author: Mr. Justice Harlan Mr. Justice Douglas,

text:
    MARYLAND et al. v. WIRTZ, SECRETARY OF LABOR, et al.
    No. 742.
    Argued April 23, 1968.
    Decided June 10, 1968.

      Alan M. Wilner, Assistant Attorney General of Maryland, and Charles Alan Wright argued the cause for appellants. With Mr. Wilner on the brief for appellant the State of Maryland et al. were the Attorneys General for their respective States as follows: Francis B. Burch of Maryland, Crawford C. Martin of Texas, MacDonald Gallion of Alabama, Darrell F. Smith of Arizona, Joe Purcell of Arkansas, Duke W. Dunbar of Colorado, David Buckson of Delaware, Earl Faircloth of Florida, Bert T. Kobayashi of Hawaii, William G. Clark of Illinois, Richard C. Turner of Iowa, Robert C. Londerholm
      of Kansas, James S. Erwin of Maine, Elliot L. Richardson of Massachusetts, Joe T. Patterson of Mississippi, Norman H. Anderson of Missouri, Clarence A. H. Meyer of Nebraska, Arthur J. Sills of New Jersey, Boston E. Witt of New Mexico, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, William B. Saxbe of Ohio, G. T. Blankenship of Oklahoma, Daniel R. McLeod of South Carolina, Frank L. Farrar of South Dakota, James L. Oakes of Vermont, Robert Y. Button of Virginia, and James E. Barrett of Wyoming; and A. J. Carubbi, Jr., Executive Assistant Attorney General of Texas, Hawthorne Phillips, Assistant Attorney General of Texas, and James V. Noble, Assistant Attorney General of New Mexico. With Mr. Wright on the brief for appellant the State of Texas were Messrs. Martin, Carubbi, and Phillips, and Nola White, First Assistant Attorney General. Cecil A. Morgan filed a brief for appellant Fort Worth Independent School District.

      Solicitor General Griswold argued the cause for ap-pellees. With him on the brief were Assistant Attorney General Weisl, Louis F. Claiborne, John S. Martin, Jr., and Morton Hollander.

    Briefs of amici curiae, urging affirmance, were filed by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations, and by Henry Kaiser and Ronald Rosenberg for the American Federation of State, County, and Municipal Employees, AFL-CIO.
   Mr. Justice Harlan

delivered the opinion of the Court.

As originally enacted, the Fair Labor Standards Act of 1938 required every employer to pay each of his employees “engaged in commerce or in the production of goods for commerce” a certain minimum hourly wage, and to pay at a higher rate for work in excess of a certain maximum number of hours per week. The Act defined the term “employer” so as to exclude “the United States or any State or political subdivision of a State . ...” This case involves the constitutionality of two sets of amendments to the original enactment.

In 1961, Congress changed the basis of employee coverage: instead of extending protection to employees individually connected to interstate commerce, the Act now covers all employees of any “enterprise” engaged in commerce or production for commerce, provided the enterprise also falls within certain listed categories. In 1966, Congress added to the list of categories the following:

“(4) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for the mentally or physically handicapped or gifted children, an elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit).”

At the same time, Congress modified the definition of “employer” so as to remove the exemption of the States and their political subdivisions with respect to employees of hospitals, institutions, and schools.

The State of Maryland, since joined by 27 other States and one school district, brought this action against the Secretary of Labor to enjoin enforcement of the Act insofar as it now applies to schools and hospitals -operated by the States or their subdivisions. The plaintiffs made four contentions. They argued that the expansion of coverage through the “enterprise concept” was beyond the power of Congress under the Commerce Clause. They contended that coverage of state-operated hospitals and schools was also beyond the commerce power. They asserted that the remedial provisions of the Act, if applied to the States, would conflict with the Eleventh Amendment. Finally, they urged that even if their constitutional arguments were rejected, the court should declare that schools and hospitals, as enterprises, do not have the statutorily required relationship to interstate commerce.

A three-judge district court, convened pursuant to 28 U. S. C. § 2282, declined to issue a declaratory judgment or an injunction. Three opinions were written. Judges Winter and Thomsen, constituting the majority, concluded for different reasons that the adoption of the “enterprise concept” of coverage and the extension of coverage to state institutions could not be said, on the face of the Act, to exceed Congress’ power under the Commerce Clause. Both declined to consider the Eleventh Amendment and statutory contentions. Judge Northrop dissented, concluding that the amendments exceeded the commerce power because they transgressed the sovereignty of the States.

We noted probable jurisdiction of the plaintiffs’ appeal, 389 U. S. 1031. For reasons to follow, we affirm the judgment of the District Court.

I.

We turn first to the adoption in 1961 of the “enterprise concept.” Whereas the Act originally extended to every employee “who is engaged in commerce or in the production of goods for commerce,” it now protects every employee who “is employed in an enterprise engaged in commerce or in the production of goods for commerce.” Such an enterprise is defined as one which, along with other qualifications, “has employees engaged in commerce or in the production of goods for commerce ....” Thus the effect of the 1961 change was to extend protection to the fellow employees of any employee who would have been protected by the original Act, but not to enlarge the class of employers subject to the Act.

In United States v. Darby, 312 U. S. 100, this Court found the original Act a legitimate exercise of congressional power to regulate commerce among the States. Appellants accept the Darby decision, but contend that the extension of protection to fellow employees of those originally covered exceeds the commerce power. We conclude, to the contrary, that the constitutionality of the “enterprise concept” is settled by the reasoning of Darby itself and is independently established by principles stated in other cases.

Darby involved employees who were engaged in producing goods for commerce. Their employer contended that since manufacturing is itself an intrastate activity, Congress had no power to regulate the wages and hours of manufacturing employees. The first step in the Court’s answer was clear: “[Congress may] by appropriate legislation regulate intrastate activities where they have a substantial effect on interstate commerce.”

The next step was to discover whether such a “substantial effect” existed. Congress had found that substandard wages and excessive hours, when imposed on employees of a company shipping goods into other States, gave the exporting company an advantage over companies in the importing States. Having so found, Congress decided as a matter of policy that such an advantage in interstate competition was an “unfair” one, and one that had the additional undesirable effect of driving down labor conditions in the importing States. This Court was of course concerned only with the finding of a substantial effect on interstate competition, and not with the consequent policy decisions. In accepting the congressional finding, the Court followed principles of judicial review only recently rearticulated in Katzenbach v. McClung, 379 U. S. 294, 303-304:

"Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.”

There was obviously a “rational basis” for the logical inference that the pay and hours of production employees affect a company’s competitive position.

The logical inference does not stop with production employees. When a company does an interstate business, its competition with companies elsewhere is affected by all its significant labor costs, not merely by the wages and hours of those employees who have physical contact with the goods in question. Consequently, it is not surprising that this Court has already explicitly recognized that Congress’ original choice to extend the Act only to certain employees of interstate enterprises was not constitutionally compelled; rather, Congress decided, at that time, “not to enter areas which it might have occupied [under the commerce power].” Kirschbaum Co. v. Walling, 316 U. S. 517, 522.

The “enterprise concept” is also supported by a wholly different line of analysis. In the original Act, Congress stated its finding that substandard labor conditions tended to lead to labor disputes and strikes, and that when such strife disrupted businesses involved in interstate commerce, the flow of goods in commerce was itself affected. Congress therefore chose to promote labor peace by regulation of subject matter, wages, and hours, out of which disputes frequently arise. This objective is particularly relevant where, as here, the enterprises in question are significant importers of goods from other States.

Although the Court did not examine this second objective in Darby, other cases have found a “rational basis” for statutes regulating labor conditions in order to protect interstate commerce from labor strife. The National Labor Relations Act had been passed because

“[t]he denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce . . . .”

In Labor Board v. Jones & Laughlin, 301 U. S. 1, this Court held that the National Labor Relations Act (NLRA) was within the commerce power. The essence of the decision was contained in two propositions: “the stoppage of those [respondent’s] operations by industrial strife would have a most serious effect upon interstate commerce,” id., at 41; and “[experience has abundantly-demonstrated that the recognition of the right of employees to self-organization and to have representatives of their own choosing for the purpose of collective bargaining is often an essential condition of industrial peace.” Id., at 42.

The Fair Labor Standards Act, including the present “enterprise” definition of coverage, may also be supported by two propositions. One is identical with the first proposition supporting the NLRA: strife disrupting an enterprise involved in commerce may disrupt commerce. The other is parallel to the second proposition supporting the NLRA: there is a basis in logic and experience for the conclusion that substandard labor conditions among any group of employees, whether or not they are personally engaged in commerce or production, may lead to strife disrupting an entire enterprise.

Whether the “enterprise concept” is defended on the “competition” theory or on the “labor dispute” theory, it is true that labor conditions in businesses having only a few employees engaged in commerce or production may not affect commerce very much or very often. Appellants therefore contend that defining covered enterprises in terms of their employees is sometimes to permit “the tail to wag the dog.” However, while Congress has in some instances left to the courts or to administrative agencies the task of determining whether commerce is affected in a particular instance, Darby itself recognized the power of Congress instead to declare that an entire class of activities affects commerce. The only question for the courts is then whether the class is “within the reach of the federal power.” The contention that in Commerce Clause cases the courts have power to excise, as trivial, individual instances falling within a rationally defined class of activities has been put entirely to rest. Wickard v. Filburn, 317 U. S. 111, 127-128; Polish Alliance v. Labor Board, 322 U. S. 643, 648; Katzenbach v. McClung, supra, at 301. The class of employers subject to the Act was not enlarged by the addition of the enterprise concept. The definition of that class is as rational now as it was when Darby was decided.

II.

Appellants’ second contention is that the commerce power does not afford a constitutional basis for extension of the Act to schools and hospitals operated by the States or their subdivisions. Since the argument is made in terms of interference with “sovereign state functions,” it is important to note exactly what the Act does. Although it applies to “employees,” the Act specifically exempts any “employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools) . ...” We assume, as did the District Court, that medical personnel are likewise excluded from coverage under the general language. The Act establishes only a minimum wage and a maximum limit of hours unless overtime wages are paid, and does not otherwise affect the way in which school and hospital duties are performed. Thus appellants’ characterization of the question in this case as whether Congress may, under the guise of the commerce power, tell the States how to perform medical and educational functions is not factually accurate. Congress has “interfered with” these state functions only to the extent of providing that when a State employs people in performing such functions it is subject to the same restrictions as a wide range of other employers whose activities affect commerce, including privately operated schools and hospitals.

It is clear that labor conditions in schools and hospitals can affect commerce. The facts stipulated in this case indicate that such institutions are major users of goods imported from other States. For example:

“In the current fiscal year an estimated $38.3 billion will be spent by State and local public educational institutions in the United States. In the fiscal year 1965, these same authorities spent $3.9 billion operating public hospitals. . . .
“For Maryland, which was stipulated to be typical of the plaintiff States, 87% of the $8 million spent for supplies and equipment by its public school system during the fiscal year 1965 represented direct interstate purchases. Over 55% of the $576,000 spent for drugs, x-ray supplies and equipment and hospital beds by the University of Maryland Hospital and seven other state hospitals were out-of-state purchases.”

Similar figures were supplied for other States. Strikes and work stoppages involving employees of schools and hospitals, events which unfortunately are not infrequent, obviously interrupt and burden this flow of goods across state lines. It is therefore clear that a “rational basis” exists for congressional action prescribing minimum labor standards for schools and hospitals, as for other importing enterprises.

Indeed, appellants do not contend that labor conditions in all schools and hospitals are without the reach of the commerce power, but only that the Act may not be constitutionally applied to state-operated institutions because that power must yield to state sovereignty in the performance of governmental functions. This argument simply is not tenable. There is no general

“doctrine implied in the Federal Constitution that ‘the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other/ ” Case v. Bowles, 327 U. S. 92, 101.

In the first place, it is clear that the Federal Government, when acting within a delegated power, may override countervailing state interests whether these be described as “governmental” or “proprietary” in character. As long ago as Sanitary District v. United States, 266 U. S. 405, the Court put to rest the contention that state concerns might constitutionally “outweigh” the importance of an otherwise valid federal statute regulating commerce. Congress had imposed statutory limits on the diversion of water from Lake Michigan. A unanimous Court, speaking through Mr. Justice Holmes, declared that the sanitary district’s alleged need for more water than federal law allowed was “irrelevant” because federal power over commerce is “superior to that of the States to provide for the welfare or necessities of their inhabitants.” Id., at 426. See Oklahoma v. Atkinson Co., 313 U. S. 508.

There remains, of course, the question whether any particular statute is an “otherwise valid regulation of commerce.” This Court has always recognized that the power to regulate commerce, though broad indeed, has limits. Mr. Chief Justice Marshall paused to recognize those limits in the course of the opinion that first staked out the vast expanse of federal authority over the economic life of the new Nation. Gibbons v. Ogden, 9 Wheat. 1, 194-195. Mr. Chief Justice Hughes, speaking only one Term after he delivered the opinion for the Court in Jones & Laughlin, supra, put the matter thus:

“The subject of federal power is still ‘commerce,’ and not all commerce but commerce with foreign nations and among the several States. The expansion of enterprise has vastly increased the interests of interstate commerce but the constitutional differentiation still obtains.” Santa Cruz Co. v. Labor Board, 303 U. S. 453, 466.

The Court has ample power to prevent what the appellants purport to fear, “the utter destruction of the State as a sovereign political entity.”

But while the commerce power has limits, valid general regulations of commerce do not cease to be regulations of commerce because a State is involved. If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation. This was settled by the unanimous decision in United States v. California, 297 U. S. 175. The question was whether a railroad, operated by the State, and entirely within the State, as a nonprofit venture for the purpose of facilitating transportation at a port, was nevertheless subject, like other railroads, to the Safety Appliance Act. The Court first held that although the railroad operated only between points in California, it was within the reach of federal regulation of interstate rail transportation. 297 U. S., at 181-183. The Court then proceeded to consider the claim that the State “is not subject to the federal Safety Appliance Act/’ and reasoned as follows:

“[W]e think it unimportant to say whether the state conducts its railroad in its 'sovereign’ or in its 'private’ capacity. That in operating its railroad it is acting within a power reserved to the states cannot be doubted. The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution.
"[W]e look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power. But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.” 297 U. S., at 183-185 (citations omitted).

See also Board of Trustees v. United States, 289 U. S. 48, where the Court rejected a claim of “state sovereignty” and held that a state university that imported scientific apparatus from abroad could be made to pay import duties imposed pursuant to the power over foreign commerce.

The principle of United States v. California is controlling here. Appellants’ argument that the statute involved there was somewhat more directly and obviously a regulation of “commerce,” and that the state activity involved there was less central to state sovereignty, misses the mark. This Court has examined and will continue to examine federal statutes to determine whether there is a rational basis for regarding them as regulations of commerce among the States. But it will not carve up the commerce power to protect enterprises indistinguishable in their effect on commerce from private businesses, simply because those enterprises happen to be run by the States for the benefit of their citizens.

III.

Appellants raise two further issues, both of which the District Court found it inappropriate to explore fully in a declaratory judgment proceeding. We agree. In each case we conclude that no showing has been made that warrants declaratory or injunctive relief. In neither instance, however, do we mean to preclude future consideration on the facts of individual cases.

The first question is whether the Act violates the States' sovereign immunity from suit guaranteed by the Eleventh Amendment. The Act provides as follows:

“Any employer who violates the provisions of section 206 [wages] or section 207 [hours] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation as the case may be, and in an additional equal amount as liquidated damages. Action to recover such liability may be maintained in any court of competent jurisdiction . . . 29 U. S. C. § 216 (b).

The Act also provides for suits by the Secretary of Labor to recover unpaid minimum wages or overtime compensation, 29 U. S. C. § 216 (c) and for injunctive relief against violations, 29 U. S. C. § 217.

Percolating through each of these provisions for relief are interests of the United States and problems of immunity, agency, and consent to suit. Cf. Parden v. Terminal R. Co., 377 U. S. 184. The constitutionality of applying the substantive requirements of the Act to the States is not, in our view, affected by the possibility that one or more of the remedies the Act provides might not be available when a State is the employer-defendant. Particularly in light of the Act's “separability” provision, 29 U. S. C. § 219, we see no reason to strike down otherwise valid portions of the Act simply because other portions might not be constitutional as applied to hypothetical future cases. At the same time, we decline to be drawn into an abstract discussion of the numerous complex issues that might arise in connection with the Act’s various remedial provisions. They are almost impossible and most unnecessary to resolve in advance of particular facts, stated claims, and identified plaintiffs and defendants. Questions of state immunity are therefore reserved for appropriate future cases.

Appellants’ remaining contention presents similar problems. In order to be covered by the Act, an employer hospital or school must in fact have

“employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person . . . .” 29 U. S. C. § 203 (s) (1964 ed., Supp. II).

Appellants ask us to declare that hospitals and schools simply have no such employees. The word “goods” is elsewhere defined to exclude “goods after their delivery into' the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof.” 29 U. S. C. § 203 (i). Appellants contend that hospitals and schools are the ultimate consumers of the out-of-state products they buy, and hence none of their employees handles “goods” in the statutory sense.

We think the District Court was correct in declining to decide, in the abstract and in general, whether schools and hospitals have employees engaged in commerce or production. Such institutions, as a whole, obviously purchase a vast range of out-of-state commodities. These are put to a wide variety of uses, presumably ranging from physical incorporation of building materials into hospital and school structures, to over-the-counter sale for cash to patients, visitors, students, and teachers. Whether particular institutions have employees handling goods in commerce, cf. Walling v. Jacksonville Paper Co., 317 U. S. 564, may be considered as occasion requires.

The judgment of the District Court is

Affirmed.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Douglas,

with whom Mr. Justice Stewart concurs,

dissenting.

The Court's opinion skillfully brings employees of state-owned enterprises within the reach of the Commerce Clause; and as an exercise in semantics it is unexceptionable if congressional federalism is the standard. But what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment that it is in my view not consistent with our constitutional federalism.

The case has some of the echoes of New York v. United States, 326 U. S. 572, where a divided Court held that the Federal Government could tax the sale of mineral waters owned and marketed by New York. My dissent was in essence that the decision made the States pay the Federal Government “for the privilege of exercising the powers of sovereignty guaranteed them by the Constitution.” 326 U. S., at 596.

The present federal law takes a much more serious bite. The 1966 amendments to the Fair Labor Standards Act require the States to pay school and hospital employees a minimum wage escalating to $1.60 per hour in 1971. As a general rule, the amendments make the States pay their employees who work over 40 hours a week overtime compensation of 1% times their regular wage. There are civil sanctions against the State and its political subdivisions, and state officials may, apparently, be subjected to criminal penalties. The impact is pervasive, striking at all levels of state government. As Judge Northrop said in his dissent below, 269 F. Supp. 826, 853:

“By this Act Congress is forcing, under threat of civil liability and criminal penalties, the state legislature or the responsible political subdivision of the state
“1. to increase taxes (an impossibility in some of the political subdivisions without a state constitutional amendment); or
“2. to curtail the extent and calibre of services in the public hospitals and educational and related institutions of the state; or
“3. to reduce indispensable services in other governmental activities to meet the budgets of those activities favored by the United States Congress; or
“4. to refrain from entering new fields of governmental activity necessitated by changing social conditions.”

There can be no doubt but that the 1966 amendments to the Fair Labor Standards Act disrupt the fiscal policy of the States and threaten their autonomy in the regulation of health and education. Yet, the Court considers it irrelevant that these federal regulations are to be enforced against sovereign States and limits its consideration to “whether there is a rational basis for regarding them as regulations of commerce among the States.”

The States are not totally immune from federal regulation under the commerce power of Congress. Farden v. Terminal R. Co., 377 U. S. 184, and United States v. California, 297 U. S. 175, subjected state-owned railroads to the Federal Employers’ Liability Act, 45 U. S. C. § 51 et seq., and the Safety Appliance Act, 45 U. S. C. § 1 et seq.; Board of Trustees v. United States, 289 U. S. 48, required a state university to pay federal customs duties on educational equipment it imported. In Oklahoma v. Atkinson Co., 313 U. S. 508, the Federal Government was permitted to condemn 100,000 acres of state land for a reservoir to control commerce-paralyzing floods. In Sanitary District v. United States, 266 U. S. 405, a State was prohibited from diverting water from the Great Lakes necessary to ensure navigability, a phase of commerce.

In none of these cases, however, did the federal regulation overwhelm state fiscal policy. It is one thing to force a State to purchase safety equipment for its railroad and another to force it either to spend several million more dollars on hospitals and schools or substantially reduce services in these areas. The commerce power cases the Court relies on are simply not apropos.

In the area of taxation, on the other hand, the Court has recognized that the constitutional scheme of federalism imposes limits on the power of the National Government to tax the States. E. g., New York v. United Stales, 326 U. S. 572. The Court will not permit the Federal Government to utilize the taxing power to snuff out state sovereignty, Metcalf & Eddy v. Mitchell, 269 U. S. 514, recognizing that the power to tax is the power to destroy. M'Culloch v. Maryland, 4 Wheat. 316, 431. The exercise of the commerce power may also destroy state sovereignty. All activities affecting commerce, even in the minutest degree, Wickard v. Filburn, 317 U. S. 111, may be regulated and controlled by Congress. Commercial activity of every stripe may in some way interfere “with the [interstate] flow of merchandise” or interstate travel. Katzenbach v. McClung, 379 U. S. 294, 299-300. The immense scope of this constitutional power is demonstrated by the Court’s approval in this case of regulation on the basis of the “enterprise concept” — which is entirely proper when the regulated “businesses” are not essential functions being carried on by the States.

Yet state government itself is an “enterprise” with a very substantial effect on interstate commerce, for the States spend billions of dollars each year on programs that purchase goods from interstate commerce, hire employees whose labor strife could disrupt interstate commerce, and act on such commerce in countless subtle ways. If constitutional principles of federalism raise no limits to the commerce power where regulation of state activities are concerned, could Congress compel the States to build superhighways crisscrossing their territory in order to accommodate interstate vehicles, to provide inns and eating places for interstate travelers, to quadruple their police forces in order to prevent commerce-crippling riots, etc.? Could the Congress virtually draw up each State's budget to avoid “disruptive effect[s] ... on commercial intercourse.”? Atlanta Motel v. United States, 379 U. S. 241, 257.

If all this can be done, then the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment. The principles which should guide us in this case are set forth in the several opinions in New York v. United States, supra. As Mr. Chief Justice Stone said there, the National Government may not “interfere unduly with the State’s performance of its sovereign functions of government.” 326 U. S., at 587. It may not “impair the State’s functions of government,” id., at 594 (dissenting opinion of Mr. Justice Douglas, joined by Mr. Justice Black). As Mr. Justice Frankfurter observed, “[tjhere are, of course, State activities . . . that partake of uniqueness from the point of view of intergovernmental relations.” Id., at 582.

Whether, in a given case, a particular commerce power regulation by Congress of state activity is permissible depends on the facts. The Court must draw the “constitutional line between the State as government and the State as trader . . . .” New York v. United States, supra, at 579 (opinion of Mr. Justice Frankfurter). In this case the State as a sovereign power is being seriously tampered with, potentially crippled.

I would reverse the judgment below.

       52 Stat. 1060.

       §§ 6 (a), 7 (a), 52 Stat. 1062, 1063.

       § 3 (d), 52 Stat. 1060.

       The minimum wage requirement, 29 U. S. C. §206 (1964 ed., Supp. II), now reads as follows: “(a) Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates ...” The maximum hours requirement, 29 U. S. C. §207 (1964 ed., Supp. II), now contains a similar definition of covered employees. The term "enterprise engaged in commerce or in the production of goods for commerce” is defined by 29 U. S. C. §203 (s) (1964 ed., Supp. II) to mean “an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which — [falls in any one of four listed categories] . . . .”

       80 Stat. 832, 29 U. S. C. § 203 (s) (4) (1964 ed., Supp. II).

       80 Stat. 831, 29 U. S. C. § 203 (d) (1964 ed., Supp. II).

       29 U. S. C. §§216 (b), 216 (c), 217.

       269 F. Supp. 826.

       29 U. S. C. §§ 206 (a), 207 (a) (1964 ed., Supp. II).

       29 U. S. C. § 203 (s) (1964 ed., Supp. II).

       312 U. S., at 119. The Act prohibited both the interstate transportation of goods produced under substandard labor conditions, and the maintenance of such conditions themselves. The first prohibition, a restraint on commerce itself, was upheld against the contention that its real motive or purpose was to regulate manufacturing. The language quoted in the text answered a challenge to the second prohibition.

       Section 2 of the Act, 52 Stat. 1060, 29 U. S. C. § 202, reads in part as follows:
      “The Congress hereby finds that the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers (1) causes commerce and the channels and instru-mentalities of commerce to be used to spread and perpetuate such labor conditions among the workers of the several States; (2) burdens commerce and the free flow of goods in commerce; (3) constitutes an unfair method of competition in commerce . . . .”

       In Katzenbach v. McClung, it appeared that Congress had undertaken extensive investigation of the commercial need for the statute there involved. A major contention of the appellants in the present case is that the legislative history of the amendments now before us lays no factual predicate for extensions of the original Act. To the extent that this is true, it is quite irrelevant. The original Act stated Congress’ findings and purposes as of 1938. Subsequent extensions of coverage were presumably based on similar findings and purposes with respect to the areas newly covered. We are not concerned with the manner in which Congress reached its factual conclusions.

       Section 2, 29 U. S. C. § 202, declares in part that the existence of substandard labor conditions “leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce.”

       See infra, at 194-195.

       49 Stat. 449, as amended, 29 U. S. C. § 151 et seq.

       § 1, 49 Stat. 449.

       312 U. S., at 120-121.

        Ibid.

       29 U. S. C. § 213 (1) (1964 ed., Supp. II).

       See 269 F. Supp., at 832 (opinion of Judge Winter).

       In the court below, Judge Thomsen was troubled by the application of the overtime provisions to school and hospital personnel, who may have different arrangements for hours of work than employees of other enterprises. 269 F. Supp., at 851. Congress indicated its attention to this problem in 29 U. S. C. § 207 (1964 ed., Supp. II), which provides special means of computing hospital overtime. That this provision may seem to some inadequate, and that no similar provision was made in the case of schools, are matters outside judicial cognizance. The Act’s overtime provisions apply to a wide range of enterprises, with differing patterns of worktime; they were intended to change some of those patterns. It is not for the courts to decide that such changes as may be required are beneficial in the case of some industries and harmful in others.

       269 F. Supp., at 833 (opinion of Judge Winter).

       See ibid.

       See U. S. Department of Labor, Summary Release, Work Stoppages Involving Government Employees, 1966.

       Both under the present Act and the National Labor Relations Act, numerous cases have held that the engagement of an enterprise in interstate commerce may consist of importation. E. g., Wirtz v. Hardin & Co., 253 F. Supp. 579, aff’d, 359 F. 2d 792 (FLSA); N. L. R. B. v. Baker Hotel, 311 F. 2d 528 (NLRA).

       The dissent suggests that by use of an “enterprise concept” such as that we have upheld here, Congress could under today’s decision declare a whole State an “enterprise” affecting commerce and take over its budgeting activities. This reflects, we think, a misreading of the Act, of Wickard v. Filburn, supra, and of our decision.. The Act’s definition of “enterprise” reads in part as follows:
      “ ‘Enterprise’ means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose . . . but shall not include the related activities performed for such enterprise by an independent contractor . . . .” 29 U. S. C. §203(r).
      We uphold the enterprise concept on the explicit premise that an “enterprise” is a set of operations whose activities in commerce would all be expected to be affected by the wages and hours of any group of employees, which is what Congress obviously intended. So defined, the term is quite cognizant of limitations on the commerce power. Neither here nor in Wickard has the Court declared that Congress may use a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities. The Court has said only that where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.

       Nor is it relevant that Congress originally chose to exempt all state enterprises and later partially removed that exemption. Congress was as free to include state activities within the general regulation at a later date as it would have been to omit the exemption in the first place.

       “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

       29 U. S. C. §§ 203 (d), 206 (b) (1964 ed., Supp. II).

       29 U. S. C. § 207 (b) (1964 ed., Supp. II). Special rules are applicable to hospitals under §207 (j) based on an 80-hour, 14-day work period. No special rules apply to school employees. See discussion of the overtime pay provisions by Chief Judge Thomsen, 269 F. Supp., at 851-852.

       29 U. S. C. §§ 203 (d), 216 (b).

       29 U. S. C. §§ 203 (a), 215, 216 (a).


source: Caselaw Access Project

author: Mr. Justice Harlan Mr. Justice White,

license: Public Domain

text:
    CHENG FAN KWOK v. IMMIGRATION AND NATURALIZATION SERVICE.
    No. 638.
    Argued May 2, 1968.
    Decided June 10, 1968.

      Jules E. Coven argued the cause for petitioner. With him on the brief was Abraham Lebenkoff.

      Charles Gordon argued the cause for respondent. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Vinson, and Francis X. Beytagh, Jr.

      William H. Dempsey, Jr., by invitation of the Court, 390 U. S. 918, argued the cause and filed a brief, as amicus curiae, urging affirmance.
   Mr. Justice Harlan

delivered the opinion of the Court.

The narrow question presented by this case is whether jurisdiction to review the denial of a stay of deportation, if the pertinent order has not been entered in the course of a proceeding conducted under § 242 (b) of the Immigration and Nationality Act, 66 Stat. 209, 8 U. S. C. § 1252 (b), is, under § 106 (a) of the Act, 75 Stat. 651, 8 U. S. C. § 1105a (a), vested exclusively in the courts of appeals. The question arises from the following circumstances.

Petitioner, a native and citizen of China, evidently entered the United States in 1965 as a seaman. The terms of his entry permitted him to remain in this country for the period during which his vessel was in port, provided that this did not exceed 29 days. See 8 U. S. C. § 1282 (a). He deserted his vessel, and remained unlawfully in the United States. After petitioner’s eventual apprehension, deportation proceedings were conducted by a special inquiry officer under the authority of § 242 (b). Petitioner conceded his deportability, but sought and obtained permission to depart the United States voluntarily. Despite his protestations of good faith, petitioner did not voluntarily depart, and was ultimately ordered to surrender for deportation. He then requested a stay of deportation from a district director of immigration, pending the submission and disposition of an application for adjustment of status under 8 U. S. C. § 1153 (a) (7) (1964 ed., Supp. II). The district director concluded that petitioner is ineligible for such an adjustment of status, and. denied a stay of deportation.

Petitioner thereupon commenced these proceedings in the Court of Appeals for the Third Circuit, petitioning for review of the denial of a stay. The Court of Appeals held that the provisions of § 106 (a), under which it would otherwise have exclusive jurisdiction to review the district director’s order, are inapplicable to orders denying ancillary relief unless those orders either are entered in the course of a proceeding conducted under § 242 (b), or are denials of motions to reopen such proceedings. The court dismissed the petition for want of jurisdiction. 381 F. 2d 542. We granted certiorari because the courts of appeals have disagreed as to the proper construction of the pertinent statutory provisions. 390 U. S. 918. For reasons that follow, we affirm.

I.

It is useful first to summarize the relevant provisions of the Immigration and Nationality Act and of the regulations promulgated under the Act’s authority. Section 242 (b) provides a detailed administrative procedure for determining whether an alien may be deported. It permits the entry of an order of deportation only upon the basis of a record made in a proceeding before a special inquiry officer, at which the alien is assured rights to counsel, to a reasonable opportunity to examine the evidence against him, to cross-examine witnesses, and to present evidence in his own behalf. By regulation, various forms of discretionary relief may also be sought from the special inquiry officer in the course of the deportation proceeding; an alien may, for example, request that his deportation be temporarily withheld, on the ground that he might, in the country to which he is to be deported, “be subject to persecution . . . See 8 U. S. C. § 1253 (h) (1964 ed., Supp. II); 8 CFR § 242.8 (a).

Other forms of discretionary relief may be requested after termination of the deportation proceeding. The regulations thus provide that an alien “under a final administrative order of deportation” may apply to the district director “having jurisdiction over the place where the alien is at the time of filing” for a stay of deportation. 8 CFR § 243.4. The stay may be granted by the district director “in his discretion.” Ibid. If the stay is denied, the denial “is not appealable” to the Board of Immigration Appeals. Ibid.

Section 106 (a) provides that the procedures for judicial review prescribed by the Hobbs Act, 64 Stat. 1129, 68 Stat. 961, “shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation heretofore or hereafter made against aliens . . . pursuant to administrative proceedings under section 242 (b) of this Act . . . .” These procedures vest in the courts of appeals exclusive jurisdiction to review final orders issued by specified federal agencies. In situations to which the provisions of § 106 (a) are inapplicable, the alien’s remedies would, of course, ordinarily lie first in an action brought in an appropriate district court.

The positions of the various parties may be summarized as follows. We are urged by both petitioner and the Immigration Service to hold that the provisions of § 106 (a) are applicable to the circumstances presented by this case, and that judicial review thus is available only in the courts of appeals. The Immigration Service contends that § 106 (a) should be understood to embrace all determinations "directly affecting the execution of the basic deportation order,” whether those determinations have been reached prior to, during, or subsequent to the deportation proceeding. In contrast, amicus urges, as the Court of Appeals held, that § 106 (a) encompasses only those orders made in the course of a proceeding conducted under § 242 (b) or issued upon motions to reopen such proceedings.

II.

This is the third case in which we have had occasion to examine the effect of § 106 (a). In the first, Foti v. Immigration Service, 375 U. S. 217, the petitioner, in the course of a proceeding conducted under § 242 (b), conceded his deportability but requested a suspension of deportation under § 244 (a)(5). The special inquiry officer denied such a suspension, and petitioner’s appeal from the denial was dismissed by the Board of Immigration Appeals. Petitioner commenced an action in the district court, but the action was dismissed on the ground that, under § 106 (a), his exclusive remedy lay in the courts of appeals. He then petitioned for review to the Court of Appeals for the Second Circuit, but it dismissed for want of jurisdiction. A divided court held en banc that the procedures of § 106 (a) were inapplicable to denials of discretionary relief under § 244 (a)(5). 308 F. 2d 779. On certiorari, we reversed, holding that “all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals . . . are . . . included within the ambit of the exclusive jurisdiction of the Court of Appeals under § 106 (a).” 375 U. S., at 229.

In the second case, Giova v. Rosenberg, 379 U. S. 18, petitioner moved before the Board of Immigration Appeals to reopen proceedings, previously conducted under § 242 (b), that had terminated in an order for his deportation. The Board denied relief. The Court of Appeals for the Ninth Circuit concluded that the Board’s denial was not embraced by § 106 (a), and dismissed the petition for want of jurisdiction. 308 F. 2d 347. On cer-tiorari, this Court held, in a brief per curiam opinion, that such orders were within the exclusive jurisdiction of the courts of appeals.

Although Foti strongly suggests the result that we reach today, neither it nor Giova can properly be regarded as controlling in this situation. Unlike the order in Foti, the order in this case was not entered in the course of a proceeding conducted by a special inquiry officer under §242 (b); unlike the order in Giova, the order here did not deny a motion to reopen such a proceeding. We regard the issue of statutory construction involved here as markedly closer than the questions pre-sen ted in those cases; at the least, it is plainly an isssue upon which differing views may readily be entertained. In these circumstances, it is imperative, if we are accurately to implement Congress' purposes, to “seiz[e] every thing from which aid can be derived.” Fisher v. Blight, 2 Cranch 358, 386.

It is important, first, to emphasize the character of the statute with which we are concerned. Section 106 (a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes. Utah Junk Co. v. Porter, 328 U. S. 39, 44. Further, as a statute addressed entirely to “specialists,” it must, as Mr. Justice Frankfurter observed, “be read by judges with the minds of . . . specialists.”

We cannot, upon close reading, easily reconcile the position urged by the Immigration Service with the terms of § 106 (a). A denial by a district director of a stay of deportation is not literally a “final order of deportation,” nor is it, as was the order in Foti, entered in the course of administrative proceedings conducted under § 242 (b) . Thus, the order in this case was issued more than three months after the entry of the final order of deportation, in proceedings entirely distinct from those conducted under § 242 (b), by an officer other than the special inquiry officer who, as required by § 242 (b), presided over the deportation proceeding. The order here did not involve the denial of a motion to reopen proceedings conducted under § 242 (b), or to reconsider any final order of deportation. Concededly, the application for a stay assumed the prior existence of an order of deportation, but petitioner did not “attack the deportation order itself but instead [sought] relief not inconsistent with it.” Mui v. Esperdy, 371 F. 2d 772, 777. If, as the Immigration Service urges, § 106 (a) embraces all determinations “directly affecting the execution of” a final deportation order, Congress has selected language remarkably inapposite for its purpose. As Judge Friendly observed in a similar case, if “Congress had wanted to go that far, presumably it would have known how to say so.” Ibid.

The legislative history of § 106 (a) does not strengthen the position of the Immigration Service. The “basic purpose” of the procedural portions of the 1961 legislation was, as we stated in Foti, evidently “to expedite the deportation of undesirable aliens by preventing successive dilatory appeals to various federal courts . . . .” 375 U. S., at 226. Congress prescribed for this purpose several procedural innovations, among them the device of direct petitions for review to the courts of appeals. Although, as the Immigration Service has emphasized, the broad purposes of the legislation might have been expected to encompass orders denying discretionary relief entered outside § 242 (b) proceedings, there is evidence that Congress deliberately restricted the application of § 106 (a) to orders made in the course of proceedings conducted under § 242 (b).

Thus, during a colloquy on the floor of the House of Representatives, to which we referred in Foti, Representative Moore, co-sponsor of the bill then under discussion, suggested that any difficulties resulting from the separate consideration of deportability and of discretionary relief could be overcome by “a change in the present administrative practice of considering the issues . . . piecemeal. There is no reason why the Immigration Service could not change its regulations to permit contemporaneous court consideration of deportability and administrative application for relief.” 105 Cong. Rec. 12728. In the same colloquy, Representative Walter, the chairman of the subcommittee that conducted the pertinent hearings, recognized that certain forms of discretionary relief may be requested in the course of a deportation proceeding, and stated that § 106 (a) would apply to the disposition of such requests, “just as it would apply to any other issue brought up in deportation proceedings.” 105 Cong. Rec. 12728 (emphasis added). Similarly, Representative Walter, in a subsequent debate, responded to a charge that judicial review under § 106 (a) would prove inadequate because of the absence of a suitable record, by inviting “the gentleman’s attention to the law in section 242, in which the procedure for the examiner is set forth in detail.” 107 Cong. Rec. 12179.

We believe that, in combination with the terms of § 106 (a) itself, these statements lead to the inference that Congress quite deliberately restricted the application of § 106 (a) to orders entered during proceedings conducted under § 242 (b), or directly challenging deportation orders themselves. This is concededly “a choice between uncertainties,” but we are “content to choose the lesser.” Burnet v. Guggenheim, 288 U. S. 280, 288.

We need not speculate as to Congress’ purposes. Quite possibly, as Judge Browning has persuasively suggested, “Congress visualized a single administrative proceeding in which all questions relating to an alien’s deportation would be raised and-resolved, followed by a single petition in a court of appeals for judicial review . . . .” Yamada v. Immigration & Naturalization Service, 384 F. 2d 214, 218. It may therefore be that Congress expected the Immigration Service to include within the § 242 (b) proceeding “all issues which might affect deportation.” Ibid. Possibly, as amicus cogently urges, Congress wished to limit petitions to the courts of appeals to situations in which quasi-judicial hearings had been conducted. It is enough to emphasize that neither of these purposes would be in any fashion impeded by the result we reach today. We hold that the judicial review provisions of § 106 (a) embrace only those determinations made during a proceeding conducted under § 242 (b), including those determinations made incident to a motion to reopen such proceedings.

This result is entirely consistent with our opinion in Foti. There, it was repeatedly stated in the opinion of The Chief Justice that the order held reviewable under § 106 (a) had, as the regulations required, been entered in the course of a proceeding conducted under § 242 (b). 375 U. S., at 218, 222-223, 224, 226, 228, 229, 232. It. was emphasized that “the administrative discretion to grant a suspension of deportation,” the determination involved in Foti, “has historically been consistently exercised as an integral part of the proceedings which have led to the issuance of a final deportation order.” Id., at 223. A suspension of deportation “must be requested prior to or during the deportation hearing.” Ibid. Moreover, it was explicitly recognized that, although modification of the pertinent regulations might “effectively broaden or narrow the scope of review available in the Courts of Appeals,” this was “nothing anomalous.” Id., at 229-230. An essential premise of Foti was thus that the application of § 106 (a) had been limited to orders “made during the same proceedings in which deportability is determined . . . Id., at 224.

The per curiam opinion in Giova did not take a wider view of § 106 (a). The denial of an application to reopen a deportation proceeding is readily distinguishable from a denial of a stay of deportation, in which there is no attack upon the deportation order or upon the proceeding in which it was entered. Petitions to reopen, like motions for rehearing or reconsideration, are, as the Immigration Service urged in Foti, “intimately and immediately associated” with the final orders they seek to challenge. Thus, petitions to reopen deportation proceedings are governed by the regulations applicable to the deportation proceeding itself, and, indeed, are ordinarily presented for disposition to the special inquiry officer who entered the deportation order. The result in Giova was thus a logical concomitant of the construction of § 106 (a) reached in Foti; it did not, explicitly or by implication, broaden that construction in any fashion that encompasses this situation.

The result we reach today will doubtless mean that, on occasion, the review of denials of discretionary relief will be conducted separately from the review of an order of deportation involving the same alien. Nonetheless, this does not seem an onerous burden, nor is it one that cannot be avoided, at least in large part, by appropriate action of the Immigration Service itself. More important, although “there is no table of logarithms for statutory construction,” it is the result that we believe most consistent both with Congress’ intentions and with the terms by which it has chosen to express those intentions.

Affirmed.

Mr. Justice White,

dissenting.

If the special inquiry officer had possessed jurisdiction to issue a stay order pending petitioner’s efforts to obtain discretionary relief from the District Director, I take it that his denial of the stay, like a refusal to re-open, would have been appealable to the Court of Appeals. But, as I understand it, no stay could have been granted by the hearing officer and it was sought from the District Director as an immediate consequence of there being outstanding a final order of deportation, which, if executed, might moot the underlying request for relief from the District Director. Section 106 does not limit judicial review in the Court of Appeals to orders entered “in the course of” § 242 (b) proceedings, but extends it to all orders against aliens entered “pursuant” to such proceedings, that is, at least as Webster would have it,* “acting or done in consequence” of the § 242 (b) proceedings. Except for the order of deportation, there would have been no occasion or need to seek a stay. It hardly strains congressional intention to give the word “pursuant” its ordinary meaning in the English language. If there are reasons based on policy for the Court’s contrary conclusion, they are not stated. I would reverse the judgment.

       We emphasize that no questions are presented as to petitioner’s deportability or as to the propriety in his situation of any discretionary relief. We intimate no views on any such questions.

       The facts concerning petitioner’s entry into, and subsequent stay in, the United States appear to have been conceded in the proceeding before the special inquiry officer.

       Section 1282 (a) provides in relevant part that “(a) No alien crewman shall be permitted to land temporarily in the United States except ... for a period of time, in any event, not to exceed— (1) the period of time (not exceeding twenty-nine days) during which the vessel . . . remains in port

       We note, as we did in Foti v. Immigration Service, 375 U. S. 217, that the “granting of voluntary departure relief does not result in the alien’s not being subject to an outstanding final order of deportation.” Id., at 219, n. 1.

       Section 1153 (a) (7) (1964 ed., Supp. II) provides in part that “ [c] onditional entries shall next be made available ... to aliens who satisfy an Immigration and Naturalization Service officer . . . that (i) because of persecution or fear of persecution . . . they have fled . . . from any Communist or Communist-dominated country . . . .” Conditional entries are available only to refugees, and, like the parole system, grant “temporary harborage in this country for humane considerations or for reasons rooted in public interest." C. Gordon & R. Rosenfield, Immigration Law and Procedure § 2.54 (1967). See also id., at § 2.27h.

       Compare the following: Skiftos v. Immigration & Naturalization Service, 332 F. 2d 203 (C. A. 7th Cir.); Talavera v. Pederson, 334 F. 2d 52 (C. A. 6th Cir.); Samala v. Immigration & Naturalization Service, 336 F. 2d 7 (C. A. 5th Cir.); Mendez v. Major, 340 F. 2d 128 (C. A. 8th Cir.); Melone v. Immigration & Naturalization Service, 355 F. 2d 533 (C. A. 7th Cir.); Mui v. Esperdy, 371 F. 2d 772 (C. A. 2d Cir.); Yamada v. Immigration & Naturalization Service, 384 F. 2d 214 (C. A. 9th Cir.); De Lucia v. Attorney General, - U. S. App. D. C. -, - F. 2d -.

       Section 106 (a), 8 U. S. C. § 1105a (a), was added to the Immigration and Nationality Act by § 5 (a) of Public Law 87-301, approved September 26, 1961, 75 Stat. 651.

       Brief for Respondent 28.

       Since the Immigration Service had aligned itself with petitioner on this question, the Court invited William H. Dempsey, Jr., Esquire, a member of the Bar of this Court, to appear and present oral argument as amicus curiae in support of the judgment below. 390 U. S. 918.

       Frankfurter, Some Reflections on the Reading of Statutes, 2 Record of N. Y. C. B. A. 213, 225.

       We find the emphasis placed in dissent upon the word “pursuant" in § 106 (a) unpersuasive. First, § 106 (a) was evidently limited to those final orders of deportation made “pursuant to administrative proceedings under section 242 fb)” simply because Congress preferred to exclude from it those deportation orders entered without a § 242 (b) proceeding. This would, for example, place orders issued under 8 U. S. C. § 1282 (b), by which the Immigration Service may revoke a seaman’s conditional permit to land and deport him, outside the judicial review procedures of § 106 (a). See generally C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.11 (1967). Perhaps this suggests, as amicus urges, that § 106 (a) was intended to be limited to situations in which quasi-judicial proceedings, such as those under §242 (b), have been conducted. It certainly indicates that the reference in § 106 (a) to § 242 (b) proceedings was intended to limit, and not to broaden, the classes of orders to which § 106 (a) may be applied. Second, it must be reiterated that § 106 (a) does not, as the dissenting opinion suggests, encompass “all orders” entered pursuant to §242 (b) proceedings; it is limited to “final orders of deportation.” The textual difficulty, with which the dissenting opinion does not deal, is that the order in question here neither is a final order of deportation, nor is it, as was the order in Foti, “made during the same proceedings” in which a final order of deportation has been issued. 375 U. S., at 224. This cannot be overcome merely by examination of the meaning of the word “pursuant.”

       The special inquiry officer's decision, which established deport-ability and granted voluntary departure, was issued on March 3, 1966. Petitioner filed his application for a stay on June 20, 1966. The application was evidently denied on the same day.

       See 375 U. S., at 223-224.

       The Immigration Service has argued that the limiting language in § 106 (a) may be explained by Congress’ wish to restrict its application to deportation cases, preventing its application to questions arising from exclusion proceedings. We have found nothing in the pertinent legislative history that offers meaningful support to this view.

       Note, e. g., the apparent exclusion from § 106 (a) of orders entered under 8 U. S. C. § 1282 (b). See generally supra, n. 11.

       We intimate no views on the possibility that a court of appeals might have “pendent jurisdiction” over denials of discretionary relief, where it already has before it a petition for review from a proceeding conducted under §242 (b). See Foti v. Immigration Service, supra, at 227, n. 14.

         The opinion of the Court emphasized, in addition, that “[c]learly, changes in administrative procedures may affect the scope and content of various types of agency orders and thus the subject matter embraced in a judicial proceeding to review such orders.” Id., at 230, n. 16.

       Frankfurter, Some Reflections on the Reading of Statutes, supra, at 234.

       Brief for Respondent, No. 28, October Term 1963, at 53.

       See 8 CFR § 242.22. If, however, the order of the special inquiry officer is appealed to the Board of Immigration Appeals, a subsequent motion to reopen or reconsider is presented to the Board for disposition. Ibid. The motion in Giova was presented to the Board and decided by it.

       Merriam-Webster, Webster’s New International Dictionary, Second Edition, unabridged (1957), defines “pursuant” as:
      “1. Acting or done in consequence or in prosecution (of anything) ; hence, agreeable; conformable; following; according ....
      “2. That is in pursuit or pursuing


author: Mr. Justice Stewart Mr. Justice Black, Mr. Justice Harlan, MR. Justice White,

text:
    HARRISON v. UNITED STATES.
    No. 876.
    Argued April 4, 1968.
    Decided June 10, 1968.

      Alfred V. J. Prather, by appointment of the Court, 389 TJ. S. 1002, argued the cause and filed briefs for petitioner.

      Francis X. Beytagh, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner was brought to trial before a jury in the District of Columbia upon a charge of felony murder. At that trial the prosecution introduced three confessions allegedly made by the petitioner while he was in the custody of the police. After these confessions had been admitted in evidence, the petitioner took the witness stand and testified to his own version of the events leading to the victim’s death. The jury found the petitioner guilty, but the Court of Appeals reversed his conviction, holding that the petitioner’s confessions had been illegally obtained and were therefore inadmissible in evidence against him. Harrison v. United States, 123 U. S. App. D. C. 230, 238, 359 F. 2d 214, 222; on rehearing en banc, 123 U. S. App. D. C. 239, 359 F. 2d 223.

The substance of the confessions was that the petitioner and two others, armed with a shotgun, had gone to the victim’s house intending to rob him, and that the victim had been killed while resisting their entry into his home. In his testimony at trial the petitioner said that he and his companions had gone to the victim’s home hoping to pawn the shotgun, and that the victim was accidentally killed while the petitioner was presenting the gun to him for inspection.

Upon remand, the case again came to trial before a jury. This time the prosecutor did not, of course, offer the alleged confessions in evidence. But he did read to the jury the petitioner’s testimony at the prior trial— testimony which placed the petitioner, shotgun in hand, at the scene of the killing. The testimony was read over the objection of defense counsel, who argued that the petitioner had been induced to testify at the former trial only because of the introduction against him of the inadmissible confessions. The petitioner was again convicted, and the Court of Appeals affirmed. We granted certiorari to decide whether the petitioner’s trial testimony was the inadmissible fruit of the illegally procured confessions.

In this case we need not and do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.

Here, however, the petitioner testified only after the Government had illegally introduced into evidence three confessions, all wrongfully obtained, and the same principle that prohibits the use of confessions so procured also prohibits the use of any testimony impelled thereby — the fruit of the poisonous tree, to invoke a time-worn metaphor. For the “essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.” Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392.

In concluding that the petitioner’s prior testimony could be used against him without regard to the confessions that had been introduced in evidence before he testified, the Court of Appeals relied on the fact that the petitioner had “made a conscious tactical decision to seek acquittal by taking the stand after [his] in-custody statements had been let in . ...” But that observation is beside the point. The question is not whether the petitioner made a knowing decision to testify, but why. If he did so in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible. As Justice Tobriner wrote for the Supreme Court of California,

“If the improper use of [a] defendant’s extrajudicial confession impelled his testimonial admission of guilt, ... we could not, in order to shield the resulting conviction from reversal, separate what he told the jury on the witness stand from what he confessed to the police during interrogation.”

The remaining question is whether the petitioner’s trial testimony was in fact impelled by the prosecution’s wrongful use of his illegally obtained confessions. It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. “The springs of conduct are subtle and varied,” Mr. Justice Cardozo once observed. “One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.” Having “released the spring” by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

No such showing has been made here. In his opening statement to the jury, defense counsel announced that the petitioner would not testify in his own behalf. Only after his confessions had been admitted in evidence did he take the stand. It thus appears that, but for the use of his confessions, the petitioner might not have testified at all. But even if the petitioner would have decided to testify whether or not his confessions had been used, it does not follow that he would have admitted being at the scene of the crime and holding the gun when the fatal shot was fired. On the contrary, the more natural inference is that no testimonial admission so damaging would have been made if the prosecutor had not already spread the petitioner’s confessions before the jury. That is an inference the Government has not dispelled.

It has not been demonstrated, therefore, that the petitioner’s testimony was obtained “by means sufficiently distinguishable” from the underlying illegality “to be purged of the primary taint.” Wong Sun v. United States, 371 U. S. 471, 488. Accordingly, the judgment must be

Reversed.

Mr. Justice Black,

dissenting.

It seems to me that the Court in this case carries the Court-made doctrine of excluding evidence that is “fruit of the poisonous tree” to a wholly illogical and completely unreasonable extent. For this and many of the reasons suggested by my Brother White’s dissent, I agree that holdings like this make it far more difficult to protect society “against those who have made it impossible to live today in safety.” I would affirm this conviction.

Mr. Justice Harlan,

dissenting.

Like my Brother Black and my Brother White, I am unable to understand why the Court reverses this petitioner’s conviction. There is no suggestion that the testimony in question, given on the stand with the advice of counsel, was somehow unreliable. Nor, as the opinion of MR. Justice White amply demonstrates, is there any plausible argument that a rule excluding such evidence from use at a later trial adds an ounce of deterrence against police violation of the Mallory rule.

I do not doubt that “voluntariness” is not always a purely subjective question as to the defendant’s state of mind; it may involve an objective analysis of the fairness of the situation in which government agents placed him. Nor would I rule out the possibility that a direct product of unlawful official activity might properly be excludable as a fruit of that activity — even where the product is so unforeseeable that a deterrent rationale for exclusion will not suffice — on the ground that the Government should not play an ignoble part.

But these concepts do not reach this case. Here, apparently in all good faith, the Government offered at one trial an out-of-court confession by petitioner. It was objected to on the ground that it had been obtained in violation of the Mallory rule. That objection was overruled, and the defense had to decide how to proceed. While defense counsel may have believed he had good grounds for reversal on appeal (as the Court of Appeals later held he did) he also had to present a defense in an effort to persuade the jury to acquit. That defense had of course to be structured to meet the Government’s case as it stood — including but not limited to the admitted confession — and counsel decided to put his client on the stand.

The situation was one that criminal and civil defendants face all the time: believing that error has been committed that will result in reversal on appeal, they must nevertheless present a defense, and in doing so may help the other side on retrial. The situation here is no different in principle from the sacrifice of surprise, or the conveyance of important leads to the other side, that may occur because a trial continues even after error has been committed. It is a price that is paid for having a system of justice that insists, generally, upon full trials before appellate review of points of law. It is a problem that can be avoided, within our system, only by doing what is done here, namely, reaching the wrong result as between the litigants. For me this is not acceptable doctrine.

MR. Justice White,

dissenting.

This case and others like it would be more comprehensible if they purported to make procedures for trying criminals more reliable for finding facts and minimizing mistakes. Cases like United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); and Bruton v. United States, 391 U. S. 123 (1968), for example, at least could claim this redeeming virtue. But here, as in Miranda v. Arizona, 384 U. S. 436 (1966), decision has emanated from the Court's fuzzy ideology about confessions, an ideology which is difficult to relate to any provision of the Constitution and which excludes from the trial evidence of the highest relevance and probity.

Three times petitioner has been convicted of murdering his robbery victim with a shotgun. The first trial was in 1960. At the second trial, in 1963, written and oral statements by petitioner and his codefendants were introduced. Petitioner then took the stand and gave his version of the events leading to the killing. He admitted being at the scene of the crime. Conviction followed. The Court of Appeals again reversed, this time on the ground that petitioner’s statements were wrongfully admitted, not because they were involuntary or in any way coerced, but because they violated Mallory v.United States, 354 U. S. 449 (1957), and recent decisions of the Court of Appeals in Killough v. United States, 119 U. S. App. D. C. 10, 336 F. 2d 929 (1964), and Harling v. United States, 111 U. S. App. D. C. 174, 295 F. 2d 161 (1961). By the time of the third trial, in 1966, prosecution witnesses were dead or unavailable. Considerable reliance was placed on the testimony which had been given at the second trial, including petitioner’s admissions when he took the stand in his own defense. Harrison was convicted for a third time. It is this conviction which the Court now reverses, contrary to the judgment of the Court of Appeals. That court found no reason to exclude petitioner’s voluntary statements, made under oath in open court and with the advice of counsel.

There is no suggestion that petitioner’s testimony at his second trial was untruthful or unreliable. Nor does the Court hold that Harrison was compelled to take the stand and incriminate himself contrary to his privilege under the Fifth Amendment. The reason is obvious. If a defendant were held to be illegally “compelled” when he takes the stand to counter strong evidence offered by the prosecution and admitted into evidence, he would be as much “compelled” whether it was error to admit the evidence or not. To avoid this absurd construction of the Self-Incrimination Clause, the Court casts about for a different label. Harrison’s testimony at the second trial, the Court now says, was not “compelled” but only “impelled” by the confessions. Alternatively it suggests that except for the confessions Harrison would not have taken the stand and admitted being at the scene of the crime. On either basis, his testimony at the second trial is deemed a fruit of illegally obtained confessions from which the Government should be permitted no benefit whatever. I disagree.

The doctrine that the “fruits” of illegally obtained evidence cannot be used to convict the defendant is complex and elusive. There are many unsettled questions under it. The Court, however, seems to overlook all of these problems in adopting an overly simple and mechanical notion of “fruits” to which I cannot subscribe. In the view of the Court, if some evidentiary matter is causally linked to some illegal activity of the Government — linked in that broad “but for” sense of causality which rarely excludes relevant matters which come later in time — it is a “fruit” and excludable as such. This strictly causal notion of fruits is, of course, consistent with the dictum in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 (1920), that “[i]f knowledge of [the facts] is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it . . . .” In Silverthorne, however, the “fruits” were copies and photographs of original documents illegally seized; it would be difficult to imagine a case where the fruits hung closer to the trunk of the poison tree. The Court seems to overlook the critical limitation placed upon the fruits doctrine in Nardone v. United States, 308 U. S. 338, 341 (1939), where Mr. Justice Frankfurter stated that:

“Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.”

Cf. Wong Sun v. United States, 371 U. S. 471, 487-488 (1963); United States v. Wade, 388 U. S. 218, 239-242 (1967). The concept implicit in the quoted statement, as I understand it, is that mere causal connection is insufficient to make something an inadmissible fruit. Rather it must be shown that suppression of the fruit would serve the same purpose as suppression of the illegal evidence itself. When one deals with the fruits of an illegal search or seizure, as in Silverthorne, or with the fruits of an illegal confession, as the Court decides that we do in this case, the reason for suppression of the original illegal evidence itself is prophylactic — to deter the police from engaging in such conduct in the future by denying them its past benefits. See Linkletter v. Walker, 381 U. S. 618, 634-639 (1965). Since deterrence is the only justification for excluding the original evidence, there is no justification for excluding the fruits of such evidence unless suppression of them will also serve the prophylactic end. I deem this the crucial issue, and proper resolution of it requires a different result from that to which the Court has bulled its way.

As the Court makes plain, it is “difficult to unravel the many considerations that might have led the petitioner to take the witness stand . . . .” Ante, at 224. Given the difficulty of determining after the fact why the petitioner took the stand, it would seem patent that at the confession stage the police would be wholly without a basis for predicting whether the defendant would be more likely to waive his privilege against self-incrimination and take the stand if they were to obtain a confession than if they were not. Accordingly, it cannot realistically be supposed that the police are spurred on to greater illegality by any rational supposition that success in that illicit endeavor will make it more likely that the defendant will make incriminatory admissions on the witness stand. If this is the case, and I see no grounds for doubting that it is, then suppression of the petitioner’s testimony, even if it was in fact induced by the wrongful admission into evidence of an illegal confession, does not remove a source of further temptation to the police to violate the Constitution.

Even if it were true that the rule adopted by the Court served some minimal deterrent function, I would not be able to join the Court. Marginal considerations such as these, especially when one is dealing with confessions excludable because of violation of the technical requirements of cases like Mallory v. United States, 354 U. S. 449 (1957); Massiah v. United States, 377 U. S. 201 (1964); Escobedo v. Illinois, 378 U. S. 478 (1964); and Miranda v. Arizona, 384 U. S. 436 (1966), are insufficient to override the interest in presenting all evidence which is relevant and probative. When one adds the fact that in this case, as in most others where the issue will now arise, the defendant took the stand only upon advice of counsel, the argument for deterrence seems virtually to vanish altogether. Police now know that interrogation without warnings will void a confession, and the Federal Government at least is apprised that unduly long detention prior to arraignment will invalidate a confession obtained during the detention period. When this knowledge is coupled with their realization that a defendant’s subsequent act of taking the stand to diminish the impact of an improperly admitted confession is guided by the advice of counsel, we have a situation in which the inducements to the police to refrain from illegality are already so clear and so strong that excluding testimony as the Court does in this case cannot conceivably be thought to decrease illegal conduct by the police. The police will know that if they fail to give warnings or if they detain the prisoner too long, any confession thus obtained will be unusable and that timely and effective objection to it will be taken as soon as the defendant acquires a lawyer. In such circumstances they could not reasonably believe that the confession will ever actually induce the defendant to take the witness stand. In short, the fact that the defendant has counsel who gives him specific advice deprives the Court’s “fruits” argument of the last vestige of deterrence. Of course, in a situation where the illegality of the methods used to obtain the initial evidence is open to doubt, as was true in this case, the fact that the defendant has counsel has little if any effect on the deterrence value of excluding the fruits. Even in such a case, however, I find the deterrence value of such exclusion too minimal. In any event it is clear that the deterrence value in such cases provides insufficient j ustification for the general rule which the Court adopts today.

I am deeply concerned about the implications of the Court’s unexplained and unfounded decision. If Harrison’s trial testimony was tainted evidence because induced by an illegal confession, then it follows, as the Court indicates by quoting from People v. Spencer, 66 Cal. 2d 158, 164, 424 P. 2d 715, 719 (1967), that Harrison’s testimony would be automatically excluded even if the confessions had not been admitted.. Similarly, an inadmissible confession preceding a plea of guilty would taint the plea. And, as a final consequence, today’s decision would seem to bar the use of confessions defective under Miranda or Mallory from being used for impeachment when a defendant takes the stand and deliberately lies. All these results would seem to flow necessarily from the Court’s adoption of a test for inadmissible fruits which relies only upon the existence of a causal link between the original evidence seized illegally and any subsequent product of it. Since precluding the prosecution from any of these uses will not serve the prophylactic end which alone justifies the exclusion of the original illegal evidence, and because all of these uses of evidence admittedly of relevance and high probative value are important to the overriding goal of criminal law — the just conviction of the guilty — I must dissent.

The Court compounds its substantive error today by the procedural ploy of switching the burden of proof to the prosecution. It rules that once it is shown that the defendant testified after inadmissible confessions were used, “the Government must show that its illegal action did not induce his testimony.” This despite the fact that the only person with actual knowledge of the subtle and varied “springs of conduct” which caused the defendant to take the stand is the defendant himself. This despite the fact that only five years ago this Court clearly affirmed the traditional rule that the defendant bears the burden of showing that the evidence complained of was an inadmissible fruit of illegality. Fahy v. Connecticut, 375 U. S. 85, 91 (1963). See Nardone v. United States, 308 U. S. 338, 341 (1939). This switch in the burden can be justified only by the Court’s misguided desire to exclude important evidence for which it has somehow acquired a constitutional distaste. Because I reject the end which the Court seeks to serve, I cannot endorse this naked manipulation of means to achieve that end.

Given the Court’s current ideology about confessions, there is perhaps some logic on the side of the Court. But common sense and policy are squarely opposed. The important human values will not be served by the obstacles which the Court now places in the path of policeman, prosecutor, and trial judge alike. Criminal trials will simply become less effective in protecting society against those who have made it impossible to live today in safety.

       An earlier conviction had been vacated on appeal. See n. 4, infra.

       Two of the confessions were found to have been obtained in violation of Mallory v. United States, 354 U. S. 449. The third was found to have been obtained in violation of a prior en banc decision of the Court of Appeals, Marling v. United States, 111 U. S. App. D. C. 174, 295 F. 2d 161. See n. 6, infra.

       128 U. S. App. D. C. 245, 387 F. 2d 203.

       389 U. S. 969. The petitioner’s further contention that he was denied the right to a speedy trial is wholly without merit and was properly rejected by the Court of Appeals. See 128 U. S. App. D. C., at 248-250, 387 F. 2d, at 206-208. The petitioner was indicted more than eight years ago and has been tried and convicted three times for the offense here involved. His first conviction was vacated on appeal when it became clear that the man who had represented him in certain post-verdict proceedings was an ex-convict posing as an attorney, see 123 U. S. App. D. C. 230, 232-233, 359 F. 2d 214, 216-217; his second conviction was reversed because the Government employed inadmissible confessions against him on retrial, see 123 U. S. App. D. C. 230, 238, 239, 359 F. 2d 214, 222, 223; and his third conviction is presently before us. Virtually all of the delays of which the petitioner complains occurred in the course of appellate proceedings and resulted either from the actions of the petitioner or from the need to assure careful review of an unusually complex ease.

       See, e. g., Edmonds v. United States, 106 U. S. App. D. C. 373, 377-378, 273 F. 2d 108, 112-113; Ayres v. United States, 193 F. 2d 739, 740-741. And see generally C. McCormick, Evidence §§ 131, 230-235, 239 (1954).

       In the present posture of this case, the earlier holding of the Court of Appeals that the petitioner’s confessions were illegally obtained, see 123 U. S. App. D. C. 230, 238, 239, 359 F. 2d 214, 222, 223, is not in dispute. We therefore proceed upon the assumption that the Court of Appeals was correct in ruling the confessions inadmissible, but we intimate no view upon how we would evaluate that ruling if it were properly before us.

       See also Nardone v. United States, 308 U. S. 338, 341; Wong Sun v. United States, 371 U. S. 471, 484-488. Cf. Fahy v. Connecticut,
        375 U. S. 85, 91. See also the opinions of Chief Justice Traynor in People v. Jackson, 67 Cal. 2d 96, 97, 429 P. 2d 600, 603, and People v. Polk, 63 Cal. 2d 443, 449, 406 P. 2d 641, 644, and the opinions of Justice Tobriner in People v. Spencer, 66 Cal. 2d 158, 164-169, 424 P. 2d 715, 719-724, and People v. Bilderbach, 62 Cal. 2d 757, 763-768, 401 P. 2d 921, 924-927.

       128 U. S. App. D. C. 245, 252, 387 F. 2d 203, 210.

       We have no occasion in this case to canvass the complex and varied problems that arise when the trial testimony of a witness other than the accused is challenged as “the evidentiary product of the poisoned tree.” R. Ruffin, Out on a Limb of the Poisonous Tree: The Tainted Witness, 15 U. C. L. A. Law Rev. 32, 44 (1967). See also Comment, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U. Pa. L. Rev. 1136, 1143-1153 (1967). Compare United States v. Wade, 388 U. S. 218, 241; Gilbert v. California, 388 U. S. 263, 272-273. And, contrary to the suggestion made in a dissenting opinion today, post, at 234, we decide here only a case in which the prosecution illegally introduced the defendant’s confession in evidence against him at trial in its case-in-chief.

        People v. Spencer, supra, 66 Cal. 2d, at 164, 424 P. 2d, at 719-720.
      It is argued in dissent that the petitioner’s trial testimony should not be suppressed “even if it was in fact induced by the wrongful admission into evidence of an illegal confession,” post, at 232, since any deterrence such suppression might achieve is insufficient to warrant placing new “obstacles ... in the path of policeman, prosecutor, and trial judge alike.” Post, at 235. Of course, no empirical evidence on the deterrence issue is available. And “[s]ince as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.” Elkins v. United States, 364 U. S. 206, 218. But it is not deterrence alone that warrants the exclusion of evidence illegally obtained— it is “the imperative of judicial integrity.” Id., at 222. The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to- which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government’s illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law.

        De Cicco v. Schweizer, 221 N. Y. 431, 438, 117 N. E. 807, 810.

       See People v. Spencer, supra, 66 Cal. 2d, at 168, 424 P. 2d, at 722. As Mr. Justice Harlan recently observed, “when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has . . . the burden of proving . . . that the later confession . . . was not directly produced by the existence of the earlier confession.” Darwin v. Connecticut, 391 U. S. 346, 351 (concurring in part and dissenting in part). The same principle compels the conclusion that, when the prosecution seeks to use testimony given after the introduction in evidence of a confession unlawfully obtained, it has the burden of proving that the defendant's testimony was not produced by the illegal use of his confession at trial. Compare Chapman v. California, 386 U. S. 18, 24: "Certainly error ... in illegally admitting highly prejudicial evidence . . . casts on someone other than the person prejudiced by it a burden to show that it was harmless.”

       “In evaluating the possibility that the erroneous introduction of [a] defendant’s extrajudicial confession might have induced his subsequent testimonial confession, we must assess [the] defendant’s reaction to the use of his confession at trial on the basis of the information then available to him . . . .” People v. Spencer, supra, 66 Cal. 2d, at 165, 424 P. 2d, at 720.

       Compare United States v. Bayer, 331 U. S. 532: “Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first.” Id., at 540 (dictum). Compare also Darwin v. Connecticut, supra, 391 U. S. 346, 349; id., at 350-351 (separate opinion of Mr. Justice Harlan); Beecher v. Alabama, 389 U. S. 35, 36, n. 2; Clewis v. Texas, 386 U. S. 707, 710.

      This case is altogether different from Darwin v. Connecticut, 391 U. S. 346, 350, in which I took the position that when a first confession is involuntary a later confession produced by the erroneous impression that the cat was already out of the bag should also be considered involuntary. Here (1) petitioner’s out-of-court confession was not involuntary; (2) petitioner’s in-court statements were given upon the advice of counsel, and there is no indication whatever that petitioner misunderstood the position he was in; (3) the in-court testimony could not possibly have been thought merely cumulative of the confession, for it (a) was given in order to rebut the confession and (b) damaged petitioner’s position in a manner quite independent of the use of the confession.

       The essential predicate for excluding petitioner’s testimony is the illegality of his confessions. That issue, seemingly a condition precedent to reversal, the Court avoids. It simply assumes, without deciding, both that the confessions were properly rejected by the Court of Appeals and that the prior decisions of the Court of Appeals in Killough and Harling were correctly decided. I would not reverse without reaching those questions.

       “The purpose of depriving the government of any gain is to remove any incentive which exists toward the unlawful practice. The focus is forward — to prevent future violations, not punish for past ones. Consequently, where the chain between the challenged evidence and the primary illegality is long or the linkage can be shown only by ‘sophisticated argument,’ exclusion would seem inappropriate. In such a case it is highly unlikely that the police officers foresaw the challenged evidence as a probable product of their illegality; thus it could not have been a motivating force behind it. It follows that the threat of exclusion could not possibly operate as a deterrent in that situation. Absent this, exclusion carries with it no benefit to society and should not prejudice society’s case against a criminal.” Comment, Fruit of the Poisonous Tree — A Plea for Relevant Criteria, 115 U. Pa. L. Rev. 1136, 1148-1149 (1967). In the past the Court has shown greater appreciation of the significance of the deterrence element as well as of the causal element, for both must be present to present a substantial question for this Court. See Smith v. United States, 117 U. S. App. D. C. 1, 324 F. 2d 879 (1963), cert. denied, 377 U. S. 954 (1964); Harlow v. United States, 301 F. 2d 361 (C. A. 5th Cir.), cert. denied, 371 U. S. 814 (1962).