Supreme Court Opinions

Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist

INS v. Lopez-Mendoza

Criminal Procedure, Harry Blackmun, Lewis Powell, Majority, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and IV, and an opinion with respect to Part V, in which JUSTICE BLACKMUN, JUSTICE POWELL, and JUSTICE REHNQUIST joined.*

This litigation requires us to decide whether an admission of unlawful presence in this country made subsequently to an allegedly unlawful arrest must be excluded as evidence in a civil deportation hearing. We hold that the exclusionary rule need not be applied in such a proceeding.

I

Respondents Adan Lopez-Mendoza and Elias Sandoval-Sanchez, both citizens of Mexico, were summoned to separate deportation proceedings in California and Washington, and both were ordered deported. They challenged the regularity of those proceedings on grounds related to the lawfulness of their respective arrests by officials of the Immigration and Naturalization Service (INS). On administrative appeal, the Board of Immigration Appeals (BIA), an agency of the Department of Justice, affirmed the deportation orders.

The Court of Appeals for the Ninth Circuit, sitting en banc, reversed Sandoval-Sanchez’ deportation order and vacated and remanded Lopez-Mendoza’s deportation order. 705 F.2d 1059 (1983). It ruled that Sandoval-Sanchez’ admission of his illegal presence in this country was the fruit of an unlawful arrest, and that the exclusionary rule applied in a deportation proceeding. Lopez-Mendoza’s deportation order was vacated and his case remanded to

Criminal Procedure, Dissent, Warren Burger, William Rehnquist

Tennessee v. Garner

Criminal Procedure, Dissent, Warren Burger, William Rehnquist / By

JUSTICE O’CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.

The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to

[23]

apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority’s balancing of the interests of the suspect and the public interest in effective law enforcement. Ante at 8. Notwithstanding the venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante at 14, 16-17, the majority concludes that Tennessee’s statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, John Paul Stevens, John Roberts, Majority, Privacy, Ruth Bader Ginsburg, Stephen Breyer

Ayotte v. Planned Parenthood of Northern New Eng

Anthony Kennedy, Antonin Scalia, Clarence Thomas, David Souter, John Paul Stevens, John Roberts, Majority, Privacy, Ruth Bader Ginsburg, Stephen Breyer / By

We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.

Clarence Thomas, Dissent, Federalism, William Rehnquist

Gonzales v. Raich

Clarence Thomas, Dissent, Federalism, William Rehnquist / By

Justice O’Connor, with whom The Chief Justice and Justice Thomas join as to all but Part III, dissenting.

We enforce the “outer limits” of Congress’ Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U. S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). One of federalism’s chief virtues, of course, is that it promotes innovation by allowing for the possibility that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).

This case exemplifies the role of States as laboratories. The States’ core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U. S. 619, 635 (1993); Whalen v. Roe, 429 U. S. 589, 603, n. 30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause—nestling questionable assertions of its authority into comprehensive regulatory schemes—rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U. S. 598 (2000). Accordingly I dissent.

I
In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense “for any individual knowingly to possess a firearm … at a place the individual knows, or has reasonable cause to believe, is a school zone,” 18 U. S. C. §922(q)(2)(A). We explained that “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce …, i.e., those activities that substantially affect interstate commerce.” 514 U. S., at 558–559 (citation omitted). This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 585–586 (1985) (O’Connor, J., dissenting) (explaining that United States v. Darby, 312 U. S. 100 (1941), United States v. Wrightwood Dairy Co., 315 U. S. 110 (1942), and Wickard v. Filburn, 317 U. S. 111 (1942), based their expansion of the commerce power on the Necessary and Proper Clause, and that “the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce”); ante, at 2 (Scalia, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power.

Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. Lopez, supra, at 559–567; see also Morrison, supra, at 609–613. First, we observed that our “substantial effects” cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that §922(q) was a criminal statute having “nothing to do with ‘commerce’ or any sort of economic enterprise.” Lopez, 514 U. S., at 561. In this regard, we also noted that “[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Ibid.

Third, we found telling the absence of legislative findings about the regulated conduct’s impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings “enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye.” Id., at 563. Finally, we rejected as too attenuated the Government’s argument that firearm possession in school zones could result in violent crime which in turn could adversely affect the national economy. Id., at 563–567. The Constitution, we said, does not tolerate reasoning that would “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.” Id., at 567. Later in Morrison, supra, we relied on the same four considerations to hold that §40302 of the Violence Against Women Act of 1994, 42 U. S. C. §13981, exceeded Congress’ authority under the Commerce Clause.

In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account.

II
A
What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court’s decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of marijuana. See 21 U. S. C. §§841(a)(1), 844(a). Today’s decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i.e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause.

The Court’s principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a “brief, single-subject statute,” ante, at 20, see also ante, at 19, whereas the CSA is “a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of ‘controlled substances,’ ” ibid. Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part.

Today’s decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate “essential” with “necessary”) to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was “not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated,” 514 U. S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 21–22. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as “transfer or possession of a firearm anywhere in the nation”—thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today’s decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate scheme exclusively for the sake of reaching intrastate activity, see ante, at 22, n. 33; ante, at 6 (Scalia, J., concurring in judgment).

I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U. S., at 657 (Breyer, J., dissenting) (given that Congress can regulate “ ‘an essential part of a larger regulation of economic activity,’ ” “can Congress save the present law by including it, or much of it, in a broader ‘Safe Transport’ or ‘Worker Safety’ act?”). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U. S., at 557; id., at 578 (Kennedy, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers.

The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents’ own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious—that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U. S. 183, 193 (1968); Wickard, 317 U. S., at 127–128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. See generally Lopez, 514 U. S., at 567; id., at 579 (Kennedy, J., concurring).

A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation—including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation—recognize that medical and nonmedical ( i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently. See 21 U. S. C. §812; Cal. Health & Safety Code Ann. §11362.5 (West Supp. 2005); ante, at 1 (opinion of the Court). Respondents challenge only the application of the CSA to medicinal use of marijuana. Cf. United States v. Raines, 362 U. S. 17, 20–22 (1960) (describing our preference for as-applied rather than facial challenges). Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where “States lay claim by right of history and expertise.” Lopez, supra, at 583 (Kennedy, J., concurring); see also Morrison, supra, at 617–619; Lopez, supra, at 580 (Kennedy, J., concurring) (“The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required”); cf. Garcia, 469 U. S., at 586 (O’Connor, J., dissenting) (“[S]tate autonomy is a relevant factor in assessing the means by which Congress exercises its powers” under the Commerce Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress’ encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes.

B
Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one’s own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme.

The Court’s definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court’s opinion—the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, see Lopez, supra, at 565 (“depending on the level of generality, any activity can be looked upon as commercial”)—the Court’s definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach.

The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between “what is national and what is local,” Jones & Laughlin Steel, 301 U. S., at 37. It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow—a federal police power. Lopez, supra, at 564.

In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See Morrison, 529 U. S., at 611, n. 4 (intrastate activities that have been within Congress’ power to regulate have been “of an apparent commercial character”); Lopez, 514 U. S., at 561 (distinguishing the Gun-Free School Zones Act of 1990 from “activities that arise out of or are connected with a commercial transaction”). The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear that possession is not itself commercial activity. Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. id., at 583 (Kennedy, J., concurring) (“The statute now before us forecloses the States from experimenting … and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term”).

The Court suggests that Wickard, which we have identified as “perhaps the most far reaching example of Commerce Clause authority over intrastate activity,” Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. 317 U. S., at 115–116. The AAA itself confirmed that Congress made an explicit choice not to reach—and thus the Court could not possibly have approved of federal control over—small-scale, noncommercial wheat farming. In contrast to the CSA’s limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook’s herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress’ reach.

Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of “substantial effects” at issue ( i.e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress’ excursion into the traditional domain of States be justified.

That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Garcia, 469 U. S., at 585 (O’Connor, J., dissenting) (“It is not enough that the ‘end be legitimate’; the means to that end chosen by Congress must not contravene the spirit of the Constitution”). As Justice Scalia recognizes, see ante, at 7 (opinion concurring in judgment), Congress cannot use its authority under the Clause to contravene the principle of state sovereignty embodied in the Tenth Amendment. Ibid. Likewise, that authority must be used in a manner consistent with the notion of enumerated powers—a structural principle that is as much part of the Constitution as the Tenth Amendment’s explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an intrastate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation. Cf. Printz v. United States, 521 U. S. 898, 923 (1997) (the Necessary and Proper Clause is “the last, best hope of those who defend ultra vires congressional action”). Indeed, if it were enough in “substantial effects” cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are “never more than an instant from the interstate market” in guns already subject to extensive federal regulation, ante, at 8 (Scalia, J., concurring in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court’s and the concurrence’s logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on “sell[ing]” or “deliver[ing]” firearms or ammunition to “any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age.” 18 U. S. C. §922(b)(1) (1988 ed., Supp. II).)

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market—or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not “visible to the naked eye.” See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California’s Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial.

In this regard, again, this case is readily distinguishable from Wickard. To decide whether the Secretary could regulate local wheat farming, the Court looked to “the actual effects of the activity in question upon interstate commerce.” 317 U. S., at 120. Critically, the Court was able to consider “actual effects” because the parties had “stipulated a summary of the economics of the wheat industry.” Id., at 125. After reviewing in detail the picture of the industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent. Id., at 127. With real numbers at hand, the Wickard Court could easily conclude that “a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions” nationwide. Id., at 128; see also id., at 128–129 (“This record leaves us in no doubt” about substantial effects).

The Court recognizes that “the record in the Wickard case itself established the causal connection between the production for local use and the national market” and argues that “we have before us findings by Congress to the same effect.” Ante, at 17 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA saying that (1) local distribution and possession of controlled substances causes “swelling” in interstate traffic; (2) local production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over intrastate incidents “is essential to effective control” over interstate drug trafficking. 21 U. S. C. §§801(1)–(6). These bare declarations cannot be compared to the record before the Court in Wickard.

They amount to nothing more than a legislative insistence that the regulation of controlled substances must be absolute. They are asserted without any supporting evidence—descriptive, statistical, or otherwise. “[S]imply because Congress may conclude a particular activity substantially affects interstate commerce does not necessarily make it so.” Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 311 (1981) (Rehnquist, J., concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in Morrison should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. 529 U. S., at 614; id., at 628–636 (Souter, J., dissenting) (chronicling findings). But, recognizing that “ ‘ “[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,” ’ ” we found Congress’ detailed findings inadequate. Id., at 614 (quoting Lopez, supra, at 557, n. 2, in turn quoting Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 273 (1964) (Black, J., concurring)). If, as the Court claims, today’s decision does not break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in Morrison, while the CSA’s abstract, unsubstantiated, generalized findings about controlled substances do?

In particular, the CSA’s introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the inadequacy of Congress’ findings; in part because this case comes to us from the grant of a preliminary injunction, there has been no such development.) Because here California, like other States, has carved out a limited class of activity for distinct regulation, the inadequacy of the CSA’s findings is especially glaring. The California Compassionate Use Act exempts from other state drug laws patients and their caregivers “who posses[s] or cultivat[e] marijuana for the personal medical purposes of the patient upon the written or oral recommendation of a physician” to treat a list of serious medical conditions. Cal. Health & Safety Code Ann. §§11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare ibid. with, e.g., §11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); §11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical purposes. §11362.5(b)(2) (West Supp. 2005). To promote the Act’s operation and to facilitate law enforcement, California recently enacted an identification card system for qualified patients. §§11362.7–11362.83. We generally assume States enforce their laws, see Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, 795 (1988), and have no reason to think otherwise here.

The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way. The Government does cite one estimate that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally Wirtz, 392 U. S., at 196, n. 27 (Congress cannot use “a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities”); cf. General Accounting Office, Marijuana: Early Experience with Four States’ Laws That Allow Use for Medical Purposes 21–23 (Rep. No. 03–189, Nov. 2002), http://www.gao.gov/new.items/d03189.pdf (as visited June 3, 2005 and available in Clerk of Court’s case file) (in four California counties before the identification card system was enacted, voluntarily registered medical marijuana patients were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants represented less than 0.05 percent of the States’ populations). It also provides anecdotal evidence about the CSA’s enforcement. See Reply Brief for Petitioners 17–18. The Court also offers some arguments about the effect of the Compassionate Use Act on the national market. It says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, they add little to the CSA’s conclusory statements about diversion, essentiality, and market effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison.

III
We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: “The powers delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite…. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961).

Relying on Congress’ abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one’s own home for one’s own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California’s experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

Concurrence, First Amendment, Stephen Breyer

Clingman v. Beaver

Concurrence, First Amendment, Stephen Breyer / By

Justice O’Connor, with whom Justice Breyer joins except as to Part III, concurring in part and concurring in the judgment.

I join the Court’s opinion except for Part II–A. Although I agree with most of the Court’s reasoning, I write separately to emphasize two points. First, I think respondents’ claim implicates important associational interests, and I see no reason to minimize those interests to dispose of this case. Second, I agree with the Court that only Oklahoma’s semiclosed primary law is properly before us, that standing alone it imposes only a modest, nondiscriminatory burden on respondents’ associational rights, and that this burden is justified by the State’s legitimate regulatory interests. I note, however, that there are some grounds for concern that other state laws may unreasonably restrict voters’ ability to change party registration so as to participate in the Libertarian Party of Oklahoma’s (LPO) primary. A realistic assessment of regulatory burdens on associational rights would, in an appropriate case, require examination of the cumulative effects of the State’s overall scheme governing primary elections; and any finding of a more severe burden would trigger more probing review of the justifications offered by the State.

I
Nearly every State in the Nation now mandates that political parties select their candidates for national or statewide office by means of primary elections. See Galderisi & Ezra, Congressional Primaries in Historical and Theoretical Context, in Congressional Primaries and the Politics of Representation 17, and n. 34 (P. Galderisi, M. Ezra, & M. Lyons eds. 2001). Primaries constitute both a “ ‘crucial juncture’ ” in the electoral process, California Democratic Party v. Jones, 530 U. S. 567, 575 (2000) (quoting Tashjian v. Republican Party of Conn., 479 U. S. 208, 216 (1986)), and a vital forum for expressive association among voters and political parties, see Kusper v. Pontikes, 414 U. S. 51, 58 (1973) (“[A] basic function of a political party is to select the candidates for public office to be offered to the voters at general elections[, and a] prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process”). It is here that the parties invite voters to join in selecting their standard bearers. The outcome is pivotal, of course, for it dictates the range of choices available at—and often the presumptive winner of—the general election.

“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live,” Wesberry v. Sanders, 376 U. S. 1, 17 (1964), and “[t]he right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom,” Kusper, supra, at 57. The Court has repeatedly reaffirmed that the First and Fourteenth Amendments protect the rights of voters and parties to associate through primary elections. See, e.g., California Democratic Party, supra, at 574–575; Tashjian, supra, at 214; Kusper, supra, at 56–57. Indeed, constitutional protection of associational rights is especially important in this context because the aggregation of votes is, in some sense, the essence of the electoral process. To have a meaningful voice in this process, the individual voter must join together with likeminded others at the polls. And the choice of who will participate in selecting a party’s candidate obviously plays a critical role in determining both the party’s message and its prospects of success in the electoral contest. See California Democratic Party, supra, at 575; see also Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981) (“[T]he freedom to associate for the ‘common advancement of political beliefs’ necessarily presupposes the freedom to identify the people who constitute the association” (quoting Kusper, supra, at 56)).

The majority questions whether the LPO and voters registered with another party have any constitutionally cognizable interest in associating with one another through the LPO’s primary. See ante, at 5–6. Its doubts on this point appear to stem from two implicit premises: first, that a voter forms a cognizable association with a political party only by registering with that party; and second, that a voter can only form a cognizable association with one party at a time. Neither of these premises is sound, in my view. As to the first, registration with a political party surely may signify an important personal commitment, which may be accompanied by faithful voting and even activism beyond the polls. But for many voters, registration serves principally as a mandatory (and perhaps even ministerial) prerequisite to participation in the party’s primaries. The act of casting a ballot in a given primary may, for both the voter and the party, constitute a form of association that is at least as important as the act of registering. See La Follette, supra, at 130, n. 2 (Powell, J., dissenting) (“[T]he act of voting in the Democratic primary fairly can be described as an act of affiliation with the Democratic Party”). The fact that voting is episodic does not, in my judgment, undermine its associational significance; it simply reflects the special character of the electoral process, which allows citizens to join together at regular intervals to shape government through the choice of public officials.

As to the question of dual associations, I fail to see why registration with one party should negate a voter’s First Amendment interest in associating with a second party. We surely would not say, for instance, that a registered Republican or Democrat has no protected interest in associating with the Libertarian Party by attending meetings or making political contributions. The validity of voters’ and parties’ interests in dual associations seems particularly clear where minor parties are concerned. For example, a voter may have a longstanding affiliation with a major party that she wishes to maintain, but she may nevertheless have a substantial interest in associating with a minor party during particular election cycles or in elections for particular offices. The voter’s refusal to disaffiliate from the major party may reflect her abiding commitment to that party (which is not necessarily inconsistent with her desire to associate with a second party), the objective costs of disaffiliation, see, e.g., infra, at 9–10, or both. The minor party, for its part, may have a significant interest in augmenting its voice in the political process by associating with sympathetic members of the major parties.

None of this is to suggest that the State does not have a superseding interest in restricting certain forms of association. We have never questioned, for example, the States’ authority to restrict voters’ public registration to a single party or to limit each voter to participating in a single party’s primary. But the fact that a State’s regulatory authority may ultimately trump voters’ or parties’ associational interests in a particular context is no reason to dismiss the validity of those interests. As a more general matter, I question whether judicial inquiry into the genuineness, intensity, or duration of a given voter’s association with a given party is a fruitful way to approach constitutional challenges to regulations like the one at issue here. Primary voting is an episodic and sometimes isolated act of association, but it is a vitally important one and should be entitled to some level of constitutional protection. Accordingly, where a party invites a voter to participate in its primary and the voter seeks to do so, we should begin with the premise that there are significant associational interests at stake. From this starting point, we can then ask to what extent and in what manner the State may justifiably restrict those interests.

II
As to the remainder of the constitutional analysis, I am substantially in accord with the Court’s reasoning. Our constitutional system assigns the States broad authority to regulate the electoral process, and we have recognized that, “as a practical matter, there must be substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes,” Storer v. Brown, 415 U. S. 724, 730 (1974). We have sought to balance the associational interests of parties and voters against the States’ regulatory interests through the flexible standard of review reaffirmed by the Court today. See ante, at 3. Under that standard, “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick v. Takushi, 504 U. S. 428, 434 (1992). Regulations imposing severe burdens on associational rights must be narrowly tailored to advance a compelling government interest. Timmons v. Twin Cities Area New Party, 520 U. S. 351, 358 (1997) . Regulations imposing lesser burdens are subject to less intensive scrutiny, and reasonable, nondiscriminatory restrictions ordinarily will be sustained if they serve important regulatory interests. Ibid.

This regime reflects the limited but important role of courts in reviewing electoral regulation. Although the State has a legitimate—and indeed critical—role to play in regulating elections, it must be recognized that it is not a wholly independent or neutral arbiter. Rather, the State is itself controlled by the political party or parties in power, which presumably have an incentive to shape the rules of the electoral game to their own benefit. Recognition of that basic reality need not render suspect most electoral regulations. Where the State imposes only reasonable and genuinely neutral restrictions on associational rights, there is no threat to the integrity of the electoral process and no apparent reason for judicial intervention. As such restrictions become more severe, however, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition. In such cases, applying heightened scrutiny helps to ensure that such limitations are truly justified and that the State’s asserted interests are not merely a pretext for exclusionary or anticompetitive restrictions.

Throughout the proceedings in the lower courts, respondents framed their suit as a facial challenge to Oklahoma’s semiclosed primary law. The sum of their argument was that, by requiring voters to register either as Libertarians or Independents in order to participate in the LPO’s primary, state law imposes a severe and unjustified burden on the LPO’s and Oklahoma voters’ associational rights. For the reasons explained by the Court, ante, at 14–15, that is the only claim properly before us. Assuming (as I believe we must under the circumstances) that Oklahoma provides reasonable avenues for voters to reregister as Independents or Libertarians, I agree with the Court that the semiclosed primary law imposes only a modest and politically neutral burden on associational rights. The burden is not altogether trivial: A voter with a significant commitment to a major party (for example) must forfeit registration with that party in order to participate in the LPO primary in any given election cycle, and the LPO cannot define the bounds of the association as broadly as it would like. Seepost, at 3, and n. 1 (Stevens, J., dissenting); see alsosupra, at 4 (discussing the interest in dual associations). But neither is it severe or discriminatory.

Oklahoma’s semiclosed primary law simply requires that voters wishing to participate in the LPO’s primary do what they would have to do in order to participate in any other party’s primary. By providing a reasonably fixed party-related electoral base from the close of registration until the date of the vote, this requirement facilitates campaign planning. And assuming the availability of reasonable reregistration procedures, a party’s inability to persuade a voter to disaffiliate from a rival party would suggest not the presence of anticompetitive regulatory restrictions, but rather the party’s failure to win the voter’s allegiance. The semiclosed primary law, standing alone, does not impose a significant obstacle to participation in the LPO’s primary, nor does it indicate partisan self dealing or a lockup of the political process that would warrant heightened judicial scrutiny.

For essentially the reasons explained by the Court, see ante, at 10–14, I agree that Oklahoma has a legitimate interest in requiring voters to disaffiliate from one party before participating in another party’s primary. On the record before us, I also agree that the State’s regulatory interests are adequate to justify the limited burden the semiclosed primary law imposes on respondents’ freedom of association. And finally, I agree that this case is distinguishable from Tashjian. See ante, at 8–10. I joined the dissent in that case, and I think the Court’s application of strict scrutiny there is difficult to square with the flexible standard of review articulated in our more recent cases, see supra, at 5–6. But Tashjian is entitled to respect under principles of stare decisis, and it can be fairly distinguished on the grounds that the closed primary law in that case imposed a greater burden on associational interests than does Oklahoma’s semiclosed primary law, see ante, at 9, while the State’s regulatory interests in Tashjian were weaker than they are here, compare ante, at 10–14, with Tashjian, 479 U. S., at 217–225.

III
In briefing and oral argument before this Court, respondents raise for the first time the claim that Oklahoma’s semiclosed primary law severely burdens their associational rights not through the law’s own operation, but rather because other state laws make it quite difficult for voters to reregister as Independents or Libertarians so as to participate in the LPO primary. See Brief for Respondents 12–24. Respondents characterize Oklahoma’s regulatory scheme as follows.

Partisan primaries in Oklahoma are held on the last Tuesday in July of each even-numbered year. Okla. Stat. Ann., Tit. 26, §1–102 (West Supp. 2005). To field a party candidate in an election, the LPO must obtain “recognized” party status. See ibid.; see also §§1–107, 5–104 (West 1997 and Supp. 2005). This requires it to submit, no later than May 1 of any even-numbered year ( i.e., any election year), a petition with the signatures of registered voters equal to at least five percent of the total votes cast in the most recent gubernatorial or Presidential election. §1–108 (West Supp. 2005). The State Election Board then has 30 days to determine whether the petition is sufficient. §1–108(3) . The LPO has attained recognized party status in this fashion in every Presidential election year since 1980. However, unless the party’s candidate receives at least 10 percent of the total votes cast for Governor or President in the general election (which no minor party has been able to do in any State in recent history), it loses recognized party status. §1–109. To regain party status, the group must go through the petition process again. Ibid.When a party loses its recognized status, as the LPO has after every general election in which it has participated, the affiliation of any voter registered with the party is changed to Independent. §1–110. As the District Court noted, “it is highly likely that the ranks of independents, and, indeed, of registered Republicans and Democrats, contain numerous voters who sympathize with the LPO but who simply do not wish to go through the motions of re-registering every time they are purged from the rolls.” Memorandum Opinion, Case No. CIV–00–1071–F (WD Okla., Jan. 24, 2003), App. to Pet. for Cert. A–48. And the Republican and Democratic parties in Oklahoma, as it turns out, do not permit voters registered as Independents to participate in their primaries.

Most importantly, according to respondents, the deadline for changing party affiliation makes it quite difficult for the LPO to invite voters to reregister in order to participate in its primary. Assuming the LPO submits its petition for recognized party status on the May 1 deadline, the State has until May 31 to determine whether party status will be conferred. See Okla. Stat. Ann., Tit. 26, §1–108 (West Supp. 2005). But in order to participate in the LPO primary, a voter registered with another party must change her party affiliation to Independent or Libertarian no later than June 1. See §4–119. Moreover, no candidate for office is permitted officially to declare her candidacy with the State Election Board until the period between the first Monday in June and the next succeeding Wednesday. §5–110.

If this characterization of state law is accurate, a registered Democrat or Republican sympathetic to the LPO or to an LPO candidate in a given election year would seem to face a genuine dilemma. On the one hand, she may stick with her major party registration and forfeit the opportunity to participate in the LPO primary. Alternatively, she may reregister as a Libertarian or Independent, thus forfeiting her opportunity to participate in the major party primary, though no candidate will have officially declared yet and the voter may not yet know whether the LPO will even be permitted to conduct a primary. Moreover, she must make this choice roughly eight weeks before the primaries, at a time when most voters have not yet even tuned in to the election, much less decided upon a candidate. See California Democratic Party, 530 U. S., at 586 (Kennedy, J., concurring). That might pose a special difficulty for voters attracted to minor party candidates, for whom support may not coalesce until comparatively late in the election cycle. See Anderson v. Celebrezze, 460 U. S. 780, 791–792 (1983) (discussing emergence of independent candidacies late in the election cycle).

Throughout the proceedings in the lower courts, which included a full bench trial before the District Court, respondents made no attempt to challenge these other electoral requirements or to argue that they were relevant to respondents’ challenge to the semiclosed primary law. The lower courts, accordingly, gave little or no consideration to how these various regulations interrelate or operate in practice, nor did the State seek to justify them. Given this posture, I agree with the Court that it would be neither proper nor prudent for us to rule on the reformulated claim that respondents now urge. See ante, at 14–15.

Nevertheless, respondents’ allegations are troubling, and, if they had been properly raised, the Court would want to examine the cumulative burdens imposed by the overall scheme of electoral regulations upon the rights of voters and parties to associate through primary elections. A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined effect of severely restricting participation and competition. Even if each part of a regulatory regime might be upheld if challenged separately, one or another of these parts might have to fall if the overall scheme unreasonably curtails associational freedoms. Oklahoma’s requirement that a voter register as an Independent or a Libertarian in order to participate in the LPO’s primary is not itself unduly onerous; but that is true only to the extent that the State provides reasonable avenues through which a voter can change her registration status. The State’s regulations governing changes in party affiliation are not properly before us now. But if it were shown, in an appropriate case, that such regulations imposed a weighty or discriminatory restriction on voters’ ability to participate in the LPO’s or some other party’s primary, then more probing scrutiny of the State’s justifications would be required.

Civil Rights, Concurrence

Clark v. Martinez

Civil Rights, Concurrence / By

Justice O’Connor, concurring.
I join the Court’s opinion. I write separately to emphasize that, even under the current statutory scheme, it is possible for the Government to detain inadmissible aliens for more than six months after they have been ordered removed. For one thing, the 6-month presumption we described in Zadvydas v. Davis, 533 U. S. 678 (2001), is just that—a presumption. The Court notes that the Government has not suggested here any reason why it takes longer to effect removal of inadmissible aliens than it does to effect removal of other aliens. It is conceivable, however, that a longer period is “reasonably necessary,” id., at 689, to effect removal of inadmissible aliens as a class. If the Government shows that to be true, then detention beyond six months will be lawful within the meaning we ascribed to 8 U. S. C. §1231(a)(6) in Zadvydas.

Moreover, the Government has other statutory means for detaining aliens whose removal is not foreseeable and whose presence poses security risks. Upon certifying that he has “reasonable grounds to believe” an alien has engaged in certain terrorist or other dangerous activity specified by statute, 8 U. S. C. §1226a(a)(3) (2000 ed., Supp. II), the Secretary of Homeland Security may detain that alien for successive six-month periods “if the release of the alien will threaten the national security of the United States or the safety of the community or any person,” §1226a(a)(6).

Finally, any alien released as a result of today’s holding remains subject to the conditions of supervised release. See 8 U. S. C. §1231(a)(3); 8 CFR §241.5 (2004). And, if he fails to comply with the conditions of release, he will be subject to criminal penalties—including further detention. See 8 U. S. C. §1253(b); Zadvydas, supra, at 695 (“We nowhere deny the right of Congress… to subject [aliens] to supervision within conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions”)., with whom The Chief Justice joins as to Part I–A, dissenting.

Title 8 U. S. C. §1231(a)(6) states that aliens whom the Secretary of Homeland Security has ordered removed “may be detained beyond the removal period.” Nevertheless, in Zadvydas v. Davis, 533 U. S. 678 (2001), this Court construed this provision “to contain an implicit ‘reasonable time’ limitation” on the Secretary’s power to detain admitted aliens “[b]ased on our conclusion that indefinite detention of” those aliens “would raise serious constitutional concerns.” Id., at 682. “Aliens who have not yet gained initial admission to this country,” the Court assured us, “would present a very different question.” Ibid.

Today, the Court holds that this constitutional distinction—which “made all the difference” to the Zadvydas Court, id., at 693—is actually irrelevant, because “[t]he operative language of §1231(a)(6) … applies without differentiation to all three categories of aliens that are its subject.” Ante, at 6. While I wholeheartedly agree with the Court’s fidelity to the text of §1231(a)(6), the Court’s analysis cannot be squared with Zadvydas. And even if it could be so squared, Zadvydas was wrongly decided and should be overruled. I respectfully dissent.

I
I begin by addressing the majority’s interpretation of Zadvydas. The Court’s interpretation is not a fair reading of that case. It is also not required by any sound principle of statutory construction of which I am aware. To the contrary, what drives the majority’s reading is a novel “lowest common denominator” principle. Ante, at 8.

A
The majority’s reading of Zadvydas is implausible. Zadvydas held that interpreting §1231(a)(6) to authorize indefinite detention of admitted aliens later found removable would raise serious due process concerns. 533 U. S., at 690–696. The Court therefore read the statute to permit the Attorney General (now the Secretary of Homeland Security) to detain admitted aliens only as long as reasonably necessary to remove them from the country. Id., at 699.

The majority concedes that Zadvydas explicitly reserved the question whether its statutory holding as to admitted aliens applied equally to inadmissible aliens. Ante, at 7. This reservation was front and center in Zadvydas. It appeared in the introduction and is worth repeating in full:

“In these cases, we must decide whether [§1231(a)(6)] authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien’s removal. We deal here with aliens who were admitted to the United States but subsequently ordered removed. Aliens who have not yet gained initial admission to this country would present a very different question. Based on our conclusion that indefinite detention of aliens in the former category would raise serious constitutional concerns, we construe the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to federal-court review.” 533 U. S., at 682 (citation omitted; emphasis in original).

The Court reserved this question because the constitutional questions raised by detaining inadmissible aliens are different from those raised by detaining admitted aliens. It stated that the detention period in §1231(a)(6) was limited because it “read [the statute] in light of the Constitution’s demands.” Id., at 689. And it repeatedly emphasized constitutional distinctions among various groups of aliens, for which §1231(a)(6) makes no distinctions. See id., at 693–694 (noting the different constitutional considerations applicable to inadmissible and admissible aliens); id., at 695 (noting that “the cases before us [do not] require us to consider the political branches’ authority to control entry into the United States”); id., at 696 (noting that the opinion did not “consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security”).

The majority’s reading of Zadvydas is inconsistent with these qualifications. If it were true that Zadvydas ’ interpretation of §1231(a)(6) applied to all aliens regardless of the constitutional concerns involved in each case, then the question of how §1231(a)(6) applies to them would not be “very different” depending on the alien before the Court. The question would be trivial, because the text of §1231(a)(6) plainly does not distinguish between admitted and nonadmitted aliens. There would also have been no need for the Court to go out of its way to leave aside “terrorism or other special circumstances,” id., at 696, or to disavow “considerat[ion of] the political branches’ authority to control entry into the United States,” id., at 695, for the construction the majority extracts from Zadvydas would have applied across the board, ibid. And the Court’s rationalization that its construction would therefore “leave no unprotected spot in the Nation’s armor,” id., at 695–696 (internal quotation marks omitted), would have been incorrect. The constitutional distinctions that pervade Zadvydas are evidence that the “very different” statutory question it reserved turned on them.

The Zadvydas Court thus tethered its reading of §1231(a)(6) to the specific class of aliens before it. The term this Court read into the statute was not simply a presumptive 6-month period, but a presumptive 6-month period for admitted aliens. Its reading of the statute “in light of the Constitution’s demands,” id., at 689, that is, depended on the constitutional considerations at work in “ the cases before [it], ” id., at 695 (emphasis added). One would expect the Court today, then, to follow the same two-step procedure it employed in Zadvydas. It should first ask whether the statute is ambiguous and, if so, whether one of the possible interpretations raises constitutional doubts as applied to Martinez and Benitez. Step one is dictated by Zadvydas: §1231(a)(6) is not clear on whether it permits indefinite detention. The Court should then move to the second step and ask whether either of the statute’s possible interpretations raises constitutional doubts as applied to Benitez and Martinez. If so, the Court would apply avoidance to adopt the interpretation free from constitutional doubt (as Zadvydas itself did).

The Court’s reasons for departing from this reading of Zadvydas are unpersuasive. The Court says that its reading is necessary to avoid “invent[ing] a statute rather than interpret[ing] one,” ante, at 6; to preclude “giving the same detention provision a different meaning” depending on the aliens before the Court, ante, at 8 (emphasis in original); and to forestall establishing “the dangerous principle that judges can give the same statutory text different meanings in different cases,” ante, at 15. I agree that we should adopt none of these principles, but this is no warrant for the reading of Zadvydas that the majority advocates. Zadvydas established a single and unchanging, if implausible, meaning of §1231(a)(6): that the detention period authorized by §1231(a)(6) depends not only on the circumstances surrounding a removal, but also on the type of alien ordered removed.

I grant that this understanding of Zadvydas could result in different detention periods for different classes of aliens—indefinite detention for some, limited detention for others. But it does not follow that this reads the meaning of the statute to “change” depending on the alien involved, any more than the meaning of the statute could be said to “change” simply because the time that is “reasonably necessary to effect removal” may differ depending on the type of alien involved, as both the Court’s opinion, ante, at 15, and Justice O’Connor’s concurring opinion, ante, at 1, concede it may. A statute’s sense is the same even if what it requires depends on factual context.

In support of its reading of Zadvydas, the Court relies on a statement in a dissent in Zadvydas that §1231(a)(6) could not be given a different reading for inadmissible aliens. Ante, at 8 (citing 533 U. S., at 710–711, 717 (opinion of Kennedy, J.)). That dissenting view, as the very quotation the majority stresses demonstrates, rested on the dissent’s premise that “it is not a plausible construction of §1231(a)(6) to imply a time limit as to one class and not to another.” Id., at 710 (opinion of Kennedy, J.). But the Zadvydas majority disagreed with that assumption and adopted a contrary interpretation of §1231(a)(6). For as the dissent recognized, Zadvydas ’ “logic might be that inadmissible and removable aliens might be treated differently.” Ibid. That was Zadvydas ’ logic precisely, as its repeated statements limiting its decision to inadmissible aliens show. To interpret Zadvydas properly, we must take its logic as given, not the logic of the reductio ad absurdum of Zadvydas that I joined in dissent.

B
The majority strains to recharacterize Zadvydas because it thinks that “[i]t is not at all unusual to give a statute’s ambiguous language a limiting construction called for by one of the statute’s applications, even though other of the statute’s applications, standing alone, would not support the same limitation.” Ante, at 8. In other words, it claims, “[t]he lowest common denominator, as it were, must govern.” Ibid. I disagree.

As an initial matter, this principle is inconsistent with Zadvydas itself. As explained above, the limiting construction Zadvydas adopted as to admitted aliens does not necessarily govern the other applications of §1231(a)(6). If the majority is correct that the “lowest common denominator” governs, then the careful distinction Zadvydas drew between admitted aliens and nonadmitted aliens was irrelevant at best and misleading at worst. Under this reading, Zadvydas would have come out the same way even if it had involved inadmissible aliens, for the “lowest common denominator” of the statute remains the same regardless of the identity of the alien before the Court. Again, this understanding of Zadvydas is implausible.

Beyond Zadvydas, the Court offers scant support for the idea that statutes should be stripped down to their “lowest common denominator[s].” It attempts to distinguish Jinks v. Richland County, 538 U. S. 456 (2003), and Raygor v. Regents of Univ. of Minn., 534 U. S. 533 (2002), ante, at 11–12, and n. 6, yet these cases employed exactly the procedure that the majority today says is impermissible. They construed 28 U. S. C. §1367(d),[ Footnote 1 ] a tolling provision, to apply to States and political subdivisions of States only to the extent that doing so would raise a constitutional doubt as applied to either entity. Jinks was explicit on this point:

“Although we held in [Raygor] that §1367(d) does not apply to claims filed in federal court against States but subsequently dismissed on sovereign immunity grounds, we did so to avoid interpreting the statute in a manner that would raise ‘serious constitutional doubt’ in light of our decisions protecting a State ’ s sovereign immunity from congressional abrogation …. [N]o such constitutional doubt arises from holding that petitioner’s claim against respondent—which is not a State, but a political subdivision of a State—falls under the definition of ‘ any claim asserted under subsection (a) [of §1367].’ ” 538 U. S., at 466 (citation omitted; emphasis in original).

This passage reads the meaning of §1367(d)—which applies to “any claim asserted under subsection (a)” of §1367—to hinge on the constitutional context. The Court is correct that Jinks and Raygor “hold that the single and unchanging disposition of §1367(d) … does not apply to claims against States.” Ante, at 12. But as the Court concedes, Jinks reached that holding only after analyzing whether the constitutional doubts at issue in Raygor applied to the county defendant. Ante, at 12, n. 6. The Court’s failure to do the same here cannot be reconciled with Jinks and Raygor: the Court should ask whether the constitutional concerns that justified the requirement of a clear statement in Zadvydas apply as well to inadmissible aliens.

The Court’s “lowest common denominator” principle is also in tension with Salinas v. United States, 522 U. S. 52 (1997). There, we rejected an argument that the federal bribery statute, 18 U. S. C. §666(a)(1)(B), should be construed to avoid constitutional doubts, in part on the ground that there was “no serious doubt about the constitutionality of §666(a)(1)(B) as applied to the facts of this case.” 522 U. S., at 60 (emphasis added). Unlike the Court’s approach to avoidance today, we disclaimed examination of the constitutionality of applications not before the Court: “Whatever might be said about §666(a)(1)(B)’s application in other cases, the application of §666(a)(1)(B) did not extend federal power beyond its proper bounds.” Id., at 61. The Court is mistaken that this passage in Salinas was a rejection of a constitutional argument on its merits. Ante, at 9, n. 5. Salinas, the petitioner, phrased his question presented solely in terms of the proper statutory interpretation of §666(a)(1)(B), Brief for Petitioner, O. T. 1996, No. 96–738, p. i, and never claimed that the statute was unconstitutional, see generally ibid.

C
More importantly, however, the Court’s “lowest common denominator” principle is inconsistent with the history of the canon of avoidance and is likely to have mischievous consequences. The modern canon of avoidance is a doctrine under which courts construe ambiguous statutes to avoid constitutional doubts, but this doctrine has its origins in a very different form of the canon. Traditionally, the avoidance canon was not a doctrine under which courts read statutes to avoid mere constitutional doubts. Instead, it commanded courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading.[ Footnote 2 ] The traditional version of the canon thus requires courts to reach the issue whether the doubtful version of the statute is constitutional before adopting the construction that saves the statute from constitutional invalidity. A court faced with an ambiguous statute applies traditional avoidance by asking whether, given two plausible interpretations of that statute, one would be unconstitutional as applied to the plaintiff; and, if that interpretation is actually unconstitutional as applied to the plaintiff, the court picks the other (constitutional) reading. The court does not inquire whether either of the interpretations would be unconstitutional if applied to third parties not before the court, unless the challenge is facial or otherwise implicates third-party rights.

This history suggests that the “lowest common denominator” principle is mistaken. Courts applying the modern version of the canon of avoidance should no more look to the rights of third parties than do courts using the traditional version. Under modern avoidance, in other words, an ambiguous statute should be read to avoid a constitutional doubt only if the statute is constitutionally doubtful as applied to the litigant before the court (again, unless the constitutional challenge involves third-party rights). Yet the Court’s lowest common denominator principle allows a limiting construction of an ambiguous statute prompted by constitutional doubts to infect other applications of the statute—even if the statute raises no constitutional doubt as applied to the specific litigant in a given case and even if the constitutionally unproblematic application of the statute to the litigant is severable from the constitutionally dubious applications. The lowest common denominator principle thus allows an end run around black-letter constitutional doctrine governing facial and as-applied constitutional challenges to statutes: A litigant ordinarily cannot attack statutes as constitutionally invalid based on constitutional doubts concerning other litigants or factual circumstances.

The Court misses the point by answering that the canon of constitutional avoidance “is not a method of adjudicating constitutional questions by other means,” and that the canon rests on a presumption that “Congress did not intend the alternative which raises serious constitutional doubts.” Ante, at 10. That is true, but in deciding whether a plausible interpretation “raises serious constitutional doubts,” a court must employ the usual rules of constitutional adjudication. See ante, at 9 (noting that whether an interpretation is constitutionally doubtful turns on whether it raises “a multitude of constitutional problems”); Zadvydas, 533 U. S., at 690–696 (extensively employing constitutional analysis). Those rules include doctrines governing third-party constitutional challenges and the like. Moreover, the reason that courts perform avoidance at all, in any form, is that we assume “Congress intends statutes to have effect to the full extent the Constitution allows.” United States v. Booker, ante, at __ (Thomas, J., dissenting in part). Only my approach would extend §1231(a)(6) to its full constitutional bound consistent with modern avoidance, by narrowing the statute on a case-by-case basis only if constitutional concerns are actually present. By contrast, under the majority’s lowest common denominator principle, a statute like §1231(a)(6) must be narrowed once and for all based on constitutional concerns that may never materialize. In short, once narrowed in Zadvydas, §1231(a)(6) now limits the Executive’s power to detain unadmitted aliens—even though indefinite detention of unadmitted aliens may be perfectly constitutional.

All of this shows why the sole support the majority offers for its lowest common denominator principle can be squared with my analysis. That support is a plurality opinion of this Court (reaffirmed by footnote dictum in Leocal v. Ashcroft, ante, at ___, n. 8), that stated that the rule of lenity applies to statutes so long as they have some criminal applications. Ante, at 8 (citing United States v. Thompson/Center Arms Co., 504 U. S.505, 517 (1992)). To the extent that the rule of lenity is a constitutionally based clear statement rule, it is like vagueness doctrine, as its purpose is to ensure that those subjected to criminal prosecution have adequate notice of the conduct that the law prohibits. Cf., e.g., McBoyle v. United States, 283 U. S. 25, 27 (1931). Thompson/Center Arms is thus distinguishable, because our rules governing third-party challenges (rightly or wrongly) are more lenient in vagueness cases.[ Footnote 3 ] Zadvydas, by contrast, was a straightforward as-applied constitutional challenge. It concerned a constitutional doubt that arose from §1231(a)(6)’s application to Zadvydas himself, not its hypothetical application to other aliens, as its careful distinction between admitted and inadmissible aliens shows. To the extent that the rule of lenity is a nonconstitutionally based presumption about the interpretation of criminal statutes, the Thompson/Center Arms interpretive principle is fundamentally different from the canon of constitutional avoidance, because the rule of lenity is wholly independent of the rules governing constitutional adjudication. Either way, this case does not support the majority’s restatement of modern avoidance principles.

The cases at bar illustrate well the exception to the normal operation of as-applied constitutional adjudication that the Court’s approach creates. Congress explicitly provided that unconstitutional applications of §1231(a)(6) should be severed from constitutional applications.[ Footnote 4 ] Congress has thus indicated that courts should examine whether §1231(a)(6) raises a constitutional doubt application by application. After all, under the severability clause, if Zadvydas had held unconstitutional the indefinite detention of Zadvydas and Ho Ma, the constitutionality of the Secretary’s indefinite detention of Benitez and Martinez would remain an open question. Although Zadvydas did not formally hold §1231(a)(6) to be unconstitutional as applied to the aliens before it, the same procedure should be followed when analyzing whether §1231(a)(6) raises a constitutional doubt.[ Footnote 5 ] The Court today limits applications of §1231(a)(6) that may well be constitutional solely on the basis of constitutional doubts as to other applications, and despite that the severability clause contemplates application-by-application examination of the statute’s constitutionality.

The Court misapprehends my interpretive approach. It suggests that I would “spare [us] the necessity of ever finding a statute unconstitutional as applied,” ante, at 13, and “would render every statute a chameleon, its meaning subject to change depending on the presence or absence of constitutional concerns in each individual case,” ante, at 10. My approach does none of this. I simply would read ambiguous statutes to avoid as-applied constitutional doubts only if those doubts are present in the case before the Court. This leaves plenty of room for as-applied invalidation of statutes that are unambiguously unconstitutional. Nor would I permit a court to read every statute’s meaning to depend on constitutional concerns. That is permissible, in my view, only if the statute is ambiguous. Granted, I am thereby guilty of leaving courts free to interpret ambiguous statutes “as becoming inoperative when they ‘approach constitutional limits.’ ” Ante, at 13 . That is hardly an absurd result—unless one considers the modern canon of constitutional avoidance itself to be absurd. Every application of that canon, by rejecting a plausible interpretation of a statute, reads the statute to be inoperative to the extent it raises a constitutional doubt or “limit.”

In truth, the Court’s aggressive application of modern constitutional avoidance doctrine poses the greater danger. A disturbing number of this Court’s cases have applied the canon of constitutional doubt to statutes that were on their face clear. See, e.g., INS v. St. Cyr, 533 U. S. 289, 327–336 (2001) (Scalia, J., dissenting); Public Citizen v. Department of Justice, 491 U. S. 440, 481–482 (1989) (Kennedy, J., concurring in judgment); Lowe v. SEC, 472 U. S. 181, 212–213 (1985) (White, J., concurring in result). This Court and others may now employ the “lowest common denominator” approach to limit the application of statutes wholesale by searching for hypothetical unconstitutional applications of them—or, worse yet, hypothetical constitutional doubts —despite the absence of any facial constitutional problem (at least, so long as those hypothetical doubts pose “a multitude of constitutional problems,” ante, at 9). This is so even if Congress has expressed its clear intent that unconstitutional applications should be severed from constitutional applications, regardless of whether the challenger has third-party standing to raise the constitutional issue, and without the need to engage in full-fledged constitutional analysis.

This danger is real. In St. Cyr, this Court held that the Immigration and Nationality Act (INA) did not divest district courts of jurisdiction under 28 U. S. C. §2241 over habeas actions filed by criminal aliens to challenge removal orders, 533 U. S., at 314. The Court did so because it thought that otherwise the statute would preclude any avenue of judicial review of removal orders of criminal aliens, thus raising a serious Suspension Clause question. Id., at 305. This was a construction of (among other provisions) 8 U. S. C. §§1252(a)(1) and 1252(b)(9), and 28 U. S. C. §2241, none of which distinguishes between criminal and noncriminal aliens. 533 U. S., at 308–314. The INA, however, clearly allows noncriminal aliens, unlike criminal aliens, a right to judicial review of removal decisions in the courts of appeals under the review provisions of §1252(a)(1), and St. Cyr involved only criminal aliens. After St. Cyr, therefore, one would have thought that “noncriminal aliens seeking to challenge their removal orders… [would] still presumably be required to proceed directly to the court of appeals by way of petition for review, under the restrictive modified Hobbs Act review provisions set forth in §1252(a)(1),” rather than sue directly under the habeas statute. Id., at 335 (Scalia, J., joined by Rehnquist, C. J., and O’Connor and Thomas, JJ., dissenting). Yet lower courts, relying on a version of the Court’s “lowest common denominator” principle, have held just the opposite: They have entertained noncriminal aliens’ habeas actions challenging removal orders. Chmakov v. Blackman, 266 F. 3d 210, 214–215 (CA3 2001); see also Riley v. INS, 310 F. 3d 1253, 1256 (CA10 2002); Liu v. INS, 293 F. 3d 36, 38–41 (CA2 2002). The logic in allowing noncriminal aliens, who have a right to judicial review of removal decisions, to take advantage of constitutional doubt that arises from precluding any avenue of judicial review for criminal aliens, see St. Cyr, supra, at 305, escapes me.

II
The Court is also mistaken in affording Zadvydas stare decisis effect. Zadvydas was wrong in both its statutory and its constitutional analysis for the reasons expressed well by the dissents in that case. See 533 U. S., at 705–718 (opinion of Kennedy, J.); id., at 702–705 (opinion of Scalia, J.). I continue to adhere to those views and will not repeat the analysis of my colleagues. I write only to explain why I do not consider Zadvydas to bind us.

Zadvydas cast itself as a statutory case, but that fact should not prevent us from overruling it. It is true that we give stronger stare decisis effect to our holdings in statutory cases than in constitutional cases. See, e.g., Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 205 (1991). This rule, however, is not absolute, and we should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is “unworkable” or “badly reasoned.” Holder v. Hall, 512 U. S. 874, 936 (1994) (Thomas, J., concurring in judgment) (quoting Payne v. Tennessee, 501 U. S. 808, 827 (1991) (internal quotation marks omitted)). “[W]e have never applied stare decisis mechanically to prohibit overruling our earlier decisions determining the meaning of statutes.” Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 695 (1978). The mere fact that Congress can overturn our cases by statute is no excuse for failing to overrule a statutory precedent of ours that is clearly wrong, for the realities of the legislative process often preclude readopting the original meaning of a statute that we have upset.

Zadvydas ’ reading of §1231(a)(6) is untenable. Section 1231(a)(6) provides that aliens whom the Secretary of Homeland Security has ordered removed “may be detained beyond the removal period.” There is no qualification to this authorization, and no reference to a “reasonable time” limitation. Just as we exhaust the aid of the “traditional tools of statutory construction,” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9 (1984), before deferring to an agency’s interpretation of a statute, so too should we exhaust those tools before deciding that a statute is ambiguous and that an alternative plausible construction of the statute should be adopted.

Application of those traditional tools begins and ends with the text of §1231(a)(6). Zadvydas ’ observation that “if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms,” 533 U. S., at 697, proves nothing. Congress could have spoken more clearly in any statutory case in which the statute does not mention the particular factual scenario before the Court. Congress provided for a “reasonable time” limit to detentions pending removal in other portions of §1231. Id., at 708 (Kennedy, J., dissenting). Its failure to do the same in §1231(a)(6) confirms what is unmistakable from its terms: that there is no time limit on the Secretary’s power to detain aliens. There is no textually evident alternative construction that would avoid the constitutional doubts identified by the majority.

Even apart from the Court’s incredible reading of §1231(a)(6), the normal reason for affording our statutory holdings strong stare decisis effect—that Congress is free to overrule them if it disagrees—does not apply to Zadvydas. Zadvydas is a statutory case in name only. Although the Zadvydas majority purported to find indefinite detention only constitutionally doubtful, its lengthy analysis strongly signaled to Congress that indefinite detention of admitted aliens would be unconstitutional. Indeed, far from avoiding that constitutional question in Zadvydas, the Court took it head on, giving it extended treatment. Id., at 690–697; but see ante, at 10 (noting the “fundamenta[l]” tenet that “[t]he canon [of constitutional avoidance] is not a method of adjudicating constitutional questions by other means”). Zadvydas makes clear that the Court thought indefinite detention to be more than constitutionally suspect, and there is evidence that some Members of Congress understood as much.[ Footnote 6 ] This is why the Court’s assurance that if “the security of our borders will be compromised if [the United States] must release into the country inadmissible aliens who cannot be removed…. Congress can attend to it,” ante, at 14, rings hollow. Short of constitutional amendment, it is only within the power of this Court to correct Zadvydas ’ error.

The Court points to 8 U. S. C. §1226a(a)(6) (2000 ed., Supp. II), a statute that Congress passed shortly after Zadvydas, as evidence that Congress can correct Zadvydas ’ mistake. Ante, at 14–15, n. 8. This statute only confirms my concern that Zadvydas is legislatively uncorrectable. Section 1226a(a)(6) authorizes detention for a period of six months beyond the removal period of aliens who present a national security threat, but only to the extent that those aliens’ removal is not reasonably foreseeable. Ante, at 14–15, n. 8. Yet Zadvydas conceded that indefinite detention might not violate due process in “certain special and narrow nonpunitive circumstances … where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” 533 U. S., at 690 (internal quotation marks and citations omitted). Moreover, Zadvydas set a 6-month presumptive outer limit on the detention power. Id., at 701. Congress crafted §1226a(a)(6) to operate within the boundaries Zadvydas set. This provision says nothing about whether Congress may authorize detention of aliens for greater lengths of time or for reasons the Court found constitutionally problematic in Zadvydas.

***

For the foregoing reasons, I would affirm the judgment of the Eleventh Circuit and reverse the judgment of the Ninth Circuit. I therefore respectfully dissent.

Notes
Footnote 1

Section 1367(d) provides that “[t]he period of limitations for any claim asserted under [§1367(a)], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under [§1367(a)], shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”

Footnote 2

See Rust v. Sullivan, 500 U. S. 173, 190–191 (1991) (distinguishing the classic and modern versions of the canon and citing cases); Hooper v. California, 155 U. S. 648, 657 (1895) (“The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality”); Mossman v. Higginson, 4 Dall. 12, 14 (1800) (reasoning that the statute under review “can, and must, receive a construction, consistent with the constitution”); Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11,558) (CC Va. 1833) (Marshall, J.); Vermeule, Saving Constructions, 85 Geo. L. J. 1945, 1949 (1997); H. Black, Handbook on the Construction and Interpretation of the Laws 113–114 (2d ed. 1911). The modern version seems to have originated in United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U. S. 366, 408 (1909).

Footnote 3

See, e.g., Chicago v. Morales, 527 U. S. 41, 55, and n. 22 (1999) (plurality opinion); Kolender v. Lawson, 461 U. S. 352, 358–359, n. 8 (1983); Papachristou v. Jacksonville, 405 U. S. 156 (1972).

Footnote 4

“If any provision of this division … or the application of such provision to any person or circumstances is held to be unconstitutional, the remainder of this division and the application of the provisions of this division to any person or circumstance shall not be affected thereby.” Note following 8 U. S. C. §1101, p. 840 (Separability).

Footnote 5

Crowell v. Benson, 285 U. S. 22 (1932), bolsters my approach. Employing the canon of avoidance, the Court construed a statute in that case to allow judicial review of jurisdictional facts but not legislative facts. It did so even though the terms of the statute itself did not distinguish between the two sorts of facts. Id., at 62–63. The presence of a severability provision in the statute gave “assurance that there [was] no violation of the purpose of the Congress in sustaining the determinations of fact of the deputy commissioner where he acts within his authority in passing upon compensation claims while denying finality to his conclusions as to the jurisdictional facts upon which the valid application of the statute depends.” Ibid. So too here, the presence of a severability provision should reassure the Court that applying Zadvydas ’ limiting construction of §1231(a)(6) to some aliens and not others is consistent with the statute.

Footnote 6

See H. R. Conf. Rep. No. 108–10, p. 600 (2003) (“A recent Supreme Court decision held that criminal aliens cannot be detained indefinitely,” no doubt referring to Zadvydas ); H. R. Rep. No. 108–724, pt. 5, p. 191 (2004) (“The danger posed by the requirement that these aliens be allowed to remain in the U. S. was increased exponentially by the 2001 Supreme Court decision of Zadvydas v. Davis, in which the Court made clear that it would strike down as unconstitutional the indefinite detention by [the Secretary] of aliens with removal orders whose countries will not take them back, except in the most narrow of circumstances” (footnotes omitted)); 147 Cong. Rec. S11047 (Oct. 25, 2001) (“Indefinite detention of aliens is permitted only in extraordinary circumstances,” citing Zadvydas ).

Civil Rights, Concurrence, John Paul Stevens, Stephen Breyer

Nevada v. Hicks

Civil Rights, Concurrence, John Paul Stevens, Stephen Breyer / By

JUSTICE O’CONNOR, with whom JUSTICE STEVENS and JUSTICE BREYER join, concurring in part and concurring in the judgment.

The Court holds that a tribe has no power to regulate the activities of state officials enforcing state law on land owned and controlled by the tribe. The majority’s sweeping opinion, without cause, undermines the authority of tribes to “‘make their own laws and be ruled by them.'” Strate v. A-l Contractors, 520 U. S. 438, 459 (1997) (quoting Williams v. Lee, 358 U. S. 217, 220 (1959)). I write separately because Part II of the Court’s decision is unmoored from our precedents.

I A

Today, the Court finally resolves that Montana v. United States, 450 U. S. 544 (1981), governs a tribe’s civil jurisdiction over nonmembers regardless of land ownership. Ante, at 358-360. This is done with little fanfare, but the holding is significant because we have equivocated on this question in the past.

In Montana, we held that the Tribe in that case could not regulate the hunting and fishing activities of nonmembers on nontriballand located within the geographical boundaries of the reservation. 450 U. S., at 557. We explained that the Tribe’s jurisdiction was limited to two instances-where a consensual relationship exists between the Tribe and nonmembers, or where jurisdiction was necessary to preserve tribal sovereignty-and we concluded that neither instance applied. Id., at 565-567; ante, at 358-360.

Given the facts of Montana, it was not clear whether the status of the

Civil Rights, Dissent

INS v. St. Cyr

Civil Rights, Dissent / By

JUSTICE O’CONNOR, dissenting.

I join Parts I and III of JUSTICE SCALIA’S dissenting opinion in this case. I do not join Part II because I believe that, assuming, arguendo, that the Suspension Clause guarantees some minimum extent of habeas review, the right asserted by the alien in this case falls outside the scope of that review for the reasons explained by JUSTICE SCALIA in Part II-B of his dissenting opinion. The question whether the Suspension Clause assures habeas jurisdiction in this particular case properly is resolved on this ground alone, and there is no need to say more.