible
interpretation” of the statute. Post, at 355. Any construc-
tion that preserved courts’ equitable discretion to enjoin the
automatic stay would effectively convert the PLRA’s manda-
tory stay into a discretionary one. Because this would be
plainly contrary to Congress’ intent in enacting the stay pro-
vision, we must confront the constitutional issue.
III
The Constitution enumerates and separates the powers
of the three branches of Government in Articles I, II, and
III, and it is this “very structure” of the Constitution that
exemplifies the concept of separation of powers. INS v.
Chadha, 462 U. S. 919, 946 (1983). While the boundaries
between the three branches are not “ ‘hermetically’ sealed,”
see id., at 951, the Constitution prohibits one branch from
encroaching on the central prerogatives of another, see Lov-
ing v. United States, 517 U. S. 748, 757 (1996); Buckley v.

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Valeo, 424 U. S. 1, 121–122 (1976) (per curiam). The powers
of the Judicial Branch are set forth in Article III, § 1, which
states that the “judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior Courts as
the Congress may from time to time ordain and establish,”
and provides that these federal courts shall be staffed by
judges who hold office during good behavior, and whose com-
pensation shall not be diminished during tenure in office.
As we explained in Plaut v. Spendthrift Farm, Inc., 514
U. S., at 218–219, Article III “gives the Federal Judiciary the
power, not merely to rule on cases, but to decide them, sub-
ject to review only by superior courts in the Article III
hierarchy.”
Respondent prisoners contend that § 3626(e)(2) encroaches
on the central prerogatives of the Judiciary and thereby vio-
lates the separation of powers doctrine. It does this, the
prisoners assert, by legislatively suspending a final judg-
ment of an Article III court in violation of Plaut and Hay-
burn’s Case, 2 Dall. 409 (1792). According to the prisoners,
the remedial order governing living conditions at the Pendle-
ton Correctional Facility is a final judgment of an Article III
court, and § 3626(e)(2) constitutes an impermissible usurpa-
tion of judicial power because it commands the district court
to suspend prospective relief under that order, albeit tempo-
rarily. An analysis of the principles underlying Hayburn’s
Case and Plaut, as well as an examination of § 3626(e)(2)’s
interaction with the other provisions of § 3626, makes clear
that § 3626(e)(2) does not offend these separation of powers
principles.
Hayburn’s Case arose out of a 1792 statute that authorized
pensions for veterans of the Revolutionary War. See Act of
Mar. 23, 1792, ch. 11, 1 Stat. 243. The statute provided that
the circuit courts were to review the applications and deter-
mine the appropriate amount of the pension, but that the
Secretary of War had the discretion either to adopt or reject
the courts’ findings. Hayburn’s Case, supra, at 408–410.

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Although this Court did not reach the constitutional issue in
Hayburn’s Case, the statements of five Justices, acting as
circuit judges, were reported, and we have since recognized
that the case “stands for the principle that Congress cannot
vest review of the decisions of Article III courts in officials
of the Executive Branch.” Plaut, supra, at 218; see also
Morrison v. Olson, 487 U. S. 654, 677, n. 15 (1988). As we
recognized in Plaut, such an effort by a coequal branch to
“annul a final judgment” is “ ‘an assumption of Judicial
power’ and therefore forbidden.” 514 U. S., at 224 (quoting
Bates v. Kimball, 2 Chipman 77 (Vt. 1824)).
Unlike the situation in Hayburn’s Case, § 3626(e)(2) does
not involve the direct review of a judicial decision by officials
of the Legislative or Executive Branches. Nonetheless, the
prisoners suggest that § 3626(e)(2) falls within Hayburn’s
prohibition against an indirect legislative “suspension” or re-
opening of a final judgment, such as that addressed in Plaut.
See Plaut, supra, at 226 (quoting Hayburn’s Case, supra, at
413 (letter of Iredell, J., and Sitgreaves, D. J.) (“ ‘[N]o deci-
sion of any court of the United States can, under any
circumstances, . . . be liable to a revision, or even suspension,
by the [l]egislature itself, in whom no judicial power of any
kind appears to be vested’ ”)). In Plaut, we held that a fed-
eral statute that required federal courts to reopen final judg-
ments that had been entered before the statute’s enactment
was unconstitutional on separation of powers grounds. 514
U. S., at 211. The plaintiffs had brought a civil securities
fraud action seeking money damages. Id., at 213. While
that action was pending, we ruled in Lampf, Pleva, Lipkind,
Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991), that
such suits must be commenced within one year after the dis-
covery of the facts constituting the violation and within
three years after such violation. In light of this intervening
decision, the Plaut plaintiffs’ suit was untimely, and the Dis-
trict Court accordingly dismissed the action as time barred.
Plaut, supra, at 214. After the judgment dismissing the

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case had become final, Congress enacted a statute provid-
ing for the reinstatement of those actions, including the
Plaut plaintiffs’, that had been dismissed under Lampf but
that would have been timely under the previously applicable
statute of limitations. 514 U. S., at 215.
We concluded that this retroactive command that federal
courts reopen final judgments exceeded Congress’ authority.
Id., at 218–219. The decision of an inferior court within the
Article III hierarchy is not the final word of the department
(unless the time for appeal has expired), and “[i]t is the obli-
gation of the last court in the hierarchy that rules on the
case to give effect to Congress’s latest enactment, even
when that has the effect of overturning the judgment of an
inferior court, since each court, at every level, must ‘decide
according to existing laws.’ ” Id., at 227 (quoting United
States v. Schooner Peggy, 1 Cranch 103, 109 (1801)). But
once a judicial decision achieves finality, it “becomes the last
word of the judicial department.” 514 U. S., at 227. And
because Article III “gives the Federal Judiciary the power,
not merely to rule on cases, but to decide them, subject to
review only by superior courts in the Article III hierarchy,”
id., at 218–219, the “judicial Power is one to render dis-
positive judgments,” and Congress cannot retroactively com-
mand Article III courts to reopen final judgments, id., at 219
(quoting Easterbrook, Presidential Review, 40 Case W. Res.
L. Rev. 905, 926 (1990) (internal quotation marks omitted)).
Plaut, however, was careful to distinguish the situation
before the Court in that case—legislation that attempted to
reopen the dismissal of a suit seeking money damages—from
legislation that “altered the prospective effect of injunc-
tions entered by Article III courts.” 514 U. S., at 232. We
emphasized that “nothing in our holding today calls . . . into
question” Congress’ authority to alter the prospective effect
of previously entered injunctions. Ibid. Prospective re-
lief under a continuing, executory decree remains subject to
alteration due to changes in the underlying law. Cf. Land-

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graf v. USI Film Products, 511 U. S. 244, 273 (1994) (“When
the intervening statute authorizes or affects the propriety
of prospective relief, application of the new provision is not
retroactive”). This conclusion follows from our decisions in
Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How.
518 (1852) (Wheeling Bridge I), and Pennsylvania v. Wheel-
ing & Belmont Bridge Co., 18 How. 421 (1856) (Wheeling
Bridge II).
In Wheeling Bridge I, we held that a bridge across the
Ohio River, because it was too low, unlawfully “obstruct[ed]
the navigation of the Ohio,” and ordered that the bridge be
raised or permanently removed. 13 How., at 578. Shortly
thereafter, Congress enacted legislation declaring the bridge
to be a “lawful structur[e],” establishing the bridge as a
“ ‘post-roa[d] for the passage of the mails of the United
States,’ ” and declaring that the Wheeling and Belmont
Bridge Company was authorized to maintain the bridge at
its then-current site and elevation. Wheeling Bridge II,
supra, at 429. After the bridge was destroyed in a storm,
Pennsylvania sued to enjoin the bridge’s reconstruction,
arguing that the statute legalizing the bridge was uncon-
stitutional because it effectively annulled the Court’s deci-
sion in Wheeling Bridge I. We rejected that argument, con-
cluding that the decree in Wheeling Bridge I provided for
ongoing relief by “directing the abatement of the obstruc-
tion” which enjoined the defendants’ from any continuance
or reconstruction of the obstruction. Because the inter-
vening statute altered the underlying law such that the
bridge was no longer an unlawful obstruction, we held that it
was “quite plain the decree of the court cannot be enforced.”
Wheeling Bridge II, supra, at 431–432. The Court ex-
plained that had Wheeling Bridge I awarded money damages
in an action at law, then that judgment would be final, and
Congress’ later action could not have affected plaintiff ’s right
to those damages. See 18 How., at 431. But because the
decree entered in Wheeling Bridge I provided for prospec-

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tive relief—a continuing injunction against the continuation
or reconstruction of the bridge—the ongoing validity of the
injunctive relief depended on “whether or not [the bridge]
interferes with the right of navigation.” 18 How., at 431.
When Congress altered the underlying law such that the
bridge was no longer an unlawful obstruction, the injunction
against the maintenance of the bridge was not enforceable.
See id., at 432.
Applied here, the principles of Wheeling Bridge II dem-
onstrate that the automatic stay of § 3626(e)(2) does not un-
constitutionally “suspend” or reopen a judgment of an Arti-
cle III court. Section 3626(e)(2) does not by itself “tell
judges when, how, or what to do.” 178 F. 3d, at 449 (Easter-
brook, J., dissenting from denial of rehearing en banc). In-
stead, § 3626(e)(2) merely reflects the change implemented
by § 3626(b), which does the “heavy lifting” in the statutory
scheme by establishing new standards for prospective relief.
See Berwanger v. Cottey, 178 F. 3d 834, 839 (CA7 1999).
Section 3626 prohibits the continuation of prospective relief
that was “approved or granted in the absence of a finding by
the court that the relief is narrowly drawn, extends no fur-
ther than necessary to correct the violation of the Federal
right, and is the least intrusive means to correct the viola-
tion,” § 3626(b)(2), or in the absence of “findings based on the
record that prospective relief remains necessary to correct
a current and ongoing violation of a Federal right, ex-
tends no further than necessary to correct the violation
of the Federal right, and that the prospective relief is
narrowly drawn and the least intrusive means to correct
the violation,” § 3626(b)(3). Accordingly, if prospective re-
lief under an existing decree had been granted or approved
absent such findings, then that prospective relief must cease,
see § 3626(b)(2), unless and until the court makes findings on
the record that such relief remains necessary to correct an
ongoing violation and is narrowly tailored, see § 3626(b)(3).
The PLRA’s automatic stay provision assists in the enforce-

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Opinion of the Court
ment of §§ 3626(b)(2) and (3) by requiring the court to stay
any prospective relief that, due to the change in the underly-
ing standard, is no longer enforceable, i. e., prospective relief
that is not supported by the findings specified in §§ 3626(b)(2)
and (3).
By establishing new standards for the enforcement of pro-
spective relief in § 3626(b), Congress has altered the relevant
underlying law. The PLRA has restricted courts’ authority
to issue and enforce prospective relief concerning prison con-
ditions, requiring that such relief be supported by findings
and precisely tailored to what is needed to remedy the viola-
tion of a federal right. See Benjamin v. Jacobson, 172 F. 3d
144, 163 (CA2 1999) (en banc); Imprisoned Citizens Union v.
Ridge, 169 F. 3d 178, 184–185 (CA3 1999); Tyler v. Murphy,
135 F. 3d 594, 597 (CA8 1998); Inmates of Suffolk County
Jail v. Rouse, 129 F. 3d 649, 657 (CA1 1997). We note that
the constitutionality of § 3626(b) is not challenged here; we
assume, without deciding, that the new standards it pro-
nounces are effective. As Plaut and Wheeling Bridge II
instruct, when Congress changes the law underlying a judg-
ment awarding prospective relief, that relief is no longer en-
forceable to the extent it is inconsistent with the new law.
Although the remedial injunction here is a “final judgment”
for purposes of appeal, it is not the “last word of the judicial
department.” Plaut, 514 U. S., at 227. The provision of
prospective relief is subject to the continuing supervisory
jurisdiction of the court, and therefore may be altered
according to subsequent changes in the law. See Rufo v.
Inmates of Suffolk County Jail, 502 U. S. 367, 388 (1992).
Prospective relief must be “modified if, as it later turns out,
one or more of the obligations placed upon the parties has
become impermissible under federal law.” Ibid.; see also
Railway Employees v. Wright, 364 U. S. 642, 646–647 (1961)
(a court has the authority to alter the prospective effect of
an injunction to reflect a change in circumstances, whether
of law or fact, that has occurred since the injunction was

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348 MILLER v. FRENCH
Opinion of the Court
entered); Lauf v. E. G. Shinner & Co., 303 U. S. 323, 329
(1938) (applying the Norris-LaGuardia Act’s prohibition on
a district court’s entry of injunctive relief in the absence of
findings).
The entry of the automatic stay under § 3626(e)(2) helps
to implement the change in the law caused by §§ 3626(b)(2)
and (3). If the prospective relief under the existing decree
is not supported by the findings required under § 3626(b)(2),
and the court has not made the findings required by
§ 3626(b)(3), then prospective relief is no longer enforceable
and must be stayed. The entry of the stay does not reopen
or “suspend” the previous judgment, nor does it divest the
court of authority to decide the merits of the termination
motion. Rather, the stay merely reflects the changed legal
circumstances—that prospective relief under the existing
decree is no longer enforceable, and remains unenforceable
unless and until the court makes the findings required by
§ 3626(b)(3).
For the same reasons, § 3626(e)(2) does not violate the
separation of powers principle articulated in United States
v. Klein, 13 Wall. 128 (1872). In that case, Klein, the execu-
tor of the estate of a Confederate sympathizer, sought to
recover the value of property seized by the United States
during the Civil War, which by statute was recoverable if
Klein could demonstrate that the decedent had not given
aid or comfort to the rebellion. See id., at 131. In United
States v. Padelford, 9 Wall. 531, 542–543 (1870), we held that
a Presidential pardon satisfied the burden of proving that no
such aid or comfort had been given. While Klein’s case was
pending, Congress enacted a statute providing that a pardon
would instead be taken as proof that the pardoned individual
had in fact aided the enemy, and if the claimant offered proof
of a pardon the court must dismiss the case for lack of juris-
diction. Klein, 13 Wall., at 133–134. We concluded that the
statute was unconstitutional because it purported to “pre-

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349 Cite as: 530 U. S. 327 (2000)
Opinion of the Court
scribe rules of decision to the Judicial Department of the
government in cases pending before it.” Id., at 146.
Here, the prisoners argue that Congress has similarly pre-
scribed a rule of decision because, for the period of time
until the district court makes a final decision on the merits
of the motion to terminate prospective relief, § 3626(e)(2)
mandates a particular outcome: the termination of pro-
spective relief. As we noted in Plaut, however, “[w]hatever
the precise scope of Klein, . . . later decisions have made
clear that its prohibition does not take hold when Con-
gress ‘amend[s] applicable law.’ ” 514 U. S., at 218 (quoting
Robertson v. Seattle Audubon Soc., 503 U. S. 429, 441 (1992)).
The prisoners concede this point but contend that, because
§ 3626(e)(2) does not itself amend the legal standard, Klein is
still applicable. As we have explained, however, § 3626(e)(2)
must be read not in isolation, but in the context of § 3626 as
a whole. Section 3626(e)(2) operates in conjunction with the
new standards for the continuation of prospective relief; if
the new standards of § 3626(b)(2) are not met, then the stay
“shall operate” unless and until the court makes the findings
required by § 3626(b)(3). Rather than prescribing a rule of
decision, § 3626(e)(2) simply imposes the consequences of the
court’s application of the new legal standard.
Finally, the prisoners assert that, even if § 3626(e)(2) does
not fall within the recognized prohibitions of Hayburn’s
Case, Plaut, or Klein, it still offends the principles of separa-
tion of powers because it places a deadline on judicial deci-
sionmaking, thereby interfering with core judicial functions.
Congress’ imposition of a time limit in § 3626(e)(2), how-
ever, does not in itself offend the structural concerns under-
lying the Constitution’s separation of powers. For example,
if the PLRA granted courts 10 years to determine whether
they could make the required findings, then certainly the
PLRA would raise no apprehensions that Congress had
encroached on the core function of the Judiciary to decide
“cases and controversies properly before them.” United

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350 MILLER v. FRENCH
Opinion of Souter, J.
States v. Raines, 362 U. S. 17, 20 (1960). Respondents’ con-
cern with the time limit, then, must be its relative brevity.
But whether the time is so short that it deprives litigants
of a meaningful opportunity to be heard is a due process
question, an issue that is not before us. We leave open,
therefore, the question whether this time limit, particularly
in a complex case, may implicate due process concerns.
In contrast to due process, which principally serves to pro-
tect the personal rights of litigants to a full and fair hearing,
separation of powers principles are primarily addressed to
the structural concerns of protecting the role of the inde-
pendent Judiciary within the constitutional design. In this
action, we have no occasion to decide whether there could be
a time constraint on judicial action that was so severe that
it implicated these structural separation of powers concerns.
The PLRA does not deprive courts of their adjudicatory
role, but merely provides a new legal standard for relief and
encourages courts to apply that standard promptly.
Through the PLRA, Congress clearly intended to make
operation of the automatic stay mandatory, precluding courts
from exercising their equitable powers to enjoin the stay.
And we conclude that this provision does not violate separa-
tion of powers principles. Accordingly, the judgment of the
Court of Appeals for the Seventh Circuit is reversed, and
the action is remanded for further proceedings consistent
with this opinion.
It is so ordered.
Justice Souter, with whom Justice Ginsburg joins,
concurring in part and dissenting in part.
I agree that 18 U. S. C. § 3626(e)(2) (1994 ed., Supp. IV) is
unambiguous and join Parts I and II of the majority opinion.
I also agree that applying the automatic stay may raise the
due process issue, of whether a plaintiff has a fair chance to
preserve an existing judgment that was valid when entered.
Ante this page. But I believe that applying the statute may

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351 Cite as: 530 U. S. 327 (2000)
Opinion of Souter, J.
also raise a serious separation-of-powers issue if the time
it allows turns out to be inadequate for a court to deter-
mine whether the new prerequisite to relief is satisfied in a
particular case.1 I thus do not join Part III of the Court’s
opinion and on remand would require proceedings consistent
with this one. I respectfully dissent from the terms of the
Court’s disposition.
A prospective remedial order may rest on at least three
different legal premises: the underlying right meant to be
secured; the rules of procedure for obtaining relief, de-
fining requisites of pleading, notice, and so on; and, in some
cases, rules lying between the other two, such as those de-
fining a required level of certainty before some remedy may
be ordered, or the permissible scope of relief. At issue here
are rules of the last variety.2
Congress has the authority to change rules of this sort
by imposing new conditions precedent for the continuing
enforcement of existing, prospective remedial orders and
requiring courts to apply the new rules to those orders.
Cf. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 232 (1995).
If its legislation gives courts adequate time to determine
the applicability of a new rule to an old order and to take
the action necessary to apply it or to vacate the order, there
seems little basis for claiming that Congress has crossed
1 The Court forecloses the possibility of a separation-of-powers challenge
based on insufficient time under the Prison Litigation Reform Act of 1995
(PLRA): “In this action, we have no occasion to decide whether there
could be a time constraint on judicial action that was so severe that it
implicated these structural separation of powers concerns. The PLRA
does not deprive courts of their adjudicatory role, but merely provides a
new legal standard for relief and encourages courts to apply that standard
promptly.” Ante, at 350.
2 Other provisions of the PLRA narrow the scope of the underlying en-
titlements that an order can protect, but some orders may have been
issued to secure constitutional rights unaffected by the PLRA. In any
event, my concern here is solely with the PLRA’s changes to the requisites
for relief.

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352 MILLER v. FRENCH
Opinion of Souter, J.
the constitutional line to interfere with the performance of
any judicial function. But if determining whether a new
rule applies requires time (say, for new factfinding) and if
the statute provides insufficient time for a court to make
that determination before the statute invalidates an extant
remedial order, the application of the statute raises a serious
question whether Congress has in practical terms assumed
the judicial function. In such a case, the prospective order
suddenly turns unenforceable not because a court has made
a judgment to terminate it due to changed law or fact, but
because no one can tell in the time allowed whether the new
rule requires modification of the old order. One way to view
this result is to see the Congress as mandating modification
of an order that may turn out to be perfectly enforceable
under the new rule, depending on judicial factfinding. If the
facts are taken this way, the new statute might well be
treated as usurping the judicial function of determining
the applicability of a general rule in particular factual cir-
cumstances.3 Cf. United States v. Klein, 13 Wall. 128, 146
(1872).
Whether this constitutional issue arises on the facts of
this action, however, is something we cannot yet tell, for the
3 The constitutional question inherent in these possible circumstances
does not seem to be squarely addressed by any of our cases. Congress
did not engage in discretionary review of a particular judicial judgment,
cf. Plaut v. Spendthrift Farm, Inc., 514 U. S. 211, 218, 226 (1995) (charac-
terizing Hayburn’s Case, 2 Dall. 409 (1792)), or try to modify a final, non-
prospective judgment, cf. 514 U. S., at 218–219. Nor would a stay result
from the judicial application of a change in the underlying law, cf. Penn-
sylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 431 (1856);
Plaut, supra, at 218 (characterizing United States v. Klein, 13 Wall. 128
(1872)). Instead, if the time is insufficient for a court to make a judicial
determination about the applicability of the new rules, the stay would
result from the inability of the Judicial Branch to exercise the judicial
power of determining whether the new rules applied at all. Cf. Marbury
v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and
duty of the judicial department to say what the law is”).

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Breyer, J., dissenting
District Court did not address the sufficiency of the time
provided by the statute to make the findings required by
§ 3626(b)(3) in this particular action.4 Absent that determi-
nation, I would not decide the separation-of-powers question,
but simply remand for further proceedings. If the District
Court determined both that it lacked adequate time to make
the requisite findings in the period before the automatic stay
would become effective, and that applying the stay would
violate the separation of powers, the question would then be
properly presented.
Justice Breyer, with whom Justice Stevens joins,
dissenting.
The Prison Litigation Reform Act of 1995 (PLRA) says
that “any party or intervener” may move to terminate any
“prospective relief ” previously granted by the court, 18
U. S. C. § 3626(b)(1) (1994 ed., Supp. IV), and that the court
shall terminate (or modify) that relief unless it is “neces-
sary to correct a current and ongoing violation of [a] Fed-
eral right, extends no further than necessary to correct the
violation . . . [and is] the least intrusive means” to do so.
18 U. S. C. § 3626(b)(3).
We here consider a related procedural provision of the
PLRA. It says that “[a]ny motion to modify or terminate
prospective relief . . . shall operate as a stay” of that pro-
spective relief “during the period” beginning (no later than)
the 90th day after the filing of the motion and ending when
the motion is decided. § 3626(e)(2). This provision means
4 Neither did the Court of Appeals. It merely speculated that “[i]t may
be . . . that in some cases the courts will not be able to carry out their
adjudicative function in a responsible way within the time limits imposed
by (e)(2),” French v. Duckworth, 178 F. 3d 437, 447 (CA7 1999), without
deciding whether this action presented such a situation. The court then
concluded that “under Klein [the Congress] cannot take away the power
of the court in a particular case to preserve the status quo while it ponders
these weighty questions.” Ibid.

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354 MILLER v. FRENCH
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approximately the following: Suppose that a district court,
in 1980, had entered an injunction governing present and
future prison conditions. Suppose further that in 1996 a
party filed a motion under the PLRA asking the court to
terminate (or to modify) the 1980 injunction. That district
court would have no more than 90 days to decide whether to
grant the motion. After those 90 days, the 1980 injunction
would terminate automatically—regaining life only if, when,
and to the extent that the judge eventually decided to deny
the PLRA motion.
The majority interprets the words “shall operate as a
stay” to mean, in terms of my example, that the 1980 injunc-
tion must become ineffective after the 90th day, no matter
what. The Solicitor General, however, believes that the
view adopted by the majority interpretation is too rigid
and calls into doubt the constitutionality of the provision.
He argues that the statute is silent as to whether the dis-
trict court can modify or suspend the operation of the auto-
matic stay. He would find in that silence sufficient authority
for the court to create an exception to the 90-day time limit
where circumstances make it necessary to do so. As so
read, the statute would neither displace the courts’ tradi-
tional equitable authority nor raise significant constitutional
difficulties. See Califano v. Yamasaki, 442 U. S. 682, 705
(1979) (only “clearest” congressional “command” displaces
courts’ traditional equity powers); Edward J. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U. S. 568, 575 (1988) (the Court will construe a
statute to avoid constitutional problems “unless such con-
struction is plainly contrary to the intent of Congress”).
I agree with the Solicitor General and believe we should
adopt that “ ‘reasonable construction’ ” of the statute. Ibid.
(quoting Hooper v. California, 155 U. S. 648, 657 (1895), stat-
ing “ ‘every reasonable construction must be resorted to,
in order to save a statute from unconstitutionality’ ”).

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Breyer, J., dissenting
I
At the outset, one must understand why a more flexible
interpretation of the statute might be needed. To do so, one
must keep in mind the extreme circumstances that at least
some prison litigation originally sought to correct, the com-
plexity of the resulting judicial decrees, and the potential
difficulties arising out of the subsequent need to review those
decrees in order to make certain they follow Congress’
PLRA directives. A hypothetical example based on actual
circumstances may help.
In January 1979, a Federal District Court made 81 fac-
tual findings describing extremely poor—indeed “barbaric
and shocking”—prison conditions in the Commonwealth of
Puerto Rico. Morales Feliciano v. Romero Barcelo, 497
F. Supp. 14, 32 (PR 1979). These conditions included prisons
typically operating with twice the number of prisoners they
were designed to hold; inmates living in 16 square feet of
space (i. e., only 4 feet by 4 feet); inmates without medical
care, without psychiatric care, without beds, without mat-
tresses, without hot water, without soap or towels or tooth-
brushes or underwear; food prepared on a budget of $1.50
per day and “tons of food . . . destroyed because of . . . rats,
vermin, worms, and spoilage”; “no working toilets or show-
ers,” “urinals [that] flush into the sinks,” “plumbing sys-
tems . . . in a state of collapse,” and a “stench” that was
“omnipresent”; “exposed wiring . . . no fire extinguisher, . . .
[and] poor ventilation”; “calabozos,” or dungeons, “like cages
with bars on the top” or with two slits in a steel door opening
onto a central corridor, the floors of which were “covered
with raw sewage” and which contained prisoners with severe
mental illnesses, “caged like wild animals,” sometimes for
months; areas of a prison where mentally ill inmates were
“kept in cells naked, without beds, without mattresses, with-
out any private possessions, and most of them without toilets
that work and without drinking water.” Id., at 20–23, 26–

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356 MILLER v. FRENCH
Breyer, J., dissenting
27, 29, 32. These conditions had led to epidemics of com-
municable diseases, untreated mental illness, suicides, and
murders. Id., at 32.
The District Court held that these conditions amounted
to constitutionally forbidden “cruel and unusual punish-
ment.” Id., at 33–36. It entered 30 specific orders de-
signed to produce constitutionally mandated improvement
by requiring the prison system to, for example, screen food
handlers for communicable diseases, close the “calabozos,”
move mentally ill patients to hospitals, fix broken plumbing,
and provide at least 35 square feet (i. e., 5 feet by 7 feet) of
living space to each prisoner. Id., at 39–41.
The very pervasiveness and seriousness of the condi-
tions described in the court’s opinion made those conditions
difficult to cure quickly. Over the next decade, the District
Court entered further orders embodied in 15 published
opinions, affecting 21 prison institutions. These orders con-
cerned, inter alia, overcrowding, security, disciplinary pro-
ceedings, prisoner classification, rehabilitation, parole, and
drug addiction treatment. Not surprisingly, the related
proceedings involved extensive evidence and argument con-
suming thousands of pages of transcript. See Morales Feli-
ciano v. Romero Barcelo, 672 F. Supp. 591, 595 (PR 1986).
Their implementation involved the services of two monitors,
two assistants, and a Special Master. Along the way, the
court documented a degree of “administrative chaos” in the
prison system, Morales Feliciano v. Hernandez Colon, 697
F. Supp. 37, 44 (PR 1988), and entered findings of contempt
of court against the Commonwealth, followed by the assess-
ment and collection of more than $74 million in fines. See
Morales Feliciano v. Hernandez Colon, 775 F. Supp. 487,
488, and n. 2 (PR 1991).
Prison conditions subsequently have improved in some re-
spects. Morales Feliciano v. Rossello Gonzalez, 13 F. Supp.
2d 151, 179 (PR 1998). I express no opinion as to whether,
or which of, the earlier orders are still needed. But my

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357 Cite as: 530 U. S. 327 (2000)
Breyer, J., dissenting
brief summary of the litigation should illustrate the potential
difficulties involved in making the determination of con-
tinuing necessity required by the PLRA. Where prison liti-
gation is as complex as the litigation I have just described,
it may prove difficult for a district court to reach a fair
and accurate decision about which orders remain necessary,
and are the “least intrusive means” available, to prevent
or correct a continuing violation of federal law. The orders,
which were needed to resolve serious constitutional prob-
lems and may still be needed where compliance has not yet
been assured, are complex, interrelated, and applicable to
many different institutions. Ninety days might not provide
sufficient time to ascertain the views of several different
parties, including monitors, to allow them to present evi-
dence, and to permit each to respond to the arguments and
evidence of the others.
It is at least possible, then, that the statute, as the ma-
jority reads it, would sometimes terminate a complex sys-
tem of orders entered over a period of years by a court
familiar with the local problem—perhaps only to reinstate
those orders later, when the termination motion can be
decided. Such an automatic termination could leave con-
stitutionally prohibited conditions unremedied, at least tem-
porarily. Alternatively, the threat of termination could lead
a district court to abbreviate proceedings that fairness would
otherwise demand. At a minimum, the mandatory auto-
matic stay would provide a recipe for uncertainty, as com-
plex judicial orders that have long governed the administra-
tion of particular prison systems suddenly turn off, then
(perhaps selectively) back on. So read, the statute directly
interferes with a court’s exercise of its traditional equita-
ble authority, rendering temporarily ineffective pre-existing
remedies aimed at correcting past, and perhaps ongoing,
violations of the Constitution. That interpretation, as the
majority itself concedes, might give rise to serious constitu-
tional problems. Ante, at 350.

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II
The Solicitor General’s more flexible reading of the statute
avoids all these problems. He notes that the relevant lan-
guage says that the motion to modify or terminate pro-
spective relief “shall operate as a stay” after a period of
30 days, extendable for “good cause” to 90 days. 18 U. S. C.
§ 3626(e)(2); see also Brief for United States 12. The lan-
guage says nothing, however, about the district court’s
power to modify or suspend the operation of the “stay.” In
the Solicitor General’s view, the “stay” would determine the
legal status quo; but the district court would retain its tradi-
tional equitable power to change that status quo once the
party seeking the modification or suspension of the operation
of the stay demonstrates that the stay “would cause irrepa-
rable injury, that the termination motion is likely to be de-
feated, and that the merits of the motion cannot be resolved
before the automatic stay takes effect.” Ibid. Where this
is shown, the “court has discretion to suspend the automatic
stay and require prison officials to comply with outstanding
court orders until the court resolves the termination motion
on the merits,” id., at 12–13, subject to immediate appellate
review, 18 U. S. C. § 3626(e)(4).
Is this interpretation a “reasonable construction” of the
statute? Edward J. DeBartolo Corp., 485 U. S., at 575.
I note first that the statutory language is open to the So-
licitor General’s interpretation. A district court ordinarily
can stay the operation of a judicial order (such as a stay or
injunction), see Scripps-Howard Radio, Inc. v. FCC, 316
U. S. 4, 9–10, and n. 4 (1942), when a party demonstrates the
need to do so in accordance with traditional equitable criteria
(irreparable injury, likelihood of success on the merits, and a
balancing of possible harms to the parties and the public, see
Doran v. Salem Inn, Inc., 422 U. S. 922, 931 (1975); Yakus v.
United States, 321 U. S. 414, 440 (1944)). There is no logical
inconsistency in saying both (1) a motion (to terminate)
“shall operate as a stay,” and (2) the court retains the power

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to modify or delay the operation of the stay in appropriate
circumstances. The statutory language says nothing about
this last-mentioned power. It is silent. It does not direct
the district court to leave the stay in place come what may.
Nor does this more flexible interpretation deprive the pro-
cedural provision of meaning. The filing of the motion to
terminate prospective relief will still, after a certain period,
operate as a stay without further action by the court. Thus,
the motion automatically changes the status quo and imposes
upon the party wishing to suspend the automatic stay the
burden of demonstrating strong, special reasons for doing so.
The word “automatic” in the various subsection titles does
not prove the contrary, for that word often means self-
starting, not unstoppable. See Websters Third New Inter-
national Dictionary 148 (1993). Indeed, the Bankruptcy Act
uses the words “automatic stay” to describe a provision
stating that “a petition filed . . . operates as a stay” of certain
other judicial proceedings—despite the fact that a later por-
tion of that same provision makes clear that under certain
circumstances the bankruptcy court may terminate, annul,
or modify the stay. 11 U. S. C. § 362(d); see also 143 Cong.
Rec. S12269 (Nov. 9, 1997) (statement of Sen. Abraham)
(explaining that § 3626(e)(2) was modeled after the Bank-
ruptcy Act provision). And the Poultry Producers Finan-
cial Protection Act of 1987 specifies that a court of appeals
decree affirming an order of the Secretary of Agriculture
“shall operate as an injunction” restraining the “live poultry
dealer” from violating that order, 7 U. S. C. § 228b–3(g); yet
it appears that no one has ever suggested that a court of
appeals lacks the power to modify that “injunction” where
appropriate. Moreover, the change in the legal status quo
that the automatic stay would bring about, and the need to
demonstrate a special need to lift the stay (according to tra-
ditional equitable criteria), mean that the stay would remain
in effect in all but highly unusual cases.

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360 MILLER v. FRENCH
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In addition, the surrounding procedural provisions are
most naturally read as favoring the flexible interpretation.
The immediately preceding provision requires the court to
rule “promptly” upon the motion to terminate and says that
“[m]andamus shall lie to remedy any failure to issue a prompt
ruling.” 18 U. S. C. § 3626(e)(1). If a motion to terminate
takes effect automatically through the “stay” after 30 or
90 days, it is difficult to understand what purpose would be
served by providing for mandamus—a procedure that itself
(in so complicated a matter) could take several weeks. But
if the automatic stay might be modified or lifted in an
unusual case, providing for mandamus makes considerable
sense. It guarantees that an appellate court will make
certain that unusual circumstances do in fact justify any
such modification or lifting of the stay. A later provision
that provides for immediate appeal of any order “staying,
suspending, delaying, or barring the operation of the auto-
matic stay” can be read as providing for similar appellate
review for similar reasons. § 3626(e)(4).
Further, the legislative history is neutral, for it is silent on
this issue. Yet there is relevant judicial precedent. That
precedent does not read statutory silence as denying judges
authority to exercise their traditional equitable powers.
Rather, it reads statutory silence as authorizing the exercise
of those powers. This Court has said, for example, that
“[o]ne thing is clear. Where Congress wished to deprive the
courts of this historic power, it knew how to use apt words—
only once has it done so and in a statute born of the ex-
igencies of war.” Scripps-Howard, supra, at 17. Compare
Lockerty v. Phillips, 319 U. S. 182, 186–187 (1943) (finding
that courts were deprived of equity powers where the stat-
ute explicitly removed jurisdiction), with Scripps-Howard,
supra, at 8–10 (refusing to read silence as depriving courts
of their historic equity power), and Califano, 442 U. S., at
705–706 (same). These cases recognize the importance of
permitting courts in equity cases to tailor relief, and related

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Breyer, J., dissenting
relief procedure, to the exigencies of particular cases and in-
dividual circumstances. In doing so, they recognize the fact
that in certain circumstances justice requires the flexibility
necessary to treat different cases differently—the rationale
that underlies equity itself. Cf. Hecht Co. v. Bowles, 321
U. S. 321, 329 (1944) (“The essence of equity jurisdiction has
been the power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case”).
Finally, the more flexible interpretation is consistent with
Congress’ purposes as revealed in the statute. Those pur-
poses include the avoidance of new judicial relief that is
overly broad or no longer necessary and the reassessment
of pre-existing relief to bring it into conformity with these
standards. But Congress has simultaneously expressed its
intent to maintain relief that is narrowly drawn and nec-
essary to end unconstitutional practices. See 18 U. S. C.
§§ 3626(a)(1), (a)(2), (b)(3). The statute, as flexibly inter-
preted, risks interfering with the first set of objectives only
to the extent that the speedy appellate review provided in
the statute fails to control district court error. The same
interpretation avoids the improper provisional termination
of relief that is constitutionally necessary. The risk of an
occasional small additional delay seems a comparatively
small price to pay (in terms of the statute’s entire set of
purposes) to avoid the serious constitutional problems that
accompany the majority’s more rigid interpretation.
The upshot is a statute that, when read in light of its lan-
guage, structure, purpose, and history, is open to an in-
terpretation that would allow a court to modify or suspend
the automatic stay when a party, in accordance with tradi-
tional equitable criteria, has demonstrated a need for such
an exception. That interpretation reflects this Court’s his-
toric reluctance to read a statute as depriving courts of their
traditional equitable powers. It also avoids constitutional
difficulties that might arise in unusual cases.

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362 MILLER v. FRENCH
Breyer, J., dissenting
I do not argue that this interpretation reflects the most
natural reading of the statute’s language. Nor do I assert
that each individual legislator would have endorsed that
reading at the time. But such an interpretation is a rea-
sonable construction of the statute. That reading harmo-
nizes the statute’s language with other basic legal princi-
ples, including constitutional principles. And, in doing so,
it better fits the full set of legislative objectives embodied
in the statute than does the more rigid reading that the
majority adopts.
For these reasons, I believe that the Solicitor General’s
more flexible reading is the proper reading of the statute
before us. I would consequently vacate the decision of
the Court of Appeals and remand this action for further
proceedings.

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363 OCTOBER TERM, 1999
Syllabus
CROSBY, SECRETARY OF ADMINISTRATION AND
FINANCE OF MASSACHUSETTS, et al. v.
NATIONAL FOREIGN TRADE COUNCIL
certiorari to the united states court of appeals for
the first circuit
No. 99–474. Argued March 22, 2000—Decided June 19, 2000
In 1996, Massachusetts passed a law barring state entities from buying
goods or services from companies doing business with Burma. Subse-
quently, Congress imposed mandatory and conditional sanctions on
Burma. Respondent (hereinafter Council), which has several members
affected by the state Act, filed suit against petitioner state officials
(hereinafter State) in federal court, claiming that the state Act unconsti-
tutionally infringes on the federal foreign affairs power, violates the
Foreign Commerce Clause, and is preempted by the federal Act. The
District Court permanently enjoined the state Act’s enforcement, and
the First Circuit affirmed.
Held: The state Act is preempted, and its application unconstitutional,
under the Supremacy Clause. Pp. 372–388.
(a) Even without an express preemption provision, state law must
yield to a congressional Act if Congress intends to occupy the field,
California v. ARC America Corp., 490 U. S. 93, 100, or to the extent of
any conflict with a federal statute, Hines v. Davidowitz, 312 U. S. 52,
66–67. This Court will find preemption where it is impossible for a
private party to comply with both state and federal law and where the
state law is an obstacle to the accomplishment and execution of Con-
gress’s full purposes and objectives. What is a sufficient obstacle is
determined by examining the federal statute and identifying its purpose
and intended effects. Here, the state Act is such an obstacle, for it
undermines the intended purpose and natural effect of at least three
federal Act provisions. Pp. 372–374.
(b) First, the state Act is an obstacle to the federal Act’s delegation of
discretion to the President to control economic sanctions against Burma.
Although Congress put initial sanctions in place, it authorized the Presi-
dent to terminate the measures upon certifying that Burma has made
progress in human rights and democracy, to impose new sanctions upon
findings of repression, and, most importantly, to suspend sanctions in
the interest of national security. Within the sphere defined by Con-
gress, the statute has given the President as much discretion to exercise
economic leverage against Burma, with an eye toward national security,

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364 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Syllabus
as law permits. The plenitude of Executive authority controls the pre-
emption issue here. The President has the authority not merely to
make a political statement but to achieve a political result, and the full-
ness of his authority shows the importance in the congressional mind of
reaching that result. It is implausible to think that Congress would
have gone to such lengths to empower the President had it been willing
to compromise his effectiveness by allowing state or local ordinances to
blunt the consequences of his actions. Yet this is exactly what the state
Act does. Its sanctions are immediate and perpetual, there being no
termination provision. This unyielding application undermines the
President’s authority by leaving him with less economic and diplomatic
leverage than the federal Act permits. Pp. 374–377.
(c) Second, the state Act interferes with Congress’s intention to limit
economic pressure against the Burmese Government to a specific range.
The state Act stands in clear contrast to the federal Act. It prohibits
some contracts permitted by the federal Act, affects more investment
than the federal Act, and reaches foreign and domestic companies while
the federal Act confines its reach to United States persons. It thus
conflicts with the federal law by penalizing individuals and conduct that
Congress has explicitly exempted or excluded from sanctions. That the
two Acts have a common end hardly neutralizes the conflicting means,
and the fact that some companies may be able to comply with both sets
of sanctions does not mean the state Act is not at odds with achievement
of the congressional decision about the right calibration of force.
Pp. 377–380.
(d) Finally, the state Act is at odds with the President’s authority to
speak for the United States among the world’s nations to develop a
comprehensive, multilateral Burma strategy. Congress called for Pres-
idential cooperation with other countries in developing such a strategy,
directed the President to encourage a dialogue between the Burmese
Government and the democratic opposition, and required him to report
to Congress on these efforts. This delegation of power, like that over
economic sanctions, invested the President with the maximum authority
of the National Government. The state Act undermines the President’s
capacity for effective diplomacy. In response to its passage, foreign
governments have filed formal protests with the National Government
and lodged formal complaints against the United States in the World
Trade Organization. The Executive has consistently represented that
the state Act has complicated its dealing with foreign sovereigns and
proven an impediment to accomplishing the objectives assigned it by
Congress. In this case, the positions of foreign governments and the
Executive are competent and direct evidence of the state Act’s frustra-

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365 Cite as: 530 U. S. 363 (2000)
Syllabus
tion of congressional objectives. Barclays Bank PLC v. Franchise Tax
Bd. of Cal., 512 U. S. 298, distinguished. Pp. 380–386.
(e) The State’s remaining argument—that Congress’s failure to pre-
empt state and local sanctions demonstrates implicit permission—is un-
availing. The existence of a conflict cognizable under the Supremacy
Clause does not depend on express congressional recognition that fed-
eral and state law may conflict, and a failure to provide for preemption
expressly may reflect nothing more than the settled character of implied
preemption that courts will dependably apply. Pp. 386–388.
181 F. 3d 38, affirmed.
Souter, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Kennedy, Ginsburg, and Breyer, JJ.,
joined. Scalia, J., filed an opinion concurring in the judgment, in which
Thomas, J., joined, post, p. 388.
Thomas A. Barnico, Assistant Attorney General of Massa-
chusetts, argued the cause for petitioners. With him on the
briefs were Thomas F. Reilly, Attorney General, and James
A. Sweeney, Assistant Attorney General.
Timothy B. Dyk argued the cause for respondent. With
him on the brief were Gregory A. Castanias, John B. Ken-
nedy, and Michael A. Collora.
Solicitor General Waxman argued the cause for the
United States as amicus curiae urging affirmance. With
him on the brief were Acting Assistant Attorney General
Ogden, Deputy Solicitor General Kneedler, Barbara Mc-
Dowell, Mark B. Stern, Alisa B. Klein, Douglas Hallward-
Driemeier, David R. Andrews, Neal S. Wolin, and Andrew
J. Pincus.*
*Briefs of amici curiae urging reversal were filed for the State of
Arkansas et al. by Heidi Heitkamp, Attorney General of North Dakota,
Douglas A. Bahr, Solicitor General, and Beth Angus Baumstark, Assist-
ant Attorney General, and by the Attorneys General for their respective
States as follows: Mark Pryor of Arkansas, Bill Lockyer of California, Ken
Salazar of Colorado, Richard Blumenthal of Connecticut, Earl I. Anzai
of Hawaii, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J.
Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Jeremiah W.
(Jay) Nixon of Missouri, Philip T. McLaughlin of New Hampshire, John
J. Farmer, Jr., of New Jersey, Patricia A. Madrid of New Mexico, W. A.

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366 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Opinion of the Court
Justice Souter delivered the opinion of the Court.
The issue is whether the Burma law of the Commonwealth
of Massachusetts, restricting the authority of its agencies to
purchase goods or services from companies doing business
with Burma,1 is invalid under the Supremacy Clause of the
National Constitution owing to its threat of frustrating fed-
eral statutory objectives. We hold that it is.
I
In June 1996, Massachusetts adopted “An Act Regulating
State Contracts with Companies Doing Business with or in
Drew Edmondson of Oklahoma, Hardy Myers of Oregon, D. Michael
Fisher of Pennsylvania, Sheldon Whitehouse of Rhode Island, John
Cornyn of Texas, Jan Graham of Utah, William H. Sorrell of Vermont,
and Christine O. Gregoire of Washington; for the Council of State Govern-
ments et al. by Richard Ruda and James I. Crowley; for Senator Barbara
Boxer et al. by John Echeverria, Robert Stumberg, and Matthew C. Por-
terfield; for the New York City Comptroller et al. by Sara C. Kay and
Jane R. Levine; and for Alliance for Democracy et al. by Deborah Anker.
Briefs of amici curiae urging affirmance were filed for Representative
Douglas Bereuter et al. by John Vanderstar, Charles Clark, Eric D.
Brown, and W. Thomas McCraney III; for Associated Industries of Mas-
sachusetts et al. by Michael F. Malamut; for the Chamber of Commerce
of the United States et al. by Daniel M. Price, Robin S. Conrad, Jan
Amundson, and Quentin Riegel; for the European Communities et al. by
Richard L. A. Weiner and David G. Leitch; for the Industry Coalition on
Technology Transfer by Eric L. Hirschhorn and Terence Murphy; for the
Washington Legal Foundation by Daniel J. Popeo and R. Shawn Gunnar-
son; and for Gerald R. Ford et al. by Andrew N. Vollmer, Carol J. Banta,
Martin S. Kaufman, and Edwin L. Lewis III.
Kenneth B. Clark filed a brief for the Coalition for Local Sovereignty
as amicus curiae.
1 The Court of Appeals noted that the ruling military government of
“Burma changed [the country’s] name to Myanmar in 1989,” but the court
then said it would use the name Burma since both parties and amici cu-
riae, the state law, and the federal law all do so. National Foreign Trade
Council v. Natsios, 181 F. 3d 38, 45, n. 1 (CA1 1999). We follow suit,
noting that our use of this term, like the First Circuit’s, is not intended to
express any political view. See ibid.

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367 Cite as: 530 U. S. 363 (2000)
Opinion of the Court
Burma (Myanmar),” 1996 Mass. Acts 239, ch. 130 (codified at
Mass. Gen. Laws §§ 7:22G–7:22M, 40 F1 ⁄ 2 (1997). The statute
generally bars state entities from buying goods or services
from any person (defined to include a business organization)
identified on a “restricted purchase list” of those doing busi-
ness with Burma. §§ 7:22H(a), 7:22J. Although the statute
has no general provision for waiver or termination of its ban,
it does exempt from boycott any entities present in Burma
solely to report the news, § 7:22H(e), or to provide interna-
tional telecommunication goods or services, ibid., or medical
supplies, § 7:22I.
“ ‘Doing business with Burma’ ” is defined broadly to cover
any person
“(a) having a principal place of business, place of in-
corporation or its corporate headquarters in Burma
(Myanmar) or having any operations, leases, franchises,
majority-owned subsidiaries, distribution agreements,
or any other similar agreements in Burma (Myanmar),
or being the majority-owned subsidiary, licensee or fran-
chise of such a person;
“(b) providing financial services to the government of
Burma (Myanmar), including providing direct loans, un-
derwriting government securities, providing any con-
sulting advice or assistance, providing brokerage serv-
ices, acting as a trustee or escrow agent, or otherwise
acting as an agent pursuant to a contractual agreement;
“(c) promoting the importation or sale of gems, timber,
oil, gas or other related products, commerce in which
is largely controlled by the government of Burma
(Myanmar), from Burma (Myanmar);
“(d) providing any goods or services to the government
of Burma (Myanmar).” § 7:22G.
There are three exceptions to the ban: (1) if the procure-
ment is essential, and without the restricted bid, there would
be no bids or insufficient competition, § 7:22H(b); (2) if the

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368 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Opinion of the Court
procurement is of medical supplies, § 7:22I; and (3) if the pro-
curement efforts elicit no “comparable low bid or offer” by a
person not doing business with Burma, § 7:22H(d), meaning
an offer that is no more than 10 percent greater than the
restricted bid, § 7:22G. To enforce the ban, the Act requires
petitioner Secretary of Administration and Finance to main-
tain a “restricted purchase list” of all firms “doing business
with Burma,” 2 § 7:22J.
In September 1996, three months after the Massachusetts
law was enacted, Congress passed a statute imposing a set
of mandatory and conditional sanctions on Burma. See For-
eign Operations, Export Financing, and Related Programs
Appropriations Act, 1997, § 570, 110 Stat. 3009–166 to 3009–
167 (enacted by the Omnibus Consolidated Appropriations
Act, 1997, § 101(c), 110 Stat. 3009–121 to 3009–172). The fed-
eral Act has five basic parts, three substantive and two
procedural.
First, it imposes three sanctions directly on Burma. It
bans all aid to the Burmese Government except for humani-
tarian assistance, counternarcotics efforts, and promotion of
human rights and democracy. § 570(a)(1). The statute in-
structs United States representatives to international fi-
nancial institutions to vote against loans or other assistance
to or for Burma, § 570(a)(2), and it provides that no entry visa
shall be issued to any Burmese Government official unless
required by treaty or to staff the Burmese mission to the
United Nations, § 570(a)(3). These restrictions are to re-
main in effect “[u]ntil such time as the President determines
and certifies to Congress that Burma has made measurable
and substantial progress in improving human rights prac-
tices and implementing democratic government.” § 570(a).
2 According to the District Court, companies may challenge their inclu-
sion on the list by submitting an affidavit stating that they do no business
with Burma. National Foreign Trade Council v. Baker, 26 F. Supp. 2d
287, 289 (Mass. 1998). The Massachusetts Executive Office’s Operational
Services Division makes a final determination. Ibid.

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369 Cite as: 530 U. S. 363 (2000)
Opinion of the Court
Second, the federal Act authorizes the President to impose
further sanctions subject to certain conditions. He may pro-
hibit “United States persons” from “new investment” in
Burma, and shall do so if he determines and certifies to Con-
gress that the Burmese Government has physically harmed,
rearrested, or exiled Daw Aung San Suu Kyi (the opposition
leader selected to receive the Nobel Peace Prize), or has com-
mitted “large-scale repression of or violence against the
Democratic opposition.” § 570(b). “New investment” is de-
fined as entry into a contract that would favor the “economi-
cal development of resources located in Burma,” or would
provide ownership interests in or benefits from such develop-
ment, § 570(f)(2), but the term specifically excludes (and thus
excludes from any Presidential prohibition) “entry into, per-
formance of, or financing of a contract to sell or purchase
goods, services, or technology,” ibid.
Third, the statute directs the President to work to develop
“a comprehensive, multilateral strategy to bring democracy
to and improve human rights practices and the quality of
life in Burma.” § 570(c). He is instructed to cooperate with
members of the Association of Southeast Asian Nations
(ASEAN) and with other countries having major trade and
investment interests in Burma to devise such an approach,
and to pursue the additional objective of fostering dialogue
between the ruling State Law and Order Restoration Coun-
cil (SLORC) and democratic opposition groups. Ibid.
As for the procedural provisions of the federal statute, the
fourth section requires the President to report periodically
to certain congressional committee chairmen on the progress
toward democratization and better living conditions in
Burma as well as on the development of the required strat-
egy. § 570(d). And the fifth part of the federal Act author-
izes the President “to waive, temporarily or permanently,
any sanction [under the federal Act] . . . if he determines and
certifies to Congress that the application of such sanction

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370 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Opinion of the Court
would be contrary to the national security interests of the
United States.” § 570(e).
On May 20, 1997, the President issued the Burma Execu-
tive Order, Exec. Order No. 13047, 3 CFR 202 (1997 Comp.).
He certified for purposes of § 570(b) that the Government of
Burma had “committed large-scale repression of the demo-
cratic opposition in Burma” and found that the Burmese
Government’s actions and policies constituted “an unusual
and extraordinary threat to the national security and foreign
policy of the United States,” a threat characterized as a na-
tional emergency. The President then prohibited new in-
vestment in Burma “by United States persons,” Exec. Order
No. 13047, § 1, any approval or facilitation by a United States
person of such new investment by foreign persons, § 2(a), and
any transaction meant to evade or avoid the ban, § 2(b). The
order generally incorporated the exceptions and exemptions
addressed in the statute. §§ 3, 4. Finally, the President
delegated to the Secretary of State the tasks of working with
ASEAN and other countries to develop a strategy for democ-
racy, human rights, and the quality of life in Burma, and of
making the required congressional reports.3 § 5.
II
Respondent National Foreign Trade Council (Council) is
a nonprofit corporation representing companies engaged in
foreign commerce; 34 of its members were on the Massachu-
setts restricted purchase list in 1998. National Foreign
Trade Council v. Natsios, 181 F. 3d 38, 48 (CA1 1999).
Three withdrew from Burma after the passage of the state
Act, and one member had its bid for a procurement contract
increased by 10 percent under the provision of the state law
3 The President also delegated authority to implement the policy to the
Secretary of the Treasury, in consultation with the Secretary of State.
§ 6. On May 21, 1998, the Secretary of the Treasury issued federal regula-
tions implementing the President’s Executive Order. See 31 CFR pt. 537
(1999) (Burmese Sanctions Regulations).

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Opinion of the Court
allowing acceptance of a low bid from a listed bidder only if
the next-to-lowest bid is more than 10 percent higher. Ibid.
In April 1998, the Council filed suit in the United States
District Court for the District of Massachusetts, seeking de-
claratory and injunctive relief against the petitioner state
officials charged with administering and enforcing the state
Act (whom we will refer to simply as the State).4 The Coun-
cil argued that the state law unconstitutionally infringed on
the federal foreign affairs power, violated the Foreign Com-
merce Clause, and was preempted by the federal Act. After
detailed stipulations, briefing, and argument, the District
Court permanently enjoined enforcement of the state Act,
holding that it “unconstitutionally impinge[d] on the fed-
eral government’s exclusive authority to regulate foreign
affairs.” National Foreign Trade Council v. Baker, 26 F.
Supp. 2d 287, 291 (Mass. 1998).
The United States Court of Appeals for the First Circuit
affirmed on three independent grounds. 181 F. 3d, at 45.
It found the state Act unconstitutionally interfered with the
foreign affairs power of the National Government under
Zschernig v. Miller, 389 U. S. 429 (1968), see 181 F. 3d, at
52–55; violated the dormant Foreign Commerce Clause, U. S.
Const., Art. I, § 8, cl. 3, see 181 F. 3d, at 61–71; and was
preempted by the congressional Burma Act, see id., at 71–77.
The State’s petition for certiorari challenged the decision
on all three grounds and asserted interests said to be shared
by other state and local governments with similar measures.5
Though opposing certiorari, the Council acknowledged the
4 One of the state offices changed incumbents twice during litigation be-
fore reaching this Court, see National Foreign Trade Council v. Natsios,
181 F. 3d 38, 48, n. 4 (CA1 1999), and once more after we granted
certiorari.
5 “At least nineteen municipal governments have enacted analogous laws
restricting purchases from companies that do business in Burma.” Id., at
47; Pet. for Cert. 13 (citing N. Y. C. Admin. Code § 6–115 (1999); Los
Angeles Admin. Code, Art. 12, § 10.38 et seq. (1999); Philadelphia Code
§ 17–104(b) (1999); Vermont H. J. Res. 157 (1998); 1999 Vt. Laws No. 13).

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372 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Opinion of the Court
significance of the issues and the need to settle the constitu-
tionality of such laws and regulations. Brief in Opposition
18–19. We granted certiorari to resolve these important
questions, 528 U. S. 1018 (1999), and now affirm.
III
A fundamental principle of the Constitution is that Con-
gress has the power to preempt state law. Art. VI, cl. 2;
Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); Savage v. Jones,
225 U. S. 501, 533 (1912); California v. ARC America Corp.,
490 U. S. 93, 101 (1989). Even without an express provision
for preemption, we have found that state law must yield to
a congressional Act in at least two circumstances. When
Congress intends federal law to “occupy the field,” state law
in that area is preempted. Id., at 100; cf. United States v.
Locke, 529 U. S. 89, 115 (2000) (citing Charleston & Western
Carolina R. Co. v. Varnville Furniture Co., 237 U. S. 597,
604 (1915)). And even if Congress has not occupied the field,
state law is naturally preempted to the extent of any conflict
with a federal statute.6 Hines v. Davidowitz, 312 U. S. 52,
66–67 (1941); ARC America Corp., supra, at 100–101; Locke,
supra, at 109. We will find preemption where it is impossi-
ble for a private party to comply with both state and federal
law, see, e. g., Florida Lime & Avocado Growers, Inc. v.
6 We recognize, of course, that the categories of preemption are not “rig-
idly distinct.” English v. General Elec. Co., 496 U. S. 72, 79, n. 5 (1990).
Because a variety of state laws and regulations may conflict with a federal
statute, whether because a private party cannot comply with both sets of
provisions or because the objectives of the federal statute are frustrated,
“field pre-emption may be understood as a species of conflict pre-emption,”
id., at 79–80, n. 5; see also Gade v. National Solid Wastes Management
Assn., 505 U. S. 88, 104, n. 2 (1992) (quoting English, supra); 505 U. S., at
115–116 (Souter, J., dissenting) (noting similarity between “purpose-
conflict pre-emption” and preemption of a field, and citing L. Tribe, Ameri-
can Constitutional Law 486 (2d ed. 1988)); 1 L. Tribe, American Constitu-
tional Law 1177 (3d ed. 2000) (noting that “field” preemption may fall into
any of the categories of express, implied, or conflict preemption).

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Paul, 373 U. S. 132, 142–143 (1963), and where “under the
circumstances of [a] particular case, [the challenged state
law] stands as an obstacle to the accomplishment and ex-
ecution of the full purposes and objectives of Congress.”
Hines, supra, at 67. What is a sufficient obstacle is a matter
of judgment, to be informed by examining the federal statute
as a whole and identifying its purpose and intended effects:
“For when the question is whether a Federal act over-
rides a state law, the entire scheme of the statute must
of course be considered and that which needs must be
implied is of no less force than that which is expressed.
If the purpose of the act cannot otherwise be accom-
plished—if its operation within its chosen field else must
be frustrated and its provisions be refused their natural
effect—the state law must yield to the regulation of Con-
gress within the sphere of its delegated power.” Sav-
age, supra, at 533, quoted in Hines, supra, at 67, n. 20.
Applying this standard, we see the state Burma law as an
obstacle to the accomplishment of Congress’s full objectives
under the federal Act.7 We find that the state law under-
mines the intended purpose and “natural effect” of at least
three provisions of the federal Act, that is, its delegation of
effective discretion to the President to control economic
7 The State concedes, as it must, that in addressing the subject of the
federal Act, Congress has the power to preempt the state statute. See
Reply Brief for Petitioners 2; Tr. of Oral Arg. 5–6.
We add that we have already rejected the argument that a State’s “stat-
utory scheme . . . escapes pre-emption because it is an exercise of the
State’s spending power rather than its regulatory power.” Wisconsin
Dept. of Industry v. Gould Inc., 475 U. S. 282, 287 (1986). In Gould, we
found that a Wisconsin statute debarring repeat violators of the National
Labor Relations Act, 29 U. S. C. § 151 et seq., from contracting with the
State was preempted because the state statute’s additional enforcement
mechanism conflicted with the federal Act. 475 U. S., at 288–289. The
fact that the State “ha[d] chosen to use its spending power rather than its
police power” did not reduce the potential for conflict with the federal
statute. Ibid.

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374 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Opinion of the Court
sanctions against Burma, its limitation of sanctions solely to
United States persons and new investment, and its directive
to the President to proceed diplomatically in developing a
comprehensive, multilateral strategy toward Burma.8
A
First, Congress clearly intended the federal Act to provide
the President with flexible and effective authority over eco-
nomic sanctions against Burma. Although Congress imme-
diately put in place a set of initial sanctions (prohibiting
bilateral aid, § 570(a)(1), support for international financial
assistance, § 570(a)(2), and entry by Burmese officials into the
United States, § 570(a)(3)), it authorized the President to ter-
minate any and all of those measures upon determining and
certifying that there had been progress in human rights and
democracy in Burma. § 570(a). It invested the President
with the further power to ban new investment by United
States persons, dependent only on specific Presidential find-
ings of repression in Burma. § 570(b). And, most signifi-
cantly, Congress empowered the President “to waive, tem-
porarily or permanently, any sanction [under the federal
Act] . . . if he determines and certifies to Congress that the
application of such sanction would be contrary to the national
security interests of the United States.” § 570(e).
8 We leave for another day a consideration in this context of a presump-
tion against preemption. See United States v. Locke, 529 U. S. 89, 108
(2000). Assuming, arguendo, that some presumption against preemption
is appropriate, we conclude, based on our analysis below, that the state
Act presents a sufficient obstacle to the full accomplishment of Congress’s
objectives under the federal Act to find it preempted. See Hines v. Da-
vidowitz, 312 U. S. 52, 67 (1941).
Because our conclusion that the state Act conflicts with federal law is
sufficient to affirm the judgment below, we decline to speak to field pre-
emption as a separate issue, see n. 6, supra, or to pass on the First Cir-
cuit’s rulings addressing the foreign affairs power or the dormant Foreign
Commerce Clause. See Ashwander v. TVA, 297 U. S. 288, 346–347 (1936)
(concurring opinion).

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This express investiture of the President with statutory
authority to act for the United States in imposing sanctions
with respect to the Government of Burma, augmented by
the flexibility 9 to respond to change by suspending sanctions
in the interest of national security, recalls Justice Jackson’s
observation in Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 635 (1952): “When the President acts pursuant to
an express or implied authorization of Congress, his author-
ity is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate.” See also
id., at 635–636, n. 2 (noting that the President’s power in the
area of foreign relations is least restricted by Congress and
citing United States v. Curtiss-Wright Export Corp., 299
U. S. 304 (1936)). Within the sphere defined by Congress,
then, the statute has placed the President in a position with
as much discretion to exercise economic leverage against
Burma, with an eye toward national security, as our law will
9 Statements by the sponsors of the federal Act underscore the statute’s
clarity in providing the President with flexibility in implementing its
Burma sanctions policy. See 142 Cong. Rec. 19212 (1996) (statement of
principal sponsor Sen. Cohen) (emphasizing importance of providing “the
administration flexibility in reacting to changes, both positive and nega-
tive, with respect to the behavior of the [Burmese regime]); id., at 19213;
id., at 19221 (statement of cosponsor Sen. McCain) (describing the federal
Act as “giv[ing] the President, who, whether Democrat or Republican, is
charged with conducting our Nation’s foreign policy, some flexibility”); id.,
at 19220 (statement of cosponsor Sen. Feinstein) (“We need to be able to
have the flexibility to remove sanctions and provide support for Burma if
it reaches a transition stage that is moving toward the restoration of de-
mocracy, which all of us support”). These sponsors chose a pliant policy
with the explicit support of the Executive. See, e. g., id., at 19219 (letter
from Barbara Larkin, Assistant Secretary, Legislative Affairs, U. S. De-
partment of State to Sen. Cohen) (admitted by unanimous consent) (“We
believe the current and conditional sanctions which your language pro-
poses are consistent with Administration policy. As we have stated on
several occasions in the past, we need to maintain our flexibility to respond
to events in Burma and to consult with Congress on appropriate responses
to ongoing and future development there”).

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admit. And it is just this plenitude of Executive authority
that we think controls the issue of preemption here. The
President has been given this authority not merely to make
a political statement but to achieve a political result, and the
fullness of his authority shows the importance in the con-
gressional mind of reaching that result. It is simply implau-
sible that Congress would have gone to such lengths to em-
power the President if it had been willing to compromise his
effectiveness by deference to every provision of state statute
or local ordinance that might, if enforced, blunt the conse-
quences of discretionary Presidential action.10
And that is just what the Massachusetts Burma law would
do in imposing a different, state system of economic pressure
against the Burmese political regime. As will be seen, the
state statute penalizes some private action that the federal
Act (as administered by the President) may allow, and pulls
levers of influence that the federal Act does not reach. But
the point here is that the state sanctions are immediate,11
see 1996 Mass. Acts 239, ch. 130, § 3 (restricting all contracts
after law’s effective date); Mass. Gen. Laws § 7:22K (1997)
10 The State makes arguments that could be read to suggest that Con-
gress’s objective of Presidential flexibility was limited to discretion solely
over the sanctions in the federal Act, and that Congress implicitly left
control over state sanctions to the State. Brief for Petitioners 19–24.
We reject this cramped view of Congress’s intent as against the weight of
the evidence. Congress made no explicit statement of such limited objec-
tives. More importantly, the federal Act itself strongly indicates the op-
posite. For example, under the federal Act, Congress explicitly identified
protecting “national security interests” as a ground on which the Presi-
dent could suspend federal sanctions. § 570(e), 110 Stat. 3009–167. We
find it unlikely that Congress intended both to enable the President to
protect national security by giving him the flexibility to suspend or termi-
nate federal sanctions and simultaneously to allow Massachusetts to act
at odds with the President’s judgment of what national security requires.
11 These provisions strongly resemble the immediate sanctions on invest-
ment that appeared in the proposed section of H. R. 3540 that Congress
rejected in favor of the federal Act. See H. R. 3540, 104th Cong., 2d Sess.,
§ 569(1) (1996).

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(authorizing regulations for timely and effective implementa-
tion), and perpetual, there being no termination provision,
see, e. g., § 7:22J (restricted companies list to be updated at
least every three months). This unyielding application un-
dermines the President’s intended statutory authority by
making it impossible for him to restrain fully the coercive
power of the national economy when he may choose to take
the discretionary action open to him, whether he believes
that the national interest requires sanctions to be lifted, or
believes that the promise of lifting sanctions would move the
Burmese regime in the democratic direction. Quite simply,
if the Massachusetts law is enforceable the President has less
to offer and less economic and diplomatic leverage as a conse-
quence. In Dames & Moore v. Regan, 453 U. S. 654 (1981),
we used the metaphor of the bargaining chip to describe the
President’s control of funds valuable to a hostile country, id.,
at 673; here, the state Act reduces the value of the chips
created by the federal statute.12 It thus “stands as an obsta-
cle to the accomplishment and execution of the full purposes
and objectives of Congress.” Hines, 312 U. S., at 67.
B
Congress manifestly intended to limit economic pressure
against the Burmese Government to a specific range. The
federal Act confines its reach to United States persons,
§ 570(b), imposes limited immediate sanctions, § 570(a), places
only a conditional ban on a carefully defined area of “new
investment,” § 570(f)(2), and pointedly exempts contracts to
sell or purchase goods, services, or technology, § 570(f)(2).
These detailed provisions show that Congress’s calibrated
12 The sponsors of the federal Act obviously anticipated this analysis.
See, e. g., 142 Cong. Rec., at 19220 (statement of Sen. Feinstein) (“We may
be able to have the effect of nudging the SLORC toward an increased
dialog with the democratic opposition. That is why we also allow the
President to lift sanctions”).

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Burma policy is a deliberate effort “to steer a middle path,”
id., at 73.13
The State has set a different course, and its statute con-
flicts with federal law at a number of points by penalizing
individuals and conduct that Congress has explicitly ex-
empted or excluded from sanctions. While the state Act dif-
fers from the federal in relying entirely on indirect economic
leverage through third parties with Burmese connections,
it otherwise stands in clear contrast to the congressional
scheme in the scope of subject matter addressed. It re-
stricts all contracts between the State and companies doing
business in Burma, § 7:22H(a), except when purchasing medi-
cal supplies and other essentials (or when short of compara-
ble bids), § 7:22I. It is specific in targeting contracts to pro-
13 The fact that Congress repeatedly considered and rejected targeting
a broader range of conduct lends additional support to our view. Most
importantly, the federal Act, as passed, replaced the original proposed
section of H. R. 3540, which barred “any investment in Burma” by a
United States national without exception or limitation. See H. R. 3540,
supra, § 569(1). Congress also rejected a competing amendment, S. 1511,
104th Cong., 1st Sess. (Dec. 29, 1995), which similarly provided that
“United States nationals shall not make any investment in Burma,”
§ 4(b)(1), and would have permitted the President to impose conditional
sanctions on the importation of “articles which are produced, manufac-
tured, grown, or extracted in Burma,” § 4(c)(1), and would have barred all
travel by United States nationals to Burma, § 4(c)(2). Congress had re-
jected an earlier amendment that would have prohibited all United States
investment in Burma, subject to the President’s power to lift sanctions.
S. 1092, 104th Cong., 1st Sess. (July 28, 1995).
Statements of the sponsors of the federal Act also lend weight to the
conclusions that the limits were deliberate. See, e. g., 142 Cong. Rec., at
19279 (statement of Sen. Breaux) (characterizing the federal Act as “strik-
[ing] a balance between unilateral sanctions against Burma and unfettered
United States investment in that country”). The scope of the exemptions
was discussed, see ibid. (statements of Sens. Nickles and Cohen), and
broader sanctions were rejected, see id., at 19212 (statement of Sen.
Cohen); id., at 19280 (statement of Sen. Murkowski) (“Instead of the cur-
rent draconian sanctions proposed in the legislation before us, we should
adopt an approach that effectively secures our national interests”).

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vide financial services, § 7:22G(b), and general goods and
services, § 7:22G(d), to the Government of Burma, and thus
prohibits contracts between the State and United States per-
sons for goods, services, or technology, even though those
transactions are explicitly exempted from the ambit of new
investment prohibition when the President exercises his dis-
cretionary authority to impose sanctions under the federal
Act. § 570(f)(2).
As with the subject of business meant to be affected, so
with the class of companies doing it: the state Act’s general-
ity stands at odds with the federal discreteness. The Mas-
sachusetts law directly and indirectly imposes costs on all
companies that do any business in Burma, § 7:22G, save for
those reporting news or providing international telecommu-
nications goods or services, or medical supplies, §§ 7:22H(e),
7:22I. It sanctions companies promoting the importation of
natural resources controlled by the Government of Burma,
or having any operations or affiliates in Burma. § 7:22G.
The state Act thus penalizes companies with pre-existing
affiliates or investments, all of which lie beyond the reach
of the federal Act’s restrictions on “new investment” in
Burmese economic development. §§ 570(b), 570(f)(2). The
state Act, moreover, imposes restrictions on foreign compa-
nies as well as domestic, whereas the federal Act limits its
reach to United States persons.
The conflicts are not rendered irrelevant by the State’s
argument that there is no real conflict between the statutes
because they share the same goals and because some compa-
nies may comply with both sets of restrictions. See Brief
for Petitioners 21–22. The fact of a common end hardly
neutralizes conflicting means,14 see Gade v. National Solid
14 The State’s reliance on CTS Corp. v. Dynamics Corp. of America, 481
U. S. 69, 82–83 (1987), for the proposition that “[w]here the state law fur-
thers the purpose of the federal law, the Court should not find conflict” is
misplaced. See Brief for Petitioners 21–22. In CTS Corp., we found that
an Indiana state securities law “further[ed] the federal policy of investor

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Wastes Management Assn., 505 U. S. 88, 103 (1992), and the
fact that some companies may be able to comply with both
sets of sanctions does not mean that the state Act is not at
odds with achievement of the federal decision about the right
degree of pressure to employ. See Hines, 312 U. S., at 61
(“The basic subject of the state and federal laws is identi-
cal”); id., at 67 (finding conflict preemption). “ ‘[C]onflict is
imminent’ ” when “ ‘two separate remedies are brought to
bear on the same activity,’ ” Wisconsin Dept. of Industry
v. Gould Inc., 475 U. S. 282, 286 (1986) (quoting Garner v.
Teamsters, 346 U. S. 485, 498–499 (1953)). Sanctions are
drawn not only to bar what they prohibit but to allow what
they permit, and the inconsistency of sanctions here under-
mines the congressional calibration of force.
C
Finally, the state Act is at odds with the President’s in-
tended authority to speak for the United States among the
world’s nations in developing a “comprehensive, multilateral
strategy to bring democracy to and improve human rights
practices and the quality of life in Burma.” § 570(c). Con-
gress called for Presidential cooperation with members of
ASEAN and other countries in developing such a strategy,
ibid., directed the President to encourage a dialogue be-
tween the Government of Burma and the democratic opposi-
tion, ibid.,15 and required him to report to the Congress on
the progress of his diplomatic efforts, § 570(d). As with Con-
protection,” 481 U. S., at 83, but we also examined whether the state law
conflicted with federal law “[i]n implementing its goal,” ibid. Identity
of ends does not end our analysis of preemption. See Gould, 475 U. S.,
at 286.
15 The record supports the conclusion that Congress considered the de-
velopment of a multilateral sanctions strategy to be a central objective of
the federal Act. See, e. g., 142 Cong. Rec., at 19212 (remarks of Sen.
Cohen) (“[T]o be effective, American policy in Burma has to be coordi-
nated with our Asian friends and allies”); id., at 19219 (remarks of Sen.
Feinstein) (“Only a multilateral approach is likely to be successful”).

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gress’s explicit delegation to the President of power over
economic sanctions, Congress’s express command to the
President to take the initiative for the United States among
the international community invested him with the maxi-
mum authority of the National Government, cf. Youngstown
Sheet & Tube Co., 343 U. S., at 635, in harmony with the
President’s own constitutional powers, U. S. Const., Art. II,
§ 2, cl. 2 (“[The President] shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties” and
“shall appoint Ambassadors, other public Ministers and Con-
suls”); § 3 (“[The President] shall receive Ambassadors and
other public Ministers”). This clear mandate and invocation
of exclusively national power belies any suggestion that Con-
gress intended the President’s effective voice to be obscured
by state or local action.
Again, the state Act undermines the President’s capacity,
in this instance for effective diplomacy. It is not merely that
the differences between the state and federal Acts in scope
and type of sanctions threaten to complicate discussions;
they compromise the very capacity of the President to speak
for the Nation with one voice in dealing with other govern-
ments. We need not get into any general consideration of
limits of state action affecting foreign affairs to realize that
the President’s maximum power to persuade rests on his
capacity to bargain for the benefits of access to the entire
national economy without exception for enclaves fenced
off willy-nilly by inconsistent political tactics.16 When such
16 Such concerns have been raised by the President’s representatives in
the Executive Branch. See Testimony of Under Secretary of State Eizen-
stat before the Trade Subcommittee of the House Ways and Means Com-
mittee (Oct. 23, 1997) (hereinafter Eizenstat testimony), App. 116 (“[U]n-
less sanctions measures are well conceived and coordinated, so that the
United States is speaking with one voice and consistent with our interna-
tional obligations, such uncoordinated responses can put the US on the
political defensive and shift attention away from the problem to the issue
of sanctions themselves”). We have expressed similar concerns in our
cases on foreign commerce and foreign relations. See, e. g., Japan Line,

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exceptions do qualify his capacity to present a coherent
position on behalf of the national economy, he is weakened,
of course, not only in dealing with the Burmese regime,
but in working together with other nations in hopes of
reaching common policy and “comprehensive” strategy.17
Cf. Dames & Moore, 453 U. S., at 673–674.
While the threat to the President’s power to speak and
bargain effectively with other nations seems clear enough,
the record is replete with evidence to answer any skeptics.
First, in response to the passage of the state Act, a number
of this country’s allies and trading partners filed formal pro-
tests with the National Government, see 181 F. 3d, at 47
(noting protests from Japan, the European Union (EU), and
ASEAN), including an official Note Verbale from the EU to
the Department of State protesting the state Act.18 EU of-
ficials have warned that the state Act “could have a damag-
ing effect on bilateral EU–US relations.” Letter of Hugo
Ltd. v. County of Los Angeles, 441 U. S. 434, 449 (1979); Chy Lung v.
Freeman, 92 U. S. 275, 279 (1876); cf. The Federalist No. 80, pp. 535–536
(J. Cooke ed. 1961) (A. Hamilton) (“[T]he peace of the whole ought not to
be left at the disposal of a part. The union will undoubtedly be answer-
able to foreign powers for the conduct of its members”).
17 The record reflects that sponsors of the federal Act were well aware
of this concern and provided flexibility to the President over sanctions for
that very reason. See, e. g., 142 Cong. Rec., at 19214 (statement of Sen.
Thomas) (“Although I will readily admit that our present relationship with
Burma is not especially deep, the imposition of mandatory economic sanc-
tions would certainly downgrade what little relationship we have. More-
over, it would affect our relations with many of our allies in Asia as we
try to corral them into following our lead”); id., at 19219 (statement of
Sen. Feinstein) (“It is absolutely essential that any pressure we seek to
put on the Government of Burma be coordinated with the nations of
ASEAN and our European and Asian allies. If we act unilaterally, we
are more likely to have the opposite effect—alienating many of these
allies, while having no real impact on the ground”).
18 In amicus briefs here and in the courts below, the EU has consistently
taken the position that the state Act has created “an issue of serious con-
cern in EU–U. S. relations.” Brief for European Communities et al. as
Amici Curiae 6.

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Paemen, Ambassador, European Union, Delegation of the
European Commission, to William F. Weld, Governor, State
of Massachusetts, Jan. 23, 1997, App. 75.
Second, the EU and Japan have gone a step further in
lodging formal complaints against the United States in the
World Trade Organization (WTO), claiming that the state
Act violates certain provisions of the Agreement on Govern-
ment Procurement,19 H. R. Doc. No. 103–316, p. 1719 (1994),
and the consequence has been to embroil the National Gov-
ernment for some time now in international dispute proceed-
ings under the auspices of the WTO. In their brief before
this Court, EU officials point to the WTO dispute as threat-
ening relations with the United States, Brief for European
Communities et al. as Amici Curiae 7, and n. 7, and note
that the state Act has become the topic of “intensive discus-
sions” with officials of the United States at the highest levels,
those discussions including exchanges at the twice yearly
EU–U. S. Summit.20
Third, the Executive has consistently represented that the
state Act has complicated its dealings with foreign sover-
eigns and proven an impediment to accomplishing objectives
assigned it by Congress. Assistant Secretary of State Lar-
son, for example, has directly addressed the mandate of the
19 Although the WTO dispute proceedings were suspended at the re-
quest of Japan and the EU in light of the District Court’s ruling below,
Letter of Ole Lundby, Chairman of the Panel, to Ambassadors from the
European Union, Japan, and the United States (Feb. 10, 1999), and have
since automatically lapsed, Understanding on Rules and Procedures Gov-
erning the Settlement of Disputes, 33 International Legal Materials 1125,
1234 (1994), neither of those parties is barred from reinstating WTO proce-
dures to challenge the state Act in the future. In fact, the EU, as amicus
before us, specifically represents that it intends to begin new WTO pro-
ceedings should the current injunction on the law be lifted. Brief for
European Communities et al. as Amici Curiae 7. We express no opinion
on the merits of these proceedings.
20 Senior Level Group Report to the U. S.–EU Summit in Washington
3 (Dec. 17, 1999), http://www.eurunion.org/partner/summit/Summit9912/
SLGRept.html.

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federal Burma law in saying that the imposition of unilateral
state sanctions under the state Act “complicate[s] efforts to
build coalitions with our allies” to promote democracy and
human rights in Burma. A. Larson, State and Local Sanc-
tions: Remarks to the Council of State Governments 2 (Dec.
8, 1998). “[T]he EU’s opposition to the Massachusetts law
has meant that US government high level discussions with
EU officials often have focused not on what to do about
Burma, but on what to do about the Massachusetts Burma
law.” Id., at 3.21 This point has been consistently echoed
in the State Department:
“While the [Massachusetts sanctions on Burma] were
adopted in pursuit of a noble goal, the restoration of de-
mocracy in Burma, these measures also risk shifting the
focus of the debate with our European Allies away from
the best way to bring pressure against the State Law
and Order Restoration Council (SLORC) to a potential
WTO dispute over its consistency with our international
obligations. Let me be clear. We are working with
Massachusetts in the WTO dispute settlement process.
But we must be honest in saying that the threatened
WTO case risks diverting United States’ and Europe’s
attention from focusing where it should be—on Burma.”
Eizenstat testimony, App. 115.22
21 Assistant Secretary Larson also declared that the state law “has hin-
dered our ability to speak with one voice on the grave human rights situa-
tion in Burma, become a significant irritant in our relations with the EU
and impeded our efforts to build a strong multilateral coalition on Burma
where we, Massachusetts and the EU share a common goal.” Assistant
Secretary of State Alan P. Larson, State and Local Sanctions: Remarks to
the Council of State Governments 3 (Dec. 8, 1998).
22 The United States, in its brief as amicus curiae, continues to advance
this position before us. See Brief for United States as Amicus Curiae
8–9, and n. 7, 34–35. This conclusion has been consistently presented by
senior United States officials. See also Testimony of Deputy Assistant
Secretary of State David Marchick before the California State Assembly,
Oct. 28, 1997, App. 137; Testimony of Deputy Assistant Secretary of State

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This evidence in combination is more than sufficient to show
that the state Act stands as an obstacle in addressing the
congressional obligation to devise a comprehensive, multilat-
eral strategy.
Our discussion in Barclays Bank PLC v. Franchise Tax
Bd. of Cal., 512 U. S. 298, 327–329 (1994), of the limited
weight of evidence of formal diplomatic protests, risk of for-
eign retaliation, and statements by the Executive does not
undercut the point. In Barclays, we had the question of the
preemptive effect of federal tax law on state tax law with
discriminatory extraterritorial effects. We found the reac-
tions of foreign powers and the opinions of the Executive
irrelevant in fathoming congressional intent because Con-
gress had taken specific actions rejecting the positions both
of foreign governments, id., at 324–328, and the Executive,
id., at 328–329. Here, however, Congress has done nothing
to render such evidence beside the point. In consequence,
statements of foreign powers necessarily involved in the
President’s efforts to comply with the federal Act, indications
of concrete disputes with those powers, and opinions of se-
nior National Government officials are competent and direct
evidence of the frustration of congressional objectives by the
state Act.23 Although we do not unquestioningly defer to
the legal judgments expressed in Executive Branch state-
ments when determining a federal Act’s preemptive charac-
David Marchick before the Maryland House of Delegates Committee on
Commerce and Government Matters, Mar. 25, 1998, id., at 166 (same).
23 We find support for this conclusion in the statements of the congres-
sional sponsors of the federal Act, who indicated their opinion that inflex-
ible unilateral action would be likely to cause difficulties in our relations
with our allies and in crafting an effective policy toward Burma. See
n. 17, supra. Moreover, the facts that the Executive specifically called
for flexibility prior to the passage of the federal Act, and that the Congress
rejected less flexible alternatives and adopted the current law in response
to the Executive’s communications, bolster the relevance of the Execu-
tive’s opinion with regard to its ability to accomplish Congress’s goals.
See n. 9, supra.

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ter, ibid., we have never questioned their competence to
show the practical difficulty of pursuing a congressional goal
requiring multinational agreement. We have, after all, not
only recognized the limits of our own capacity to “deter-
min[e] precisely when foreign nations will be offended by
particular acts,” Container Corp. of America v. Franchise
Tax Bd., 463 U. S. 159, 194 (1983), but consistently acknowl-
edged that the “nuances” of “the foreign policy of the United
States . . . are much more the province of the Executive
Branch and Congress than of this Court,” id., at 196; Bar-
clays, supra, at 327. In this case, repeated representations
by the Executive Branch supported by formal diplomatic
protests and concrete disputes are more than sufficient to
demonstrate that the state Act stands in the way of Con-
gress’s diplomatic objectives.24
IV
The State’s remaining argument is unavailing. It con-
tends that the failure of Congress to preempt the state Act
24 The State appears to argue that we should ignore the evidence of the
WTO dispute because under the federal law implementing the General
Agreement on Tariffs and Trade (GATT), Congress foreclosed suits by
private persons and foreign governments challenging a state law on the
basis of GATT in federal or state courts, allowing only the National Gov-
ernment to raise such a challenge. See Uruguay Round Agreements Act
(URAA), § 102(c)(1), 108 Stat. 4818, 19 U. S. C. §§ 3512(b)(2)(A), 3512(c)(1);
see also “Statement of Administrative Action” (SAA), reprinted in H. R.
Doc. No. 103–216, pp. 656, 675–677 (1994). To consider such evidence, in
its view, would effectively violate the ban by allowing private parties and
foreign nations to challenge state procurement laws in domestic courts.
But the terms of § 102 of the URAA and of the SAA simply do not support
this argument. They refer to challenges to state law based on inconsist-
ency with any of the “Uruguay Round Agreements.” The challenge here
is based on the federal Burma law. We reject the State’s argument that
the National Government’s decisions to bar such WTO suits and to decline
to bring its own suit against the Massachusetts Burma law evince its ap-
proval. These actions simply do not speak to the preemptive effect of the
federal sanctions against Burma.

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demonstrates implicit permission. The State points out that
Congress has repeatedly declined to enact express preemp-
tion provisions aimed at state and local sanctions, and it calls
our attention to the large number of such measures passed
against South Africa in the 1980’s, which various authori-
ties cited have thought were not preempted.25 The State
stresses that Congress was aware of the state Act in 1996,
but did not preempt it explicitly when it adopted its own
Burma statute.26 The State would have us conclude that
Congress’s continuing failure to enact express preemption
implies approval, particularly in light of occasional instances
of express preemption of state sanctions in the past.27
The argument is unconvincing on more than one level. A
failure to provide for preemption expressly may reflect noth-
25 See, e. g., Board of Trustees v. Mayor and City Council of Baltimore,
317 Md. 72, 79–98, 562 A. 2d 720, 744–749 (1989) (holding local divestment
ordinance not preempted by Comprehensive Anti-Apartheid Act of 1986
(CAAA)), cert. denied sub nom. Lubman v. Mayor and City Council of
Baltimore, 493 U. S 1093 (1990); Constitutionality of South African Divest-
ment Statutes Enacted by State and Local Goverments, 10 Op. Off. Legal
Counsel 49, 64–66, 1986 WL 213238 (state and local divestment and selec-
tive purchasing laws not preempted by pre-CAAA federal law); H. R. Res.
Nos. 99–548, 99–549 (1986) (denying preemptive intent of CAAA); 132
Cong. Rec. 23119–23129 (1986) (House debate on resolutions); id., at 23292
(Sen. Kennedy, quoting testimony of Laurence H. Tribe). Amicus Mem-
bers of Congress in support of the State also note that when Congress
revoked its federal sanctions in response to the democratic transition in
that country, it refused to preempt the state and local measures, merely
“urg[ing]” both state and local governments and private boycott partici-
pants to rescind their sanctions. Brief for Senator Boxer et al. as Amici
Curiae 9, citing South African Democratic Transition Support Act of 1993,
§ 4(c)(1), 107 Stat. 1503.
26 The State also finds significant the fact that Congress did not preempt
state and local sanctions in a recent sanctions reform bill, even though
its sponsor seemed to be aware of such measures. See H. R. Rep.
No. 105–2708 (1997); 143 Cong. Rec. E2080 (Oct. 23, 1997) (Rep. Hamilton).
27 See Export Administration Act of 1979, 50 U. S. C. App. § 2407(c) (1988
ed.) (Anti-Arab boycott of Israel provisions expressly “preempt any law,
rule, or regulation”).

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388 CROSBY v. NATIONAL FOREIGN TRADE COUNCIL
Scalia, J., concurring in judgment
ing more than the settled character of implied preemption
doctrine that courts will dependably apply, and in any event,
the existence of conflict cognizable under the Supremacy
Clause does not depend on express congressional recognition
that federal and state law may conflict, Hines, 312 U. S., at
67. The State’s inference of congressional intent is unwar-
ranted here, therefore, simply because the silence of Con-
gress is ambiguous. Since we never ruled on whether state
and local sanctions against South Africa in the 1980’s were
preempted or otherwise invalid, arguable parallels between
the two sets of federal and state Acts do not tell us much
about the validity of the latter.
V
Because the state Act’s provisions conflict with Congress’s
specific delegation to the President of flexible discretion,
with limitation of sanctions to a limited scope of actions and
actors, and with direction to develop a comprehensive, multi-
lateral strategy under the federal Act, it is preempted, and
its application is unconstitutional, under the Supremacy
Clause.
The judgment of the Court of Appeals for the First Circuit
is affirmed.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment.
It is perfectly obvious on the face of this statute that Con-
gress, with the concurrence of the President, intended to
“provid[e] the President with flexibility in implementing its
Burma sanctions policy.” Ante, at 375, n. 9. I therefore
see no point in devoting a footnote to the interesting (albeit
unsurprising) proposition that “[s]tatements by the sponsors
of the federal Act” show that they shared this intent, ibid.,
and that a statement in a letter from a State Department
officer shows that flexibility had “the explicit support of the

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389 Cite as: 530 U. S. 363 (2000)
Scalia, J., concurring in judgment
Executive,” ante, at 375, n. 9. This excursus is especially
pointless since the immediately succeeding footnote must
rely upon the statute itself (devoid of any support in state-
ments by “sponsors” or the “Executive”) to refute the quite
telling argument that the statements were addressed only to
flexibility in administering the sanctions of the federal Act,
and said nothing at all about state sanctions. See ante, at
376, n. 10.
It is perfectly obvious on the face of the statute that Con-
gress expected the President to use his discretionary author-
ity over sanctions to “move the Burmese regime in the dem-
ocratic direction,” ante, at 377. I therefore see no point in
devoting a footnote to the interesting (albeit unsurprising)
proposition that “[t]he sponsors of the federal Act” shared
this expectation, ante, at 377, n. 12.
It is perfectly obvious on the face of the statute that Con-
gress’s Burma policy was a “calibrated” one, which “limit[ed]
economic pressure against the Burmese Government to a
specific range,” ante, at 377. I therefore see no point in
devoting a footnote to the interesting (albeit unsurprising)
proposition that bills imposing greater sanctions were intro-
duced but not adopted, ante, at 378, n. 13, and to the (even
less surprising) proposition that the sponsors of the legisla-
tion made clear that its “limits were deliberate,” ibid. And
I would feel this way even if I shared the Court’s nai¨ve as-
sumption that the failure of a bill to make it out of committee,
or to be adopted when reported to the floor, is the same as
a congressional “reject[ion]” of what the bill contained, ibid.
Curiously, the Court later recognizes, in rejecting the argu-
ment that Congress’s failure to enact express pre-emption
implies approval of the state Act, that “the silence of Con-
gress [may be] ambiguous.” Ante, at 388. Would that the
Court had come to this conclusion before it relied (several
times) upon the implications of Congress’s failure to enact
legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23.

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It is perfectly obvious on the face of the statute that
Congress intended the President to develop a “multilateral
strategy” in cooperation with other countries. In fact, the
statute says that in so many words, see § 570(c), 110 Stat.
3009–166. I therefore see no point in devoting two footnotes
to the interesting (albeit unsurprising) proposition that three
Senators also favored a multilateral approach, ante, at 380,
n. 15, 382, n. 17.
It is perfectly obvious from the record, as the Court dis-
cusses, ante, at 382–385, that the inflexibility produced by
the Massachusetts statute has in fact caused difficulties with
our allies and has in fact impeded a “multilateral strategy.”
And as the Court later says in another context, “the exist-
ence of conflict cognizable under the Supremacy Clause does
not depend on express congressional recognition that federal
and state law may conflict,” ante, at 388. I therefore see no
point in devoting a footnote to the interesting (albeit unsur-
prising) fact that the “congressional sponsors” of the Act and
“the Executive” actually predicted that inflexibility would
have the effect of causing difficulties with our allies and im-
peding a “multilateral strategy,” ante, at 385, n. 23.
Of course even if all of the Court’s invocations of legisla-
tive history were not utterly irrelevant, I would still object
to them, since neither the statements of individual Members
of Congress (ordinarily addressed to a virtually empty
floor),* nor Executive statements and letters addressed to
congressional committees, nor the nonenactment of other
proposed legislation, is a reliable indication of what a major-
ity of both Houses of Congress intended when they voted for
the statute before us. The only reliable indication of that
intent—the only thing we know for sure can be attributed
*Debate on the bill that became the present Act seems, in this respect,
not to have departed from the ordinary. Cf. 142 Cong. Rec. 19263 (1996)
(statement of Sen. McConnell) (noting, in debate regarding which amend-
ment to take up next: “I do not see anyone on the Democratic side in
the Chamber”).

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Scalia, J., concurring in judgment
to all of them—is the words of the bill that they voted to
make law. In a way, using unreliable legislative history to
confirm what the statute plainly says anyway (or what the
record plainly shows) is less objectionable since, after all, it
has absolutely no effect upon the outcome. But in a way,
this utter lack of necessity makes it even worse—calling to
mind St. Augustine’s enormous remorse at stealing pears
when he was not even hungry, and just for the devil of it
(“not seeking aught through the shame, but the shame it-
self!”). The Confessions, Book 2, ¶ 9, in 18 Great Books of
the Western World 10–11 (1952) (E. Pusey transl. 1952).
In any case, the portion of the Court’s opinion that I con-
sider irrelevant is quite extensive, comprising, in total, about
one-tenth of the opinion’s size and (since it is in footnote
type) even more of the opinion’s content. I consider that to
be not just wasteful (it was not preordained, after all, that
this was to be a 25-page essay) but harmful, since it tells
future litigants that, even when a statute is clear on its face,
and its effects clear upon the record, statements from the
legislative history may help (and presumably harm) the case.
If so, they must be researched and discussed by counsel—
which makes appellate litigation considerably more time con-
suming, and hence considerably more expensive, than it need
be. This to my mind outweighs the arguable good that may
come of such persistent irrelevancy, at least when it is in-
dulged in the margins: that it may encourage readers to
ignore our footnotes.
For this reason, I join only the judgment of the Court.