P a r t I I

CasesinStatutoryInterpretation,ContractLaw,TortLaw,andPublicLawChapter 8

Statutory InterpretationAs every student learns in the first days of law school, in American law there are two categoricallydistinct sources of law: decisions by judges (the common law) and statutes (promulgated by federal andstate legislatures). Discerning the meaning of statutory provisions is the business of statutoryinterpretation. More and more, judicial time and energy are taken up with the reading andinterpretation of statutes.

The cases that follow present some of the most time-honored questions in the context of statutoryinterpetation. This is an ancient subject. In the fifth book of his Nichomachean Ethics, Aristotlerecommended his own theory of statutory interpretation. He thought that when the meaning of a statutewas in doubt, the best thing for judges to do was to ask how the legislature would answer the questionin dispute. As you read through these cases, you will see that this approach is still favored by manyjudges.

vPHILO RIGGS, as Guardian ad litem et al., Appellants,v. ELMER E. PALMER et al., RespondentsCourt of Appeals of New York22 N.E. 188 (1889)

OPINION: EARL, J.

On the 13th day of August 1880, Francis B. Palmer made his last will and testament, in which he gave smalllegacies to his two daughters, Mrs. Riggs and Mrs. Preston, the plaintiffs in this action, and the remainder of hisestate to his grandson, the defendant, Elmer E. Palmer, subject to the support of Susan Palmer, his mother, witha gift over to the two daughters, subject to the support of Mrs. Palmer, in case Elmer should survive him and dieunder age, unmarried and without any issue. The testator at the date of his will owned a farm and considerablepersonal property. He was a widower, and thereafter, in March 1882, he was married to Mrs. Bresee, withwhom before his marriage he entered into an ante-nuptial contract in which it was agreed that, in lieu of dowerand all other claims upon his estate in case she survived him, she should have her support upon his farm duringher life, and such support was expressly charged upon the farm. At the date of the will, and, subsequently, tothe death of the testator, Elmer lived with him as a member of his family, and at his death was sixteen years old.He knew of the provisions made in his favor in the will, and, that he might prevent his grandfather from

revoking such provisions, which he had manifested some intention to do, and to obtain the speedy enjoymentand immediate possession of his property, he willfully murdered him by poisoning him. He now claims theproperty, and the sole question for our determination is, can he have it? The defendants say that the testator isdead; that his will was made in due form and has been admitted to probate, and that, therefore, it must haveeffect according to the letter of the law.

It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property,if literally construed, and if their force and effect can in no way and under no circumstances be controlled ormodified, give this property to the murderer.

The purpose of those statutes was to enable testators to dispose of their estates to the objects of their bountyat death, and to carry into effect their final wishes legally expressed; and in considering and giving effect tothem this purpose must be kept in view. It was the intention of the law-makers that the donees in a will shouldhave the property given to them. But it never could have been their intention that a donee who murdered thetestator to make the will operative should have any benefit under it.

If such a case had been present to their minds, and it had been supposed necessary to make some provisionof law to meet it, it cannot be doubted that they would have provided for it. It is a familiar canon of constructionthat a thing which is within the intention of the makers of a statute is as much within the statute as if it werewithin the letter; and a thing which is within the letter of the statute is not within the statute, unless it be withinthe intention of the makers. The writers of laws do not always express their intention perfectly, but either exceedit or fall short of it, so that judges are to collect it from probable or rational conjectures only, and this is calledrational interpretation; and Rutherforth, in his Institutes (p. 407), says: “When we make use of rationalinterpretation, sometimes we restrain the meaning of the writer so as to take in less, and sometimes we extendor enlarge his meaning so as to take in more than his words express.”

Such a construction ought to be put upon a statute as will best answer the intention which the makers had inview, for qui haeret in litera, haeret in cortice (He who considers but the letter of an instrument goes but skin deep).In Bacon’s Abridgment (Statutes I, 5); Puffendorf (book 5, chapter 12), Rutherforth (pp. 422, 427), and in Smith’sCommentaries (814), many cases are mentioned where it was held that matters embraced in the general wordsof statutes, nevertheless, were not within the statutes, because it could not have been the intention of the law-makers that they should be included. They were taken out of the statutes by an equitable construction, and it issaid in Bacon: “By an equitable construction, a case not within the letter of the statute is sometimes holden to bewithin the meaning, because it is within the mischief for which a remedy is provided. The reason for suchconstruction is that the law-makers could not set down every case in express terms. In order to form a rightjudgment whether a case be within the equity of a statute, it is a good way to suppose the law-maker present,and that you have asked him this question, did you intend to comprehend this case? Then you must giveyourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be thathe did mean to comprehend it, you may safely hold the case to be within the equity of the statute; for while youdo no more than he would have done, you do not act contrary to the statute, but in conformity thereto.” In somecases the letter of a legislative act is restrained by an equitable construction; in others it is enlarged; in others theconstruction is contrary to the letter. The equitable construction which restrains the letter of a statute is definedby Aristotle, as frequently quoted, in this manner: Aequitas est correctio legis generaliter latae qua parti deficit.(Equity is the correction of that within the law whereof it is deficient by reason of its generality.) If the law-makers could, as to this case, be consulted, would they say that they intended by their general language that theproperty of a testator or of an ancestor should pass to one who had taken his life for the express purpose ofgetting his property? In 1 Blackstone’s Commentaries (91) the learned author, speaking of the construction ofstatutes, says: “If there arise out of them any absurd consequences manifestly contradictory to common reason,they are, with regard to those collateral consequences, void. When some collateral matter arises out of thegeneral words, and happen to be unreasonable, then the judges are in decency to conclude that the consequencewas not foreseen by the parliament, and, therefore, they are at liberty to expound the statute by equity and onlyquoad hoc disregard it”; and he gives as an illustration, if an act of parliament gives a man power to try allcauses that arise within his manor of Dale, yet, if a cause should arise in which he himself is party, the act isconstrued not to extend to that because it is unreasonable that any man should determine his own quarrel. Therewas a statute in Bologna that whoever drew blood in the streets should be severely punished, and yet it was

held not to apply to the case of a barber who opened a vein in the street. It is commanded in the Decalogue thatno work shall be done upon the Sabbath, and yet, giving the command a rational interpretation founded uponits design, the Infallible Judge held that it did not prohibit works of necessity, charity or benevolence on thatday. What could be more unreasonable than to suppose that it was the legislative intention in the general lawspassed for the orderly, peaceable and just devolution of property, that they should have operation in favor ofone who murdered his ancestor that he might speedily come into the possession of his estate? Such an intentionis inconceivable. We need not, therefore, be much troubled by the general language contained in the laws.

Besides, all laws as well as all contracts may be controlled in their operation and effect by general,fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to takeadvantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his owncrime. These maxims are dictated by public policy, have their foundation in universal law administered in allcivilized countries, and have nowhere been superseded by statutes. They were applied in the decision of thecase of the New York Mutual Life Insurance Company v. Armstrong (117 U.S. 591). There it was held that theperson who procured a policy upon the life of another, payable at his death, and then murdered the assured tomake the policy payable, could not recover thereon. Mr. Justice FIELD, writing the opinion, said:“Independently of any proof of the motives of Hunter in obtaining the policy, and even assuming that they werejust and proper, he forfeited all rights under it when, to secure its immediate payment, he murdered theassured. It would be a reproach to the jurisprudence of the country if one could recover insurance moneypayable on the death of a party whose life he had feloniously taken. As well might he recover insurance moneyupon a building that he had willfully fired.”

These maxims, without any statute giving them force or operation, frequently control the effect and nullifythe language of wills. A will procured by fraud and deception, like any other instrument, may be decreed voidand set aside, and so a particular portion of a will may be excluded from probate or held inoperative if inducedby the fraud or undue influence of the person in whose favor it is. (Allen v. M’Pherson, 1 H.L. Cas. 191;Harrison’s Appeal, 48 Conn. 202.) So a will may contain provisions which are immoral, irreligious or againstpublic policy, and they will be held void.

Here there was no certainty that this murderer would survive the testator, or that the testator would notchange his will, and there was no certainty that he would get this property if nature was allowed to take itscourse. He, therefore, murdered the testator expressly to vest himself with an estate. Under such circumstances,what law, human or divine, will allow him to take the estate and enjoy the fruits of his crime? The will spokeand became operative at the death of the testator. He caused that death, and thus by his crime made it speakand have operation. Shall it speak and operate in his favor? If he had met the testator and taken his property byforce, he would have had no title to it. Shall he acquire title by murdering him? If he had gone to the testator’shouse and by force compelled him, or by fraud or undue influence had induced him to will him his property,the law would not allow him to hold it. But can he give effect and operation to a will by murder, and yet takethe property? To answer these questions in the affirmative, it seems to me, would be a reproach to thejurisprudence of our state, and an offense against public policy.

Under the civil law evolved from the general principles of natural law and justice by many generations ofjurisconsults, philosophers and statesmen, one cannot take property by inheritance or will from an ancestor orbenefactor whom he has murdered. (Domat, part 2, book 1, tit. 1, § 3; Code Napoleon, § 727; Mackeldy’s RomanLaw, 530, 550.) In the Civil Code of Lower Canada the provisions on the subject in the Code Napoleon havebeen substantially copied. But, so far as I can find, in no country where the common law prevails has it beendeemed important to enact a law to provide for such a case. Our revisers and law-makers were familiar with thecivil law, and they did not deem it important to incorporate into our statutes its provisions upon this subject.This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient toregulate such a case and that a specific enactment for that purpose was not needed.

For the same reasons the defendant Palmer cannot take any of this property as heir. Just before the murderhe was not an heir, and it was not certain that he ever would be. He might have died before his grandfather, ormight have been disinherited by him. He made himself an heir by the murder, and he seeks to take property asthe fruit of his crime. What has before been said as to him as legatee applies to him with equal force as an heir.He cannot vest himself with title by crime.

My view of this case does not inflict upon Elmer any greater or other punishment for his crime than the lawspecifies. It takes from him no property, but simply holds that he shall not acquire property by his crime, andthus be rewarded for its commission.

Our attention is called to Owens v. Owens (100 N.C. 240), as a case quite like this. There a wife had beenconvicted of being an accessory before the fact to the murder of her husband, and it was held that she was,nevertheless, entitled to dower. I am unwilling to assent to the doctrine of that case. The statutes provide dowerfor a wife who has the misfortune to survive her husband and thus lose his support and protection. It is clearbeyond their purpose to make provision for a wife who by her own crime makes herself a widow and willfullyand intentionally deprives herself of the support and protection of her husband. As she might have died beforehim, and thus never have been his widow, she cannot by her crime vest herself with an estate. The principlewhich lies at the bottom of the maxim, volenti non fit injuria (A person who consents cannot receive an injury),should be applied to such a case, and a widow should not, for the purpose of acquiring, as such, property rights,be permitted to allege a widowhood which she has wickedly and intentionally created.

The facts found entitled the plaintiffs to the relief they seek. The error of the referee was in his conclusion oflaw. Instead of granting a new trial, therefore, I think the proper judgment upon the facts found should beordered here. The facts have been passed upon twice with the same result, first upon the trial of Palmer formurder, and then by the referee in this action. We are, therefore, of opinion that the ends of justice do notrequire that they should again come in question.

The judgment of the General Term and that entered upon the report of the referee should, therefore, bereversed and judgment should be entered as follows: That Elmer E. Palmer and the administrator be enjoinedfrom using any of the personalty or real estate left by the testator for Elmer’s benefit; that the devise and bequestin the will to Elmer be declared ineffective to pass the title to him; that by reason of the crime of murdercommitted upon the grandfather he is deprived of any interest in the estate left by him; that the plaintiffs are thetrue owners of the real and personal estate left by the testator, subject to the charge in favor of Elmer’s motherand the widow of the testator, under the ante-nuptial agreement, and that the plaintiffs have costs in all thecourts against Elmer.

All concur with EARL, J., except GRAY, J., who reads dissenting opinion.

DISSENT: GRAY, J. (dissenting).

This appeal presents an extraordinary state of facts, and the case, in respect of them, I believe, is withoutprecedent in this state.

The respondent, a lad of sixteen years of age, being aware of the provisions in his grandfather’s will, whichconstituted him the residuary legatee of the testator’s estate, caused his death by poison in 1882. For this crimehe was tried and was convicted of murder in the second degree, and at the time of the commencement of thisaction he was serving out his sentence in the state reformatory. This action was brought by two of the childrenof the testator for the purpose of having those provisions of the will in the respondent’s favor canceled andannulled.

The appellants’ argument for a reversal of the judgment, which dismissed their complaint, is that therespondent unlawfully prevented a revocation of the existing will, or a new will from being made, by his crime,and that he terminated the enjoyment by the testator of his property and effected his own succession to it by thesame crime. They say that to permit the respondent to take the property willed to him would be to permit himto take advantage of his own wrong.

To sustain their position the appellants’ counsel has submitted an able and elaborate brief, and, if I believedthat the decision of the question could be affected by considerations of an equitable nature, I should not hesitateto assent to views which commend themselves to the conscience. But the matter does not lie within the domainof conscience. We are bound by the rigid rules of law, which have been established by the legislature, and withinthe limits of which the determination of this question is confined. The question we are dealing with is, whether atestamentary disposition can be altered, or a will revoked, after the testator’s death, through an appeal to thecourts, when the legislature has, by its enactments, prescribed exactly when and how wills may be made, alteredand revoked, and, apparently, as it seems to me, when they have been fully complied with, has left no room for

the exercise of an equitable jurisdiction by courts over such matters. Modern jurisprudence, in recognizing theright of the individual, under more or less restrictions, to dispose of his property after his death, subjects it tolegislative control, both as to extent and as to mode of exercise. Complete freedom of testamentary dispositionof one’s property has not been and is not the universal rule; as we see from the provisions of the NapoleonicCode, from those systems of jurisprudence in other countries which are modeled upon the Roman law, andfrom the statutes of many of our states. To the statutory restraints, which are imposed upon the disposition ofone’s property by will, are added strict and systematic statutory rules for the execution, alteration andrevocation of the will; which must be, at least, substantially, if not exactly, followed to insure validity andperformance. The reason for the establishment of such rules, we may naturally assume, consists in the purposeto create those safeguards about these grave and important acts, which experience has demonstrated to be thewisest and surest. That freedom, which is permitted to be exercised in the testamentary disposition of one’sestate by the laws of the state, is subject to its being exercised in conformity with the regulations of the statutes.The capacity and the power of the individual to dispose of his property after death, and the mode by which thatpower can be exercised, are matters of which the legislature has assumed the entire control, and has undertakento regulate with comprehensive particularity.

The appellants’ argument is not helped by reference to those rules of the civil law, or to those laws of othergovernments, by which the heir or legatee is excluded from benefit under the testament, if he has been convictedof killing, or attempting to kill, the testator. In the absence of such legislation here, the courts are not empoweredto institute such a system of remedial justice. The deprivation of the heir of his testamentary succession by theRoman law, when guilty of such a crime, plainly, was intended to be in the nature of a punishment imposedupon him. The succession, in such a case of guilt, escheated to the exchequer. (See Domat’s Civil Law, pt. 2,book 1, tit. 1, § 3.)

I concede that rules of law, which annul testamentary provision made for the benefit of those who havebecome unworthy of them, may be based on principles of equity and of natural justice. It is quite reasonable tosuppose that a testator would revoke or alter his will, where his mind has been so angered and changed as tomake him unwilling to have his will executed as it stood. But these principles only suggest sufficient reasons forthe enactment of laws to meet such cases.

The statutes of this state have prescribed various ways in which a will may be altered or revoked; but thevery provision, defining the modes of alteration and revocation, implies a prohibition of alteration or revocationin any other way. The words of the section of the statute are: “No will in writing, except in the cases hereinaftermentioned, nor any part thereof, shall be revoked or altered otherwise,” etc. Where, therefore, none of the casesmentioned are met by the facts, and the revocation is not in the way described in the section, the will of thetestator is unalterable. I think that a valid will must continue as a will always, unless revoked in the mannerprovided by the statutes. Mere intention to revoke a will does not have the effect of revocation. The intention torevoke is necessary to constitute the effective revocation of a will; but it must be demonstrated by one of the actscontemplated by the statute. As WOODWORTH, J., said in Dan v. Brown (4 Cow. 490): “Revocation is an act ofthe mind, which must be demonstrated by some outward and visible sign of revocation.” The same learnedjudge said in that case: “The rule is that if the testator lets the will stand until he dies, it is his will; if he does notsuffer it to do so, it is not his will.” (Goodright v. Glasier, 4 Burr. 2512, 2514; Pemberton v. Pemberton, 13 Ves.290.)

The finding of fact of the referee, that, presumably, the testator would have altered his will, had he known ofhis grandson’s murderous intent, cannot affect the question. We may concede it to the fullest extent; but still thecardinal objection is undisposed of, that the making and the revocation of a will are purely matters of statutoryregulation, by which the court is bound in the determination of questions relating to these acts. Two cases in thisstate and in Kentucky, at an early day, seem to me to be much in point. Gains v. Gains (2 Marshall, 190), wasdecided by the Kentucky Court of Appeals in 1820. It was there urged that the testator intended to havedestroyed his will, and that he was forcibly prevented from doing so by the defendant in error or devisee, and itwas insisted that the will, though not expressly, was thereby virtually revoked. The court held, as the actconcerning wills prescribed the manner in which a will might be revoked, that as none of the acts evidencingrevocation were done, the intention could not be substituted for the act. In that case the will was snatched awayand forcibly retained. In 1854, Surrogate BRADFORD, whose opinions are entitled to the highest consideration,

decided the case of Leaycraft v. Simmons (3 Bradf. 35). In that case the testator, a man of eighty-nine years ofage, desired to make a codicil to his will, in order to enlarge the provisions for his daughter. His son having thecustody of the instrument, and the one to be prejudiced by the change, refused to produce the will, at testator’srequest, for the purpose of alteration. The learned surrogate refers to the provisions of the civil law for such andother cases of unworthy conduct in the heir or legatee, and says, “our statute has undertaken to prescribe themode in which wills can be revoked (citing the statutory provision). This is the law by which I am governed inpassing upon questions touching the revocation of wills. The whole of this subject is now regulated by statute,and a mere intention to revoke, however well authenticated, or however defeated, is not sufficient.” And heheld that the will must be admitted to probate. I may refer also to a case in the Pennsylvania courts. In that statethe statute prescribed the mode for repealing or altering a will, and in Clingan v. Mitcheltree (31 Pa. State Rep.25) the Supreme Court of the state held, where a will was kept from destruction by the fraud andmisrepresentation of the devisee, that to declare it canceled as against the fraudulent party would be to enlargethe statute

I cannot find any support for the argument that the respondent’s succession to the property should beavoided because of his criminal act, when the laws are silent. Public policy does not demand it, for the demandsof public policy are satisfied by the proper execution of the laws and the punishment of the crime. There hasbeen no convention between the testator and his legatee, nor is there any such contractual element in such adisposition of property by a testator, as to impose or imply conditions in the legatee. The appellants’ argumentpractically amounts to this: That as the legatee has been guilty of a crime, by the commission of which he isplaced in a position to sooner receive the benefits of the testamentary provision, his rights to the propertyshould be forfeited and he should be divested of his estate. To allow their argument to prevail would involvethe diversion by the court of the testator’s estate into the hands of persons, whom, possibly enough, for all weknow, the testator might not have chosen or desired as its recipients. Practically the court is asked to makeanother will for the testator. The laws do not warrant this judicial action, and mere presumption would not bestrong enough to sustain it.

But more than this, to concede appellants’ views would involve the imposition of an additional punishmentor penalty upon the respondent. What power or warrant have the courts to add to the respondent’s penalties bydepriving him of property? The law has punished him for his crime, and we may not say that it was aninsufficient punishment. In the trial and punishment of the respondent the law has vindicated itself for theoutrage which he committed, and further judicial utterance upon the subject of punishment or deprivation ofrights is barred. We may not, in the language of the court in People v. Thornton (25 Hun, 456), “enhance thepains, penalties and forfeitures provided by law for the punishment of crime.”

The judgment should be affirmed, with costs.

Q U E S T I O N S A N D D I S C U S S I O N P O I N T S

1. What are some of the legal and moral issues raised by this case?

2. State what you think are the one or two legal questions posed by the case.

3. What language in the statute is essential to the decision in this case?

4. What are the sources for the meaning of the statute?

5. What is the relationship between the question of the meaning of the statute and the question of thejustice of giving Elmer his inheritance?

6. Do the Majority and Dissent have different ways or theories for reading statutes?

vCHURCH OF THE HOLY TRINITYv. UNITED STATESSupreme Court of the United States

143 U.S. 457 (1892)

MR. JUSTICE BREWER delivered the opinion of the court.

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

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

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

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector tohis church is one of service, and implies labor on the one side with compensation on the other. Not only are thegeneral words labor and service both used, but also, as it were to guard against any narrow interpretation andemphasize a breadth of meaning, to them is added “of any kind”; and, further, as noticed by the Circuit Judge inhis opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers,singers and domestic servants, strengthens the idea that every other kind of labor and service was intended tobe reached by the first section. While there is great force to this reasoning, we cannot think Congress intended todenounce with penalties a transaction like that in the present case. It is a familiar rule, that a thing may be withinthe letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of itsmakers. This has been often asserted, and the reports are full of cases illustrating its application. This is not thesubstitution of the will of the judge for that of the legislator, for frequently words of general meaning are used ina statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, orof the circumstances surrounding its enactment, or of the absurd results which follow from giving such broadmeaning to the words, makes it unreasonable to believe that the legislator intended to include the particularact....

Among other things which may be considered in determining the intent of the legislature is the title of theact. We do not mean that it may be used to add to or take from the body of the statute, Hadden v. The Collector,5 Wall. 107, but it may help to interpret its meaning. In the case of United States v. Fisher, 2 Cranch, 358, 386,Chief Justice Marshall said: “On the influence which the title ought to have in construing the enacting clausesmuch has been said; and yet it is not easy to discern the point of difference between the opposing counsel in thisrespect. Neither party contends that the title of an act can control plain words in the body of the statute; andneither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain,nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizeseverything from which aid can be derived; and in such case the title claims of degree of notice, and will have itsdue share of consideration.”...

It will be seen that words as general as those used in the first section of this act were by that decisionlimited, and the intent of Congress with respect to the act was gathered partially, at least, from its title. Now, thetitle of this act is, “An act to prohibit the importation and migration of foreigners and aliens under contract oragreement to perform labor in the United States, its Territories and theDistrict of Columbia.” Obviously the thought expressed in this reaches only to the work of the manual laborer,as distinguished from that of the professional man. No one reading such a title would suppose that Congress

had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of anyclass whose toil is that of the brain. The common understanding of the terms labor and laborers does not includepreaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. Sowhatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penalprovisions of all contracts for the employment of ministers, rectors and pastors.

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

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

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

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

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

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

Q U E S T I O N S A N D D I S C U S S I O N P O I N T S

1. With respect to interpretive matters, what are the major differences between this case and Riggs v.Palmer?

2. What role, if any, should Congress’s objectives in writing the statute play in the interpretation of thewords of the statute?

3. Does it matter that Reverend Warren did not deprive anyone else of a position with the Church of theHoly Trinity?

4. Should the plain meaning of the statute be the controlling factor?

5. How do you justify your position on how the statute ought to be read? As part of the exercise ofjustification, how do you defend your reading of other statutes against the readings of others? By whatcriteria do you decide that one interpretation of the statute is better than another?

vUNITED STEELWORKERS OF AMERICA, AFL-CIO-CLCv. WEBER et al.Supreme Court of the United States443 U.S. 193 (1979)

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Challenged here is the legality of an affirmative action plan—collectively bargained by an employer and aunion—that reserves for black employees 50% of the openings in an in-plant craft-training program until thepercentage of black craftworkers in the plant is commensurate with the percentage of blacks in the local laborforce. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, asamended, 42 U.S.C. § 2000 et seq., left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold thatTitle VII does not prohibit such race-conscious affirmative action plans.

I.

In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp.(Kaiser) entered into a master collective-bargaining agreement covering terms and conditions of employment at15 Kaiser plants. The agreement contained, inter alia, an affirmative action plan designed to eliminateconspicuous racial imbalances in Kaiser’s then almost exclusively white craftwork forces. Black craft-hiringgoals were set for each Kaiser plant equal to the percentage of blacks in the respective local labor forces. Toenable plants to meet these goals, on-the-job training programs were established to teach unskilled productionworkers—black and white—the skills necessary to become craft workers. The plan reserved for black employees50% of the openings in these newly created in-plant training programs.

This case arose from the operation of the plan at Kaiser’s plant in Gramercy, La. Until 1974, Kaiser hired ascraft workers for that plant only persons who had had prior craft experience. Because blacks had long beenexcluded from craft unions,1 few were able to present such credentials. As a consequence, prior to 1974 only1.83% (5 out of 273) of the skilled craftworkers at the Gramercy plant were black, even though the work force inthe Gramercy area was approximately 39% black.

Pursuant to the national agreement Kaiser altered its craft-hiring practice in the Gramercy plant. Rather thanhiring already trained outsiders, Kaiser established a training program to train its production workers to fillcraft openings. Selection of craft trainees was made on the basis of seniority, with the proviso that at least 50% ofthe new trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plantapproximated the percentage of blacks in the local labor force. See 415 F.Supp. 761, 764.

During 1974, the first year of the operation of the Kaiser-USWA affirmative action plan, 13 craft traineeswere selected from Gramercy’s production work force. Of these, seven were black and six white. The mostsenior black selected into the program had less seniority than seven white production workers whose bids foradmission were rejected. Thereafter one of those white production workers, respondent Brian Weber (hereafterrespondent), instituted this class action in the United States District Court for the Eastern District of Louisiana.

The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to theaffirmative action program had resulted in junior black employees’ receiving training in preference to seniorwhite employees, thus discriminating against respondent and other similarly situated white employees inviolation of §§ 703(a)2 and (d)3 of Title VII. The District Court held that the plan violated Title VII, entered ajudgment in favor of the plaintiff class, and granted a permanent injunction prohibiting Kaiser and the USWA“from denying plaintiffs, Brian F. Weber and all other members of the class, access to on-the-job trainingprograms on the basis of race.” App. 171. A divided panel of the Court of Appeals for the Fifth Circuit affirmed,holding that all employment preferences based upon race, including those preferences incidental to bona fideaffirmative action plans, violated Title VII’s prohibition against racial discrimination in employment. 563 F.2d216 (1977). We granted certiorari. 439 U.S. 1045 (1978). We reverse.

II.

We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve stateaction, this case does not present an alleged violation of the Equal Protection Clause of the FourteenthAmendment. Further, since the Kaiser-USWA plan was adopted voluntarily, we are not concerned with whatTitle VII requires or with what a court might order to remedy a past proved violation of the Act. The onlyquestion before us is the narrow statutory issue of whether Title VII forbids private employers and unions fromvoluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and forthe purpose provided in the Kaiser-USWA plan.

Respondent argues that Congress intended in Title VII to prohibit all race-conscious affirmative action plans.Respondent’s argument rests upon a literal interpretation of §§ 703(a) and (d) of the Act. Those sections make itunlawful to “discriminate ... because of ... race” in hiring and in the selection of apprentices for trainingprograms. Since, the argument runs, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), settled thatTitle VII forbids discrimination against whites as well as blacks, and since the Kaiser-USWA affirmative actionplan operates to discriminate against white employees solely because they are white, it follows that the Kaiser-USWA plan violates Title VII.

Respondent’s argument is not without force. But it overlooks the significance of the fact that the Kaiser-USWA plan is an affirmative action plan voluntarily adopted by private parties to eliminate traditional patternsof racial segregation. In this context respondent’s reliance upon a literal construction of §§ 703(a) and (d) andupon McDonald is misplaced. It is a “familiar rule, that a thing may be within the letter of the statute and yet notwithin the statute, because not within its spirit, nor within the intention of its markets.” Holy Trinity Church v.United States, 143 U.S. 457, 459 (1892). The prohibition against racial discrimination in §§ 703(a) and (d) of TitleVII must therefore be read against the background of the legislative history of Title VII and the historical contextfrom which the Act arose. See Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10 (1976); NationalWoodwork Mfrs. Assn. v. NLRB, 386 U.S. 612, 620 (1967); United States v. American Trucking Assns., 310 U.S.534, 543–544 (1940). Examination of those sources makes clear that an interpretation of the sections that forbadeall race-conscious affirmative action would “bring about an end completely at variance with the purpose of thestatute” and must be rejected.

Congress’ primary concern in enacting the prohibition against racial discrimination in Title VII of the CivilRights Act of 1964 was with “the plight of the Negro in our economy.” 110 Cong. Rec. 6548 (1964) (remarks ofSen. Humphrey). Before 1964, blacks were largely relegated to “unskilled and semi-skilled jobs.” Ibid. (remarksof Sen. Humphrey); id., at 7204 (remarks of Sen. Clark); d., at 7379–7380 (remarks of Sen. Kennedy). Because ofautomation the number of such jobs was rapidly decreasing. See id., at 6548 (remarks of Sen. Humphrey); id., at7204 (remarks of Sen. Clark). As a consequence, “the relative position of the Negro worker [was] steadilyworsening. In 1947 the nonwhite unemployment rate was only 64 percent higher than the white rate; in 1962 itwas 124 percent higher.” Id., at 6547 (remarks of Sen. Humphrey). See also id., at 7204 (remarks of Sen. Clark).Congress considered this a serious social problem. As Senator Clark told the Senate:

The rate of Negro unemployment has gone up consistently as compared with white unemployment for the past 15years. This is a social malaise and a social situation which we should not tolerate. That is one of the principal reasonswhy the bill should pass. Id., at 7220.I

Congress feared that the goals of the Civil Rights Act—the integration of blacks into the mainstream ofAmerican society—could not be achieved unless this trend were reversed. And Congress recognized that thatwould not be possible unless blacks were able to secure jobs “which have a future.” Id., at 7204 (remarks of Sen.Clark). See also id., at 7379–7380 (remarks of Sen. Kennedy). As Senator Humphrey explained to the Senate:“What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? Whatgood does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negrochild be motivated to take full advantage of integrated educational facilities if he has no hope of getting a jobwhere he can use that education?” Id., at 6547....

Given this legislative history, we cannot agree with respondent that Congress intended to prohibit theprivate sector from taking effective steps to accomplish the goal that Congress designed Title VII to achieve. Thevery statutory words intended as a spur or catalyst to cause “employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of anunfortunate and ignominious page in this country’s history,” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418(1975), cannot be interpreted as an absolute prohibition against all private, voluntary, race-conscious affirmativeaction efforts to hasten the elimination of such vestiges.4 It would be ironic indeed if a law triggered by aNation’s concern over centuries of racial injustice and intended to improve the lot of those who had “beenexcluded from the American dream for so long,” 110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey),constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditionalpatterns of racial segregation and hierarchy.

Our conclusion is further reinforced by examination of the language and legislative history of § 703(j) of TitleVII.5 Opponents of Title VII raised two related arguments against the bill. First, they argued that the Act wouldbe interpreted to require employers with racially imbalanced work forces to grant preferential treatment toracial minorities in order to integrate. Second, they argued that employers with racially imbalanced work forceswould grant preferential treatment to racial minorities, even if not required to do so by the Act. See 110 Cong.Rec. 8618–8619 (1964) (remarks of Sen. Sparkman). Had Congress meant to prohibit all race-consciousaffirmative action, as respondent urges, it easily could have answered both objections by providing that Title VII

would not require or permit racially preferential integration efforts. But Congress did not choose such a course.Rather, Congress added § 703(j) which addresses only the first objection. The section provides that nothingcontained in Title VII “shall be interpreted to require any employer ... to grant preferential treatment ... to anygroup because of the race ... of such ... group on account of” a de facto racial imbalance in the employer’s workforce. The section does not state that “nothing in Title VII shall be interpreted to permit” voluntary affirmativeefforts to correct racial imbalances. The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action.

We therefore hold that Title VII’s prohibition in §§ 703(a) and (d) against racial discrimination does notcondemn all private, voluntary, race-conscious affirmative action plans.

At the same time, the plan does not unnecessarily trammel the interests of the white employees. The plandoes not require the discharge of white workers and their replacement with new black hirees. Cf. McDonald v.Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). Nor does the plan create an absolute bar to the advancement ofwhite employees; half of those trained in the program will be white. Moreover, the plan is a temporary measure;it is not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance. Preferentialselection of craft trainees at the Gramercy plant will end as soon as the percentage of black skilled craftworkersin the Gramercy plant approximates the percentage of blacks in the local labor force. See 415 F.Supp., at 763.

We conclude, therefore, that the adoption of the Kaiser-USWA plan for the Gramercy plant falls within thearea of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed toeliminate conspicuous racial imbalance in traditionally segregated job categories.6 Accordingly, the judgment ofthe Court of Appeals for the Fifth Circuit is Reversed.MR. JUSTICE POWELL and MR. JUSTICE STEVENS took no part in the consideration or decision of these cases.MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.

In a very real sense, the Court’s opinion is ahead of its time: it could more appropriately have been handeddown five years from now, in 1984, a year coinciding with the title of a book from which the Court’s opinionborrows, perhaps subconsciously, at least one idea. Orwell describes in his book a governmental official ofOceania, one of the three great world powers, denouncing the current enemy, Eurasia, to an assembled crowd:

It was almost impossible to listen to him without being first convinced and then maddened.... The speech had beenproceeding for perhaps twenty minutes when a messenger hurried onto the platform and a scrap of paper was slippedinto the speaker’s hand. He unrolled and read it without pausing in his speech. Nothing altered in his voice or manner,or in the content of what he was saying, but suddenly the names were different. Without words said, a wave ofunderstanding rippled through the crowd. Oceania was at war with Eastasia! ... The banners and posters with which thesquare was decorated were all wrong!...

[T]he speaker had switched from one line to the other actually in mid-sentence, not only without a pause, butwithout even breaking the syntax.

—G. Orwell, 1984181–182 (1949).

I.

Today’s decision represents an equally dramatic and equally unremarked switch in this Court’s interpretation ofTitle VII.

The operative sections of Title VII prohibit racial discrimination in employment simpliciter. Taken in itsnormal meaning, and as understood by all Members of Congress who spoke to the issue during the legislativedebates, see infra, at 231–251, this language prohibits a covered employer from considering race when makingan employment decision, whether the race be black or white. Several years ago, however, a United StatesDistrict Court held that “the dismissal of white employees charged with misappropriating company propertywhile not dismissing a similarly charged Negro employee does not raise a claim upon which Title VII relief maybe granted.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278 (1976). This Court unanimously reversed,concluding from the “uncontradicted legislative history” that “Title VII prohibits racial discrimination againstthe white petitioners in this case upon the same standards as would be applicable were they Negroes....” Id., at280.

We have never wavered in our understanding that Title VII “prohibits all racial discrimination inemployment, without exception for any group of particular employees.” Id., at 283 (emphasis in original). InGriggs v. Duke Power Co., 401 U.S. 424, 431 (1971), our first occasion to interpret Title VII, a unanimous Courtobserved that “[di]scriminatory preference, for any group, minority or majority, is precisely and only whatCongress has proscribed.” And in our most recent discussion of the issue, we uttered words seeminglydispositive of this case: “It is clear beyond cavil that the obligation imposed by Title VII is to provide an equalopportunity for each applicant regardless of race, without regard to whether members of the applicant’s race arealready proportionately represented in the work force.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 579(1978) (emphasis in original).

Today, however, the Court behaves much like the Orwellian speaker earlier described, as if it had beenhanded a note indicating that Title VII would lead to a result unacceptable to the Court if interpreted here as itwas in our prior decisions. Accordingly, without even a break in syntax, the Court rejects “a literal constructionof § 703(a)” in favor of newly discovered “legislative history,” which leads it to a conclusion directly contrary tothat compelled by the “uncontradicted legislative history” unearthed in McDonald and our other priordecisions. Now we are told that the legislative history of Title VII shows that employers are free to discriminateon the basis of race: an employer may, in the Court’s words, “trammel the interests of the white employees” infavor of black employees in order to eliminate “racial imbalance.” Ante, at 208. Our earlier interpretations ofTitle VII, like the banners and posters decorating the square in Oceania, were all wrong.

As if this were not enough to make a reasonable observer question this Court’s adherence to the oft-statedprinciple that our duty is to construe rather than rewrite legislation, United States v. Rutherford, 442 U.S. 544,555 (1979), the Court also seizes upon § 703(j) of Title VII as an independent, or at least partially independent,basis for its holding. Totally ignoring the wording of that section, which is obviously addressed to those chargedwith the responsibility of interpreting the law rather than those who are subject to its proscriptions, and totallyignoring the months of legislative debates preceding the section’s introduction and passage, which demonstrateclearly that it was enacted to prevent precisely what occurred in this case, the Court infers from § 703(j) that“Congress chose not to forbid all voluntary race-conscious affirmative action.” Ante, at 206.

Thus, by a tour de force reminiscent not of jurists such as Hale, Holmes, and Hughes, but of escape artistssuch as Houdini, the Court eludes clear statutory language, “uncontradicted” legislative history, and uniformprecedent in concluding that employers are, after all, permitted to consider race in making employmentdecisions. It may be that one or more of the principal sponsors of Title VII would have preferred to see aprovision allowing preferential treatment of minorities written into the bill. Such a provision, however, wouldhave to have been expressly or impliedly excepted from Title VII’s explicit prohibition on all racialdiscrimination in employment. There is no such exception in the Act. And a reading of the legislative debatesconcerning Title VII, in which proponents and opponents alike uniformly denounced discrimination in favor of,as well as discrimination against, Negroes, demonstrates clearly that any legislator harboring an unspokendesire for such a provision could not possibly have succeeded in enacting it into law.

II.

Were Congress to act today specifically to prohibit the type of racial discrimination suffered by Weber, it wouldbe hard pressed to draft language better tailored to the task than that found in § 703(d) of Title VII:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-managementcommittee controlling apprenticeship or other training or retraining, including on-the-job training programs todiscriminate against any individual because of his race, color, religion, sex, or national origin in admission to, oremployment in, any program established to provide apprenticeship or other training.

—78 Stat. 256, 42 U.S.C. § 2000e–2(d).

Equally suited to the task would be § 703(a)(2), which makes it unlawful for an employer to classify hisemployees “in any way which would deprive or tend to deprive any individual of employment opportunities orotherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, ornational origin.” 78 Stat. 255, 42 U.S.C. § 2000e–2(a)(2).7 Entirely consistent with these two express prohibitionsis the language of § 703(j) of Title VII, which provides that the Act is not to be interpreted “to require any

employer ... to grant preferential treatment to any individual or to any group because of the race ... of suchindividual or group” to correct a racial imbalance in the employer’s work force. 42 U.S.C. § 2000e–2(j).8 Seizingon the word “require,” the Court infers that Congress must have intended to “permit” this type of racialdiscrimination. Not only is this reading of § 703(j) outlandish in the light of the flat prohibitions of §§ 703(a) and(d), but also, as explained in Part III, it is totally belied by the Act’s legislative history. Quite simply, Kaiser’sracially discriminatory admission quota is flatly prohibited by the plain language of Title VII. This normallydispositive fact,9 n9 however, gives the Court only momentary pause. An “interpretation” of the statuteupholding Weber’s claim would, according to the Court, “‘bring about an end completely at variance with thepurpose of the statute.’” Ante, at 202, quoting United States v. Public Utilities Comm’n, 345 U.S. 295, 315 (1953).To support this conclusion, the Court calls upon the “spirit” of the Act, which it divines from passages in TitleVII’s legislative history indicating that enactment of the statute was prompted by Congress’ desire “‘to openemployment opportunities for Negroes in occupations which [had] been traditionally closed to them.’” Ante, at203, quoting 110 Cong. Rec. 6548 (1964) (remarks of Sen. Humphrey).10 But the legislative history invoked bythe Court to avoid the plain language of §§ 703(a) and (d) simply misses the point. To be sure, the reality ofemployment discrimination against Negroes provided the primary impetus for passage of Title VII. But this factby no means supports the proposition that Congress intended to leave employers free to discriminate againstwhite persons.11 In most cases, “[l]egislative history ... is more vague than the statute we are called upon tointerpret.” United States v. Public Utilities Comm’n, supra, at 320 (Jackson, J., concurring). Here, however, thelegislative history of Title VII is as clear as the language of §§ 703(a) and (d), and it irrefutably demonstrates thatCongress meant precisely what it said in §§ 703(a) and (d)—that no racial discrimination in employment ispermissible under Title VII, not even preferential treatment of minorities to correct racial imbalance.

III.

In undertaking to review the legislative history of Title VII, I am mindful that the topic hardly makes for lightreading, but I am also fearful that nothing short of a thorough examination of the congressional debates willfully expose the magnitude of the Court’s misinterpretation of Congress’ intent.

A.

Introduced on the floor of the House of Representatives on June 20, 1963, the bill—H.R. 7152—that ultimatelybecame the Civil Rights Act of 1964 contained no compulsory provisions directed at private discrimination inemployment. The bill was promptly referred to the Committee on the Judiciary, where it was amended toinclude Title VII. With two exceptions, the bill reported by the House Judiciary Committee contained §§ 703(a)and (b) as they were ultimately enacted. Amendments subsequently adopted on the House floor added § 703’sprohibition against sex discrimination and § 703(d)’s coverage of “on-the-job training.”

After noting that “[t]he purpose of [Title VII] is to eliminate ... discrimination in employment based on race,color, religion, or national origin,” the Judiciary Committee’s Report simply paraphrased the provisions of TitleVII without elaboration. H.R. Rep., pt. 1, p. 26. In a separate Minority Report, however, opponents of themeasure on the Committee advanced a line of attack which was reiterated throughout the debates in both theHouse and Senate and which ultimately led to passage of § 703(j). Noting that the word “discrimination” wasnowhere defined in H.R. 7152, the Minority Report charged that the absence from Title VII of any reference to“racial imbalance” was a “public relations” ruse and that “the administration intends to rely upon its ownconstruction of ‘discrimination’ as including the lack of racial balance...”. H.R. Rep., pt. 1, pp. 67–68. Todemonstrate how the bill would operate in practice, the Minority Report posited a number of hypotheticalemployment situations, concluding in each example that the employer “may be forced to hire according to race,to ‘racially balance’ those who work for him in every job classification or be in violation of Federal law.” Id., at69 (emphasis in original).12

When H.R. 7152 reached the House floor, the opening speech in support of its passage was delivered byRepresentative Celler, Chairman of the House Judiciary Committee and the Congressman responsible forintroducing the legislation. A portion of that speech responded to criticism “seriously misrepresen[ting what thebill would do and grossly distort[ing] its effects”:

[T]he charge has been made that the Equal Employment Opportunity Commission to be established by Title VII of thebill would have the power to prevent a business from employing and promoting the people it wished, and that a‘Federal Inspector’ could then order the hiring and promotion only of employees of certain races or religious groups.This description of the bill is entirely wrong....

Even [a] court could not order that any preference be given to any particular race, religion or other group, but wouldbe limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment andpromotion only of members of a specific racial or religious group is therefore patently erroneous.

... The Bill would do no more than prevent ... employers from discriminating against or in favor of workers becauseof their race, religion, or national origin.

“It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing‘racial or religious imbalance’ in employment by requiring the hiring of certain people without regard to theirqualifications simply because they are of a given race or religion. Only actual discrimination could be stopped.

—110 Cong. Rec. 1518 (1964)

Representative Celler’s construction of Title VII was repeated by several other supporters during the Housedebate.13

Thus, the battle lines were drawn early in the legislative struggle over Title VII, with opponents of themeasure charging that agencies of the Federal Government such as the Equal Employment OpportunityCommission (EEOC), by interpreting the word “discrimination” to mean the existence of “racial imbalance,”would “require” employers to grant preferential treatment to minorities, and supporters responding that theEEOC would be granted no such power and that, indeed, Title VII prohibits discrimination “in favor of workersbecause of their race.” Supporters of H.R. 7152 in the House ultimately prevailed by a vote of 290 to 130,14 andthe measure was sent to the Senate to begin what became the longest debate in that body’s history.

B.

The Senate debate was broken into three phases: the debate on sending the bill to Committee, the general debateon the bill prior to invocation of cloture, and the debate following cloture....

[W]ith virtual clairvoyance the Senate’s leading supporters of Title VII anticipated precisely thecircumstances of this case and advised their colleagues that the type of minority preference employed by Kaiserwould violate Title VII’s ban on racial discrimination. To further accentuate the point, Senator Clark introducedanother memorandum dealing with common criticisms of the bill, including the charge that racial quotas wouldbe imposed under Title VII. The answer was simple and to the point: “Quotas are themselves discriminatory.”Id., at 7218.

Despite these clear statements from the bill’s leading and most knowledgeable proponents, the fears of theopponents were not put to rest. Senator Robertson reiterated the view that “discrimination” could be interpretedby a federal “bureaucrat” to require hiring quotas. Id., at 7418–7420.15 Senators Smathers and Sparkman, whileconceding that Title VII does not in so many words require the use of hiring quotas, repeated the opposition’sview that employers would be coerced to grant preferential hiring treatment to minorities by agencies of theFederal Government.16 Senator Williams was quick to respond:

“Those opposed to H.R. 7152 should realize that to hire a Negro solely because he is a Negro is racialdiscrimination, just as much as a ‘white only’ employment policy. Both forms of discrimination are prohibitedby Title VII of this bill. The language of that title simply states that race is not a qualification for employment....Some people charge that H.R. 7152 favors the Negro, at the expense of the white majority. But how can thelanguage of equality favor one race or one religion over another? Equality can have only one meaning, and thatmeaning is self-evident to reasonable men. Those who say that equality means favoritism do violence tocommon sense.” Id., at 8921. Senator Williams concluded his remarks by noting that Title VII’s only purpose is“the elimination of racial and religious discrimination in employment.” Ibid.17 On May 25, Senator Humphreyagain took the floor to defend the bill against “the well-financed drive by certain opponents to confuse andmislead the American people.” Id., at 11846. Turning once again to the issue of preferential treatment, SenatorHumphrey remained faithful to the view that he had repeatedly expressed:

“The title does not provide that any preferential treatment in employment shall be given to Negroes or toany other persons or groups. It does not provide that any quota systems may be established to maintain racial

balance in employment. In fact, the title would prohibit preferential treatment for any particular group, and anyperson, whether or not a member of any minority group, would be permitted to file a complaint ofdiscriminatory employment practices.” Id., at 11848 (emphasis added).

While the debate in the Senate raged, a bipartisan coalition under the leadership of Senators Dirksen,Mansfield, Humphrey, and Kuchel was working with House leaders and representatives of the Johnsonadministration on a number of amendments to H.R. 7152 designed to enhance its prospects of passage. The so-called “Dirksen-Mansfield” amendment was introduced on May 26 by Senator Dirksen as a substitute for theentire House-passed bill. The substitute bill, which ultimately became law, left unchanged the basic prohibitorylanguage of §§ 703(a) and (d), as well as the remedial provisions in § 706(g). It added, however, severalprovisions defining and clarifying the scope of Title VII’s substantive prohibitions. One of those clarifyingamendments, § 703(j), was specifically directed at the opposition’s concerns regarding racial balancing andpreferential treatment of minorities, providing in pertinent part: “Nothing contained in [Title VII] shall beinterpreted to require any employer ... to grant preferential treatment to any individual or to any group becauseof the race ... of such individual or group on account of” a racial imbalance in the employer’s work force. 42U.S.C. § 2000e–2(j); quoted in full in n. 8, supra.

The Court draws from the language of § 703(j) primary support for its conclusion that Title VII’s blanketprohibition on racial discrimination in employment does not prohibit preferential treatment of blacks to correctracial imbalance. Alleging that opponents of Title VII had argued (1) that the Act would be interpreted torequire employers with racially imbalanced work forces to grant preferential treatment to minorities and (2) that“employers with racially imbalanced work forces would grant preferential treatment to racial minorities, even ifnot required to do so by the Act,” ante, at 205, the Court concludes that § 703(j) is responsive only to theopponents’ first objection and that Congress therefore must have intended to permit voluntary, privatediscrimination against whites in order to correct racial imbalance.

Contrary to the Court’s analysis, the language of § 703(j) is precisely tailored to the objection voiced timeand again by Title VII’s opponents. Not once during the 83 days of debate in the Senate did a speaker,proponent or opponent, suggest that the bill would allow employers voluntarily to prefer racial minorities overwhite persons.18 In light of Title VII’s flat prohibition on discrimination “against any individual ... because ofsuch individual’s race,” § 703(a), 42 U.S.C. § 2000e–2(a), such a contention would have been, in any event, toopreposterous to warrant response. Indeed, speakers on both sides of the issue, as the legislative history makesclear, recognized that Title VII would tolerate no voluntary racial preference, whether in favor of blacks orwhites. The complaint consistently voiced by the opponents was that Title VII, particularly the word“discrimination,” would be interpreted by federal agencies such as the EEOC to require the correction of racialimbalance through the granting of preferential treatment to minorities. Verbal assurances that Title VII wouldnot require—indeed, would not permit—preferential treatment of blacks having failed, supporters of H.R. 7152responded by proposing an amendment carefully worded to meet, and put to rest, the opposition’s charge.Indeed, unlike §§ 703(a) and (d), which are by their terms directed at entities—e.g., employers, labor unions—whose actions are restricted by Title VII’s prohibitions, the language of § 703(j) is specifically directed atentities—federal agencies and courts—charged with the responsibility of interpreting Title VII’s provisions.19

In light of the background and purpose of § 703(j), the irony of invoking the section to justify the result inthis case is obvious. The Court’s frequent references to the “voluntary” nature of Kaiser’s racially discriminatoryadmission quota bear no relationship to the facts of this case. Kaiser and the Steelworkers acted under pressurefrom an agency of the Federal Government, the Office of Federal Contract Compliance, which found thatminorities were being “under utilized” at Kaiser’s plants. See n. 2, supra. That is, Kaiser’s work force wasracially imbalanced. Bowing to that pressure, Kaiser instituted an admissions quota preferring blacks overwhites, thus confirming that the fears of Title VII’s opponents were well founded. Today, § 703(j), adopted toallay those fears, is invoked by the Court to uphold imposition of a racial quota under the very circumstancesthat the section was intended to prevent.20 ...

V.

Our task in this case, like any other case involving the construction of a statute, is to give effect to the intent ofCongress. To divine that intent, we traditionally look first to the words of the statute and, if they are unclear,

then to the statute’s legislative history. Finding the desired result hopelessly foreclosed by these conventionalsources, the Court turns to a third source—the “spirit” of the Act. But close examination of what the Courtproffers as the spirit of the Act reveals it as the spirit animating the present majority, not the 88th Congress. Forif the spirit of the Act eludes the cold words of the statute itself, it rings out with unmistakable clarity in thewords of the elected representatives who made the Act law. It is equality. Senator Dirksen, I think, captured thatspirit in a speech delivered on the floor of the Senate just moments before the bill was passed:

... [T]oday we come to grips finally with a bill that advances the enjoyment of living; but, more than that, it advances theequality of opportunity.

“I do not emphasize the word ‘equality’ standing by itself. It means equality of opportunity in the field of education.It means equality of opportunity in the field of employment. It means equality of opportunity in the field ofparticipation in the affairs of government....

“That is it.“Equality of opportunity, if we are going to talk about conscience, is the mass conscience of mankind that speaks in

every generation, and it will continue to speak long after we are dead and gone.—110 Cong. Rec. 14510 (1964).

There is perhaps no device more destructive to the notion of equality than the numerus clausus—the quota.Whether described as “benign discrimination” or “affirmative action,” the racial quota is nonetheless a creator ofcastes, a two-edged sword that must demean one in order to prefer another. In passing Title VII, Congressoutlawed all racial discrimination, recognizing that no discrimination based on race is benign, that no actiondisadvantaging a person because of his color is affirmative. With today’s holding, the Court introduces into TitleVII a tolerance for the very evil that the law was intended to eradicate, without offering even a clue as to whatthe limits on that tolerance may be. We are told simply that Kaiser’s racially discriminatory admission quota“falls on the permissible side of the line.” Ante, at 208. By going not merely beyond, but directly against TitleVII’s language and legislative history, the Court has sown the wind. Later courts will face the impossible task ofreaping the whirlwind.

Q U E S T I O N S A N D D I S C U S S I O N P O I N T S

1. What constitutional questions does this case raise?

2. Can you separate the historical from the legal questions?

3. What weight, if any, do you accord the Congressional debates in reaching a decision about what thestatute means in this case?

4. Does the fact that the defendant (U.S. Steel) is a private company make any difference to you?

5. Assume that Congress chose a “color-blind” conception of equality because the members believedthat would lead to greater Black representation in the work force. If that assumption did not come topass, what role should that fact play in the Court’s decision in this case?

6. Do the Majority and the Dissent have different “theories” of statutory interpretation? What are someof those differences and how do those differences make a difference in the outcome of the case?

vMANUEL LUJAN, JR., Secretary of the Interior, Petitioner,v. DEFENDERS OF WILDLIFE, et al.Supreme Court of the United States504 U.S. 555 (1992)

SCALIA, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I,II, III-A, and IV, in which REHNQUIST, C.J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined, andan opinion with respect to Part III-B, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined.

KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which SOUTER, J., joined,post, p. 2146. STEVENS, J., filed an opinion concurring in the judgment, post, p. 2147. BLACKMUN, J., filed adissenting opinion, in which O’CONNOR, J., joined, post, p. 2151.

Justice SCALIA delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, and an opinionwith respect to Part III-B, in which THE CHIEF JUSTICE, Justice WHITE, and Justice THOMAS join.

This case involves a challenge to a rule promulgated by the Secretary of the Interior interpreting s 7 of theEndangered Species Act of 1973 (ESA), 87 Stat. 884, 892, as amended, 16 U.S.C. s 1536, in such fashion as torender it applicable only to actions within the United States or on the high seas. The preliminary issue, and theonly one we reach, is whether respondents here, plaintiffs below, have standing to seek judicial review of therule.

I.

The ESA, 87 Stat. 884, as amended, 16 U.S.C. s 1531 et seq., seeks to protect species of animals against threats totheir continuing existence caused by man. See generally TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117(1978). The ESA instructs the Secretary of the Interior to promulgate by regulation a list of those species whichare either endangered or threatened under enumerated criteria, and to define the critical habitat of these species.16 U.S.C. ss 1533, 1536. Section 7(a)(2) of the Act then provides, in pertinent part:

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that anyaction authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of anyendangered species or threatened species or result in the destruction or adverse modification of habitat of such specieswhich is determined by the Secretary, after consultation as appropriate with affected States, to be critical.

—16 U.S.C. § 1536(a)(2).

In 1978, the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), on behalf ofthe Secretary of the Interior and the Secretary of Commerce respectively, promulgated a joint regulation statingthat the obligations imposed by § 7(a)(2) extend to actions taken in foreign nations. 43 Fed.Reg. 874 (1978). Thenext year, however, the Interior Department began to reexamine its position. A revised joint regulation,reinterpreting s 7(a)(2) to require consultation only for actions taken in the United States or on the high seas, wasproposed in 1983, 48 Fed.Reg. 29990, and promulgated in 1986, 51 Fed.Reg. 19926; 50 CFR 402.01 (1991).

Shortly thereafter, respondents, organizations dedicated to wildlife conservation and other environmentalcauses, filed this action against the Secretary of the Interior, seeking a declaratory judgment that the newregulation is in error as to the geographic scope of § 7(a)(2) and an injunction requiring the Secretary topromulgate a new regulation restoring the initial interpretation. The District Court granted the Secretary’smotion to dismiss for lack of standing. Defenders of Wildlife v. Hodel, 658 F.Supp. 43, 47–48 (Minn.1987). TheCourt of Appeals for the Eighth Circuit reversed by a divided vote. Defenders of Wildlife v. Hodel, 851 F.2d1035 (1988). On remand, the Secretary moved for summary judgment on the standing issue, and respondentsmoved for summary judgment on the merits. The District Court denied the Secretary’s motion, on the groundthat the Eighth Circuit had already determined the standing question in this case; it granted respondents’ meritsmotion, and ordered the Secretary to publish a revised regulation. Defenders of Wildlife v. Hodel, 707 F.Supp.1082 (Minn.1989). The Eighth Circuit affirmed. 911 F.2d 117 (1990). We granted certiorari, 500 U.S. 915, 111 S.Ct.2008, 114 L.Ed.2d 97 (1991).

II.

While the Constitution of the United States divides all power conferred upon the Federal Government into“legislative Powers,” Art. I, s 1, “[t]he executive Power,” Art. II, § 1, and “[t]he judicial Power,” Art. III, § 1, itdoes not attempt to define those terms. To be sure, it limits the jurisdiction of federal courts to “Cases” and“Controversies,” but an executive inquiry can bear the name “case” (the Hoffa case) and a legislative dispute canbear the name “controversy” (the Smoot-Hawley controversy). Obviously, then, the Constitution’s centralmechanism of separation of powers depends largely upon common understanding of what activities areappropriate to legislatures, to executives, and to courts.

In The Federalist No. 48, Madison expressed the view that “[i]t is not infrequently a question of real nicety inlegislative bodies whether the operation of a particular measure will, or will not, extend beyond the legislativesphere,” whereas “the executive power [is] restrained within a narrower compass and ... more simple in itsnature,” and “the judiciary [is] described by landmarks still less uncertain.” The Federalist No. 48, p. 256 (Careyand McClellan eds. 1990). One of those landmarks, setting apart the “Cases” and “Controversies” that are of thejusticiable sort referred to in Article III—“serv[ing] to identify those disputes which are appropriately resolvedthrough the judicial process,” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135(1990)—is the doctrine of standing. Though some of its elements express merely prudential considerations thatare part of judicial self-government, the core component of standing is an essential and unchanging part of thecase-or-controversy requirement of Article III. See, e.g., Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324,82 L.Ed.2d 556 (1984).

Over the years, our cases have established that the irreducible constitutional minimum of standing containsthree elements. First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protectedinterest which is (a) concrete and particularized, see id., at 756, 104 S.Ct., at 3327; Warth v. Seldin, 422 U.S. 490,508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740–741, n. 16, 92 S.Ct. 1361,1368–1369, n. 16, 31 L.Ed.2d 636 (1972)1; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical,’“Whitmore, supra, 495 U.S., at 155, 110 S.Ct., at 1723 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct.1660, 1665, 75 L.Ed.2d 675 (1983)). Second, there must be a causal connection between the injury and the conductcomplained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ...th[e] result [of] the independent action of some third party not before the court.” Simon v. Eastern Ky. WelfareRights Organization, 426 U.S. 26, 41–42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be “likely,” asopposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Id., at 38, 43, 96S.Ct., at 1924, 1926.

The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v.Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990); Warth, supra, 422 U.S., at 508, 95 S.Ct., at2210. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, eachelement must be supported in the same way as any other matter on which the plaintiff bears the burden ofproof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. See Lujanv. National Wildlife Federation, 497 U.S. 871, 883–889, 110 S.Ct. 3177, 3185–3189, 111 L.Ed.2d 695 (1990);Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114–115, and n. 31, 99 S.Ct. 1601, 1614–1615, and n. 31, 60L.Ed.2d 66 (1979); Simon, supra, 426 U.S., at 45, n. 25, 96 S.Ct., at 1927, and n. 25; Warth, supra, 422 U.S., at 527,and n. 6, 95 S.Ct., at 2219, and n. 6 (Brennan, J., dissenting). At the pleading stage, general factual allegations ofinjury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we “presum[e] thatgeneral allegations embrace those specific facts that are necessary to support the claim.” National WildlifeFederation, supra, 497 U.S., at 889, 110 S.Ct., at 3189. In response to a summary judgment motion, however, theplaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence“specific facts,” Fed.Rule Civ.Proc. 56(e), which for purposes of the summary judgment motion will be taken tobe true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidenceadduced at trial.” Gladstone, supra, 441 U.S., at 115, n. 31, 99 S.Ct., at 1616, n. 31. When the suit is onechallenging the legality of government action or inaction, the nature and extent of facts that must be averred (atthe summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerablyupon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there isordinarily little question that the action or inaction has caused him injury, and that a judgment preventing orrequiring the action will redress it. When, however, as in this case, a plaintiff’s asserted injury arises from thegovernment’s allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed. Inthat circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable)third party to the government action or inaction—and perhaps on the response of others as well. The existenceof one or more of the essential elements of standing “depends on the unfettered choices made by independentactors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presumeeither to control or to predict,” ASARCO Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 2044, 104 L.Ed.2d 696(1989) (opinion of KENNEDY, J.); see also Simon, supra, 426 U.S., at 41–42, 96 S.Ct., at 1925, 1926; and it

becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in suchmanner as to produce causation and permit redressability of injury. E.g., Warth, supra, 422 U.S., at 505, 95 S.Ct.,at 2208. Thus, when the plaintiff is not himself the object of the government action or inaction he challenges,standing is not precluded, but it is ordinarily “substantially more difficult” to establish. Allen, supra, 468 U.S., at758, 104 S.Ct., at 3328; Simon, supra, 426 U.S., at 44–45, 96 S.Ct., at 1927; Warth, supra, 422 U.S., at 505, 95 S.Ct.,at 2208.

III.

We think the Court of Appeals failed to apply the foregoing principles in denying the Secretary’s motion forsummary judgment. Respondents had not made the requisite demonstration of (at least) injury andredressability.

A.

Respondents’ claim to injury is that the lack of consultation with respect to certain funded activities abroad“increas[es] the rate of extinction of endangered and threatened species.” Complaint P 5, App. 13. Of course, thedesire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interestfor purpose of standing. See, e.g., Sierra Club v. Morton, 405 U.S., at 734, 92 S.Ct., at 1366. “But the ‘injury infact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review behimself among the injured.” Id., at 734–735, 92 S.Ct., at 1366. To survive the Secretary’s summary judgmentmotion, respondents had to submit affidavits or other evidence showing, through specific facts, not only thatlisted species were in fact being threatened by funded activities abroad, but also that one or more ofrespondents’ members would thereby be “directly” affected apart from their “ ‘special interest’ in th[e] subject.”Id., at 735, 739, 92 S.Ct., at 1366, 1368. See generally Hunt v. Washington State Apple Advertising Comm’n, 432U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).

With respect to this aspect of the case, the Court of Appeals focused on the affidavits of two Defenders’members—Joyce Kelly and Amy Skilbred. Ms. Kelly stated that she traveled to Egypt in 1986 and “observed thetraditional habitat of the endangered nile crocodile there and intend[s] to do so again, and hope[s] to observe thecrocodile directly,” and that she “will suffer harm in fact as the result of [the] American ... role ... in overseeingthe rehabilitation of the Aswan High Dam on the Nile ... and [in] develop [ing] ... Egypt’s ... Master Water Plan.”App. 101. Ms. Skilbred averred that she traveled to Sri Lanka in 1981 and “observed th[e] habitat” of“endangered species such as the Asian elephant and the leopard” at what is now the site of the Mahaweli projectfunded by the Agency for International Development (AID), although she “was unable to see any of theendangered species”; “this development project,” she continued, “will seriously reduce endangered, threatened,and endemic species habitat including areas that I visited ... [, which] may severely shorten the future of thesespecies”; that threat, she concluded, harmed her because she “intend[s] to return to Sri Lanka in the future andhope[s] to be more fortunate in spotting at least the endangered elephant and leopard.” Id., at 145–146. WhenMs. Skilbred was asked at a subsequent deposition if and when she had any plans to return to Sri Lanka, shereiterated that “I intend to go back to Sri Lanka,” but confessed that she had no current plans: “I don’t know[when]. There is a civil war going on right now. I don’t know. Not next year, I will say. In the future.” Id., at 318.

We shall assume for the sake of argument that these affidavits contain facts showing that certain agency-funded projects threaten listed species—though that is questionable. They plainly contain no facts, however,showing how damage to the species will produce “imminent” injury to Mses. Kelly and Skilbred. That thewomen “had visited” the areas of the projects before the projects commenced proves nothing. As we have saidin a related context, “ ‘Past exposure to illegal conduct does not in itself show a present case or controversyregarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Lyons, 461 U.S., at102, 103 S.Ct., at 1665 (quoting O’Shea v. Littleton, 414 U.S. 488, 495–496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674(1974)). And the affiants’ profession of an “inten[t]” to return to the places they had visited before—where theywill presumably, this time, be deprived of the opportunity to observe animals of the endangered species—issimply not enough. Such “some day” intentions—without any description of concrete plans, or indeed even anyspecification of when the some day will be—do not support a finding of the “actual or imminent” injury that ourcases require. See supra, at 2136.

Besides relying upon the Kelly and Skilbred affidavits, respondents propose a series of novel standingtheories. The first, inelegantly styled “ecosystem nexus,” proposes that any person who uses any part of a“contiguous ecosystem” adversely affected by a funded activity has standing even if the activity is located agreat distance away. This approach, as the Court of Appeals correctly observed, is inconsistent with our opinionin National Wildlife Federation, which held that a plaintiff claiming injury from environmental damage mustuse the area affected by the challenged activity and not an area roughly “in the vicinity” of it. 497 U.S., at 887–889, 110 S.Ct., at 3188–3189; see also Sierra Club, 405 U.S., at 735, 92 S.Ct., at 1366. It makes no difference that thegeneral-purpose section of the ESA states that the Act was intended in part “to provide a means whereby theecosystems upon which endangered species and threatened species depend may be conserved,” 16 U.S.C. §1531(b). To say that the Act protects ecosystems is not to say that the Act creates (if it were possible) rights ofaction in persons who have not been injured in fact, that is, persons who use portions of an ecosystem notperceptibly affected by the unlawful action in question.

Respondents’ other theories are called, alas, the “animal nexus” approach, whereby anyone who has aninterest in studying or seeing the endangered animals anywhere on the globe has standing; and the “vocationalnexus” approach, under which anyone with a professional interest in such animals can sue. Under thesetheories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asianelephants in the Bronx Zoo, has standing to sue because the Director of the Agency for InternationalDevelopment (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This isbeyond all reason. Standing is not “an ingenious academic exercise in the conceivable,” United States v. StudentsChallenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254(1973), but as we have said requires, at the summary judgment stage, a factual showing of perceptible harm. It isclear that the person who observes or works with a particular animal threatened by a federal decision is facingperceptible harm, since the very subject of his interest will no longer exist. It is even plausible—though it goes tothe outermost limit of plausibility—to think that a person who observes or works with animals of a particularspecies in the very area of the world where that species is threatened by a federal decision is facing such harm,since some animals that might have been the subject of his interest will no longer exist, see Japan Whaling Assn.v. American Cetacean Society, 478 U.S. 221, 231, n. 4, 106 S.Ct. 2860, 2866, n. 4, 92 L.Ed.2d 166 (1986). It goesbeyond the limit, however, and into pure speculation and fantasy, to say that anyone who observes or workswith an endangered species, anywhere in the world, is appreciably harmed by a single project affecting someportion of that species with which he has no more specific connection.2

Besides failing to show injury, respondents failed to demonstrate redressability. Instead of attacking theseparate decisions to fund particular projects allegedly causing them harm, respondents chose to challenge amore generalized level of Government action (rules regarding consultation), the invalidation of which wouldaffect all overseas projects. This programmatic approach has obvious practical advantages, but also obviousdifficulties insofar as proof of causation or redressability is concerned. As we have said in another context,“suits challenging, not specifically identifiable Government violations of law, but the particular programsagencies establish to carry out their legal obligations ... [are], even when premised on allegations of severalinstances of violations of law, ... rarely if ever appropriate for federal-court adjudication.” Allen, 468 U.S., at759–760, 104 S.Ct., at 3329.

The most obvious problem in the present case is redressability. Since the agencies funding the projects werenot parties to the case, the District Court could accord relief only against the Secretary: He could be ordered torevise his regulation to require consultation for foreign projects. But this would not remedy respondents’ allegedinjury unless the funding agencies were bound by the Secretary’s regulation, which is very much an openquestion. Whereas in other contexts the ESA is quite explicit as to the Secretary’s controlling authority, see, e.g.,16 U.S.C. § 1533(a)(1) (“The Secretary shall” promulgate regulations determining endangered species); §1535(d)(1) (“The Secretary is authorized to provide financial assistance to any State”), with respect toconsultation the initiative, and hence arguably the initial responsibility for determining statutory necessity, lieswith the agencies, see § 1536(a)(2) (“Each Federal agency shall, in consultation with and with the assistance ofthe Secretary, insure that any” funded action is not likely to jeopardize endangered or threatened species)(emphasis added). When the Secretary promulgated the regulation at issue here, he thought it was binding onthe agencies, see 51 Fed.Reg. 19928 (1986). The Solicitor General, however, has repudiated that position here,

and the agencies themselves apparently deny the Secretary’s authority. (During the period when the Secretarytook the view that § 7(a)(2) did apply abroad, AID and FWS engaged in a running controversy over whetherconsultation was required with respect to the Mahaweli project, AID insisting that consultation applied only todomestic actions.)

Respondents assert that this legal uncertainty did not affect redressability (and hence standing) because theDistrict Court itself could resolve the issue of the Secretary’s authority as a necessary part of its standinginquiry. Assuming that it is appropriate to resolve an issue of law such as this in connection with a thresholdstanding inquiry, resolution by the District Court would not have remedied respondents’ alleged injury anyway,because it would not have been binding upon the agencies. They were not parties to the suit, and there is noreason they should be obliged to honor an incidental legal determination the suit produced. The Court ofAppeals tried to finesse this problem by simply proclaiming that “[w]e are satisfied that an injunction requiringthe Secretary to publish [respondents’ desired] regulatio[n] ... would result in consultation.” Defenders ofWildlife, 851 F.2d, at 1042, 1043–1044. We do not know what would justify that confidence, particularly whenthe Justice Department (presumably after consultation with the agencies) has taken the position that theregulation is not binding. The short of the matter is that redress of the only injury in fact respondents complainof requires action (termination of funding until consultation) by the individual funding agencies; and any reliefthe District Court could have provided in this suit against the Secretary was not likely to produce that action.

A further impediment to redressability is the fact that the agencies generally supply only a fraction of thefunding for a foreign project. AID, for example, has provided less than 10% of the funding for the Mahaweliproject. Respondents have produced nothing to indicate that the projects they have named will either besuspended, or do less harm to listed species, if that fraction is eliminated. As in Simon, 426 U.S., at 43–44, 96S.Ct., at 1926–1927, it is entirely conjectural whether the nonagency activity that affects respondents will bealtered or affected by the agency activity they seek to achieve. There is no standing.

IV.

The Court of Appeals found that respondents had standing for an additional reason: because they had suffereda “procedural injury.” The so-called “citizen-suit” provision of the ESA provides, in pertinent part, that “anyperson may commence a civil suit on his own behalf (A) to enjoin any person, including the United States andany other governmental instrumentality or agency ... who is alleged to be in violation of any provision of thischapter.” 16 U.S.C. § 1540(g). The court held that, because § 7(a)(2) requires interagency consultation, thecitizen-suit provision creates a “procedural righ[t]” to consultation in all “persons”—so that anyone can file suitin federal court to challenge the Secretary’s (or presumably any other official’s) failure to follow the assertedlycorrect consultative procedure, notwithstanding his or her inability to allege any discrete injury flowing fromthat failure. 911 F.2d, at 121–122. To understand the remarkable nature of this holding one must be clear aboutwhat it does not rest upon: This is not a case where plaintiffs are seeking to enforce a procedural requirementthe disregard of which could impair a separate concrete interest of theirs (e.g., the procedural requirement for ahearing prior to denial of their license application, or the procedural requirement for an environmental impactstatement before a federal facility is constructed next door to them). Nor is it simply a case where concreteinjury has been suffered by many persons, as in mass fraud or mass tort situations. Nor, finally, is it the unusualcase in which Congress has created a concrete private interest in the outcome of a suit against a private party forthe government’s benefit, by providing a cash bounty for the victorious plaintiff. Rather, the court held that theinjury-in-fact requirement had been satisfied by congressional conferral upon all persons of an abstract, self-contained, noninstrumental “right” to have the Executive observe the procedures required by law. We reject thisview.

We have consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, andseeking relief that no more directly and tangibly benefits him than it does the public at large—does not state anArticle III case or controversy. For example, in Fairchild v. Hughes, 258 U.S. 126, 129–130, 42 S.Ct. 274, 275, 66L.Ed. 499 (1922), we dismissed a suit challenging the propriety of the process by which the NineteenthAmendment was ratified. Justice Brandeis wrote for the Court:

“[This is] not a case within the meaning of ... Article III.... Plaintiff has [asserted] only the right, possessed by everycitizen, to require that the Government be administered according to law and that the public moneys be not wasted.Obviously this general right does not entitle a private citizen to institute in the federal courts a suit....” Ibid.

In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), we dismissed for lack of Article IIIstanding a taxpayer suit challenging the propriety of certain federal expenditures. We said:

The party who invokes the power [of judicial review] must be able to show not only that the statute is invalid but thathe has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and notmerely that he suffers in some indefinite way in common with people generally.... Here the parties plaintiff have nosuch case.... [T]heir complaint ... is merely that officials of the executive department of the government are executingand will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would benot to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.

—Id., at 488–489, 43 S.Ct., at 601

In Ex parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937), we dismissed a suit contending that JusticeBlack’s appointment to this Court violated the Ineligibility Clause, Art. I, § 6, cl. 2. “It is an establishedprinciple,” we said, “that to entitle a private individual to invoke the judicial power to determine the validity ofexecutive or legislative action he must show that he has sustained or is immediately in danger of sustaining adirect injury as the result of that action and it is not sufficient that he has merely a general interest common to allmembers of the public.” 302 U.S., at 634, 58 S.Ct., at 1. See also Doremus v. Board of Ed. of Hawthorne, 342 U.S.429, 433–434, 72 S.Ct. 394, 396–397, 96 L.Ed. 475 (1952) (dismissing taxpayer action on the basis of Mellon).

We hold that respondents lack standing to bring this action and that the Court of Appeals erred in denyingthe summary judgment motion filed by the United States. The opinion of the Court of Appeals is herebyreversed, and the cause is remanded for proceedings consistent with this opinion. It is so ordered.

Justice KENNEDY, with whom Justice SOUTER joins, concurring in part and concurring in the judgment.Although I agree with the essential parts of the Court’s analysis, I write separately to make several

observations. I agree with the Court’s conclusion in Part III-A that, on the record before us, respondents havefailed to demonstrate that they themselves are “among the injured.” Sierra Club v. Morton, 405 U.S. 727, 735, 92S.Ct. 1361, 1366, 31 L.Ed.2d 636 (1972). This component of the standing inquiry is not satisfied unless

[p]laintiffs ... demonstrate a “personal stake in the outcome.” ... Abstract injury is not enough. The plaintiff must showthat he “has sustained or is immediately in danger of sustaining some direct injury” as the result of the challengedofficial conduct and the injury or threat of injury must be both “real and immediate,” not “conjectural” or“hypothetical.”

—Los Angeles v. Lyons, 461 U.S. 95, 101–102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (citations omitted)

While it may seem trivial to require that Mses. Kelly and Skilbred acquire airline tickets to the project sitesor announce a date certain upon which they will return, see ante, at 2138, this is not a case where it is reasonableto assume that the affiants will be using the sites on a regular basis, see Sierra Club v. Morton, supra, 405 U.S., at735, n. 8, 92 S.Ct., at 1366, n. 8, nor do the affiants claim to have visited the sites since the projects commenced.With respect to the Court’s discussion of respondents’ “ecosystem nexus,” “animal nexus,” and “vocationalnexus” theories, ante, at 2139–2140, I agree that on this record respondents’ showing is insufficient to establishstanding on any of these bases. I am not willing to foreclose the possibility, however, that in differentcircumstances a nexus theory similar to those proffered here might support a claim to standing. See JapanWhaling Assn. v. American Cetacean Society, 478 U.S. 221, 231, n. 4, 106 S.Ct. 2860, 2866, n. 4, 92 L.Ed.2d 166(1986) (“[R]espondents ... undoubtedly have alleged a sufficient ‘injury in fact’ in that the whale watching andstudying of their members will be adversely affected by continued whale harvesting”).

In light of the conclusion that respondents have not demonstrated a concrete injury here sufficient tosupport standing under our precedents, I would not reach the issue of redressability that is discussed by theplurality in Part III-B.

I also join Part IV of the Court’s opinion with the following observations. As Government programs andpolicies become more complex and farreaching, we must be sensitive to the articulation of new rights of actionthat do not have clear analogs in our common-law tradition. Modern litigation has progressed far from theparadigm of Marbury suing Madison to get his commission, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed.60 (1803), or Ogden seeking an injunction to halt Gibbons’ steamboat operations, Gibbons v. Ogden, 22 U.S. (9Wheat.) 1, 6 L.Ed. 23 (1824). In my view, Congress has the power to define injuries and articulate chains ofcausation that will give rise to a case or controversy where none existed before, and I do not read the Court’sopinion to suggest a contrary view. See Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343(1975); ante, at 2145–2146. In exercising this power, however, Congress must at the very least identify the injuryit seeks to vindicate and relate the injury to the class of persons entitled to bring suit. The citizen-suit provisionof the Endangered Species Act does not meet these minimal requirements, because while the statute purports toconfer a right on “any person ... to enjoin ... the United States and any other governmental instrumentality oragency ... who is alleged to be in violation of any provision of this chapter,” it does not of its own force establishthat there is an injury in “any person” by virtue of any “violation.” 16 U.S.C. § 1540(g)(1)(A).

The Court’s holding that there is an outer limit to the power of Congress to confer rights of action is a directand necessary consequence of the case and controversy limitations found in Article III. I agree that it wouldexceed those limitations if, at the behest of Congress and in the absence of any showing of concrete injury, wewere to entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of thelaws. While it does not matter how many persons have been injured by the challenged action, the party bringingsuit must show that the action injures him in a concrete and personal way. This requirement is not just an emptyformality. It preserves the vitality of the adversarial process by assuring both that the parties before the courthave an actual, as opposed to professed, stake in the outcome, and that “the legal questions presented ... will beresolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to arealistic appreciation of the consequences of judicial action.” Valley Forge Christian College v. AmericansUnited for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). Inaddition, the requirement of concrete injury confines the Judicial Branch to its proper, limited role in theconstitutional framework of Government.

An independent judiciary is held to account through its open proceedings and its reasoned judgments. Inthis process it is essential for the public to know what persons or groups are invoking the judicial power, thereasons that they have brought suit, and whether their claims are vindicated or denied. The concrete injuryrequirement helps assure that there can be an answer to these questions; and, as the Court’s opinion is careful toshow, that is part of the constitutional design.

With these observations, I concur in Parts I, II, III-A, and IV of the Court’s opinion and in the judgment ofthe Court.

Justice STEVENS, concurring in the judgment.Because I am not persuaded that Congress intended the consultation requirement in § 7(a)(2) of the

Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1536(a)(2), to apply to activities in foreign countries, I concurin the judgment of reversal. I do not, however, agree with the Court’s conclusion that respondents lack standingbecause the threatened injury to their interest in protecting the environment and studying endangered species isnot “imminent.” Nor do I agree with the plurality’s additional conclusion that respondents’ injury is not“redressable” in this litigation.

I.

In my opinion a person who has visited the critical habitat of an endangered species has a professional interestin preserving the species and its habitat, and intends to revisit them in the future has standing to challengeagency action that threatens their destruction. Congress has found that a wide variety of endangered species offish, wildlife, and plants are of “aesthetic, ecological, educational, historical, recreational, and scientific value tothe Nation and its people.” 16 U.S.C. § 1531(a)(3). Given that finding, we have no license to demean theimportance of the interest that particular individuals may have in observing any species or its habitat, whetherthose individuals are motivated by esthetic enjoyment, an interest in professional research, or an economic

interest in preservation of the species. Indeed, this Court has often held that injuries to such interests aresufficient to confer standing, and the Court reiterates that holding today. See ante, at 2137. The Courtnevertheless concludes that respondents have not suffered “injury in fact” because they have not shown that theharm to the endangered species will produce “imminent” injury to them. I disagree. An injury to an individual’sinterest in studying or enjoying a species and its natural habitat occurs when someone (whether it be theGovernment or a private party) takes action that harms that species and habitat. In my judgment, therefore, the“imminence” of such an injury should be measured by the timing and likelihood of the threatenedenvironmental harm, rather than—as the Court seems to suggest, ante, at 2138–2139, and n. 2—by the time thatmight elapse between the present and the time when the individuals would visit the area if no such injuryshould occur.

To understand why this approach is correct and consistent with our precedent, it is necessary to considerthe purpose of the standing doctrine. Concerned about “the proper—and properly limited—role of the courts ina democratic society,” we have long held that “Art. III judicial power exists only to redress or otherwise toprotect against injury to the complaining party.” Warth v. Seldin, 422 U.S. 490, 498–499, 95 S.Ct. 2197, 2205, 45L.Ed.2d 343 (1975). The plaintiff must have a “personal stake in the outcome” sufficient to “assure that concreteadverseness which sharpens the presentation of issues upon which the court so largely depends for illuminationof difficult ... questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). For that reason,“[a]bstract injury is not enough. It must be alleged that the plaintiff ‘has sustained or is immediately in danger ofsustaining some direct injury’ as the result of the challenged statute or official conduct.... The injury or threat ofinjury must be both ‘real and immediate,’ not ‘conjectural,’ or ‘hypothetical.’ ” O’Shea v. Littleton, 414 U.S. 488,494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974) (quoting Golden v. Zwickler, 394 U.S. 103, 109–110, 89 S.Ct. 956, 960,22 L.Ed.2d 113 (1969)).

Consequently, we have denied standing to plaintiffs whose likelihood of suffering any concrete adverseeffect from the challenged action was speculative. See, e.g., Whitmore v. Arkansas, 495 U.S. 149, 158–159, 110S.Ct. 1717, 1724–1725, 109 L.Ed.2d 135 (1990); Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1665, 75L.Ed.2d 675 (1983); O’Shea, 414 U.S., at 497, 94 S.Ct., at 676. In this case, however, the likelihood thatrespondents will be injured by the destruction of the endangered species is not speculative. If respondents aregenuinely interested in the preservation of the endangered species and intend to study or observe these animalsin the future, their injury will occur as soon as the animals are destroyed. Thus the only potential source of“speculation” in this case is whether respondents’ intent to study or observe the animals is genuine. In my view,Joyce Kelly and Amy Skilbred have introduced sufficient evidence to negate petitioner’s contention that theirclaims of injury are “speculative” or “conjectural.” As Justice BLACKMUN explains, post, at 2152–2153, areasonable finder of fact could conclude, from their past visits, their professional backgrounds, and theiraffidavits and deposition testimony, that Ms. Kelly and Ms. Skilbred will return to the project sites and,consequently, will be injured by the destruction of the endangered species and critical habitat.

The plurality also concludes that respondents’ injuries are not redressable in this litigation for two reasons.First, respondents have sought only a declaratory judgment that the Secretary ofthe Interior’s regulation interpreting § 7(a)(2) to require consultation only for agency actions in the United Statesor on the high seas is invalid and an injunction requiring him to promulgate a new regulation requiringconsultation for agency actions abroad as well. But, the plurality opines, even if respondents succeed and a newregulation is promulgated, there is no guarantee that federal agencies that are not parties to this case willactually consult with the Secretary. Furthermore, the plurality continues, respondents have not demonstratedthat federal agencies can influence the behavior of the foreign governments where the affected projects arelocated. Thus, even if the agencies consult with the Secretary and terminate funding for foreign projects, theforeign governments might nonetheless pursue the projects and jeopardize the endangered species. See ante, at2142. Neither of these reasons is persuasive.

We must presume that if this Court holds that § 7(a)(2) requires consultation, all affected agencies wouldabide by that interpretation and engage in the requisite consultations. Certainly the Executive Branch cannot beheard to argue that an authoritative construction of the governing statute by this Court may simply be ignoredby any agency head. Moreover, if Congress has required consultation between agencies, we must presume thatsuch consultation will have a serious purpose that is likely to produce tangible results. As Justice BLACKMUN

explains, it is not mere speculation to think that foreign governments, when faced with the threatenedwithdrawal of United States assistance, will modify their projects to mitigate the harm to endangered species.

II.

Although I believe that respondents have standing, I nevertheless concur in the judgment of reversal because Iam persuaded that the Government is correct in its submission that § 7(a)(2) does not apply to activities inforeign countries. As with all questions of statutory construction, the question whether a statute appliesextraterritorially is one of congressional intent. Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284–285, 69 S.Ct. 575,577, 93 L.Ed. 680 (1949). We normally assume that “Congress is primarily concerned with domestic conditions,”id., at 285, 69 S.Ct., at 577, and therefore presume that “ ‘legislation of Congress, unless a contrary intentappears, is meant to apply only within the territorial jurisdiction of the United States,’ ” EEOC v. ArabianAmerican Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227,1230, 113 L.Ed.2d 274 (1991) (quoting Foley Bros., 336 U.S., at285, 69 S.Ct., at 577). Section 7(a)(2) provides, in relevant part:

Each Federal agency shall, in consultation with and with the assistance of the Secretary [of the Interior or Commerce, asappropriate], insure that any action authorized, funded, or carried out by such agency (hereinafter in this sectionreferred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species orthreatened species or result in the destruction or adverse modification of habitat of such species which is determined bythe Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been grantedan exemption for such action by the Committee pursuant to subsection (h) of this section....

—16 U.S.C. § 1536(a)(2)

Nothing in this text indicates that the section applies in foreign countries. Indeed, the only geographic referencein the section is in the “critical habitat” clause, which mentions “affected States.” The Secretary of the Interiorand the Secretary of Commerce have consistently taken the position that they need not designate critical habitatin foreign countries. See 42 Fed.Reg. 4869 (1977) (initial regulations of the Fish and Wildlife Service and theNational Marine Fisheries Service on behalf of the Secretary of the Interior and the Secretary of Commerce).Consequently, neither Secretary interprets § 7(a)(2) to require federal agencies to engage in consultations toensure that their actions in foreign countries will not adversely affect the critical habitat of endangered orthreatened species.

That interpretation is sound, and, in fact, the Court of Appeals did not question it. There is, moreover, noindication that Congress intended to give a different geographic scope to the two clauses in s 7(a)(2). To thecontrary, Congress recognized that one of the “major causes” of extinction of endangered species is the“destruction of natural habitat.” S.Rep. No. 93-307, p. 2 (1973); see also H.Rep. No. 93-412, p. 2 (1973), U.S.CodeCong. & Admin.News 1973, pp. 2989, 2990; TVA v. Hill, 437 U.S. 153, 179, 98 S.Ct. 2279, 2294, 57 L.Ed.2d 117(1978). It would thus be illogical to conclude that Congress required federal agencies to avoid jeopardy toendangered species abroad, but not destruction of critical habitat abroad.

The lack of an express indication that the consultation requirement applies extraterritorially is particularlysignificant because other sections of the ESA expressly deal with the problem of protecting endangered speciesabroad. Section 8, for example, authorizes the President to provide assistance to “any foreign country (with itsconsent) ... in the development and management of programs in that country which [are] ... necessary or usefulfor the conservation of any endangered species or threatened species listed by the Secretary pursuant to section1533 of this title.” 16 U.S.C. § 1537(a). It also directs the Secretary of the Interior, “through the Secretary ofState,” to “encourage” foreign countries to conserve fish and wildlife and to enter into bilateral or multilateralagreements. Section 9 makes it unlawful to import endangered species into (or export them from) the UnitedStates or to otherwise traffic in endangered species “in interstate or foreign commerce.” §§ 1538(a)(1)(A), (E), (F).Congress thus obviously thought about endangered species abroad and devised specific sections of the ESA toprotect them. In this context, the absence of any explicit statement that the consultation requirement isapplicable to agency actions in foreign countries suggests that Congress did not intend that § 7(a)(2) applyextraterritorially.

Finally, the general purpose of the ESA does not evince a congressional intent that the consultationrequirement be applicable to federal agency actions abroad. The congressional findings explaining the need forthe ESA emphasize that “various species of fish, wildlife, and plants in the United States have been rendered

extinct as a consequence of economic growth and development untempered by adequate concern andconservation,” and that these species “are of aesthetic, ecological, educational, historical, recreational, andscientific value to the Nation and its people.” §§ 1531(1), (3) (emphasis added). The lack of similar findings aboutthe harm caused by development in other countries suggests that Congress was primarily concerned withbalancing development and conservation goals in this country. In short, a reading of the entire statute persuadesme that Congress did not intend the consultation requirement in § 7(a)(2) to apply to activities in foreigncountries. Accordingly, notwithstanding my disagreement with the Court’s disposition of the standing question,I concur in its judgment.

Justice BLACKMUN, with whom Justice O’CONNOR joins, dissenting.I part company with the Court in this case in two respects. First, I believe that respondents have raised

genuine issues of fact—sufficient to survive summary judgment—both as to injury and as to redressability.Second, I question the Court’s breadth of language in rejecting standing for “procedural” injuries. I fear theCourt seeks to impose fresh limitations on the constitutional authority of Congress to allow citizen suits in thefederal courts for injuries deemed “procedural” in nature. I dissent.

I.

Article III of the Constitution confines the federal courts to adjudication of actual “Cases” and “Controversies.”To ensure the presence of a “case” or “controversy,” this Court has held that Article III requires, as anirreducible minimum, that a plaintiff allege (1) an injury that is (2) “fairly traceable to the defendant’s allegedlyunlawful conduct” and that is (3) “likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737,751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

A.

To survive petitioner’s motion for summary judgment on standing, respondents need not prove that they areactually or imminently harmed. They need show only a “genuine issue” of material fact as to standing. Fed.RuleCiv.Proc. 56(c). This is not a heavy burden. A “genuine issue” exists so long as “the evidence is such that areasonable jury could return a verdict for the nonmoving party [respondents].” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). This Court’s “function is not [it] self to weigh theevidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id.,at 249, 106 S.Ct., at 2511.

The Court never mentions the “genuine issue” standard. Rather, the Court refers to the type of evidence itfeels respondents failed to produce, namely, “affidavits or other evidence showing, through specific facts” theexistence of injury. The Court thereby confuses respondents’ evidentiary burden (i.e., affidavits asserting“specific facts”) in withstanding a summary judgment motion under Rule 56(e) with the standard of proof (i.e.,the existence of a “genuine issue” of “material fact”) under Rule 56(c).

Were the Court to apply the proper standard for summary judgment, I believe it would conclude that thesworn affidavits and deposition testimony of Joyce Kelly and Amy Skilbred advance sufficient facts to create agenuine issue for trial concerning whether one or both would be imminently harmed by the Aswan andMahaweli projects. In the first instance, as the Court itself concedes, the affidavits contained facts making it atleast “questionable” (and therefore within the province of the factfinder) that certain agency-funded projectsthreaten listed species.3 The only remaining issue, then, is whether Kelly and Skilbred have shown that theypersonally would suffer imminent harm.

I think a reasonable finder of fact could conclude from the information in the affidavits and depositiontestimony that either Kelly or Skilbred will soon return to the project sites, thereby satisfying the “actual orimminent” injury standard. The Court dismisses Kelly’s and Skilbred’s general statements that they intended torevisit the project sites as “simply not enough.” Ibid. But those statements did not stand alone. A reasonablefinder of fact could conclude, based not only upon their statements of intent to return, but upon their past visitsto the project sites, as well as their professional backgrounds, that it was likely that Kelly and Skilbred wouldmake a return trip to the project areas. Contrary to the Court’s contention that Kelly’s and Skilbred’s past visits

“prov[e] nothing,” ibid., the fact of their past visits could demonstrate to a reasonable factfinder that Kelly andSkilbred have the requisite resources and personal interest in the preservation of the species endangered by theAswan and Mahaweli projects to make good on their intention to return again. Cf. Los Angeles v. Lyons, 461U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (“Past wrongs were evidence bearing on whether there isa real and immediate threat of repeated injury”) (internal quotation marks omitted). Similarly, Kelly’s andSkilbred’s professional backgrounds in wildlife preservation, also make it likely—at least far more likely than forthe average citizen—that they would choose to visit these areas of the world where species are vanishing.

By requiring a “description of concrete plans” or “specification of when the some day [for a return visit] willbe,” the Court, in my view, demands what is likely an empty formality. No substantial barriers prevent Kelly orSkilbred from simply purchasing plane tickets to return to the Aswan and Mahaweli projects. This case differsfrom other cases in which the imminence of harm turned largely on the affirmative actions of third partiesbeyond a plaintiff’s control. See Whitmore v. Arkansas, 495 U.S. 149, 155–156, 110 S.Ct. 1717, 1723, 109 L.Ed.2d135 (1990) (harm to plaintiff death-row inmate from fellow inmate’s execution depended on the court’s one dayreversing plaintiff’s conviction or sentence and considering comparable sentences at resentencing); Los Angelesv. Lyons, 461 U.S., at 105, 103 S.Ct., at 1667 (harm dependent on police’s arresting plaintiff again and subjectinghim to chokehold); Rizzo v. Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 605, 46 L.Ed.2d 561 (1976) (harm rested upon“what one of a small, unnamed minority of policemen might do to them in the future because of that unknownpoliceman’s perception of departmental disciplinary procedures”); O’Shea v. Littleton, 414 U.S. 488, 495–498, 94S.Ct. 669, 675–677, 38 L.Ed.2d 674 (1974) (harm from discriminatory conduct of county magistrate and judgedependent on plaintiffs’ being arrested, tried, convicted, and sentenced); Golden v. Zwickler, 394 U.S. 103, 109,89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969) (harm to plaintiff dependent on a former Congressman’s (then serving a14-year term as a judge) running again for Congress). To be sure, a plaintiff’s unilateral control over his or herexposure to harm does not necessarily render the harm nonspeculative. Nevertheless, it suggests that a finder offact would be far more likely to conclude the harm is actual or imminent, especially if given an opportunity tohear testimony and determine credibility.

I fear the Court’s demand for detailed descriptions of future conduct will do little to weed out those who aregenuinely harmed from those who are not. More likely, it will resurrect a code-pleading formalism in federalcourt summary judgment practice, as federal courts, newly doubting their jurisdiction, will demand more andmore particularized showings of future harm. Just to survive summary judgment, for example, a propertyowner claiming a decline in the value of his property from governmental action might have to specify the exactdate he intends to sell his property and show that there is a market for the property, lest it be surmised he mightnot sell again. A nurse turned down for a job on grounds of her race had better be prepared to show on whatdate she was prepared to start work, that she had arranged daycare for her child, and that she would not haveaccepted work at another hospital instead. And a Federal Tort Claims Act plaintiff alleging loss of consortiumshould make sure to furnish this Court with a “description of concrete plans” for her nightly schedule ofattempted activities.

The Court also concludes that injury is lacking, because respondents’ allegations of “ecosystem nexus” failedto demonstrate sufficient proximity to the site of the environmental harm. To support that conclusion, the Courtmischaracterizes our decision in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d695 (1990), as establishing a general rule that “a plaintiff claiming injury from environmental damage must usethe area affected by the challenged activity.” In National Wildlife Federation, the Court required specificgeographical proximity because of the particular type of harm alleged in that case: harm to the plaintiff’s visualenjoyment of nature from mining activities. 497 U.S., at 888, 110 S.Ct., at 3188. One cannot suffer from the sightof a ruined landscape without being close enough to see the sites actually being mined. Many environmentalinjuries, however, cause harm distant from the area immediately affected by the challenged action.Environmental destruction may affect animals traveling over vast geographical ranges, see, e.g., Japan WhalingAssn. v. American Cetacean Society, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (harm to Americanwhale watchers from Japanese whaling activities), or rivers running long geographical courses, see, e.g.,Arkansas v. Oklahoma, 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992) (harm to Oklahoma residents fromwastewater treatment plant 39 miles from border). It cannot seriously be contended that a litigant’s failure to usethe precise or exact site where animals are slaughtered or where toxic waste is dumped into a river means he or

she cannot show injury. The Court also rejects respondents’ claim of vocational or professional injury. The Courtsays that it is “beyond all reason” that a zoo “keeper” of Asian elephants would have standing to contest hisGovernment’s participation in the eradication of all the Asian elephants in another part of the world. I amunable to see how the distant location of the destruction necessarily (for purposes of ruling at summaryjudgment) mitigates the harm to the elephant keeper. If there is no more access to a future supply of the animalthat sustains a keeper’s livelihood, surely there is harm.

I have difficulty imagining this Court applying its rigid principles of geographic formalism anywhereoutside the context of environmental claims. As I understand it, environmental plaintiffs are under no specialconstitutional standing disabilities. Like other plaintiffs, they need show only that the action they challenge hasinjured them, without necessarily showing they happened to be physically near the location of the allegedwrong. The Court’s decision today should not be interpreted “to foreclose the possibility ... that in differentcircumstances a nexus theory similar to those proffered here might support a claim to standing.”(KENNEDY, J., concurring in part and concurring in judgment).

B.

A plurality of the Court suggests that respondents have not demonstrated redressability: a likelihood that acourt ruling in their favor would remedy their injury. Duke Power Co. v. Carolina Environmental Study Group,Inc., 438 U.S. 59, 74–75, and n. 20, 98 S.Ct. 2620, 2630–2631, and n. 20, 57 L.Ed.2d 595 (1978) (plaintiff must show“substantial likelihood” that relief requested will redress the injury). The plurality identifies two obstacles. Thefirst is that the “action agencies” (e.g., AID) cannot be required to undertake consultation with petitionerSecretary, because they are not directly bound as parties to the suit and are otherwise not indirectly bound bybeing subject to petitioner Secretary’s regulation. Petitioner, however, officially and publicly has taken theposition that his regulations regarding consultation under § 7 of the Act are binding on action agencies. 50 CFR §402.14(a) (1991). And he has previously taken the same position in this very litigation, having stated in hisanswer to the complaint that petitioner “admits the Fish and Wildlife Service (FWS) was designated the leadagency for the formulation of regulations concerning section 7 of the [Endangered Species Act].” I cannot agreewith the plurality that the Secretary (or the Solicitor General) is now free, for the convenience of this appeal, todisavow his prior public and litigation positions. More generally, I cannot agree that the Government is free toplay “Three-Card Monte” with its description of agencies’ authority to defeat standing against the agency giventhe lead in administering a statutory scheme.

Emphasizing that none of the action agencies are parties to this suit (and having rejected the possibility oftheir being indirectly bound by petitioner’s regulation), the plurality concludes that “there is no reason theyshould be obliged to honor an incidental legal determination the suit produced.” I am not as willing as theplurality is to assume that agencies at least will not try to follow the law.

Respondents have raised at least a genuine issue of fact that the projects harm endangered species and thatthe actions of AID and other United States agencies can mitigate that harm. The plurality overlooks an InteriorDepartment memorandum listing eight endangered or threatened species in the Mahaweli project area andrecounting that “[t]he Sri Lankan government has requested the assistance of AID in mitigating the negativeimpacts to the wildlife involved.” Further, a letter from the Director of the Fish and Wildlife Service to AIDstates:

The Sri Lankan government lacks the necessary finances to undertake any long-term management programs to avoidthe negative impacts to the wildlife. The donor nations and agencies that are financing the [Mahaweli project] will bethe key as to how successfully the wildlife is preserved. If wildlife problems receive the same level of attention as theengineering project, then the negative impacts to the environment can be alleviated. This means that there has to belong-term funding in sufficient amounts to stem the negative impacts of this project.

I do not share the plurality’s astonishing confidence that, on the record here, a factfinder could onlyconclude that AID was powerless to ensure the protection of listed species at the Mahaweli project. As for theAswan project, the record again rebuts the plurality’s assumption that donor agencies are without any authorityto protect listed species. Kelly asserted in her affidavit—and it has not been disputed—that the Bureau ofReclamation was “overseeing” the rehabilitation of the Aswan project. I find myself unable to agree with theplurality’s analysis of redressability, based as it is on its invitation of executive lawlessness, ignorance of

principles of collateral estoppel, unfounded assumptions about causation, and erroneous conclusions aboutwhat the record does not say. In my view, respondents have satisfactorily shown a genuine issue of fact as towhether their injury would likely be redressed by a decision in their favor.

II.

The Court concludes that any “procedural injury” suffered by respondents is insufficient to confer standing. Itrejects the view that the “injury-in-fact requirement [is] satisfied by congressional conferral upon all persons ofan abstract, self-contained, noninstrumental ‘right’ to have the Executive observe the procedures required bylaw.” Whatever the Court might mean with that very broad language, it cannot be saying that “proceduralinjuries” as a class are necessarily insufficient for purposes of Article III standing.

Most governmental conduct can be classified as “procedural.” Many injuries caused by governmentalconduct, therefore, are categorizable at some level of generality as “procedural” injuries. Yet, these injuries arenot categorically beyond the pale of redress by the federal courts. When the Government, for example,“procedurally” issues a pollution permit, those affected by the permittee’s pollutants are not without standing tosue. Only later cases will tell just what the Court means by its intimation that “procedural” injuries are notconstitutionally cognizable injuries. In the meantime, I have the greatest of sympathy for the courts across thecountry that will struggle to understand the Court’s standardless exposition of this concept today.

The Court expresses concern that allowing judicial enforcement of “agencies’ observance of a particular,statutorily prescribed procedure” would “transfer from the President to the courts the Chief Executive’s mostimportant constitutional duty, to ‘take Care that the Laws be faithfully executed,’ Art. II, § 3.” In fact, theprincipal effect of foreclosing judicial enforcement of such procedures is to transfer power into the hands of theExecutive at the expense—not of the courts—but of Congress, from which that power originates and emanates.

Under the Court’s anachronistically formal view of the separation of powers, Congress legislates pure,substantive mandates and has no business structuring the procedural manner in which the Executiveimplements these mandates. To be sure, in the ordinary course, Congress does legislate in black-and-whiteterms of affirmative commands or negative prohibitions on the conduct of officers of the Executive Branch. Incomplex regulatory areas, however, Congress often legislates, as it were, in procedural shades of gray. That is, itsets forth substantive policy goals and provides for their attainment by requiring Executive Branch officials tofollow certain procedures, for example, in the form of reporting, consultation, and certification requirements.The Court recently has considered two such procedurally oriented statutes. In Japan Whaling Assn. v. AmericanCetacean Society, 478 U.S. 221, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986), the Court examined a statute requiring theSecretary of Commerce to certify to the President that foreign nations were not conducting fishing operations ortrading which “diminis[h] the effectiveness” of an international whaling convention. Id., at 226, 106 S.Ct., at2864. The Court expressly found standing to sue. Id., at 230–231, n. 4, 106 S.Ct., at 2865–2866, n. 4. In Robertsonv. Methow Valley Citizens Council, 490 U.S. 332, 348, 109 S.Ct. 1835, 1844, 104 L.Ed.2d 351 (1989), this Courtconsidered injury from violation of the “action-forcing” procedures of the National Environmental Policy Act(NEPA), in particular the requirements for issuance of environmental impact statements.

The consultation requirement of § 7 of the Endangered Species Act is a similar, action-forcing statute.Consultation is designed as an integral check on federal agency action, ensuring that such action does not goforward without full consideration of its effects on listed species. Once consultation is initiated, the Secretary isunder a duty to provide to the action agency “a written statement setting forth the Secretary’s opinion, and asummary of the information on which the opinion is based, detailing how the agency action affects the species orits critical habitat.” 16 U.S.C. § 1536(b)(3)(A). The Secretary is also obligated to suggest “reasonable and prudentalternatives” to prevent jeopardy to listed species. Ibid. The action agency must undertake as well its own“biological assessment for the purpose of identifying any endangered species or threatened species” likely to beaffected by agency action. § 1536(c)(1). After the initiation of consultation, the action agency “shall not make anyirreversible or irretrievable commitment of resources” which would foreclose the “formulation orimplementation of any reasonable and prudent alternative measures” to avoid jeopardizing listed species. §1536(d). These action-forcing procedures are “designed to protect some threatened concrete interest,” of personswho observe and work with endangered or threatened species. That is why I am mystified by the Court’s

unsupported conclusion that “[t]his is not a case where plaintiffs *604 are seeking to enforce a proceduralrequirement the disregard of which could impair a separate concrete interest of theirs.”

Congress legislates in procedural shades of gray not to aggrandize its own power but to allow maximumExecutive discretion in the attainment of Congress’ legislative goals. Congress could simply impose asubstantive prohibition on Executive conduct; it could say that no agency action shall result in the loss of morethan 5% of any listed species. Instead, Congress sets forth substantive guidelines and allows the Executive,within certain procedural constraints, to decide how best to effectuate the ultimate goal. See American Power &Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). The Court never has questionedCongress’ authority to impose such procedural constraints on Executive power. Just as Congress does notviolate separation of powers by structuring the procedural manner in which the Executive shall carry out thelaws, surely the federal courts do not violate separation of powers when, at the very instruction and commandof Congress, they enforce these procedures.

To prevent Congress from conferring standing for “procedural injuries” is another way of saying thatCongress may not delegate to the courts authority deemed “executive” in nature. (Congress may not “transferfrom the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that theLaws be faithfully executed,’ Art. II, § 3”). Here Congress seeks not to delegate “executive” power but only tostrengthen the procedures it has legislatively mandated. “We have long recognized that the nondelegationdoctrine does not prevent Congress from seeking assistance, within proper limits, from its coordinate Branches.”Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 1756, 114 L.Ed.2d 219 (1991). “Congress does notviolate the Constitution merely because it legislates in broad terms, leaving a certain degree of discretion toexecutive or judicial actors.”

Ironically, this Court has previously justified a relaxed review of congressional delegation to the Executiveon grounds that Congress, in turn, has subjected the exercise of that power to judicial review. INS v. Chadha,462 U.S. 919, 953–954, n. 16, 103 S.Ct. 2764, 2785–2786, n. 16, 77 L.Ed.2d 317 (1983); American Power & Light Co.v. SEC, 329 U.S., at 105–106, 67 S.Ct. at 142–143. The Court’s intimation today that procedural injuries are notconstitutionally cognizable threatens this understanding upon which Congress has undoubtedly relied. In nosense is the Court’s suggestion compelled by our “common understanding of what activities are appropriate tolegislatures, to executives, and to courts.” In my view, it reflects an unseemly solicitude for an expansion ofpower of the Executive Branch. It is to be hoped that over time the Court will acknowledge that some classes ofprocedural duties are so enmeshed with the prevention of a substantive, concrete harm that an individualplaintiff may be able to demonstrate a sufficient likelihood of injury just through the breach of that proceduralduty. For example, in the context of the NEPA requirement of environmental-impact statements, this Court hasacknowledged “it is now well settled that NEPA itself does not mandate particular results [and] simplyprescribes the necessary process,” but “these procedures are almost certain to affect the agency’s substantivedecision.” Robertson v. Methow Valley Citizens Council, 490 U.S., at 350, 109 S.Ct., at 1846 (emphasis added).See also Andrus v. Sierra Club, 442 U.S. 347, 350–351, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1979) (“Ifenvironmental concerns are not interwoven into the fabric of agency planning, the ‘action-forcing’ characteristicsof [the environmental-impact statement requirement] would be lost”). This acknowledgment of an inextricablelink between procedural and substantive harm does not reflect improper appellate factfinding. It reflects nothingmore than the proper deference owed to the judgment of a coordinate branch—Congress—that certainprocedures are directly tied to protection against a substantive harm.

In short, determining “injury” for Article III standing purposes is a fact-specific inquiry. “Typically ... thestanding inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether theparticular plaintiff is entitled to an adjudication of the particular claims asserted.” Allen v. Wright, 468 U.S., at752, 104 S.Ct., at 3325. There may be factual circumstances in which a congressionally imposed proceduralrequirement is so insubstantially connected to the prevention of a substantive harm that it cannot be said towork any conceivable injury to an individual litigant. But, as a general matter, the courts owe substantialdeference to Congress’ substantive purpose in imposing a certain procedural requirement. In all events, “[o]urseparation-of-powers analysis does not turn on the labeling of an activity as ‘substantive’ as opposed to‘procedural.’ “ Mistretta v. United States, 488 U.S. 361, 393, 109 S.Ct. 647, 665, 102 L.Ed.2d 714 (1989). There isno room for a per se rule or presumption excluding injuries labeled “procedural” in nature.

III.

In conclusion, I cannot join the Court on what amounts to a slash-and-burn expedition through the law ofenvironmental standing. In my view, “[t]he very essence of civil liberty certainly consists in the right of everyindividual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison, 1 Cranch137, 163, 2 L.Ed. 60 (1803). I dissent.

Q U E S T I O N S A N D D I S C U S S I O N P O I N T S

1. The basic issue in this case concerns “standing.” Can you tell what this means and, moreover, why itis of such importance?

2. If a question about the meaning of the Constitution is an important one, what difference should itmake who brings the case asking the question?

3. Articulate the competing positions regarding the question of “nexus” and state each position in theform of premises and conclusions.

4. Once you have completed question 3, can you tell how the nexus question connects with theconstitutional text?Note on the Editing of the Cases

The cases that follow have been edited by the authors. In law school casebooks, portions of cases that have beenomitted are shown through the use of ellipses. Additionally, editors usually remain faithful to the original inmatters of paragraph indentation, italicization, signals, and case citations.

In the present format, we have edited the text of opinions without the use of ellipses. Additionally, in a veryfew places we have altered paragraph indentation. The order of the analysis in every opinion is faithful to theoriginal. After due experimentation with many readers, we have taken these modest liberties in an effort toimprove readability and comprehension.## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, ANDPUBLIC LAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAWSTATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAW1. Judicial findings of exclusion from crafts on racial grounds are so numerous as to make such exclusion a proper subject for judicial notice.See, e.g., United States v. Elevator Constructors, 538 F.2d 1012 (CA3 1976); Associated General Contractors of Massachusetts v. Altschuler, 490 F.2d9 (CA1 1973); Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (CA7 1972); Contractors Assn. of Eastern Pennsylvania v. Secretary ofLabor, 442 F.2d 159 (CA3 1971); Insulators & Asbestos Workers v. Vogler, 407 F.2d 1047 (CA5 1969); Buckner v. Goodyear Tire & Rubber Co., 339F.Supp. 1108 (ND Ala. 1972), aff’d without opinion, 476 F.2d 1287 (CA5 1973).

2. Section 703(a), 78 Stat. 255, as amended, 86 Stat. 109, 42 U.S.C. @ 2000e–2(a), provides:

(a) ... It shall be an unlawful employment practice for an employer—

1. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

2. to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive anyindividual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color,religion, sex, or national origin.

3. Section 703(d), 78 Stat. 256, 42 U.S.C. @ 2000e–2(d), provides:“It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee controlling

apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race,color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or othertraining.”STATUTORY INTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAW4. The problem that Congress addressed in 1964 remains with us. In 1962, the nonwhite unemployment rate was 124% higher than the whiterate. See 110 Cong. Rec. 6547 (1964) (remarks of Sen. Humphrey). In 1978, the black unemployment rate was 129% higher. See Monthly Labor

Review, U.S. Department of Labor, Bureau of Labor Statistics 78 (Mar. 1979).STATUTORY INTERPRETATION #5. Section 703(j) of Title VII, 78Stat. 257, 42 U.S.C. @ 2000e–2(j), provides:

Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color,religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number orpercentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment byany employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employedin, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion,sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or otherarea.

Section 703(j) speaks to substantive liability under Title VII, but it does not preclude courts from considering racial imbalance as evidence of aTitle VII violation. See Teamsters v. United States, 431 U.S. 324, 339–340, n. 20 (1977). Remedies for substantive violations are governed by @ 706(g),42 U.S.C. @ 2000e–5(g).# CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAW6. Our dispositionmakes unnecessary consideration of petitioners’ argument that their plan was justified because they feared that black employees would bring suitunder Title VII if they did not adopt an affirmative action plan. Nor need we consider petitioners’ contention that their affirmative action planrepresented an attempt to comply with Exec. Order No. 11246, 3 CFR 339 (1964–1965 Comp.).STATUTORY INTERPRETATION ## CASES INSTATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAW8. The full text of @ 703(j), 78 Stat. 257, 42 U.S.C. @ 2000e–2(j),provides as follows:

“Nothing contained in this title shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this title to grant preferential treatment to any individual or to any group because of the race, color,religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number orpercentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment byany employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employedin, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion,sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or otherarea.”7. Section 703(a)(1) provides the third express prohibition in Title VII of Kaiser’s discriminatory admission quota:

“It shall be an unlawful employment practice for an employer—

“1. to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to hiscompensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin....” 78 Stat.255, 42 U.S.C. @ 2000e–2(a)(1).STATUTORY INTERPRETATION #9. “If the words are plain, they give meaning to the act, and it is neither theduty nor the privilege of the courts to enter speculative fields in search of a different meaning.

“... [W]hen words are free from doubt they must be taken as the final expression of the legislative intent, and are not to be added to orsubtracted from by considerations drawn ... from any extraneous source.” Caminetti v. United States, 242 U.S. 470, 490 (1917).10. In holding that Title VII cannot be interpreted to prohibit use of Kaiser’s racially discriminatory admission quota, the Court reasons that itwould be “ironic” if a law inspired by the history of racial discrimination in employment against blacks forbade employers from voluntarilydiscriminating against whites in favor of blacks. I see no irony in a law that prohibits all voluntary racial discrimination, even discriminationdirected at whites in favor of blacks. The evil inherent in discrimination against Negroes is that it is based on an immutable characteristic, utterlyirrelevant to employment decisions. The characteristic becomes no less immutable and irrelevant, and discrimination based thereon becomes noless evil, simply because the person excluded is a member of one race rather than another. Far from ironic, I find a prohibition on all preferentialtreatment based on race as elementary and fundamental as the principle that “two wrongs do not make a right.”11. The only shred of legislativehistory cited by the Court in support of the proposition that “Congress did not intend wholly to prohibit private and voluntary affirmative actionefforts,” ante, at 203, is the following excerpt from the Judiciary Committee Report accompanying the civil rights bill reported to the House:

No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination againstminorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with themost troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.

—H.R. Rep. No. 914, 88th Cong., 1st Sess., pt. 1, p. 18 (1963) (hereinafter H.R. Rep.), quoted ante, at 203–204The Court seizes on the italicized language to support its conclusion that Congress did not intend to

prohibit voluntary imposition of racially discriminatory employment quotas. The Court, however, stops tooshort in its reading of the House Report. The words immediately following the material excerpted by theCourt are as follows:

“It is, however, possible and necessary for the Congress to enact legislation which prohibits and provides the means of terminating themost serious types of discrimination. This H.R. 7152, as amended, would achieve in a number of related areas. It would reducediscriminatory obstacles to the exercise of the right to vote and provide means of expediting the vindication of that right. It would make itpossible to remove the daily affront and humiliation involved in discriminatory denials of access to facilities ostensibly open to the generalpublic. It would guarantee that there will be no discrimination upon recipients of Federal financial assistance. It would prohibitdiscrimination in employment, and provide means to expedite termination of discrimination in public education. It would open additional

avenues to deal with redress of denials of equal protection of the laws on account of race, color, religion, or national origin by State or localauthorities.

—H.R. Rep., pt. 1, p. 18When thus read in context, the meaning of the italicized language in the Court’s excerpt of the House Report becomes clear. By dealing

w i t h “ t h e m o s t s e r i o u s t y p e s o f

discrimination,” such as discrimination in voting, public accommodations, employment, etc., H.R. 7152 would hopefully inspire“voluntary or local resolution of other forms of discrimination,” that is, forms other than discrimination in voting, public accommodations,employment, etc.

One can also infer from the House Report that the Judiciary Committee hoped that federal legislation would inspire voluntaryelimination of discrimination against minority groups other than those protected under the bill, perhaps the aged and handicapped to namejust two. In any event, the House Report does not support the Court’s proposition that Congress, by banning racial discrimination inemployment, intended to permit racial discrimination in employment.

Thus, examination of the House Judiciary Committee’s report reveals that the Court’s interpretation of Title VII, far from being compelledby the Act’s legislative history, is utterly without support in that legislative history. Indeed, as demonstrated in Part III, infra, the Court’sinterpretation of Title VII is totally refuted by the Act’s legislative history.# CASES IN STATUTORY INTERPRETATION, CONTRACT LAW,TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION #12. One example has particular relevance to the instant litigation:

Under the power granted in this bill, if a carpenters’ hiring hall, say, had 20 men awaiting call, the first 10 in seniority being whitecarpenters, the union could be forced to pass them over in favor of carpenters beneath them in seniority but of the stipulated race. And if theunion roster did not contain the names of the carpenters of the race needed to ‘racially balance’ the job, the union agent must, then, go intothe street and recruit members of the stipulated race in sufficient number to comply with Federal orders, else his local could be held inviolation of Federal law.

—H.R. Rep., pt. 1, p. 71.From this and other examples, the Minority Report concluded: “That this is, in fact, a not too subtle system of racism-in-reverse cannot be

successfully denied.” Id., at 73.Obviously responding to the Minority Report’s charge that federal agencies, particularly the Equal Employment Opportunity

Commission would equate “discrimination” with “racial imbalance,” the Republican sponsors of the bill on the Judiciary Committee statedin a separate Report:

It must also be stressed that the Commission must confine its activities to correcting abuse, not promoting equality with mathematicalcertainty. In this regard, nothing in the title permits a person to demand employment.... Internal affairs of employers and labor organizationsmust not be interfered with except to the limited extent that correction is required in discrimination practices. Its primary task is to makecertain that the channels of employment are open to persons regardless of their race and that jobs in companies or membership in unions arestrictly filled on the basis of qualification.

—Id., pt. 2, p. 29.The Republican supporters of the bill concluded their remarks on Title VII by declaring that “[a]ll vestiges of inequality based solely on

race must be removed....” Id., at 30.# CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLICLAW13. Representative Lindsay had this to say:

This legislation ... does not, as has been suggested heretofore both on and off the floor, force acceptance of people in ... jobs ... because they areNegro. It does not impose quotas or any special privileges of seniority or acceptance. There is nothing whatever in this bill about racialbalance as appears so frequently in the minority report of the Committee.

“What the bill does do is prohibit discrimination because of race....—110 Cong. Rec. 1540 (1964)

Representative Minish added: “Under title VII, employment will be on the basis of merit, not of race. This means that no quota systemwill be set up, no one will be forced to hire incompetent help because of race or religion, and no one will be given a vested right to demandemployment for a certain job.” Id., at 1600. Representative Goodell, answering the charge that Title VII would be interpreted “to requir[e] ar a c i a l

balance,” id., at 2557, responded: “There is nothing here as a matter of legislative history that would require racial balancing.... We are nottalking about a union having to balance its membership or an employer having to balance the number of employees. There is no quotainvolved. It is a matter of an individual’s rights having been violated, charges having been brought, investigation carried out and conciliationhaving been attempted and then proof in court that there was discrimination and denial of rights on the basis of race or color.” Id., at 2558.After H.R. 7152 had been passed and sent to the Senate, Republican supporters of the bill in the House prepared an interpretativememorandum making clear that “title VII does not permit the ordering of racial quotas in businesses or unions and does not permitinterferences with seniority rights of employees or union members.” Id., at 6566.

14. Eleven members did not vote.STATUTORY INTERPRETATION #16. Referring to the EEOC, Senator Smathers argued that Title VII “wouldmake possible the creation of a Federal bureaucracy which would, in the final analysis, cause a man to hire someone whom he did not want tohire, not on the basis of ability, but on the basis of religion, color, or creed....” Id., at 8500. Senator Sparkman’s comments were to the same effect.See n. 23, infra. Several other opponents of Title VII expressed similar views. See 110 Cong. Rec. 9034–9035 (1964) (remarks of Sens. Stennis andTower); id., at 9943–994 (remarks of Sens. Long and Talmadge); id., at 10513 (remarks of Sen. Robertson).

17. Several other proponents of H.R. 7152 commented briefly on Title VII, observing that it did not authorize the imposition of quotas to correctracial imbalance. See id., at 9113 (remarks of Sen. Keating); id., at 9881–9882 (remarks of Sen. Allott); id., at 10520 (remarks of Sen. Carlson); id., at11768 (remarks of Sen. McGovern).15. Senator Robertson’s observations prompted Senator Humphrey to make the following offer: “If the Senatorcan find in Title VII ... any language which provides that an employer will have to hire on the basis of percentage or quota related to color ... I willstart eating the pages one after another, because it is not in there.” 110 Cong. Rec. 7420 (1964).# CASES IN STATUTORY INTERPRETATION,CONTRACT LAW, TORT LAW, AND PUBLIC LAW18. The Court cites the remarks of Senator Sparkman in support of its suggestion thatopponents had argued that employers would take it upon themselves to balance their work forces by granting preferential treatment to racialminorities. In fact, Senator Sparkman’s comments accurately reflected the opposition’s “party line.” He argued that while the language of Title VIIdoes not expressly require imposition of racial quotas (no one, of course, had ever argued to the contrary), the law would be applied by federalagencies in such a way that “some kind of quota system will be used.” Id., at 8619. Senator Sparkman’s view is reflected in the following exchangewith Senator Stennis:

“Mr. Sparkman. At any rate, when the Government agent came to interview an employer who had 100 persons in his employ, the firstquestion would be, ‘How many Negroes are you employing?’ Suppose the population of that area was 20 percent Negro. Immediately the agentwould say, ‘You should have at least 20 Negroes in your employ, and they should be distributed among your supervisory personnel and in all theother categories’; and the agent would insist that that be done immediately.

“Mr. Stennis....“ T h e S e n a t o r f r o m A l a b a m a h a s m a d e v e r y c l e a r h i s p o i n t a b o u t e m p l o y m e n t o n t h e q u o t a

basis. Would not the same basis be applied to promotions?“Mr. Sparkman. Certainly it would. As I have said, when the Federal agents came to check on the situation

in a small business which had 100 employees, and when the agents said to the employer, ‘You must hire 20Negroes, and some of them must be employed in supervisory capacities,’ and so forth, and so on, the agentwould also say, ‘And you must promote the Negroes, too, in order to distribute them evenly among the variousranks of your employees.’” Id., at 8618 (emphasis added).

Later in his remarks, Senator Sparkman stated: “Certainly the suggestion will be made to a small business that may have a smallGovernment contract ... that if it does not carry out the suggestion that has been made to the company by an inspector, its Government contractwill not be renewed.” Ibid. Except for the size of the business, Senator Sparkman has seen his prophecy fulfilled in this case.19. Compare @ 703(a), 42 U.S.C. @ 2000e–2(a) (“It shall be an unlawful employment practice for an employer ...”), with @ 703(j), 42 U.S.C. @ 2000e–2(j) (“Nothing contained in this subchapter shall be interpreted ...”).STATUTORY INTERPRETATION ## CASES IN STATUTORYINTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAW20. In support of its reading of @ 703(j), the Court argues that “aprohibition against all voluntary, race-conscious, affirmative action efforts would disserve” the important policy, expressed in the House Reporton H.R. 7152, that Title VII leave “management prerogatives, and union freedoms ... undisturbed to the greatest extent possible.” H.R. Rep., pt. 2,p. 29, quoted ante, at 206. The Court thus concludes that “Congress did not intend to limit traditional business freedom to such a degree as toprohibit all voluntary, race-conscious affirmative action.” Ante, at 207.

The sentences in the House Report immediately following the statement quoted by the Court, however, belie the Court’s conclusion:

Internal affairs of employers and labor organizations must not be interfered with except to the limited extent that correction is required indiscrimination practices. Its primary task is to make certain that the channels of employment are open to persons regardless of their race andthat jobs in companies or membership in unions are strictly filled on the basis of qualification.

—H.R. Rep., pt. 2, p. 29

Thus, the House Report invoked by the Court is perfectly consistent with the countless observations elsewhere in Title VII’s voluminouslegislative history that employers are free to make employment decisions without governmental interference, so long as those decisions are madewithout regard to race. The whole purpose of Title VII was to deprive employers of their “traditional business freedom” to discriminate on thebasis of race. In this case, the “channels of employment” at Kaiser were hardly “open” to Brian Weber.STATUTORYINTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORYINTERPRETATION #1. By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.# CASES INSTATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION ## CASES INSTATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION #2. The dissentembraces each of respondents’ “nexus” theories, rejecting this portion of our analysis because it is “unable to see how the distant location of thedestruction necessarily (for purposes of ruling at summary judgment) mitigates the harm” to the plaintiff. Post, at 2154. But summary judgmentmust be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, andon which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).Respondents had to adduce facts, therefore, on the basis of which it could reasonably be found that concrete injury to their members was, as ourcases require, “certainly impending.” The dissent may be correct that the geographic remoteness of those members (here in the United States) fromSri Lanka and Aswan does not “necessarily” prevent such a finding—but it assuredly does so when no further facts have been brought forward(and respondents have produced none) showing that the impact upon animals in those distant places will in some fashion be reflected here. Thedissent’s position to the contrary reduces to the notion that distance never prevents harm, a proposition we categorically reject. It cannot be that aperson with an interest in an animal automatically has standing to enjoin federal threats to that species of animal, anywhere in the world. Werethat the case, the plaintiff in Sierra Club, for example, could have avoided the necessity of establishing anyone’s use of Mineral King by merelyidentifying one of its members interested in an endangered species of flora or fauna at that location. Justice BLACKMAN’s accusation that aspecial rule is being crafted for “environmental claims,” post, at 2154, is correct, but he is the craftsman.# CASES IN STATUTORY

INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION ## CASES IN STATUTORYINTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION ## CASES IN STATUTORYINTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION ## CASES IN STATUTORYINTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORY INTERPRETATION ## CASES IN STATUTORYINTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAW3. The record is replete with genuine issues of fact about the harm toendangered species from the Aswan and Mahaweli projects. For example, according to an internal memorandum of the Fish and Wildlife Service,no fewer than eight listed species are found in the Mahaweli project area (Indian elephant, leopard, purple-faced langur, toque macaque, red facemalkoha, Bengal monitor, mugger crocodile, and python). App. 78. The memorandum recounts that the Sri Lankan Government has specificallyrequested assistance from the Agency for International Development (AID) in “mitigating the negative impacts to the wildlife involved.” Ibid. Inaddition, a letter from the Director of the Fish and Wildlife Service to AID warns: “The magnitude of the Accelerated Mahaweli DevelopmentProgram could have massive environmental impacts on such an insular ecosystem as the Mahaweli River system.” Id., at 215. It adds: “The SriLankan government lacks the necessary finances to undertake any long-term management programs to avoid the negative impacts to thewildlife.” Id., at 216. Finally, in an affidavit submitted by petitioner for purposes of this litigation, an AID official states that an AID environmentalassessment “showed that the [Mahaweli] project could affect several endangered species.” Id., at 159.STATUTORYINTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORYINTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORYINTERPRETATION ## CASES IN STATUTORY INTERPRETATION, CONTRACT LAW, TORT LAW, AND PUBLIC LAWSTATUTORYINTERPRETATION #