author: Justice Ginsburg Justice Thomas,

text:
    POWELL v. NEVADA
    No. 92-8841.
    Argued February 22, 1994
    Decided March 30, 1994
    Ginsburg, J., delivered the opinion of the Court, in which Blackmun, Stevens, O’Connor, Scalia, Kennedy, and Souter, JJ., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 85.

      Michael Pescetta argued the cause and filed briefs for petitioner.

      Dan M. Seaton argued the cause and filed a brief for respondent.

      Miguel A. Estrada argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, and Deputy Solicitor General Bryson

      Briefs of amici curiae urging affirmance were filed for the State of Utah et al. by Jan Graham, Attorney General of Utah, Carol Clawson, Solicitor General, and J. Kevin Murphy, Assistant Attorney General, Grant Woods, Attorney General of Arizona, John M. Bailey, Chief State’s Attorney of Connecticut, Robert A Marks, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Scott Harshbarger, Attorney General of Massachusetts, Joseph P. Mazurek, Attorney General of Montana, Fred DeVesa, Attorney General of New Jersey, Susan B. Loving, Attorney General of Oklahoma, Lee Fisher, Attorney General of Ohio, and T. Travis Medlock, Attorney General of South Carolina; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

   Justice Ginsburg

delivered the opinion of the Court.

In Gerstein v. Pugh, 420 U. S. 103 (1975), we held that the Fourth Amendment’s shield against unreasonable seizures requires a prompt judicial determination of probable cause following an arrest made without a warrant and ensuing detention. County of Riverside v. McLaughlin, 500 U. S. 44 (1991), established that “prompt” generally means within 48 hours of the warrantless arrest; absent extraordinary circumstances, a longer delay violates the Fourth Amendment. In the case now before us, the Supreme Court of Nevada stated that McLaughlin does not apply to a prosecution commenced prior to the rendition of that decision. We hold that the Nevada Supreme Court misread this Court’s precedent: “[A]... rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal,... not yet final” when the rule is announced. Griffith v. Kentucky, 479 U. S. 314, 328 (1987).

I

Petitioner Kitrich Powell was arrested on Friday, November 3, 1989, for felony child abuse of his girlfriend’s 4-year-old daughter, in violation of Nev. Rev. Stat. § 200.508 (1991). That afternoon, the arresting officer prepared a sworn declaration describing the cause for and circumstances of the arrest. Not until November 7, 1989, however, did a Magistrate find probable cause to hold Powell for a preliminary hearing. That same day, November 7, Powell made statements to the police, prejudicial to him, which the prosecutor later presented at Powell’s trial. Powell was not personally brought before a Magistrate until November 13, 1989. By that time, the child had died of her injuries, and Powell was charged additionally with her murder.

A jury found Powell guilty of first-degree murder and, following a penalty hearing, sentenced him to death. On appeal to the Nevada Supreme Court, Powell argued that the State had violated Nevada’s “initial appearance” statute by failing to bring him before a magistrate within 72 hours, and that his conviction should therefore be reversed.

The Nevada statute governing appearances before a magistrate provides:

“If an arrested person is not brought before a magistrate within 72 hours after arrest, excluding nonjudicial days, the magistrate:
“(a) Shall give the prosecuting attorney an opportunity to explain the circumstances leading to the delay; and
“(b) May release the arrested person if he determines that the person was not brought before a magistrate without unnecessary delay.” Nev. Rev. Stat. §171.178(3) (1991).

Powell emphasized that 10 days had elapsed between his arrest on November 3, 1989, and his November 13 initial .appearance before a Magistrate. In view of the incriminating statements he made on November 7, Powell contended, the unlawful delay was prejudicial to him. Under Nevada law, Powell asserted, vindication of his right to a speedy first appearance required that his conviction be reversed, and that he be set free. Appellant’s Opening Brief in No. 22348 (Nev.), p. 85.

The district attorney maintained before the Nevada Supreme Court that there had been no fatal violation of Nevada’s initial appearance statute. First, the district attorney urged, the confirmation of probable cause by a Magistrate on November 7 occurred within 72 hours of the November 3 arrest (excluding the intervening weekend). This probable-cause finding, the district attorney contended, satisfied the 72-hour prescription of Nev. Rev. Stat. §171.178. In any event, the district attorney continued, under Nevada law, an accused waives his right to a speedy arraignment when he voluntarily waives his right to remain silent and his right to counsel. Powell did so, the district attorney said, when he made his November 7 statements, after he was read his Miranda rights and waived those rights. See Respondent’s Answering Brief in No. 22348 (Nev.), pp. 56-60. In reply, Powell vigorously contested the district attorney’s portrayal of the probable-cause determination as tantamount to an initial appearance sufficient to satisfy Nev. Rev. Stat. § 171.178’s 72-hour prescription. Powell pointed out that he “was neither present [n]or advised of the magistrate’s finding.” Appellant’s Reply Brief in No. 22348 (Nev.), p. 1.

The Nevada Supreme Court concluded, in accord with the district attorney’s assertion, that Powell had waived his right under state law to a speedy arraignment. 108 Nev. 700, 705, 838 P. 2d 921, 924-925 (1992). If the Nevada Supreme Court had confined the decision to that point, its opinion would have resolved no federal issue. But the Nevada Supreme Court said more. Perhaps in response to the district attorney’s contention that the Magistrate’s November 7 probable-cause notation satisfied Nev. Rev. Stat. §171.178 (a contention the State now disavows), the Nevada Supreme Court, sua sponte, raised a federal concern. That court detoured from its state-law analysis to inquire whether the November 3 to November 7,1989, delay, in judicial confirmation of probable cause violated the Fourth Amendment under this Court’s precedents.

County of Riverside v. McLaughlin, 500 U. S. 44 (1991), the Nevada Supreme Court recognized, made specific the probable-cause promptness requirement of Gerstein v. Pugh, 420 U. S. 103 (1975); McLaughlin instructed that a delay exceeding 48 hours presumptively violates the Fourth Amendment. Merging the speedy initial appearance required by Nevada statute and the prompt probable-cause determination required by the Fourth Amendment, the Nevada Supreme Court declared: “The McLaughlin case renders [Nev. Rev. Stat. § ]171.178(3) unconstitutional insofar [as] it permits an initial appearance up to seventy-two hours after arrest and instructs that non-judicial days be excluded from the calculation of those hours.” 108 Nev., at 705, 838 R 2d, at 924. While instructing that, henceforth, probable-cause determinations be made within 48 hours of a suspect’s arrest, the Nevada Supreme Court held McLaughlin inapplicable “to the case at hand,” because that recent precedent postdated Powell’s arrest. 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1. McLaughlin announced a new rule, the Nevada Supreme Court observed, and therefore need not be applied retroactively. 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1.

Powell petitioned for our review raising the question whether a state court may decline to apply a recently rendered Fourth Amendment decision of this Court to a case pending on direct appeal. We granted certiorari, 510 U. S. 811 (1993), and now reject the state court’s prospectivity declaration.

II

Powell’s arrest was not validated by a magistrate until four days elapsed. That delay was presumptively unreasonable under McLaughlin’s 48-hour rule. The State so concedes. Appellee’s Answer to Petition for Rehearing in No. 22348 (Nev.), p. 7; Tr. of Oral Arg. 28. The State further concedes that the Nevada Supreme Court’s retroactivity analysis was incorrect. See ibid. We held in Griffith v. Kentucky, 479 U. S., at 328, that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” Griffith stressed two points. First, “the nature of judicial review . . . precludes us from ‘[s]imply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule.’” Id., at 323 (quoting Mackey v. United States, 401 U. S. 667, 679 (1971) (Harlan, J., concurring in judgment)). Second, “selective application of new rules violates the principle of treating similarly situated defendants the same.” Griffith, supra, at 323. Assuming, arguendo, that the 48-hour presumption announced in McLaughlin qualifies as a “new rule,” cf. Teague v. Lane, 489 U. S. 288, 299-310 (1989), Griffith nonetheless entitles Powell to rely on McLaughlin for this simple reason: Powell’s conviction was not final when McLaughlin was announced.

It does not necessarily follow, however, that Powell must “be set free,” 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1, or gain other relief, for several questions remain open for decision on remand. In particular, the Nevada Supreme Court has not yet closely considered the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), or the consequences of Powell’s failure to raise the federal question, or the district attorney’s argument that introduction at trial of what Powell said on November 7, 1989, was “harmless” in view of a similar, albeit shorter, statement Powell made on November 3, prior to his arrest. See Brief for Respondent 22. Expressing no opinion on these issues, we hold only that the Nevada Supreme Court erred in failing to recognize that Griffith v. Kentucky calls for retroactive application of McLaughlin’s 48-hour rule.

* * *

For the reasons stated, the judgment of the Nevada Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Thomas,

with whom The Chief Justice joins,

dissenting.

After concluding that the Nevada Supreme Court erred by failing to follow our decision in Griffith v. Kentucky, 479 U. S. 314 (1987), the Court remands this case without deciding whether the ultimate judgment below, despite the error, was correct. In my view, the lower court’s judgment upholding petitioner’s conviction was correct under settled legal principles, and therefore should be affirmed.

I

The petition for certiorari in this case presented a single question for review — namely, whether a particular decision of this Court concerning criminal procedure should apply retroactively to all cases pending on direct review. This question was well settled at the time the petition was filed, and had been since our decision in Griffith, in which we stated that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U. S., at 328. The Nevada Supreme Court made a statement to the contrary in a footnote in its opinion. See infra, at 87. Notwithstanding this obvious mistake, Griffith’s rule of retroactivity had generated little or no confusion among the lower courts. In my view, under these circumstances, the writ was improvidently granted.

According to this Court’s Rule 10.1, “[a] petition for a writ of certiorari will be granted only when there are special and important reasons therefor.” Not only were there no special or important reasons favoring review in this case, but, as Justice Stewart once wrote: “The only remarkable thing about this case is its presence in this Court. For the case involves no more than the application of well-settled principles to a familiar situation, and has little significance except for the [parties].” Butz v. Glover Livestock Commission Co., 411 U. S. 182, 189 (1973) (dissenting opinion). As the Court has observed in the past, “it is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public as distinguished from that of the parties, and in cases where there is a real and embarrassing conflict of opinion and authority between the circuit courts of appeal.” Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387, 393 (1923). We make poor use of judicial resources when, as here, we take a case merely to reaffirm (without revisiting) settled law. See generally Estelle v. Gamble, 429 U. S. 97, 115 (1976) (Stevens, J., dissenting); United States v. Shannon, 342 U. S. 288, 294-295 (1952) (opinion of Frankfurter, J.).

Now that we have invested time and resources in full briefing and oral argument, however, we must decide how properly to dispose of the case. The Court vacates and remands because the Nevada Supreme Court erred, not in its judgment, but rather in its “prospectivity declaration.” Ante, at 83. The “declaration” to which the Court refers is the state court’s statement that our decision in County of Riverside v. McLaughlin, 500 U. S. 44 (1991), does “not apply retroactively.” 108 Nev. 700, 705, n. 1, 838 P. 2d 921, 924, n. 1 (1992). The Court correctly rules that McLaughlin does apply retroactively. See Griffith, supra. Rather than remanding, I believe that the Court in this instance can and should definitively resolve the case before us: “Our job ... is to review judgments, not to edit opinions . . . .” Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 823 (1985) (Stevens, J., concurring in part and dissenting in part). See also K mart Corp. v. Cartier, Inc., 485 U. S. 176, 185 (1988); Black v. Cutter Laboratories, 351 U. S. 292, 297 (1956).

Of course, when there is a need for further factfinding or for proceedings best conducted in the lower courts, or where the ultimate question to be decided depends on debatable points of law that have not been briefed or argued, we regularly determine that the best course is to remand. See, e. g., Pierce v. Underwood, 487 U. S. 552, 574 (1988) (vacating award of attorney’s fees and remanding for recalculation of fee award). Those concerns, however, do not require a remand in this case. In defense of the judgment below, respondent and its amici have properly raised a number of arguments, see Blum v. Bacon, 457 U. S. 132, 137, n. 5 (1982), which have been fully briefed. As I explain below, at least one of those arguments provides a ground for decision that would require only the application of settled law to the undisputed facts in the record before us. Under these circumstances, remanding will merely require the needless expenditure of further judicial resources on a claim that lacks merit.

II

While in petitioner’s care on November 2, 1989, 4-year-old Melea Allen suffered massive head and spinal injuries. When petitioner took her to the hospital the following day, November 3, she was comatose and suffering respiratory failure. Petitioner told doctors and nurses that she had fallen from his shoulders during play. When emergency room personnel discovered that Melea also had numerous bruises and lacerations on her body — injuries that suggested she had been abused repeatedly — they called the police. Petitioner spoke to the officers who responded to the call and again explained that the child’s injuries were the result of an accidental fall.

Several hours later, the police arrested petitioner for child abuse. Within an hour of the arrest, officers prepared a declaration of arrest that recited the above facts to establish probable cause. Petitioner was still in custody on November 7, when, after receiving Miranda warnings, he agreed to give a second statement to the police. He repeated the same version of events he had given at the hospital before his arrest, but in slightly more detail. On that same day, a Magistrate, relying on the facts recited in the declaration of arrest described above, determined that petitioner’s arrest had been supported by probable cause. The next day Melea died, and petitioner was charged with first-degree murder.

Petitioner contends that respondent’s delay in securing a prompt judicial determination of probable cause to arrest him for child abuse violated the rule that a probable-cause determination must, absent extenuating circumstances, be made by a judicial officer within 48 hours of a warrantless arrest. McLaughlin, swpra. The McLaughlin error, petitioner argues, required suppression of the custodial statement he made on November 7, which was introduced against him at trial.

Against that argument, respondent and its amici raise several contentions: first, that suppression of evidence would never be an appropriate remedy for a McLaughlin violation; second, that the statement at issue here was not a product of the McLaughlin error, or at least that the connection between the McLaughlin violation and the statement is so attenuated that suppression is not required; third, that suppression is inappropriate under Illinois v. Krull, 480 U. S. 340 (1987), because the officers acted in good-faith reliance on a state statute that authorized delays of up to 72 hours (excluding weekends and holidays) in presenting a defendant to a magistrate; and finally, that even if the statement should have been suppressed, admitting it at trial was harmless error. Even assuming, arguendo, that suppression is a proper remedy for McLaughlin errors, see ante, at 85, n., I believe that, on the facts of this case, suppression of petitioner’s statement would not be appropriate because the statement was not a product of the McLaughlin violation.

Our decisions make clear “that evidence will not be excluded as ‘fruit’ [of an unlawful act] unless the illegality is at least the ‘but for’ cause of the discovery of the evidence.” Segura v. United States, 468 U. S. 796, 815 (1984). As Segura suggests, “but for” causation is a necessary, but not sufficient, condition for suppression: “[W]e have declined to adopt a per se or but for rule that would make inadmissible any evidence . . . which somehow came to light through a chain of causation that began with a [violation of the Fourth or Fifth Amendment].” New York v. Harris, 495 U. S. 14, 17 (1990) (internal quotation marks omitted). See also United States v. Ceccolini, 435 U. S. 268, 276 (1978).

Contrary to petitioner’s arguments, the violation of McLaughlin (as opposed to his arrest and custody) bore no causal relationship whatsoever to his November 7 statement. The timing of the probable-cause determination would have affected petitioner’s statement only if a proper hearing at or before the 48-hour mark would have resulted in a finding of no probable cause. Yet, as the Magistrate found, the police had probable cause to suspect petitioner of child abuse, cf. Illinois v. Gates, 462 U. S. 213 (1983), and there is no suggestion that the delay in securing a determination of probable cause permitted the police to gather additional evidence to be presented to the Magistrate. On the contrary, the Magistrate based his determination on the facts included in the declaration of arrest that was completed within an hour of petitioner’s arrest. Thus, if the probable-cause determination had been made within 48 hours as required by McLaughlin, the same information would have been presented, the same result would have obtained, and none of the circumstances of petitioner’s custody would have been altered.

Moreover, it cannot be argued that the McLaughlin error somehow made petitioner’s custody unlawful and thereby rendered the statement the product of unlawful custody. Because the arresting officers had probable cause to arrest petitioner, he was lawfully arrested at the hospital. Cf. Harris, supra, at 18. The presumptively unconstitutional delay in securing a judicial determination of probable cause during a period of lawful custody did not render that custody illegal. We have never suggested that lawful custody becomes unlawful due to a failure to obtain a prompt judicial finding of probable cause — that is, probable cause does not disappear if not judicially determined within 48 hours. Cf. United States v. Montalvo-Murillo, 495 U. S. 711, 722 (1990) (“[A] person does not become immune from detention because of a timing violation”).

In short, the statement does not even meet the threshold requirement of being a “product” of the McLaughlin violation. Petitioner’s statement, “while the product of an arrest and being in custody, was not the fruit of the fact” that a judicial determination of probable cause was not made within the 48-hour period mandated by McLaughlin. Harris, supra, at 20. Under these circumstances, suppression is not warranted under our precedents.

* * *

For the foregoing reasons, the judgment below should be affirmed.

I respectfully dissent.

       Justice Thomas would reach out and decide the first of these questions, though it is not presented in the petition for review. He would rule inappropriate “suppression of [Powell’s November 7] statement ... because the statement was not a product of the McLaughlin violation.” Post, at 89. It is “settled law,” he maintains, post, at 88, that if probable cause in fact existed for Powell’s detention, then McLaughlin’s 48-hour rule, though violated, triggers no suppression remedy. Quite the opposite, Justice Thomas recognizes, is “settled law” regarding search warrants: A court’s postsearch validation of probable cause will not render the evidence admissible. See Vale v. Louisiana, 399 U. S. 30, 35, 34 (1970) (absent circumstances justifying a warrantless search, it is “constitutional error [to] admi[t] into evidence the fruits of the illegal search,” “even though the authorities ha[d] probable cause to conduct it”).
      Justice Thomas maintains, however, that our precedents, especially New York v. Harris, 495 U. S. 14 (1990), already establish that no suppression is required in Powell’s case. In Harris, we held that violation of the Fourth Amendment’s rule against warrantless arrests in a dwelling, see Payton v. New York, 445 U. S. 573 (1980), generally does not lead to the suppression of a postarrest confession. But Powell does not complain of police failure to obtain a required arrest warrant. He targets a different constitutional violation — failure to obtain authorization from a magistrate for a significant period of pretrial detention. Whether a suppression remedy applies in that setting remains an unresolved question. Because the issue was not raised, argued, or decided below, we should not settle it here.

       The fact that the arrest was supported by probable cause and was not investigatory in nature fully distinguishes this case from our decisions in Taylor v. Alabama, 457 U. S. 687 (1982), Brown v. Illinois, 422 U. S. 590 (1975), and Dunaway v. New York, 442 U. S. 200 (1979). Where probable cause for an arrest is lacking, as it was in each of those cases, evidence obtained as a result of the Fourth Amendment violation “bear[s] a sufficiently close relationship to the underlying illegality [to require suppression].” New York v. Harris, 495 U. S. 14, 19 (1990). The presence of probable cause, by contrast, validates the arrest and attendant custody, despite “‘technical’ violations of Fourth Amendment rights” that may have occurred during either. Brown, supra, at 611 (Powell, J., concurring in part). See also Harris, supra, at 18 (holding that even though the police violated the rule of Payton v. New York, 445 U. S. 573 (1980), by arresting a suspect in his house without a warrant, the resulting custody was lawful because the arrest was supported by probable cause, and that therefore the suspect’s subsequent custodial statement was admissible).
      As the Court notes, ante, at 85, n., a different rule applies to search warrants. In that context, we have insisted that, absent exigent circumstances, police officers obtain a search warrant, even if they had probable cause to conduct the search, see, e. g., Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (1971), and we have required suppression of all fruits of an unlawful search, unless an exception to the exclusionary rule applies. See generally Illinois v. Krull, 480 U. S. 340, 347-349 (1987). The same rule has not been applied to arrests. “[W]hile the Court has expressed a preference for the use of arrest warrants when feasible, it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” Gerstein v. Pugh, 420 U. S. 103, 113 (1975) (citations omitted). Nor has the Court required suppression of voluntary custodial statements made after an arrest supported by probable cause based solely on the officers’ failure to obtain a warrant. See Harris, supra. Petitioner’s statement was the product of his arrest and custody, and there is no reason to think that the rules we have developed in the search warrant context should apply in this case.

       Thus, conventional attenuation principles are inapplicable in this case, for as we pointed out in Harris, “attenuation analysis is only appropriate where, as a threshold matter, courts determine that ‘the challenged evidence is in some sense the product of illegal governmental activity.’ ” 495 U. S., at 19 (quoting United States v. Crews, 445 U. S. 463, 471 (1980)).


source: Caselaw Access Project

author: Justice Thomas Chief Justice Rehnquist,

license: Public Domain

text:
    OREGON WASTE SYSTEMS, INC. v. DEPARTMENT OF ENVIRONMENTAL QUALITY OF THE STATE OF OREGON et al.
    No. 93-70.
    Argued January 18, 1994
    Decided April 4, 1994

      Thomas, J., delivered the opinion of the Court, in which Stevens, O’Connor, Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 108.

      Andrew J. Pincus argued the cause for petitioners in both cases. With him on the briefs for petitioners in No. 93-70 were James E. Benedict and J. Laurence Cable. John Di-Lorenzo, Jr., filed briefs for petitioner in No. 93-108.

      Thomas A. Balmer, Deputy Attorney General of Oregon, argued the cause for respondents in both cases. With him on the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Michael D. Reynolds, Assistant Solicitor General.

      Together with No. 93-108, Columbia Resource Co. v. Environmental Quality Commission of the State of Oregon, also on certiorari to the same court.

       A brief of amici curiae urging affirmance was filed for the State of Indiana et al. by Pamela Carter, Attorney General of Indiana, and Arend J. Abel, Matthew R. Gutwein, and Myra P. Spicker, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Robert A. Butterworth of Florida, Chris Gorman of Kentucky, Michael E. Carpenter of Maine, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Lee Fisher of Ohio, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Joseph B. Meyer of Wyoming, and James E. Doyle of Wisconsin.

   Justice Thomas

delivered the opinion of the Court.

Two Terms ago, in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), we held that the negative Commerce Clause prohibited Alabama from imposing a higher fee on the disposal in Alabama landfills of hazardous waste from other States than on the disposal of identical waste from Alabama. In reaching that conclusion, however, we left open the possibility that such a differential surcharge might be valid if based on the costs of disposing of waste from other States. Id., at 346, n. 9. Today, we must decide whether Oregon’s purportedly cost-based surcharge on the in-state disposal of solid waste generated in other States violates the Commerce Clause.

I

Like other States, Oregon comprehensively regulates the disposal of solid wastes within its borders. Respondent Oregon Department of Environmental Quality oversees the State’s regulatory scheme by developing and executing plans for the management, reduction, and recycling of solid wastes. To fund these and related activities, Oregon levies a wide range of fees on landfill operators. See, e. g., Ore. Rev. Stat. §§459.235(3), 459.310 (1991). In 1989, the Oregon Legislature imposed an additional fee, called a “surcharge,” on “every person who disposes of solid waste generated out-of-state in a disposal site or regional disposal site.” § 459.297(1) (effective Jan. 1, 1991). The amount of that surcharge was left to respondent Environmental Quality Commission (Commission) to determine through rulemaking, but the legislature did require that the resulting surcharge “be based on the costs to the State of Oregon and its political subdivisions of disposing of solid waste generated out-of-state which are not otherwise paid for” under specified statutes. § 459.298. At the conclusion of the rulemaking process, the Commission set the surcharge on out-of-state waste at $2.25 per ton. Ore. Admin. Rule 340-97-120(7) (Sept. 1993).

In conjunction with the out-of-state surcharge, the legislature imposed a fee on the in-state disposal of waste generated within Oregon. See Ore. Rev. Stat. §§459A.110(1), (5) (1991). The in-state fee, capped by statute at $0.85 per ton (originally $0.50 per ton), is considerably lower than the fee imposed on waste from other States. §§459A.110(5) and 459A.115. Subsequently, the legislature conditionally extended the $0.85 per ton fee to out-of-state waste, in addition to the $2.25 per ton surcharge, §459A. 110(6), with the proviso that if the surcharge survived judicial challenge, the $0.85 per ton fee would again be limited to in-state waste. 1991 Ore. Laws, ch. 385, §§ 91-92.

The anticipated court challenge was not long in coming. Petitioners, Oregon Waste Systems, Inc. (Oregon Waste), and Columbia Resource Company (CRC), joined by Gilliam County, Oregon, sought expedited review of the out-of-state surcharge in the Oregon Court of Appeals. Oregon Waste owns and operates a solid waste landfill in Gilliam County, at which it accepts for final disposal solid waste generated in Oregon and in other States. CRC, pursuant to a 20-year contract with Clark County, in neighboring Washington State, transports solid waste via barge from Clark County to a landfill in Morrow County, Oregon. Petitioners challenged the administrative rule establishing the out-of-state surcharge and its enabling statutes under both state law and the Commerce Clause of the United States Constitution. The Oregon Court of Appeals upheld the statutes and rule. Gilliam County v. Department of Environmental Quality, 114 Ore. App. 369, 837 P. 2d 965 (1992).

The State Supreme Court affirmed. Gilliam County v. Department of Environmental Quality of Oregon, 316 Ore. 99, 849 P. 2d 500 (1993). As to the Commerce Clause, the court recognized that the Oregon surcharge resembled the Alabama fee invalidated in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), in that both prescribed higher fees for the disposal of waste from other States. Nevertheless, the court viewed the similarity as superficial only. Despite the explicit reference in §459.297(1) to out-of-state waste’s geographic origin, the court reasoned, the Oregon surcharge is not facially discriminatory “[b]ecause of [its] express nexus to actual costs incurred [by state and local government].” 316 Ore., at 112, 849 P. 2d, at 508. That nexus distinguished Chemical Waste, supra, by rendering the surcharge a “compensatory fee,” which the court viewed as “prima facie reasonable,” that is to say, facially constitutional. 316 Ore., at 112, 849 P. 2d, at 508. The court réad our case law as invalidating compensatory fees only if they are “‘manifestly disproportionate to the services rendered.’” Ibid, (quoting Clark v. Paul Gray, Inc., 306 U. S. 583, 599 (1939)). Because Oregon law restricts the scope of judicial review in expedited proceedings to deciding the facial legality of administrative rules and the statutes underlying them, Ore. Rev. Stat. §183.400 (1991), the Oregon court deemed itself precluded from deciding the factual question whether the surcharge on out-of-state waste was disproportionate. 316 Ore., at 112, 849 P. 2d, at 508.

We granted certiorari, 509 U. S. 953 (1993), because the decision below conflicted with a recent decision of the United States Court of Appeals for the Seventh Circuit. We now reverse.

II

The Commerce Clause provides that “[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.” Art. I, §8, cl. 3. Though phrased as a grant of regulatory power to Congress, the Clause has long been understood to have a “negative” aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce. See, e. g., Wyoming v. Oklahoma, 502 U. S. 437, 454 (1992); Welton v. Missouri, 91 U. S. 275 (1876). The Framers granted Congress plenary authority over interstate commerce in “the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.” Hughes v. Oklahoma, 441 U. S. 322, 325-326 (1979). See generally The Federalist No. 42 (J. Madison). “This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy,... has as its corollary that the states are not separable economic units.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 537-538 (1949).

Consistent with these principles, we have held that the first step in analyzing any law subject to judicial scrutiny under the negative Commerce Clause is to determine whether it “regulates evenhandedly with only ‘incidental’ effects on interstate commerce, or discriminates against interstate commerce.” Hughes, supra, at 336. See also Chemical Waste, 504 U. S., at 340-341. As we use the term here, “discrimination” simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. If a restriction on commerce is discriminatory, it is virtually per se invalid. Id., at 344, n. 6. See also Philadelphia v. New Jersey, 437 U. S. 617, 624 (1978). By contrast, nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970).

In Chemical Waste, we easily found Alabama’s surcharge on hazardous waste from other States to be facially discriminatory because it imposed a higher fee on the disposal of out-of-state waste than on the disposal of identical in-state waste. 504 U. S., at 342. We deem it equally obvious here that Oregon’s $2.25 per ton surcharge is discriminatory on its face. The surcharge subjects waste from other States to a fee almost three times greater than the $0.85 per ton charge imposed on solid in-state waste. The statutory determinant for which fee applies to any particular shipment of solid waste to an Oregon landfill is whether or not the waste was “generated out-of-state.” Ore. Rev. Stat. §459.297(1) (1991). It is well established, however, that a law is discriminatory if it “ ‘tax[es] a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the State.’ ” Chemical Waste, supra, at 342 (quoting Armco Inc. v. Hardesty, 467 U. S. 638, 642 (1984)). See also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 286 (1987).

Respondents argue, and the Oregon Supreme Court held, that the statutory nexus between the surcharge and “the [otherwise uncompensated] costs to the State of Oregon and its political subdivisions of disposing of solid waste generated out-of-state,” Ore. Rev. Stat. §459.298 (1991), necessarily precludes a finding that the surcharge is discriminatory. We find respondents’ narrow focus on Oregon’s compensatory aim to be foreclosed by our precedents. As we reiterated in Chemical Waste, the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory. See 504 U. S., at 340-341. See also Philadelphia, supra, at 626. Consequently, even if the surcharge merely recoups the costs of disposing of out-of-state waste in Oregon, the fact remains that the differential charge favors shippers of Oregon waste over their counterparts handling waste generated in other States. In making that geographic distinction, the surcharge patently discriminates against interstate commerce.

HI

Because the Oregon surcharge is discriminatory, the virtually per se rule of invalidity provides the proper legal standard here, not the Pike balancing test. As a result, the surcharge must be invalidated unless respondents can “sho[w] that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). See also Chemical Waste, supra, at 342-343. Our cases require that justifications for discriminatory restrictions on commerce pass the “strictest scrutiny.” Hughes, 441 U. S., at 337. The State’s burden of justification is so heavy that “facial discrimination by itself may be a fatal defect.” Ibid. See also Westinghouse Elec. Corp. v. Tully, 466 U. S. 388, 406-407 (1984); Maryland v. Louisiana, 451 U. S. 725, 759-760 (1981).

At the outset, we note two justifications that respondents have not presented. No claim has been made that the disposal of waste from other States imposes higher costs on Oregon and its political subdivisions than the disposal of instate waste. Also, respondents have not offered any safety or health reason unique to nonhazardous waste from other States for discouraging the flow of such waste into Oregon. Cf. Maine v. Taylor, 477 U. S. 131 (1986) (upholding ban on importation of out-of-state baitfish into Maine because such baitfish were subject to parasites completely foreign to Maine baitfish). Consequently, respondents must come forward with other legitimate reasons to subject waste from other States to a higher charge than is levied against waste from Oregon.

Respondents offer two such reasons, each of which we address below.

A

Respondents’ principal defense of the higher surcharge on out-of-state waste is that it is a “compensatory tax” necessary to make shippers of such waste pay their “fair share” of the costs imposed on Oregon by the disposal of their waste in the State. In Chemical Waste we noted the possibility that such an argument might justify a discriminatory surcharge or tax on out-of-state waste. See 504 U. S., at 346, n. 9. In making that observation, we implicitly recognized the settled principle that interstate commerce may be made to “‘pay its way.’” Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 281 (1977). See also Maryland, supra, at 754. “It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden[sj.” Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 254 (1938). See also Henneford v. Silas Mason Co., 300 U. S. 577 (1937). Nevertheless, one of the central purposes of the Clause was to prevent States from “exacting more than a just share” from interstate commerce. Department of Revenue of Wash. v. Association of Wash. Stevedoring Cos., 435 U. S. 734, 748 (1978) (emphasis added). See also Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450, 462 (1959).

At least since our decision in Hinson v. Lott, 8 Wall. 148 (1869), these principles have found expression in the “compensatory” or “complementary” tax doctrine. Though our cases sometimes discuss the concept of the compensatory tax as if it were a doctrine unto itself, it is merely a specific way of justifying a facially discriminatory tax as achieving a legitimate local purpose that cannot be achieved through nondiscriminatory means. See Chemical Waste, supra, at 346, n. 9 (referring to the compensatory tax doctrine as a “justification]” for a facially discriminatory tax). Under that doctrine, a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and “substantially similar” tax on intrastate commerce does not offend the negative Commerce Clause. Maryland, supra, at 758-759. See also Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 242-243 (1987); Armco, 467 U. S., at 643.

To justify a charge on interstate commerce as a compensatory tax, a State must, as a threshold matter, “identify]... the [intrastate tax] burden for which the State is attempting to compensate.” Maryland, supra, at 758. Once that burden has been identified, the tax on interstate commerce must be shown roughly to approximate — but not exceed— the amount of the tax on intrastate commerce. See, e. g., Alaska v. Arctic Maid, 366 U. S. 199, 204-205 (1961). Finally, the events on which the interstate and intrastate taxes are imposed must be “substantially equivalent”; that is, they must be sufficiently similar in substance to serve as mutually exclusive “prox[ies]” for each other. Armco, supra, at 643. As Justice Cardozo explained for the Court in Henneford, under a truly compensatory tax scheme “the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, but the sum is the same when the reckoning is closed.” 300 U. S., at 584.

Although it is often no mean feat to determine whether a challenged tax is a compensatory tax, we have little difficulty concluding that the Oregon surcharge is not such a tax. Oregon does not impose a specific charge of at least $2.25 per ton on shippers of waste generated in Oregon, for which the out-of-state surcharge might be considered compensatory. In fact, the only analogous charge on the disposal of Oregon waste is $0.85 per ton, approximately one-third of the amount imposed on waste from other States. See Ore. Rev. Stat. §§459A. 110(5), 459A.115 (1991). Respondents’ failure to identify a specific charge on intrastate commerce equal to or exceeding the surcharge is fatal to their claim. See Maryland, 451 U. S., at 758.

Respondents argue that, despite the absence of a specific $2.25 per ton charge on in-state waste, intrastate commerce does pay its share of the costs underlying the surcharge through general taxation. Whether or not that is true is difficult to determine, as “[general] tax payments are received for the general purposes of the [government], and are, upon proper receipt, lost in the general revenues.” Flast v. Cohen, 392 U. S. 83, 128 (1968) (Harlan, J., dissenting). Even assuming, however, that various other means of general taxation, such as income taxes, could serve as an identifiable intrastate burden roughly equivalent to the out-of-state surcharge, respondents’ compensatory tax argument fails because the in-state and out-of-state levies are not imposed on substantially equivalent events.

The prototypical example of substantially equivalent taxable events is the sale and use of articles of trade. See Henneford, supra. In fact, use taxes on products purchased out of state are the only taxes we have upheld in recent memory under the compensatory tax doctrine. See ibid. Typifying our recent reluctance to recognize new categories of compensatory taxes is Armco, where we held that manufacturing and wholesaling are not substantially equivalent events. 467 U. S., at 643. In our view, earning income and disposing of waste at Oregon landfills are even less equivalent than manufacturing and wholesaling. Indeed, the very fact that in-state shippers of out-of-state waste, such as Oregon Waste, are charged the out-of-state surcharge even though they pay Oregon income taxes refutes respondents’ argument that the respective taxable events are substantially equivalent. See ibid. We conclude that, far from being substantially equivalent, taxes on earning income and utilizing Oregon landfills are “entirely different kind[s] of tax[es].” Washington v. United States, 460 U. S. 536, 546, n. 11 (1983). We are no more inclined here than we were in Scheiner to “plunge . . . into the morass of weighing comparative tax burdens” by comparing taxes on dissimilar events. 483 U. S., at 289 (internal quotation marks omitted).

B

Respondents’ final argument is that Oregon has an interest in spreading the costs of the in-state disposal of Oregon waste to all Oregonians. That is, because all citizens of Oregon benefit from the proper in-state disposal of waste from Oregon, respondents claim it is only proper for Oregon to require them to bear more of the costs of disposing of such waste in the State through a higher general tax burden. At the same time, however, Oregon citizens should not be required to bear the costs of disposing of out-of-state waste, respondents claim. The necessary result of that limited cost shifting is to require shippers of out-of-state waste to bear the full costs of in-state disposal, but to permit shippers of Oregon waste to bear less than the full cost.

We fail to perceive any distinction between respondents’ contention and a claim that the State has an interest in reducing the costs of handling in-state waste. Our cases condemn as illegitimate, however, any governmental interest that is not “unrelated to economic protectionism,” Wyoming, 502 U. S., at 454, and regulating interstate commerce in such a way as to give those who handle domestic articles of commerce a cost advantage over their competitors handling similar items produced elsewhere constitutes such protectionism. See New Energy, 486 U. S., at 275. To give controlling effect to respondents’ characterization of Oregon’s tax scheme as seemingly benign cost spreading would require us to overlook the fact that the scheme necessarily incorporates a protectionist objective as well. Cf. Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 273 (1984) (rejecting Hawaii’s attempt to justify a discriminatory tax exemption for local liquor producers as conferring a benefit on them, as opposed to burdening out-of-state liquor producers).

Respondents counter that if Oregon is engaged in any form of protectionism, it is “resource protectionism,” not economic protectionism. It is true that by discouraging the flow of out-of-state waste into Oregon landfills, the higher surcharge on waste from other States conserves more space in those landfills for waste generated in Oregon. Recharacterizing the surcharge as resource protectionism hardly advances respondents’ cause, however. Even assuming that landfill space is a “natural resource,” “a State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders.” Philadelphia, 437 U. S., at 627. As we held more than a century ago, “if the State, under the guise of exerting its police powers, should [impose a burden] . . . applicable solely to articles [of commerce]... produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in conflict with the Constitution of the United States.” Guy v. Baltimore, 100 U. S. 434, 443 (1880).

Our decision in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), is not to the contrary. There we held that a State may grant a “limited preference” for its citizens in the utilization of ground water. Id., at 956. That holding was premised on several different factors tied to the simple fact of life that “water, unlike other natural resources, is essential for human survival.” Id., at 952. Sporhase therefore provides no support for respondents’ position that States may erect a financial barrier to the flow of waste from other States into Oregon landfills. See Fort Gratiot, 504 U. S., at 364-365, and n. 6. However serious the shortage in landfill space may be, post, at 108, “[n]o State may attempt to isolate itself from a problem common to the several States by raising barriers to the free flow of interstate trade.” Chemical Waste, 504 U. S., at 339-340, and 346, n. 9.

IV

We recognize that the States have broad discretion to configure their systems of taxation as they deem appropriate. See, e. g., Commonwealth Edison Co. v. Montana, 453 U. S. 609, 622-623 (1981); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 336-337 (1977). All we intimate here is that their discretion in this regard, as in all others, is bounded by any relevant limitations of the Federal Constitution, in these cases the negative Commerce Clause. Because respondents have offered no legitimate reason to subject waste generated in other States to a discriminatory surcharge approximately three times as high as that imposed on waste generated in Oregon, the surcharge is facially invalid under the negative Commerce Clause. Accordingly, the judgment of the Oregon Supreme Court is reversed, and the cases are remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Chief Justice Rehnquist,

with whom Justice Black-mun joins,

dissenting.

Landfill space evaporates as solid waste accumulates. State and local governments expend financial and political capital to develop trash control systems that are efficient, lawful, and protective of the environment. The State of Oregon responsibly attempted to address its solid waste disposal problem through enactment of a comprehensive regulatory scheme for the management, disposal, reduction, and recycling of solid waste. For this Oregon should be applauded. The regulatory scheme included a fee charged on out-of-state solid waste. The Oregon Legislature directed the Environmental Quality Commission to determine the appropriate surcharge “based on the costs ... of disposing of solid waste generated out-of-state.” Ore. Rev. Stat. §459.298 (1991). The Commission arrived at a surcharge of $2.25 per ton, compared to the $0.85 per ton charged on in-state solid waste. Ore. Admin. Rule 340-97-110(3) (Sept. 1993). The surcharge works out to an increase of about $0.14 per week for the typical out-of-state solid waste producer. Brief for Respondents 26-27, n. 16. This seems a small price to pay for the right to deposit your “garbage, rubbish, refuse ...; sewage sludge, septic tank and cesspool pumpings or other sludge; . . . manure, . . . dead animals, [and] infectious waste” on your neighbors. Ore. Rev. Stat. §459.005(27) (1991).

Nearly 20 years ago, we held that a State cannot ban all out-of-state waste disposal in protecting themselves from hazardous or noxious materials brought across the State’s borders. Philadelphia v. New Jersey, 437 U. S. 617 (1978). Two Terms ago in Chemical Waste Management, Inc. v. Hunt, 504 U. S. 334 (1992), in striking down the State of Alabama’s $72 per ton fee on the disposal of out-of-state hazardous waste, the Court left open the possibility that such a fee could be valid if based on the costs of disposing of waste from other States. Id., at 346, n. 9. Once again, however, as in Philadelphia and Chemical Waste Management, the Court further cranks the dormant Commerce Clause ratchet against the States by striking down such cost-based fees, and by so doing ties the hands of the States in addressing the vexing national problem of solid waste disposal. I dissent.

Americans generated nearly 196 million tons of municipal solid waste in 1990, an increase from 128 million tons in 1975. See U. S. Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1992 Update, p. ES-3. Under current projections, Americans will produce 222 million tons of garbage in the year 2000. Ibid. Generating solid waste has never been a problem. Finding environmentally safe disposal sites has. By 1991, it was estimated that 45 percent of all solid waste landfills in the Nation had reached capacity. 56 Fed. Reg. 50980 (1991). Nevertheless, the Court stubbornly refuses to acknowledge that a clean and healthy environment, unthreatened by the improper disposal of solid waste, is the commodity really at issue in cases such as these, see, e. g., Chemical Waste Management, supra, at 350 (Rehnquist, C. J., dissenting), and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 368 (1992) (Rehnquist, C. J., dissenting).

Notwithstanding the identified shortage of landfill space in the Nation, the Court notes that it has “little difficulty,” ante, at 104, concluding that the Oregon surcharge does not operate as a compensatory tax, designed to offset the loss of available landfill space in the State caused by the influx of out-of-state waste. The Court reaches this nonchalant conclusion because the State has failed “to identify a specific charge on intrastate commerce equal to or exceeding the surcharge.” Ibid, (emphasis added). The Court’s myopic focus on “differential fees” ignores the fact that in-state producers of solid waste support the Oregon regulatory program through state income taxes and by paying, indirectly, the numerous fees imposed on landfill operators and the dumping fee on in-state waste. Ore. Rev. Stat. §459.005 et seq. (1991).

We confirmed in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 (1982), that a State may enact a comprehensive regulatory system to address an environmental problem or a threat to natural resources within the confines of the Commerce Clause. In the context of threatened ground water depletion, we stated that “[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State.” Id., at 955-956. The same point could be made about a “clean and safe environment” in these cases: Where a State imposes restrictions on the ability of its own citizens to dispose of solid waste in an effort to promote a “clean and safe environment,” it is not discriminating against interstate commerce by preventing the uncontrolled transfer of out-of-state solid waste into the State.

The availability of safe landfill disposal sites in Oregon did not occur by chance. Through its regulatory scheme, the State of Oregon inspects landfill sites, monitors waste streams, promotes recycling, and imposes an $0.85 per ton disposal fee on in-state waste, Ore. Rev. Stat. § 459.005 et seq. (1991), all in an effort to curb the threat that its residents will harm the environment and create health and safety problems through excessive and unmonitored solid waste disposal. Depletion of a clean and safe environment will follow if Oregon must accept out-of-state waste at its landfills without a sharing of the disposal costs. The Commerce Clause does not require a State to abide this outcome where the “natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage.” Sporhase, supra, at 957. A shortage of available landfill space is upon us, 56 Fed. Reg. 50980 (1991), and with it comes the accompanying health and safety hazards flowing from the improper disposal of solid wastes. We have long acknowledged a distinction between economic protectionism and health and safety regulation promulgated by Oregon. See H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949).

Far from neutralizing the economic situation for Oregon producers and out-of-state producers, the Court’s analysis turns the Commerce Clause on its head. Oregon’s neighbors will operate under a competitive advantage against their Oregon counterparts as they can now produce solid waste with reckless abandon and avoid paying concomitant state taxes to develop new landfills and clean up retired landfill sites. While I understand that solid waste is an article of commerce, Philadelphia, 437 U. S., at 622-623, it is not a commodity sold in the marketplace; rather it is disposed of at a cost to the State. Petitioners do not buy garbage to put in their landfills; solid waste producers pay petitioners to take their waste. Oregon solid waste producers do not compete with out-of-state businesses in the sale of solid waste. Thus, the fees do not alter the price of a product that is competing with other products for common purchasers. If anything, striking down the fees works to the disadvantage of Oregon businesses. They alone will have to pay the “nondisposal” fees associated with solid waste: landfill siting, landfill cleanup, insurance to cover environmental accidents, and transportation improvement costs associated with out-of-state waste being shipped into the State. While we once recognized that “ ‘the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies,’” id., at 621, n. 4, quoting 42 U. S. C. § 6901(a)(4) (1976 ed.), the Court today leaves States with only two options: become a dumper and ship as much waste as possible to a less populated State, or become a dumpee, and stoically accept waste from more densely populated States.

The Court asserts that the State has not offered “any safety or health reason[s]” for discouraging the flow of solid waste into Oregon. Ante, at 101. I disagree. The availability of environmentally sound landfill space and the proper disposal of solid waste strike me as justifiable “safety or health” rationales for the fee. As far back as the turn of the century, the Court recognized that control over the collection and disposal of solid waste was a legitimate, nonarbitrary exercise of police powers to protect health and safety. See, e. g., California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306 (1905) (holding that exclusive privilege to one company to dispose of the garbage in the city and county of San Francisco was not void as taking the property of householders for public use without compensation); and Gardner v. Michigan, 199 U. S. 325 (1905) (holding that property rights of individuals must be subordinated to the general good and if the owner of garbage suffers any loss by its destruction he is compensated therefor in the common benefit secured by the regulation requiring that all garbage be destroyed).

In exercising its legitimate police powers in regulating solid waste disposal, Oregon is not “needlessly obstructing] interstate trade or attempting] to place itself in a position of economic isolation.” Maine v. Taylor, All U. S. 131, 151 (1986) (internal quotation marks omitted) (upholding Maine’s ban on the importation of live baitfish on the ground that it serves the legitimate governmental interest in protecting Maine’s indigenous fish population from parasites prevalent in out-of-state baitfish). Quite to the contrary, Oregon accepts out-of-state waste as part of its comprehensive solid waste regulatory program and it “retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.” Ibid. Moreover, Congress also has recognized taxes as an effective method of discouraging consumption of natural resources in other contexts. Cf. 26 U. S. C. §§4681, 4682 (1988 ed., Supp. IV) (tax on ozone-depleting chemicals); 26 U. S. C. § 4064 (1988 ed. and Supp. IV) (gas guzzler excise tax). Nothing should change the analysis when the natural resource — landfill space — was created or regulated by the State in the first place.

In its sweeping ruling, the Court makes no distinction between publicly and privately owned landfills. It rejects the argument that our “user fee” cases apply in this context since the landfills owned by the petitioners are private and our user fee analysis applies only to “ ‘charge[s] imposed by the State for the use of a state-owned or state-provided transportation or other facilities and services.’” Ante, at 103, n. 6, quoting Commonwealth Edison Co. v. Montana, 453 U. S. 609, 621 (1981). Rather than stopping there, however, the majority goes on to note that even if the Oregon surcharge could be viewed as a user fee, “it could not be sustained as such, given that it discriminates against interstate commerce.” Ante, at 104, n. 6, citing Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707, 717 (1972). There is no need to make this dubious assertion. We specifically left unanswered the question whether a state or local government could regulate disposal of out-of-state solid waste at landfills owned by the government in Philadelphia, supra, at 627, n. 6.'

We will undoubtedly be faced with this question directly in the future as roughly 80 percent of landfills receiving municipal solid wáste in the United States are state or locally owned. U. S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, p. 4-7 (Oct. 1986) (Table 4-2). We noted in South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 93 (1984): “[I]f a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities.” See also Wyoming v. Oklahoma, 502 U. S. 437, 459 (1992). Similarly, if the State owned and operated a park or recreational facility, it would be allowed to charge differential fees for in-state and out-of-state users of the resource. See, e. g., Baldwin v. Fish and Game Comm’n of Mont., 436 U. S. 371 (1978) (upholding Montana’s higher nonresident elk hunting license fees to compensate the State for conservation expenditures from taxes which only residents pay). More recently we upheld such differential fees under a reasonableness standard in Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355 (1994), despite the fact that the fees were not precisely tied to the costs of the services provided at the publicly owned airport. We relied on our Commerce Clause analysis from Evansville, supra. We stated in Evansville:

“At least so long as the toll is based on some fair approximation of use or privilege for use, . . . and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.” Id., at 716-717.

I think that the $2.25 per ton fee that Oregon imposes on out-of-state waste works out to a similar “fair approximation” of the privilege to use its landfills. Even the Court concedes that our precedents do not demand anything beyond “substantial] equivalency]” between the fees charged on in-state and out-of-state waste. Ante, at 103 (internal quotation marks omitted). The $0.14 per week fee imposed on out-of-state waste producers qualifies as “substantially equivalent” under the reasonableness standard of Northwest Airlines and Evansville.

The Court begrudgingly concedes that interstate commerce may be made to “pay its way,” ante, at 102 (internal quotation marks omitted), yet finds Oregon’s nominal surcharge to exact more than a “ ‘just share’ ” from interstate commerce, ibid. It escapes me how an additional $0.14 per week cost for the average solid waste producer constitutes anything but the type of “incidental effects on interstate commerce” endorsed by the majority. Ante, at 99. Evenhanded regulations imposing such incidental effects on interstate commerce must be upheld unless “the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U. S. 137, 142 (1970). If the majority finds $0.14 per week beyond the pale, one is left to wonder what the Court possibly could have contemplated when it stated:

“ ‘[I]n the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’” Hunt v. Washington State Apple Advertising Comm’n, 432 U. S. 333, 350 (1977), quoting Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U. S. 761, 767 (1945).

Surely $0.14 per week falls within even the most crabbed definition of “affect” or “regulate.” Today the majority has rendered this “residuum of power” a nullity.

The State of Oregon is not prohibiting the export of solid waste from neighboring States; it is only asking that those neighbors pay their fair share for the use of Oregon landfill sites. I see nothing in the Commerce Clause that compels less densely populated States to serve as the low-cost dumping grounds for their neighbors, suffering the attendant risks that solid waste landfills present. The Court, deciding otherwise, further limits the dwindling options available to States as they contend with the environmental, health, safety, and political challenges posed by the problem of solid waste disposal in modern society.

For the foregoing reasons, I respectfully dissent.

       Oregon defines “solid wastes” as “all putrescible and nonputrescible wastes, including but not limited to garbage, rubbish, refuse, ashes, waste paper and cardboard; sewage sludge, septic tank and cesspool pumpings or other sludge; commercial, industrial, demolition and construction wastes; discarded or abandoned vehicles or parts thereof; discarded home and industrial appliances; manure, vegetable or animal solid and semisolid wastes, dead animals, infectious waste ... and other wastes.” Ore. Rev. Stat. §459.005(27) (1991). Hazardous wastes are not considered solid wastes. § 459.005(27)(a).

       As a result, shippers of out-of-state solid waste currently are being charged $3.10 per ton to dispose of such waste in Oregon landfills, as compared to the $0.85 per ton fee charged to dispose of Oregon waste in those same landfills. We refer hereinafter only to the $2.25 surcharge, because the $0.85 per ton fee, which will be refunded to shippers of out-of-state waste if the surcharge is upheld, 1991 Ore. Laws, ch. 385, §92, is not challenged here.

        Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267 (1992), cert. denied, 506 U. S. 1053 (1993).

       The dissent argues that the $2.25 per ton surcharge is so minimal in amount that it cannot be considered discriminatory, even though the surcharge expressly applies only to waste generated in other States. Post, at 115. The dissent does not attempt to reconcile that novel understanding of discrimination with our precedents, which clearly establish that the degree of a differential burden or charge on interstate commerce “measures only the extent of the discrimination” and “is of no relevance to the determination whether a State has discriminated against interstate commerce.” Wyoming v. Oklahoma, 502 U. S. 437, 455 (1992). See also, e. g., Maryland v. Louisiana, 451 U. S. 725, 760 (1981) (“We need not know how unequal [a] [t]ax is before concluding that it... discriminates”).

       In fact, the Commission fixed the $2.25 per ton cost of disposing of solid waste in Oregon landfills without reference to the origin of the waste, 3 Record 665-690, and Oregon’s economic consultant recognized that the per ton costs are the same for both in-state and out-of-state waste. Id., at 731-732, 744. Of course, if out-of-state waste did impose higher costs on Oregon than in-state waste, Oregon could recover the increased cost through a differential charge on out-of-state waste, for then there would be a “reason, apart from its origin, why solid waste coming from outside the [State] should be treated differently.” Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U. S. 353, 361 (1992). Cf. Mullaney v. Anderson, 342 U. S. 415, 417 (1952); Toomer v. Witsell, 334 U. S. 385, 399 (1948).

       The Oregon Supreme Court, though terming the out-of-state surcharge a “compensatory fee,” relied for its legal standard on our “user fee” cases. See 316 Ore. 99, 112, 849 P. 2d 500, 508 (1993) (citing, for example, Evansville-Vanderbwgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U. S. 707 (1972), and Clark v. Paul Gray, Inc., 306 U. S. 583 (1939)). The compensatory tax cases cited in the text, rather than the user fee cases, are controlling here, as the latter apply only to “charge[s] imposed by the State for the use of state-owned or state-provided transportation or other facilities and services.” Commonwealth Edison Co. v. Montana, 453 U. S. 609, 621 (1981). Because it is undisputed that, as in Chemical Waste, the landfills in question are owned by private entities, including Oregon Waste, the out-of-state surcharge is plainly not a user fee. Nevertheless, even if the surcharge could somehow be viewed as a user fee, it could not be sustained as such, given that it discriminates against interstate commerce. See Evansville, supra, at 717; Guy v. Baltimore, 100 U. S. 434 (1880). Cf. Northwest Airlines, Inc. v. County of Kent, 510 U. S. 355, 369 (1994) (A user fee is valid only to the extent it “does not discriminate against interstate commerce”).

       We would note that respondents, like the dissent, post, at 112, ignore the fact that shippers of waste from other States in all likelihood pay income taxes in other States, a portion of which might well be used to pay for waste reduction activities in those States.

       Furthermore, permitting discriminatory taxes on interstate commerce to compensate for charges purportedly included in general forms of intrastate taxation “would allow a state to tax interstate commerce more heavily than in-state commerce anytime the entities involved in interstate commerce happened to use facilities supported by general state tax funds.” Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d, at 1284. We decline respondents’ invitation to open such an expansive loophole in our carefully confined compensatory tax jurisprudence.

       We recognize that “[t]he Commerce Clause does not prohibit all state action designed to give its residents an advantage in the marketplace, but only action of that description in connection with the State’s regulation of interstate commerce.” New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 278 (1988). Cf. Metropolitan Life Ins. Co. v. Ward, 470 U. S. 869, 877, n. 6 (1985). Here, as in New Energy, we confront a patently discriminatory law that is plainly connected to the regulation of interstate commerce. We therefore have no occasion to decide whether Oregon could validly accomplish its limited cost spreading through the “market participant” doctrine, Hughes v. Alexandria Scrap Corp., 426 U. S. 794, 806-810 (1976), or other means unrelated to any regulation of interstate commerce.

       The surcharge is composed of the following identified costs: $0.58— statewide activities for reducing environmental risks and improving solid waste management; $0.66 — reimbursements to the State for tax credits and other public subsidies; $0.05 — solid waste reduction activities related to the review and certification of waste reduction and recycling plans; $0.72 — increased environmental liability; $0.20 — lost disposal capacity; $0.03 — publicly supported infrastructure; and $0.01 — nuisance impacts from transportation. Pet. for Cert, in No. 93-108, p. 4.

       The $2.25 per ton fee imposed on out-of-state waste exceeds the $0.85 per ton fee imposed on in-state waste by $1.40 per ton. One ton equals 2,000 pounds. Assuming that the hypothetical nonresident generates 200 pounds of garbage per month (1/10 of a ton), the nonresident’s garbage bill would increase by $0.14 per month.


author: Per Curiam. Justice O’Connor,

text:
    TICOR TITLE INSURANCE CO. et al. v. BROWN et al.
    No. 92-1988.
    Argued March 1, 1994
    Decided April 4, 1994

      Richard G. Taranto argued the cause for petitioners. With him on the briefs were Joel I. Klein, Frank D. Tatum, Jr., Paul J. Laveroni, John C. Christie, Jr., Patrick J. Roach, John F. Graybeal, Robert H. Tiller, and David M. Foster.

      Gerald D. W. North argued the cause for respondents. With him on the brief were Ted M. Warshafsky, Aram A. Hartunian, and Ronald L. Futterman.

      Briefs of amici curiae urging reversal were filed for the American Insurance Association et al. by Herbert M. Wachtell, Douglas S. Liebhafsky, Stuart Philip Ross, Sean M. Hanifin, Merril J. Hirsh, Craig A Berrington, Paul J. Bschorr, Richard W. Reinthaler, and Rebecca L. Ford; for the Lawyer’s Committee for Civil Rights Under Law by Michael A Cooper, Herbert J. Hansell, Thomas J. Henderson, Rickard T Seymour, Sharon R. Vinick, Edward Labaton, and Bernard Persky; and for the National Football League by Frank Rothman, William. L. Daly, Herbert Dym, and Gregg H. Levy.

      Briefs of amici curiae urging affirmance were filed for the Association of Trial Lawyers of America by Jeffrey Robert White, James E. Rooks, Jr., and Barry J. Nace; for Owens-Illinois, Inc., by James Dabney Miller and David L. Gray; for Public Citizen by Alan B. Morrison and Brian Wolfman; for Trial Lawyers for Public Justice by Roberta B. Walburn, Arthur H. Bryant, and Leslie A Brueckner; for James Menendez et al. by Brent M. Rosenthal; and for Leslie O’Neal et al. by Don Howarth and Suzelle M. Smith.

   Per Curiam.

For the reasons discussed below, we have concluded that deciding this case would require us to resolve a constitutional question that may be entirely hypothetical, and we accordingly dismiss the writ as improvidently granted.

I

In 1985, the Federal Trade Commission initiated enforcement proceedings against petitioners, six title insurance companies, alleging that they conspired to fix prices in 13 States including Arizona and Wisconsin. Shortly after that, private parties in the affected States filed 12 different “tag-along” antitrust class actions, seeking treble damages and injunctive relief. Those private suits were consolidated for pretrial purposes pursuant to 28 U. S. C. § 1407 (the federal multidistrict litigation statute), and were transferred to the District Court for the .Eastern District of Pennsylvania as MDL No. 633.

In January 1986, spurred on by an intervening decision of this Court that substantially weakened the claims against petitioners, see Southern Motor Carriers Rate Conference, Inc. v United States, 471 U. S. 48 (1985), petitioners and the class representatives in MDL No. 633 reached a settlement. The settlement extinguished all money damages claims against petitioners by those “ ‘purchasers and insureds, who purchased or received title insurance... from any title insurance underwriter . . . with respect to real estate located in any of the thirteen Affected States during the period from January 1, 1981 to December 31, 1985,’ ” a class that included the respondents. In re Real Estate Title and Settlement Services Antitrust Litigation, 1986-1 Trade Cases ¶ 67, 149, pp. 62, 921, 62, 924 (ED Pa. 1986) (quoting settlement agreement). To the plaintiffs, the settlement agreement awarded injunctive relief, an increased amount of coverage on any title insurance policy that class members bought during the class period, an increased amount of coverage on specified title insurance policies that class members might purchase from petitioners during a future 1-year period, and payment of attorney’s fees and costs of the lawsuit. The District Court provisionally certified the settlement class (as stipulated by the class representatives and petitioners) under Federal Rules of Civil Procedure 23(b)(1) and (b)(2), and provisionally accepted the settlement.

At the ensuing final settlement hearing, the State of Wisconsin objected to the proposed settlement both as a class member and as parens patriae for its resident class members, claiming that the action could not be certified under Rule 23(b)(2) because the relief sought in the complaints was primarily monetary. Wisconsin also claimed (and was joined in this by the State of Arizona, both as a class member and as parens patriae) that due process required that the proposed class members have an opportunity to opt out of the class. The District Court ultimately rejected these objections, certified the classes under Rules 23(b)(1)(A) and (b)(2), and accepted the settlement. The Third Circuit affirmed without opinion, In re Real Estate Title and Settlement Services Antitrust Litigation, 815 F. 2d 695 (1987) (judgment order), and we denied certiorari, 485 U. S. 909 (1988).

In 1990, respondent Brown filed the present action in District Court in Arizona on behalf of Arizona and Wisconsin title insurance consumers, alleging that petitioners had conspired to fix rates for title-search services in those States in violation of the federal antitrust laws. The District Court granted petitioners summary judgment on the ground, among others, that respondents, as parties to the MDL No. 633 suit, were bound by the judgment entered pursuant to the settlement. The Ninth Circuit reversed, accepting respondents' contention that it would violate due process to accord res judicata effect to a judgment in a class action that involved money damages claims (or perhaps that involved primarily money damages claims) against a plaintiff in the previous suit who had not been afforded a right to opt out on those claims. 982 F. 2d 386, 392 (1992). Before the Ninth Circuit, respondents did not (and indeed could not) challenge whether the class in the MDL No. 633 litigation was properly certified under Rules 23(b)(1)(A) and (b)(2). And in this Court, petitioners present only a single question — viz., “[w]hether a federal court may refuse to enforce a prior federal class action judgment, properly certified under Rule 23, on grounds that absent class members have a constitutional due process right to opt out of any class action which asserts monetary claims on their behalf.” Pet. for Cert. i.

II

That certified question is of no general consequence if, whether or not absent class members have a constitutional right to opt out of such actions, they have a right to do so under the Federal Rules of Civil Procedure. Such a right would exist if, in actions seeking monetary damages, classes can be certified only under Rule 23(b)(3), which permits opt-out, and not under Rules 23(b)(1) and (b)(2), which do not. See Rules 23(c)(2) and (c)(3). That is at least a substantial possibility — and we would normally resolve that preliminary nonconstitutional question before proceeding to the constitutional claim. See New York City Transit Authority v. Beazer, 440 U. S. 568, 582-583 (1979). The law of res judicata, however, prevents that question from being litigated here. It was conclusively determined in the MDL No. 633 litigation that respondents’ class fit within Rules 23(b)(1)(A) and (b)(2); even though that determination may have been wrong, it is conclusive upon these parties, and the alternative of using the Federal Rules instead of the Constitution as the means of imposing an opt-out requirement for this settlement is no longer available.

The most obvious consequence of this unavailability is, as we have suggested, that our resolution of the posited constitutional question may be quite unnecessary in law, and of virtually no practical consequence in fact, except with respect to these particular litigants. Another consequence, less apparent, is that resolving the constitutional question on the assumption of proper certification under the Rules may lead us to the wrong result. If the Federal Rules, which generally are not affirmatively enacted into law by Congress, see 28 U. S. C. §§ 2072(a), (b), 2074(a), are not entitled to that great deference as to constitutionality which we accord federal statutes, see, e. g., Rostker v. Goldberg, 453 U. S. 57, 64 (1981); Walters v. National Assn. of Radiation Survivors, 473 U. S. 305, 319-320 (1985), they at least come with the imprimatur of the rulemaking authority of this Court. In deciding the present case, we must assume either that the lack of opt-out opportunity in these circumstances was decreed by the Rules or that it was not (though the parties are bound by an erroneous holding that it was). If we make the former assumption we may approve, in the mistaken deference to prior Supreme Court action and congressional acquiescence, action that neither we nor Congress would independently think constitutional. If we make the latter assumption, we may announce a constitutional rule that is good for no other federal class action. Neither option is attractive.

The one reason to proceed is to achieve justice in this particular case. Even if the constitutional question presented is hypothetical as to everyone else, it would seem to be of great practical importance to these litigants. But that is ordinarily not sufficient reason for our granting certiorari— even when unnecessary constitutional pronouncements are not in the picture. Moreover, as matters have developed it is not clear that our resolution of the constitutional question will make any difference even to these litigants. On the day we granted certiorari we were informed that the parties had reached a settlement designed to moot the petition, which now awaits the approval of the District Court.

In these circumstances, we think it best to dismiss the writ as improvidently granted.

Justice O’Connor,

with whom The Chief Justice and Justice Kennedy join,

dissenting.

We granted certiorari to consider one specific question: “Whether a federal court may refuse to enforce a prior federal class action judgment, properly certified under Rule 23, on grounds that absent class members have a constitutional due process right to opt out of any class action which asserts monetary claims on their behalf.” Pet. for Cert. i. The Court decides not to answer this question based on its speculation about a nonconstitutional ground for decision that is neither presented on this record nor available to these parties. From that decision I respectfully dissent.

Respondents are members of a class that reached a final settlement with petitioners in an antitrust action styled MDL No. 633. In re Real Estate Title and Settlement Services Antitrust Litigation, 1986-1 Trade Cases ¶ 67,149, p. 62, 921 (ED Pa. 1986), aff’d, 815 F. 2d 695 (CA3 1987), cert. denied, 485 U. S. 909 (1988). Respondents subsequently brought this action against petitioners, asserting some of the same claims. The District Court held that respondents had been adequately represented in the MDL No. 633 action, and granted summary judgment for petitioners because, given the identity of parties and claims, the MDL No. 633 settlement was res judicata. App. to Pet. for Cert. 20a-28a. The Court of Appeals for the Ninth Circuit reversed. 982 F. 2d 386 (1992). The court agreed that respondents had been adequately represented in the MDL No. 633 action, id., at 390-391, but held that respondents could nevertheless relitigáte the same claims against petitioners: “Because [respondents] had no opportunity to opt out of the MDL No. 633 litigation, we hold there would be a violation of minimal due process if [respondents’] damage claims were held barred by res judicata.” Id., at 392.

The Court concludes that the correctness of the Ninth Circuit’s constitutional interpretation “is of no general consequence if, . . . in actions seeking monetary damages, classes can be certified only under Rule 23(b)(3), which permits opt-out, and not under Rules 23(b)(1) and (b)(2), which do not.” Ante, at 121. In other words, the Court declines to answer the constitutional question because the MDL No. 633 action might not have been properly certified — an issue that was litigated to a final determination in petitioners’ favor more than five years ago, and on which we denied certiorari. The nonconstitutional ground for decision about which the Court speculates is therefore unavailable to respondents. The constitutional ground on which the Court of Appeals relied, the one we granted certiorari to review and the parties have briefed and argued, was necessary to the decision in this case. Our prudential rule of avoiding constitutional questions has no application in these circumstances, and the Court errs in relying on it.

The Court’s assertion that “our resolution of the posited constitutional question may be ... of virtually no practical consequence in fact,” ibid., is unsound. The lower courts have consistently held that the presence of monetary damages claims does not preclude class certification under Rules 23(b)(1)(A) and (b)(2). See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, Civil 2d §1775, pp. 463-470 (1986 and Supp. 1992). Whether or not those decisions are correct (a question we need not, and indeed should not, decide today), they at least indicate that there are a substantial number of class members in exactly the same position as respondents. Under the Ninth Circuit’s rationale in this case, every one of them has the right to go into federal court and relitigate their claims against the defendants in the original action. The individuals, corporations, and governments that have successfully defended against class actions or reached appropriate settlements, but are now subject to relitigation of the same claims with individual class members, will rightly dispute the Court’s characterization of the constitutional rule in this case as inconsequential.

The Court is likewise incorrect in suggesting that a decision in this case “may be quite unnecessary in law.” Ante, at 121. Unless and until a contrary rule is adopted, courts will continue to certify classes under Rules 23(b)(1) and (b)(2) notwithstanding the presence of damages claims; the constitutional opt-out right announced by the court below will be implicated in every such action, at least in the Ninth Circuit. Moreover, because the decision below is based on the Due Process Clause, presumably it applies to the States; although we held in Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (1985), that there is a constitutional right to opt out of class actions brought in state court, that holding was expressly “limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments.” Id., at 811, n. 3. The Ninth Circuit’s rule, by contrast, applies whenever “substantial damage claims” are asserted. See 982 F. 2d, at 392. The resolution of a constitutional issue with such broad-ranging consequences is both necessary and appropriate.

Finally, I do not agree with the Court’s suggestion that the posture of the case could “lead us to the wrong result” with respect to the question whether the Due Process Clause requires an opt-out right in federal class actions involving claims for money damages. See ante, at 121-122. As the case comes to us, we must assume that the MDL No. 633 class was properly certified under Rule 23, notwithstanding the presence of claims for monetary relief. But this assumption, coupled with whatever presumption of constitutionality to which the Rules are entitled, will not lead us to “approve ... action that neither we nor Congress would independently think constitutional.” Ante, at 122. Either an opt-out right is constitutionally required, or it is not. We can decide this issue while reserving the question of how the Rules should be construed. While it might be convenient, and it would certainly accord with our usual practice, to decide the nonconstitutional question first, that option is not available to us in this case. The only question, then, is whether we should dismiss the writ as. improvidently granted. In my view, the importance of the constitutional question, as well as the significant expenditures of resources by the litigants, amici, and this Court, outweighs the prudential concerns on which the Court relies.

When a constitutional issue is fairly joined, necessary to the decision, and important enough to warrant review, this Court should not avoid resolving it — particularly on the basis of an entirely speculative alternative ground for decision that is neither presented by the record nor available to the parties before the Court. The decision below rests exclusively on a constitutional right to opt out of class actions asserting claims for monetary relief. We granted certiorari to consider whether such a right exists. The issue has been thoroughly briefed and argued by the parties. We should decide it.

       Certification under Rule 23(b)(1)(A) requires that the prosecution of separate actions would create a risk of “inconsistent or varying adjudications with respect to individual members of the class- which would establish incompatible standards of conduct for the party opposing the class.” Certification under Rule 23(b)(2) requires that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”