source: Caselaw Access Project

author: Justice O’Connor Justice Stevens, Justice Kennedy,

license: Public Domain

text:
    CALIFORNIA et al. v. DEEP SEA RESEARCH, INC., et al.
    No. 96-1400.
    Argued December 1, 1997
    Decided April 22, 1998

      O’Connor, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 509. Kennedy, J., filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined, post, p. 510.

      Joseph C. Rusconi, Deputy Attorney General of California, argued the cause for petitioners. With him on the briefs were Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Richard M. Frank, Assistant Attorney General, Dennis M. Eagan, Deputy Attorney General, Jack Rump, and Peter Pelkofer.

      David C. Frederick argued the cause for the United States, respondent under this Court’s Rule 12.6, in support of petitioners. With him on the briefs were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Deputy Assistant Attorney General Preston, and Richard A. Olderman.

      Fletcher C. Alford argued the cause for respondent. With him on the brief were Stuart M. Gordon, David Collins, and David J. Bederman

      Briefs of amici curiae urging reversal were filed for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Eric J. Taylor, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Michael J. Bowers of Georgia, Calvin E. Holloway, Sr., of Guam, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, James E. Ryan of Illinois, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Charles Molony Condon of South Carolina, William H. Sorrell of Vermont, Richard Cullen of Virginia, and Alva A Swan of the Virgin Islands; for the Council of State Governments et al. by Richard Ruda and James I. Crowley; and for the National Trust for Historic Preservation et al. by Robert A Long, Jr., Paul W. Edmond-son, Elizabeth S. Merritt, Thompson M. Mayes, Edith M. Shine, and Laura S. Nelson.

      Briefs of amici curiae urging affirmance were filed for the American Institute of Marine Underwriters by Marilyn L. Lytle; for the Atlantic Mutual Insurance Co. et al. by Guilford D. Ware and Martha M. Poin-dexter; for the Columbus-Ameriea Discovery Group et al. by Richard T. Robol, Jane E. Rindsberg, Richard A Cordray, and Alan G. Choate; and for Salvors, Inc., by Peter E. Hess.

   Justice O’Connor

delivered the opinion of the Court.

This action, involving the adjudication of various claims to a historic shipwreck, requires us to address the interaction between the Eleventh Amendment and the in rem admiralty jurisdiction of the federal courts. Respondent Deep Sea Research, Inc. (DSR), located the ship, known as the S. S. Brother Jonathan, in California’s territorial waters. When DSR turned to the federal courts for resolution of its claims to the vessel, California contended that the Eleventh Amendment precluded a federal court from considering DSR’s claims in light of the State’s asserted rights to the Brother Jonathan under federal and state law. We conclude that the Eleventh Amendment does not bar the jurisdiction of a federal court over an in rem, admiralty action where the res is not within the State’s possession.

I

The dispute before us arises out of respondent DSR’s assertion of rights to both the vessel and cargo of the Brother Jonathan, a 220-foot, wooden-hulled, double side-wheeled steamship that struck a submerged rock in July 1865 during a voyage between San Francisco and Vancouver. It took less than an hour for the Brother Jonathan to sink, and most of the ship’s passengers and crew perished. The ship’s cargo, also lost in the accident, included a shipment of up to $2 million in gold and a United States Army payroll that some estimates place at $250,000. See Nolte, Shipwreck: Brother Jonathan Discovered, San Francisco Chronicle, Feb. 25, 1994, p. 1, reprinted in App. 127-131. One of few parts of the ship recovered was the wheel, which was later displayed in a saloon in Crescent City, California. R. Phelan, The Gold Chain 242 (1987).

Shortly after the disaster, five insurance companies paid claims totaling $48,490 for the loss of certain cargo. It is unclear whether the remaining cargo and the ship itself were insured. See Wreck of the Steamship Brother Jonathan, New York Times, Aug. 26, 1865, reprinted in App. 140-147. Prior to DSR’s location of the vessel, the only recovery of cargo from the shipwreck may have occurred in the 1930’s, when a fisherman found 22 pounds of gold bars minted in 1865 and believed to have come from the Brother Jonathan. The fisherman died, however, without revealing the source of his treasure. Nolte, swpra, App. 130. There appears to be no evidence that either the State of California or the insurance companies that paid claims have attempted to locate or recover the wreckage.

In 1991, DSR filed an action in the United States District Court for the Northern District of California seeking rights to the wreck of the Brother Jonathan and its cargo under that court’s in rem admiralty jurisdiction. California intervened, asserting an interest in the Brother Jonathan based on the Abandoned Shipwreck Act of 1987 (ASA), 102 Stat. 432, 43 U. S. C. §§2101-2106, which provides that the Federal Government asserts and transfers title to a State of any “abandoned shipwreck” that either is embedded in submerged lands of a State or is on a State’s submerged lands “and is included in or determined eligible for inclusion in the National Register,”. §2105(a)(3). According to California, the ASA applies because the Brother Jonathan is abandoned and is both embedded on state land and eligible for inelusion in the National Register of Historic Places (National Register). California also laid claim to the Brother Jonathan under Cal. Pub. Res. Code Ann. § 6313 (West Supp. 1998) (hereinafter §6313), which vests title in the State “to all abandoned shipwrecks ... on or in the tide and submerged lands of California.”

The District Court initially dismissed DSR’s action without prejudice at DSR’s initiative. The case was reinstated in 1994 after DSR actually located the Brother Jonathan Sé miles off the coast of Crescent City, where it apparently rests upright on the sea floor under more than 200 feet of water. Based on its possession of several artifacts from the Brother Jonathan, including china, a full bottle of champagne, and a brass spike from the ship’s hull, DSR sought either an award of title to the ship and its cargo or a salvage award for its efforts in recovering the ship. DSR also claimed a right of ownership based on its purchase of subrogation interests from some of the insurance companies that had paid claims on the ship’s cargo.

In response, the State of California entered an appearance for the limited purpose of filing a motion to dismiss DSR’s in rem complaint for lack of jurisdiction. According to the State, it possesses title to the Brother Jonathan under either the ASA or §6313, and therefore, DSR’s in rem action against the vessel is an action against the State in violation of the Eleventh Amendment. DSR disputed both of the State’s statutory ownership claims, and argued that the ASA could not divest the federal courts of the exclusive admiralty and maritime jurisdiction conferred by Article III, §2, of the United States Constitution. DSR also filed a motion requesting that the District Court issue a warrant for the arrest of the Brother Jonathan and-its cargo, as well as an order appointing DSR the exclusive salvor of the shipwreck.

The District Court held two hearings on the motions. The first focused on whether the wreck is located within California’s territorial waters, and the second concerned the possible abandonment, embeddedness, and historical significance of the shipwreck, issues relevant to California’s claims to the res. For purposes of the pending motions, DSR stipulated that the Brother Jonathan is located upon submerged lands belonging to California.

After the hearings, the District Court concluded that the State failed to demonstrate a “colorable claim” to the Brother Jonathan under federal law, reasoning that the State had not established by a preponderance of the evidence that the ship is abandoned, embedded in the sea floor, or eligible for listing in the National Register as is required to establish title under the ASA. 883 F. Supp. 1343, 1357 (ND Cal. 1995). As for California’s state law claim, the court determined that the ASA pre-empts § 6313. Accordingly, the court issued a warrant for the arrest of the Brother Jonathan, appointed DSR custodian of the shipwreck subject to further order of the court, and ordered DSR to take possession of the shipwreck as its exclusive salvor pending the court’s determination of “the manner in which the wreck and its cargo, or the proceeds therefrom, should be distributed.” Id., at 1364.

The District Court stated that it was not deciding whether “any individual items of cargo or personal property have been abandoned,” explaining that “[a]t this stage in the litigation, DSR is not asking the court to award it salvage fees from the res of the wreck, or to otherwise make any order regarding title to or distribution of the wreck or its contents.” Id., at 1354. The District Court thought that the most prudent course would be to adjudicate title after DSR completes the salvage operation. Following the District Court’s ruling, the United States asserted a claim to any property on the Brother Jonathan belonging to the Federal Government.

The State appealed, arguing that its immunity from suit under the Eleventh Amendment does not hinge upon the demonstration by a preponderance of the evidence that the ASA applies to the Brother Jonathan. 102 F. 3d 379, 383 (CA9 1996). According to the State, it had established sufficient claim to the shipwreck under state law by “asserting] that the Brother Jonathan is on its submerged lands and that . . . § 6313 vests title in the State to abandoned shipwrecks on its submerged lands.” Id., at 385. Underlying the State’s argument was a challenge to the District Court’s ruling that the ASA pre-empts the California statute. The State also maintained that it had a colorable claim to the Brother Jonathan under the ASA, arguing that it presented ample evidence of both abandonment and embeddedness, and that the District Court applied the wrong test by “re-quirting] that abandonment be shown by an affirmative act on the part of the original owner demonstrating intent to renounce ownership.” Ibid.

The Court of Appeals for the Ninth Circuit affirmed the District Court’s orders. The court first concluded that § 6313 is pre-empted by the ASA because the state statute “takes title to shipwrecks that do not meet the requirements of the ASA and which are therefore within the exclusive admiralty jurisdiction of the federal courts.” Id., at 384. With respect to the State’s claim under the ASA, the court presumed that “a federal court has both the power and duty to determine whether a ease falls within its subject matter jurisdiction,” and concluded that “it was appropriate for the district court to require the State to present evidence that the ASA applied to the Brother Jonathan, i. e., that it was abandoned and either embedded or eligible for listing in the National Register, before dismissing the ease.” Id., at 386. According to the court’s reasoning, “in addressing the questions of abandonment, embeddedness, and historical significance of the wreck under the ASA, a federal court does not adjudicate the state’s rights,” because the ASA establishes the Federal Government’s title to a qualifying shipwreck, which is then transferred to a State. Id., at 387. Consequently, in the court’s view, “a federal court may adjudicate the question of whether a wreck meets the requirements of the ASA without implicating the Eleventh Amendment.” Ibid.

As to the specifics of the State’s claim under the ASA, the court held that the District Court did not err in concluding that the State failed to prove that the Brother Jonathan is abandoned within the meaning of the statute. The court reasoned that, in the absence of a definition of abandonment in the ASA, “Congress presumably intended that courts apply the definition of abandonment that has evolved under maritime law.” Ibid. In maritime law, the court explained, abandonment occurs either when title to a vessel has been affirmatively renounced or when circumstances give rise to an inference of abandonment. Here, the Court of Appeals concluded, the District Court’s “failure to infer abandonment from the evidence presented by the State was not clearly erroneous,” given the insurance companies’ claims to the ship’s insured cargo and undisputed evidence presented by DSR that the technology required to salvage the Brother Jonathan has been developed only recently. Id., at 388. The court also rejected the State’s bid to treat the uninsured portion of the wreck as abandoned, explaining that the District Court did not address the status of individual items of cargo or personal property, and that “dividing] the wreck of the Brother Jonathan into abandoned and unabandoned portions for the purposes of the ASA” would lead to both federal and state courts adjudicating the wreck’s fate, which, in the court’s view, would be “confusing and inefficient,” and also “inconsistent with the general rule in maritime law of treating wrecks as a legally unified res.” Id., at 389.

Summarizing its reasoning, the court stated that, “[b]e-cause the law is reluctant to find abandonment, and because a finding of partial abandonment would deprive those holding title to the unabandoned portion of the wreck access to the federal forum, we hold that the Brother Jonathan is not abandoned.” Ibid, (citation omitted). The court reserved the question whether there might be some point at which the insured portion of a shipwreck “becomes so negligible” that the entire wreck would be abandoned under the ASA. Ibid. The court also declined to take judicial notice of evidence that, during pendency of the appeal, the Brother Jonathan was determined eligible for inclusion in the National Register.

By concluding that the State must prove its claim to the Brother Jonathan by a preponderance of the evidence in order to invoke the immunity afforded by the Eleventh Amendment, the Ninth Circuit diverged from other Courts of Appeals that have held that a State need only make a bare assertion to ownership of a res. See Zych v. Wrecked Vessel Believed to be the Lady Elgin, 960 F. 2d 665, 670 (CA7), cert. denied, 506 U. S. 985 (1992); Maritime Underwater Surveys, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 717 F. 2d 6, 8 (CA1 1983). We granted certiorari to address whether a State’s Eleventh Amendment immunity in an in rem admiralty action depends upon evidence of the State’s ownership of the res, and to consider the related questions whether the Brother Jonathan is subject to the ASA and whether the ASA pre-empts § 6313. 520 U. S. 1263 (1997).

II

The judicial power of federal courts extends “to all Cases of admiralty and maritime Jurisdiction.” Art. III, §2, cl. 1. The federal courts have had a unique role in admiralty cases since the birth of this Nation, because “[mjaritime commerce was ... the jugular vein of the Thirteen States.” F. Frankfurter & J. Landis, The Business of the Supreme Court 7 (1927). Accordingly, “[t]he need for a body of law applicable throughout the nation was recognized by every shade of opinion in the Constitutional Convention.” Ibid. The constitutional provision was incorporated into the first Judiciary Act in 1789, and federal courts have retained “admiralty or maritime jurisdiction” since then. See 28 U. S. C. § 1333(1). That jurisdiction encompasses “maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien.” Madruga v. Superior Court of Cal., County of San Diego, 346 U. S. 556, 560 (1954).

The jurisdiction of the federal courts is constrained, however, by the Eleventh Amendment, under whieh “[t]he 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.” Although the Amendment, by its terms, “would appear to restrict only the Article III diversity jurisdiction of the federal courts,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 54 (1996), the Court has interpreted the Amendment more broadly. See, e. g., Blatchford v. Native Village of Noatak, 501 U. S. 775, 779 (1991). According to this Court’s precedents, a State may not be sued in federal court by one of its own citizens, see Hans v. Louisiana, 134 U. S. 1 (1890), and a state official is immune from suit in federal court for actions taken in an official capacity, see Smith v. Reeves, 178 U. S. 436 (1900).

The Court has not always charted a clear path in explaining the interaction between the Eleventh Amendment and the federal courts’ in rem admiralty jurisdiction. Early eases involving the disposition of “prize” vessels captured during wartime appear to have assumed that federal courts could adjudicate the in rem disposition of the bounty even when state officials raised an objection. See United States v. Peters, 5 Cranch 115, 139-141 (1809). As Justice Story explained, in admiralty actions in rem,

“the jurisdiction of the [federal] court is founded upon the possession of the thing; and if the State should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor. Besides, the language of the [Eleventh] [A]mendment is, that ‘the judicial power of the United States shall not be construed to extend to any suit in law or equity.’ But a suit in the admiralty is not, correctly speaking, a suit in law or in equity; but is often spoken of in contradistinction to both.” 2 J. Story, Commentaries on the Constitution of the United States § 1689, pp. 491-492 (5th ed. 1891).

Justice Washington, riding Circuit, expressed the same view in United States v. Bright, 24 F. Cas. 1232, 1236 (No. 14,647) (CC Pa. 1809), where he reasoned:

“[I]n cases of admiralty and maritime jurisdiction the property in dispute is generally in the possession of the court, or of persons bound to produce it, or its equivalent, and the proceedings are in rem. The court decides in whom the right is, and distributes the proceeds accordingly. In such a case the court need not depend upon the good will of a state claiming an interest in the thing to enable it to execute its decree. All the world are parties to such a suit, and of course are bound by the sentence. The state may interpose her claim and have it decided. But she cannot lie by, and, after the decree is passed say that she was a party, and therefore not bound, for want of jurisdiction in the court.”

Although those statements might suggest that the Eleventh Amendment has little application in in rem admiralty proceedings, subsequent decisions have altered that understanding of the federal courts’ role. In Ex parte New York, 256 U. S. 490 (1921) (New York I), the Court explained that admiralty and maritime jurisdiction is not wholly exempt from the operation of the Eleventh Amendment, thereby rejecting the views of Justices Story and Washington. Id., at 497-498. On the same day, in its opinion in Ex parte New York, 256 U. S. 503 (1921) (New York II), the Court likewise concluded that the federal courts lacked jurisdiction over a wrongful death action brought in rem against a tugboat operated by the State of New York on the Erie Canal, although the Court did not specifically rely on the Eleventh Amendment in its holding.

The Court’s most recent ease involving an in rem admiralty action, Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), addressed whether the Eleventh Amendment “bars an in rem admiralty action seeking to recover property owned by a state.” Id., at 682 (internal quotation marks omitted). A plurality of the Court suggested that New York II could be distinguished on the ground that, in Treasure Salvors, the State’s possession of maritime artifacts was unauthorized, and the State therefore could not invoke the Eleventh Amendment to block their arrest. 458 U. S., at 695-699 (citing Ex parte Young, 209 U. S. 123 (1908), and Tindal v. Wesley, 167 U. S. 204 (1897)). As the plurality explained, “since the state officials do not have a colorable claim to possession of the artifacts, they may not invoke the Eleventh Amendment to block execution of the warrant of arrest.” 458 U. S., at 697.

That reference to a “colorable claim” is at the crux of this case. Both the District Court and the Ninth Circuit interpreted the “colorable claim” requirement as imposing a burden on the State to demonstrate by a preponderance of the evidence that the Brother Jonathan meets the criteria set forth in the ASA. See 102 F. 3d, at 386; 883 F. Supp., at 1349. Other Courts of Appeals have concluded that a State need only make a bare assertion to ownership of a res in order to establish its sovereign immunity in an in rem admiralty action. See, e. g., Zych, 960 F. 2d, at 670.

By our reasoning, however, either- approach glosses over an important distinction present here. In this case, unlike in Treasure Salvors, DSR asserts rights to a res that is not in the possession of the State. The Eleventh Amendment’s role in that type of dispute was not decided by the plurality opinion in Treasure Salvors, which decided “whether a federal court exercising admiralty in rem jurisdiction may seize property held by state officials under a claim that the property belongs to the State.” 458 U. S., at 683; see also id., at 697 (“In ruling that the Eleventh Amendment does not bar execution of the warrant, we need not decide the extent to which a federal district court exercising admiralty in rem jurisdiction over property before the court may adjudicate the rights of claimants to that property as against sovereigns that did not appear and voluntarily assert any claim that they had to the res”).

Nor did the opinions in New York I or New York II address a situation comparable to this case. The holding in New York I explained that, although the suit at issue was styled as an in rem libel action seeking recovery of damages against tugboats chartered by the State, the proceedings were actually “in the nature of an action in personam against [the Superintendent of Public Works of the State of New York], not individually, but in his [official] capacity.” 256 U. S., at 501. The action in New York II was an in rem suit against a vessel described as being “at all times mentioned in the libel and at present... the absolute property of the State of New York, in its possession and control, and employed in the public service of the State for governmental uses and purposes ....” 256 U. S., at 508. As Justice White explained in his opinion in Treasure Salvors:

“The In re New York cases ... reflect the special concern in admiralty that maritime property of the sovereign is not to be seized. . . . [They] are but the most apposite examples of the line of cases concerning in rem, actions brought against vessels in which an official of the State, the Federal Government, or a foreign government has asserted ownership of the res. The Court’s consistent interpretation of the respective but related immunity doctrines pertaining to such vessels has been, upon proper presentation that the sovereign entity claims ownership of a res in its possession, to dismiss the suit or modify its judgment accordingly.” 458 U. S., at 709-710 (opinion concurring in judgment in part and dissenting in part) (emphasis added).

It is true that statements in the fractured opinions in Treasure Salvors might be read to suggest that a federal court may not undertake in rem adjudication of the State’s interest in property without the State’s consent, regardless of the status of the res. See, e. g., id., at 682 (plurality opinion) (“The court did not have power ... to adjudicate the State’s interest in the property without the State’s consent”); id., at 711 (White, J., concurring in judgment in part and dissenting in part) (“It is ... beyond reasonable dispute that the Eleventh Amendment bars a federal court from deciding the rights and obligations of a State in a contract unless the State consents”). Those assertions, however, should not be divorced from the context of Treasure Salvors and reflexively applied to the very different circumstances presented by this ease. In Treasure Salvors, the State had possession — albeit unlawfully — of the artifacts at issue. Also, the opinion addressed the District Court’s authority to issue a warrant to arrest the artifacts, not the disposition of title to them. As the plurality explained, “[t]he proper resolution of [the Eleventh Amendment] issue . . . does not require— or permit — a determination of the State’s ownership of the artifacts.” Id., at 699 (emphasis added); see also id., at 700 (noting that while adjudication of the State’s right to the artifacts “would be justified if the State voluntarily advanced a claim to [them], it may not be justified as part of the Eleventh Amendment analysis, the only issue before us”). Thus, any references in Treasure Salvors to what the lower courts could have done if they had solely adjudicated title to the artifacts, rather than issued a warrant to arrest the res, do not control the outcome of this case, particularly given that it comes before us in a very different posture, i. e., in an admiralty action in rem where the State makes no claim of actual possession of the res.

Nor does the fact that Treasure Salvors has been cited for the general proposition that federal courts cannot adjudicate a State’s claim of title to property, see, e. g., Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 289-290 (1997) (O’Connor, J., concurring in part and concurring in judgment); id., at 305-306 (Souter, J., dissenting), prevent a more nuanced application of Treasure Salvors in the context of the federal courts’ in rem admiralty jurisdiction. Although the Eleventh Amendment bars federal jurisdiction over general title disputes relating to state property interests, it does not necessarily follow that it applies to in rem admiralty actions, or that in such actions, federal courts may not exercise jurisdiction over property that the State does not actually possess.

In considering whether the Eleventh Amendment applies where the State asserts a claim in admiralty to a res not in its possession, this Court’s decisions in cases involving the sovereign immunity of the Federal Government in in rem admiralty actions provide^ guidance, for this Court has recognized a correlation between sovereign immunity principles applicable to States and the Federal Government. See Tindal v. Wesley, 167 U. S., at 213; see also Treasure Salvors, supra, at 710 (White, J., concurring in judgment in part and dissenting in part) (discussing analogy between immunity in “in rem actions brought against vessels in which an official of the State, the Federal Government, or a foreign government has asserted ownership of the res”). In one such case, The Davis, 10 Wall. 15 (1870), the Court explained that “proceedings in rem to enforce a lien against property of the United States are only forbidden in eases where, in order to sustain the proceeding, the possession of the United States must be invaded under process of the court.” Id., at 20. The possession referred to was “an actual possession, and not that mere constructive possession which is very often implied by reason of ownership under circumstances favorable to such implication.” Id., at 21; see also The Siren, 7 Wall. 152, 159 (1869) (describing “exemption of the government from a direct proceeding in rem against the vessel whilst in its custody”). The Court’s jurisprudence respecting the sovereign immunity of foreign governments has likewise turned on the sovereign’s possession of the res at issue. See, e. g., The Pesaro, 255 U. S. 216, 219 (1921) (federal court’s in rem jurisdiction not barred by mere suggestion of foreign government’s ownership of vessel).

While this Court’s decision in The Davis was issued over a century ago, its fundamental premise remains valid in in rem admiralty actions, in light of the federal courts’ constitutionally established jurisdiction in that area and the fact that a requirement that a State possess the disputed res in such cases is “consistent with the principle which exempts the [State] from suit and its possession from disturbance by virtue of judicial process.” The Davis, supra, at 21. Based on longstanding precedent respecting the federal courts’ assumption of in rem admiralty jurisdiction over vessels that are not in the possession of a sovereign, we conclude that the Eleventh Amendment does not bar federal jurisdiction over the Brother Jonathan and, therefore, that the District Court may adjudicate DSR’s and the State’s claims to the shipwreck. We have no occasion in this case to consider any other circumstances under which an in rem admiralty action might proceed in federal court despite the Eleventh Amendment.

Ill

There remains the issue whether the courts below properly concluded that the Brother Jonathan was not abandoned for purposes of the ASA. That conclusion was necessarily influenced by the assumption that the Eleventh Amendment was relevant to the courts’ inquiry. The Court of Appeals’ determination that the wreek and its contents are not abandoned for purposes of the ASA was affected by concerns that if “the vessel had been partially abandoned, both the federal court and the state court would be adjudicating the fate of the Brother Jonathan.” 102 F. 3d, at 389. Moreover, the District Court’s inquiry was a preliminary one, based on the concern that it was premature “for the court to find that any individual items of cargo or personal property have been abandoned.” 883 F. Supp., at 1354. In light of our ruling that the Eleventh Amendment does not bar complete adjudication of the competing claims to the Brother Jonathan in federal court, the application of the ASA must be reevaluated. Because the record before this Court is limited to the preliminary issues before the District Court, we decline to resolve whether the Brother Jonathan is abandoned -within the meaning of the ASA. We leave that issue for reconsideration on remand, with the clarification that the meaning of “abandoned” under the ASA conforms with its meaning under admiralty law.

Our grant of certiorari also encompassed the question whether the courts below properly concluded that the ASA pre-empts § 6313, which apparently operates to transfer title to abandoned ship-wrecks not covered by the ASA to the State. Because the District Court’s full consideration of the application of the ASA on remand might negate the need to address the pre-emption issue, we decline to undertake that analysis.

Accordingly, the judgment of the Court of Appeals assuming jurisdiction over this case is affirmed, its judgment in all other respects is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens,

concurring.

In Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), both the four Members of the plurality and the four dissenters agreed that the District Court “did not have power... to adjudicate the State’s interest in the property without the State’s consent.” Id., at 682; see also id., at 699-700; id., at 703, n. (White, J., concurring in judgment in part and dissenting in part). Our reasons for reaching that common conclusion were different, but I am now persuaded that all of us might well have reached a different conclusion if the position of Justices Story and Washington (that the Eleventh Amendment is no bar to any in rem admiralty action) had been brought to our attention. I believe that both opinions made the mistake of assuming that the Eleventh Amendment has the same application to an in rem admiralty action as to any other action seeking possession of property in the control of state officers.

My error, in writing for the plurality, was the assumption that the reasoning in Tindal v. Wesley, 167 U. S. 204 (1897), and United States v. Lee, 106 U. S. 196 (1882), which supported our holding that Treasure Salvors was entitled to possession of the artifacts, also precluded a binding determination of the State’s interest in the property. Under the reasoning of those eases, the fact that the state officials were acting without lawful authority meant that a judgment against them would not bind the State. See 458 U. S., at 687-688 (“In holding that the action was not barred by the Eleventh Amendment, the Court in Tindal emphasized that any judgment awarding possession to the plaintiff would not subsequently bind the State”). That reasoning would have been sound if we were deciding an ejectment action in which the right to possession of a parcel of real estate was in dispute; moreover, it seemed appropriate in Treasure Sal-vors because we were focusing on the validity of the arrest warrant.

Having given further consideration to the special characteristics of in rem admiralty actions, and more particularly to the statements by Justice Story and Justice Washington quoted in the Court’s opinion, ante, at 502-503 I am now convinced that we should have affirmed the Treasure Sal-vors judgment in its entirety. Accordingly, I agree with the Court’s holding that the State of California may be bound by a federal court’s in rem adjudication of rights to the Brother Jonathan and its cargo.

Justice Kennedy,

with whom Justice Ginsburg and Justice Breyer join, concurring.

I join the opinion of the Court. In my view, the opinion’s discussion of Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670 (1982), does not embed in our law the distinction between a State’s possession or nonpossession for purposes of Eleventh Amendment analysis in admiralty cases. In light of the subsisting doubts surrounding that case and Justice Stevens’ concurring opinion today, it ought to be evident that the issue is open to reconsideration.

       While the petition for certiorari in this case was pending, the United States Court of Appeals for the Sixth Circuit adopted the reasoning of the Ninth Circuit. See Fairport Int’l Exploration, Inc. v. Shipwrecked Vessel Known as The Captain Lawrence, 105 F. 3d 1078 (CA6 1997), cert. pending, No. 96-1936.

      See also Fletcher, A Historical Interpretation of the Eleventh Amendment, 35 Stan. L. Rev. 1033, 1078-1083 (1983) (discussing the historical basis for this interpretation).


author: Justice Breyer

text:
    EDWARDS et al. v. UNITED STATES
    No. 96-8732.
    Argued February 23, 1998
    Decided April 28, 1998

      Breyer, J., delivered the opinion for a unanimous Court.

      Steven Shobat, by appointment of the Court, 522 U. S. 993, argued the cause for petitioners. With him on the briefs were Carleton K. Montgomery, David Zlotnick, Mark D. DeBofsky, by appointment of the Court, 522 U. S. 1013, Robert Handelsman, by appointment of the Court, 522 U. S. 1013, J. Michael McGuinness, by appointment of the Court, 522 U. S. 965, and Donald Sullivan, by appointment of the Court, 522 ü. S. 1043.

      Edward C. DuMont argued the cause for the United States. With him on the brief were Solicitor General Wax-man, Acting Assistant Attorney General Keeney, and Deputy Solicitor General Dreeben.

        Jeffrey J. Pokorak, David Porter, and Kyle O’Dowd filed a brief for the National Association of Criminal Defense Lawyers et al. as amici curiae.

   Justice Breyer

delivered the opinion of the Court.

The statutes at issue in this case make it a crime to “conspir[e]” to “possess with intent to . . . distribute ... a controlled substance.” 21 U. S. C. §§ 841 and 846. The Government charged petitioners with violating these statutes by conspiring “to possess with intent to distribute ,.. mixtures containing” two controlled substances, namely, “cocaine ... and cocaine base” (i. e., “crack”). App. 6. The District Judge instructed the jury that “the government must prove that the conspiracy . . . involved measurable amounts of cocaine or cocaine base.” App. 16 (emphasis added). The jury returned a general verdict of guilty. And the judge imposed sentences based on his finding that each petitioner’s illegal conduct had involved both cocaine and crack.

Petitioners argued (for the first time) in the Court of Appeals for the Seventh Circuit that the judge’s sentences were unlawful insofar as they were based upon crack. They said that the word “or” in the judge’s instruction (permitting a guilty verdict if the conspiracy involved either cocaine or crack) meant that the judge must assume that the conspiracy involved only cocaine, which drug, they added, the Sentencing Guidelines treat more leniently than crack. See United States Sentencing Commission, Guidelines Manual §2Dl.l(c) (Nov. 1994) (drug table) (USSG). The Court of Appeals, however, held that the judge need not assume that only cocaine was involved. 105 P. 3d 1179 (1997). It pointed out that the Sentencing Guidelines require the sentencing judge, not the jury, to determine both the kind and the amount of the drugs at issue in a drug conspiracy. Id., at 1180. And it reasoned that the jury’s belief about which drugs were involved — cocaine, crack, or both — was therefore beside the point. Id., at 1181. In light of a potential conflict among the Circuits on this question, see, e. g., United States v. Bounds, 985 P. 2d 188, 194-195 (CA5 1993); United States v. Pace, 981 P. 2d 1123 (CA10 1992); United States v. Owens, 904 P. 2d 411 (CA8 1990), we granted certiorari.

"We agree that in the circumstances of this case the judge was authorized to determine for sentencing purposes whether crack, as well as cocaine, was involved in the offense-related activities. The Sentencing Guidelines instruct the judge in a case like this one to determine both the amount and the kind of “controlled substances” for which a defendant should be held accountable — and then to impose a sentence that varies depending upon amount and kind. See United States v. Watts, 519 U. S. 148 (1997) (per curiam) (judge may consider drug charge of which offender has been acquitted by jury in determining Guidelines sentence); Witte v. United States, 515 U. S. 389 (1995) (judge may impose higher Guidelines sentence on offender convicted of possessing marijuana based on judge’s finding that offender also engaged in uncharged cocaine conspiracy). Consequently, regardless of the jury’s actual, or assumed, beliefs about the conspiracy, the Guidelines nonetheless require the judge to determine whether the “controlled substances” at issue — and how much of those substances — consisted of cocaine, crack, or both. And that is what the judge did in this case.

Virtually conceding this Guidelines-related point, petitioners argue that the drug statutes, as well as the Constitution, required the judge to assume that the jury convicted them of a conspiracy involving only cocaine. Petitioners misapprehend the significance of this contention, however, for even if they are correct, it would make no difference to their case. That is because the Guidelines instruct a sentencing judge to base a drug-conspiracy offender’s sentence on the offender’s “relevant conduct.” USSG § IB 1.3. And “relevant conduct,” in a case like this, includes both conduct that constitutes the “offense of conviction,” id., § 1B1.3(a)(1), and conduct that is “part of the same course of conduct or common scheme or plan as the offense of conviction,” id., § 1B1.3(a)(2). Thus, the sentencing judge here would have had to determine the total amount of drugs, determine whether the drugs consisted of cocaine, crack, or both, and determine the total amount of each — regardless of whether the judge believed that petitioners’ crack-related conduct was part of the “offense of conviction,” or the judge believed that it was “part of the same course of conduct or common scheme or plan.” The Guidelines sentencing range — on either belief — is identical.

Of course, petitioners’ statutory and constitutional claims would make a difference if it were possible to argue, say, that the sentences imposed exceeded the maximum that the statutes permit for a cocaine-only conspiracy. That is because a maximum sentence set by statute trumps a higher sentence set forth in the Guidelines. USSG § 5G1.1. But, as the Government points out, the sentences imposed here were within the statutory limits applicable to a cocaine-only conspiracy, given the quantities of that drug attributed to each petitioner. Brief for United States 15-16, and nn. 6-7; see 21 U.S.C. §§ 841(b)(1)-(3); App. 42-47, 72-82, 107-112, 136-141, 163-169 (cocaine attributed to each petitioner). Cf. United States v. Orozca-Prada, 732 F. 2d 1076, 1083-1084 (GA2 1984) (court may not sentence defendant under statutory penalties for cocaine conspiracy when jury may have found only marijuana conspiracy). Petitioners’ statutory and constitutional claims also could have made a difference had it been possible to argue that their crack-related activities did not constitute part of the “same course of conduct or common scheme or plan.” Then, of course, the crack (had it not been part of the “offense of conviction”) would not have been part of the sentence-related “relevant conduct” at all. But petitioners have not made this argument, and, after reviewing the record (which shows a series of interrelated drug transactions involving both cocaine and crack), we do not see how any such claim could succeed.

Instead, petitioners argue that the judge might have made different factual findings if only the judge had known that the law required him to assume the jury had found a cocaine-only, not a coeaine-and-crack, conspiracy. It is sufficient for present purposes, however, to point out that petitioners did not make this particular argument in the District Court. Indeed, they seem to have raised their entire argument for the first time in the Court of Appeals. Thus, petitioners did not explain to the sentencing judge how their “jury-found-only-coeaine” assumption could have made a difference to the judge’s own findings, nor did they explain how this assumption (given the judge’s findings) should lead to greater leniency. Moreover, our own review of the record indicates that the judge’s Guidelines-based factfinding, while resting upon the evidence before the jury, did not depend on any particular assumption about the type of conspiracy the jury found. Nor is there any indication that the assumption petitioners urge (a cocaine-only conspiracy) would likely have made a difference in respect to discretionary leniency.

For these reasons, we need not, and we do not, consider the merits of petitioners’ statutory and constitutional claims.

The judgment of the Court of Appeals is

Affirmed.


author:
Justice Stevens
      Justice Scalia,

text:
    UNITED STATES v. ESTATE OF ROMANI et al.
    No. 96-1613.
    Argued January 12, 1998
    Decided April 29, 1998

      Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Kennedy, Souter, Thomas, Ginsbtjrg, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment, post, p. 535.

      Kent L. Jones argued the cause for the United States. With him on the briefs were Acting Solicitor General Wax-man, Acting Solicitor General Dellinger, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, William S. Estabrook, and Joan 1. Oppenheimer.

      Patrick F. McCartan argued the cause for respondent Romani Industries, Inc. With him on the brief were Gregory G. Katsas and Lawrence L. Davis.

   Justice Stevens

delivered the opinion of the Court.

The federal priority statute, 31 U. S. C. § 3713(a), provides that a claim of the United States Government “shall be paid first” when a decedent’s estate cannot pay all of its debts. The question presented is whether that statute requires that a federal tax claim be given preference over a judgment creditor’s perfected lien on real property even though such a preference is not authorized by the Federal Tax Lien Act of 1966, 26 U. S. C. § 6321 et seq.

I

On January 25,1985, the Court of Common Pleas of Cam-bria County, Pennsylvania, entered a judgment for $400,000 in favor of Romani Industries, Inc., and against Francis J. Romani. The judgment was recorded in the clerk’s office and therefore, as a matter of Pennsylvania law, it became a lien on all of the defendant’s real property in Cambria County. Thereafter, the Internal Revenue Service filed a series of notices of tax liens on Mr. Romani’s property. The claims for unpaid taxes, interest, and penalties described in those notices amounted to approximately $490,000.

When Mr. Romani died on January 13,1992, his entire estate consisted of real estate worth only $53,001. Because the property was encumbered by both the judgment lien and the federal tax liens, the estate’s administrator sought permission from the Court of Common Pleas to transfer the property to the judgment creditor, Romani Industries, in lieu of execution. The Federal Government acknowledged that its tax liens were not valid as against the earlier judgment lien; but, giving new meaning to Franklin’s aphorism that "in this world nothing can be said to be certain, except death and taxes,” it opposed the transfer on the ground that the priority statute (§3713) gave it the right to “be paid first.”

The Court of Common Pleas overruled the Government’s objection and authorized the conveyance. The Superior Court of Pennsylvania affirmed, and the Supreme Court of the State also affirmed. 547 Pa. 41, 688 A. 2d 703 (1997). That court first determined that there was a “plain inconsistency” between § 3713, which appears to give the United States “absolute priority” over all competing claims, and the Tax Lien Act of 1966, which provides that the federal tax lien “shall not be valid” against judgment lien creditors until a prescribed notice has been given. Id., at 45, 688 A. 2d, at 705. Then, relying on the reasoning in United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979), which had noted that the Tax Lien Act of 1966 modified the Federal Government’s preferred position in the tax area and recognized the priority of many state claims over federal tax liens, id., at 738, the court concluded that the 1966 Act had the effect of limiting the operation of § 3713 as to tax debts.

The decision of the Pennsylvania Supreme Court conflicts with two Federal Court of Appeals decisions, Kentucky ex rel. Luckett v. United States, 383 F. 2d 13 (CA6 1967), and Nesbitt v. United States, 622 F. 2d 433 (CA9 1980). Moreover, in its petition for certiorari, the Government submitted that the decision is inconsistent with our holding in Thelusson v. Smith, 2 Wheat. 396 (1817), and with the admonition that “ ‘[o]nly the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of [31 U. S. C. § 3713],'” United States v. Key, 397 U. S. 322, 324-325 (1970) (quoting United States v. Emory, 314 U. S. 423, 433 (1941)). We granted certiorari, 521 U. S. 1117 (1997), to resolve the conflict and to consider whether Thelusson, Key, or any of our other cases construing the pí’iority statute requires a different result.

II

There is no dispute about the meaning of two of the three statutes that control the disposition of this case. It is therefore appropriate to comment on the Pennsylvania lien statute and the Federal Tax Lien Act before considering the applicability of the priority statute to property encumbered by an antecedent judgment creditor’s hen.

The Pennsylvania statute expressly provides that a judgment shall create a lien against real property when it is recorded in the county where the property is located. 42 Pa. Cons. Stat. § 4303(a) (1995). After the judgment has been recorded, the judgment creditor has the same right to notice of a tax sale as a mortgagee. The recording in one county does not, of course, create a lien on property located elsewhere. In this case, however, it is undisputed that the judgment creditor acquired a valid hen on the real property in Cambria County before the judgment debtor’s death and before the Government served notice of its tax liens. Romani Industries’ lien was “perfected in the sense that there is nothing more to be done to have a ehoate lien — when the identity of the lienor, the property subject to the lien, and the amount of the lien are established.” United States v. City of New Britain, 347 U. S. 81, 84 (1954); see also Illinois ex rel. Gordon v. Campbell, 329 U. S. 362, 375 (1946).

The Federal Government’s right to a lien on a delinquent taxpayer’s property has been a part of our law at least since 1865. Originally the lien applied, without exception, to all property of the taxpayer immediately upon the neglect or failure to pay the tax upon demand. An unrecorded tax lien against a delinquent taxpayer’s property was valid even against a bona fide purchaser who had no notice of the lien. United States v. Snyder, 149 U. S. 210, 213-215 (1893). In 1913, Congress amended the statute to provide that the federal tax lien “shall not be valid as against any mortgagee, purchaser, or judgment creditor5’ until notice has been filed with the clerk of the federal district court or with the appropriate local authorities in the district or county in which the property subject to the lien is located. Act of Mar. 4,1913, 37 Stat. 1016. In 1939, Congress broadened the protection against unfiled tax liens to include pledgees and the holders of certain securities. Act of June 29, 1939, §401, 53 Stat. 882-883. The Federal Tax Lien Act of 1966 again broadened that protection to encompass a variety of additional secured transactions, and also included detailed provisions protecting certain secured interests even when a notice of the federal lien previously has been filed. 80 Stat. 1125-1132, as amended, 26 U. S. C. § 6323.

In sum, each time Congress revisited the federal tax lien, it ameliorated its original harsh impact on other secured creditors of the delinquent taxpayer. In this ease, it is agreed that by the terms of § 6323(a), the Federal Government’s liens are not valid as against the lien created by the earlier recording of Romani Industries’ judgment.

III

The text of the priority statute on which the Government places its entire reliance is virtually unchanged since its enactment in 1797. As we pointed out in United States v. Moore, 423 U. S. 77 (1975), not only were there earlier versions of the statute, but “its roots reach back even further into the English common law,” id., at 80. The sovereign prerogative that was exercised by the English Crown and by many of the States as “an inherent incident of sovereignty,” ibid., applied only to unsecured claims. As Justice Brandéis noted in Marshall v. New York, 254 U. S. 380, 384 (1920), the common-law priority “[did] not obtain over a specific lien created by the debtor before the sovereign undertakes to enforce its right.” Moreover, the statute itself does not create a lien in favor of the United States. Given this background, respondent argues that the statute should be read as giving the United States a preference over other unsecured creditors but not over secured creditors.

There are dicta in our earlier cases that support this contention as well as dicta that tend to refute it. Perhaps the strongest support is found in Justice Story’s statement:

“What then is the nature of the priority, thus limited and established in favour of the United States? Is it a right, which supersedes and overrules the assignment of the debtor, as to any property which the United States may afterwards elect to take in execution, so as to prevent such property from passing by virtue of such assignment to the assignees? Or, is it a mere right of prior payment, out of the general funds of the debtor, in the hands of the assignees? We are of opinion that it clearly falls, within the latter description. The language employed is that which naturally would be employed to express such an intent; and it must be strained from its ordinary import, to speak any other.” Concord v. Atlantic Ins. Co. of N. Y., 1 Pet. 386, 439 (1828).

Justice Story’s opinion that the language employed in the statute “must be strained” to give it any other meaning is entitled to special respect because he was more familiar with 18th-century usage than judges who view the statute from a 20th-century perspective.

We cannot, however, ignore the Court’s earlier judgment in Thelusson v. Smith, 2 Wheat., at 426, or the more recent dicta in United States v. Key, 397 U. S., at 324-325. In Thelusson, the Court held that the priority statute gave the United States a preference over the claim of a judgment creditor who had a general lien on the debtor’s real property. The Court’s brief opinion is subject to the interpretation that the statutory priority always accords the Government a preference over judgment creditors. For two reasons, we do not accept that reading of the opinion.

First, as a factual matter, in 1817 when the ease was decided, there was no procedure for recording a judgment and thereby creating a ehoate lien on a specific parcel of real estate. See generally 2 L. Dembitz, A Treatise on Land Titles in the United States § 127, pp. 948-952 (1895). Notwithstanding the judgment, a bona fide purchaser could have acquired the debtor’s property free from any claims of the judgment creditor. See Semple v. Burd, 7 Serg. & Rawle 286, 291 (Pa. 1821) (“The prevailing object of the Legislature, has uniformly been, to support the security of a judgment creditor, by confirming his lien, except when it interferes with the circulation of property by embarrassing a fair purchaser”). That is not the ease with respect to Romani Industries’ choate lien on the property in Cambria Comity.

Second, and of greater importance, in his opinion for the Court in the Conard case, which was joined by Justice Washington, the author of Thelusson, Justice Story explained why that holding was fully consistent with his interpretation of the text of the priority statute:

“The real ground of the decision, was, that the judgment creditor had never perfected his title, by any execution and levy on the Sedgely estate; that he had acquired no title to the proceeds as his property, and that if the proceeds were to be deemed general funds of the debtor, the priority of the United States to payment had attached against all other creditors; and that a mere potential lien on land, did not carry a legal title to the proceeds of a sale, made under an adverse execution. This is the manner in which this case has been understood, by the Judges who concurred in the decision; and it is obvious, that it established no such proposition, as that a specific and perfected lien, can be displaced by the mere priority of the United States; since that priority is not of itself equivalent to a lien.” Conard, 1 Pet., at 444.

The Government also relies upon dicta from our opinion in United States v. Key, 397 U. S., at 324-325, which quoted from our earlier opinion in United States v. Emory, 314 U. S., at 433: “Only the plainest inconsistency would warrant our finding an implied exception to the operation of so clear a command as that of [§ 3713].” Because both Key and Emory were eases in which the competing claims were unsecured, the statutory command was perfectly clear even under Justice Story’s construction of the statute. The statements made in that context, of course, shed no light on the clarity of the command when the United States relies on the statute as a basis for claiming a preference over a secured creditor. Indeed, the Key opinion itself made this specific point: “This ease does not raise the question, never decided by this Court, whether § 3466 grants the Government priority over the prior specific liens of secured creditors. See United States v. Gilbert Associates, Inc., 345 U. S. 361, 365-366 (1953).” 397 U. S., at 332, n. 11.

The Key opinion is only one of many in which the Court has noted that despite the age of the statute, and despite the fact that it has been the subject of a great deal of litigation, the question whether it has any application to antecedent perfected liens has never been answered definitively. See United States v. Vermont, 377 U. S. 351, 358, n. 8 (1964) (citing cases). In his dissent in United States v. Gilbert Associates, Inc., 345 U. S. 361 (1953), Justice Frankfurter referred to the Court’s reluctance to decide the issue “not only today but for almost a century and a half.” 345 U. S., at 367.

The Government’s priority as against specific, perfected security interests is, if possible, even less settled with regard to real property. The Court has sometimes concluded that a competing creditor who has not “divested” the debtor of “either title or possession” has only a “general, unperfeeted lien” that is defeated by the Government’s priority. E. g., id., at 366. Assuming the validity of this “title or possession” test for deciding whether a lien on personal property is sufficiently ehoate for purposes of the priority statute (a question of federal law, see Illinois ex rel. Gordon v. Campbell, 329 U. S., at 371), we are not aware of any decisions since Thelusson applying that theory to claims for real property, or of any reason to require a lienor or mortgagee to acquire possession in order to perfect an interest in real estate.

Given the fact that this basic question of interpretation i’emains unresolved, it does not seem appropriate to view the issue in this case as whether the Tax Lien Act of 1966 has implicitly amended or repealed the priority statute. Instead, we think the proper inquiry is how best to harmonize the impact of the two statutes on the Government’s power to collect delinquent taxes.

IV

In his dissent from a particularly harsh application of the priority statute, Justice Jackson emphasized the importance of considering other relevant federal policies. Joined by three other Justices, he wrote:

“This decision announces an unnecessarily ruthless interpretation of a statute that at its best is an arbitrary one. The statute by which the Federal Government gives its own claims against an insolvent priority over claims in favor of a state government must be applied by courts, not because federal claims are more meritorious or equitable, but only because that Government has more power. But the priority statute is an assertion of federal supremacy as against any contrary state policy. It is not a limitation on the Federal Government itself, not an assertion that the priority policy shall prevail over all other federal policies. Its generalities should not lightly be construed to frustrate a specific policy embodied in a later federal statute.” Massachusetts v. United States, 333 U. S. 611, 635 (1948).

On several prior occasions the Court had followed this approach and concluded that a specific policy embodied in a later federal statute should control our construction of the priority statute, even though it had not been expressly amended. Thus, in Cook County Nat. Bank v. United States, 107 U. S. 445, 448-451 (1883), the Court concluded that the priority statute did not apply to federal claims against national banks because the National Bank Act comprehensively regulated banks’ obligations and the distribution of insolvent banks’ assets. And in United States v. Guaranty Trust Co. of N. Y., 280 U. S. 478, 485 (1930), we determined that the Transportation Act of 1920 had effectively superseded the priority statute with respect to federal claims against the railroads arising under that Act.

The bankruptcy law provides an additional context in which another federal statute was given effect despite the priority statute’s literal, unconditional text. The early federal bankruptcy statutes had accorded to ‘all debts due to the United States, and all taxes and assessments under the laws thereof’” a preference that was “coextensive” with that established by the priority statute. Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 224 U. S. 152, 158 (1912) (quoting the Bankruptcy Act of 1867, Rev. Stat. § 5101). As such, the priority Act and the bankruptcy laws “were to be regarded as in pari materia, and both were unqualified;... as neither contained any qualification, none could be interpolated.” 224 U. S., at 158. The Bankruptcy Act of 1898, however, subordinated the priority of the Federal Government’s claims (except for taxes due) to certain other kinds of debts. This Court resolved the tension between the new bankruptcy provisions and the priority statute by applying the former and thus treating the Government like any other general creditor. Id., at 158-160; Davis v. Pringle, 268 U. S. 315, 317-319 (1925).

There are sound reasons for treating the Tax Lien Act of 1966 as the governing statute when the Government is claiming a preference in the insolvent estate of a delinquent taxpayer. As was the case with the National Bank Act, the Transportation Act of 1920, and the Bankruptcy Act of 1898, the Tax Lien Act is the later statute, the more specific statute, and its provisions are comprehensive, reflecting an obvious attempt to accommodate the strong policy objections to the enforcement of secret liens. It represents Congress5 detailed judgment as to when the Government’s claims for unpaid taxes should yield to many different sorts of interests (including, for instance, judgment liens, mechanic’s liens, and attorney’s liens) in many different types of property (including, for example, real property, securities, and motor vehicles). See 26 U. S. C. §6323. Indeed, given our unambiguous determination that the federal interest in the collection of taxes is paramount to its interest in enforcing other claims, see United States v. Kimbell Foods, Inc., 440 U. S., at 733-735, it would be anomalous to conclude that Congress intended the priority statute to impose greater burdens on the citizen than those specifically crafted for tax collection purposes.

Even before the 1966 amendments to the Tax Lien Act, this Court assumed that the more recent and specific provisions of that Act would apply were they to conflict with the older priority statute. In the Gilbert Associates ease, which concerned the relative priority of the Federal Government and a New Hampshire town to funds of an insolvent taxpayer, the Court first considered whether the town could qualify as a “judgment creditor” entitled to preference under the Tax Lien Act. 345 U. S., at 363-364. Only after deciding that question in the negative did the Court conclude that the United States obtained preference by operation of the priority statute. Id., at 365-366. The Government would now portray Gilbert Associates as a deviation from two other relatively recent opinions in which the Court held that the priority statute was not trumped by provisions of other statutes: United States v. Emory, 314 U. S., at 429-433 (the National Housing Act), and United States v. Key, 397 U. S., at 324-333 (Chapter X of the Bankruptcy Act). In each of those cases, however, there was no “plain inconsistency” between the commands of the priority statute and the other federal Act, nor was there reason to believe that application of the priority statute would frustrate Congress’ intent. Id., at 329. The same cannot be saidin the present suit.

The Government emphasizes that when Congress amended the Tax Lien Act in 1966, it declined to enact the American Bar Association’s proposal to modify the federal priority statute, and Congress again failed to enact a similar proposal in 1970. Both proposals would have expressly provided that the Government’s priority in insolvency does not displace valid liens and security interests, and therefore would have harmonized the priority statute with the Tax Lien Act. See Hearings on H. R. 11256 and 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 197 (1966) (hereinafter Hearings); S. 2197, 92d Cong., 1st Se1ss. (1971). But both proposals also would have significantly changed the priority statute in many other respects to follow the priority scheme created by the bankruptcy laws. See Hearings, at 85, 198; Plumb 10, n. 53, 33-37. The earlier proposal may have failed because its wide-ranging subject matter was beyond the House Ways and Means Committee’s jurisdiction. Id., at 8. The failure of the 1970 proposal in the Senate Judiciary Committee— explained by no reports or hearings — might merely reflect disagreement with the broad changes to the priority statute, or an assumption that the proposal was not needed because, as Justice Story had believed, the priority statute does not apply to prior perfected security interests, or any number of other views. Thus, the Committees’ failures to report the proposals to the entire Congress do not necessarily indicate that any legislator thought that the priority statute should supersede the Tax Lien Act in the adjudication of federal tax claims. They provide no support for the hypothesis that both Houses of Congress silently endorsed that position.

The actual measures taken by Congress provide a superior insight regarding its intent. As we have noted, the 1966 amendments to the Tax Lien Act bespeak a strong condemnation of secret liens, which unfairly defeat the expectations of innocent creditors and frustrate “the needs of our citizens for certainty and convenience in the legal rules governing their commercial dealings.” 112 Cong. Rec. 22227 (1966) (remarks of Rep. Byrnes); cf. United States v. Speers, 382 U. S. 266, 275 (1965) (referring to the “general policy against secret liens”). These policy concerns shed light on how Congress would want the conflicting statutory provisions to be harmonized:

“Liens may be a dry-as-dust part of the law, but they are not without significance in an industrial and commercial community where construction and credit are thought to have importance. One does not readily impute to Congress the intention that many common commercial liens should be congenitally unstable.” E. Brown, The Supreme Court, 1957 Term — Foreword: Process of Law, 72 Harv. L. Rev. 77, 87 (1958) (footnote omitted).

In sum, nothing in the text or the long history of interpreting the federal priority statute justifies the conclusion that it authorizes the equivalent of a secret lien as a substitute for the expressly authorized tax lien that Congress has said “shall not be valid” in a case of this kind.

The judgment of the Pennsylvania Supreme Court is affirmed.

It is so ordered.

Justice Scalia,

concurring in part and concurring in the judgment.

I join the opinion of the Court except that portion which takes seriously, and thus encourages in the future, an argument that should be laughed out of court. The Government contended that 31 U. S. C. § 3713(a) must have priority over the Federal Tax Lien Act of 1966, because in 1966 and again in 1970 Congress “failed to enact” a proposal put forward by the American Bar Association that would have subordinated § 3713(a) to the Tax Lien Act, citing hearings before the House Committee on Ways and Means, and a bill proposed in, but not passed by, the Senate. See Brief for United States 25-27, and n. 10 (citing American Bar Association, Final Report of the Committee on Federal Liens 7,122-124 (1959), contained in Hearings on H. R. 11256 and 11290 before the House Committee on Ways and Means, 89th Cong., 2d Sess., 85, 199 (1966); S. 2197, 92d Cong., 1st Sess. (1971)). The Court responds that these rejected proposals “provide no support for the hypothesis that both Houses of Congress silently endorsed” the supremacy of §3713, ante, at 534, because those proposals contained other provisions as well, and might have been rejected because of those other provisions, or because Congress thought the existing law already made § 3713 supreme. This implies that, if the proposals had not contained those additional features, or if Members of Congress (or some part of them) had somehow made clear in the course of rejecting them that they wanted the existing supremacy of the Tax Lien Act to subsist, the rejection would “provide support” for the Government’s case.

That is not so, for several reasons. First and most obviously, Congress cannot express its will by a failure to legislate. The act of refusing to enact a law (if that can be called an act) has utterly no legal effect, and thus has utterly no place in a serious discussion of the law. The Constitution sets forth the only manner in which .the Members of Congress have the power to impose their will upon the country: by a bill that passes both Houses and is either signed by the President or repassed by a supermajority after his veto. Art. I, § 7. Everything else the Members of Congress do is either prelude or internal organization. Congress can no more express its will by not legislating than an individual Member can express his will by not voting.

Second, even if Congress could express its will by not legislating, the will of a later Congress that a law enacted by an earlier Congress should bear a particular meaning is of no effect whatever. The Constitution puts Congress in the business of writing new laws, not interpreting old ones. “[Ljater enacted laws ... do not declare the meaning of earlier law.” Almendarez-Torres v. United States, ante, at 237; ante, at 269-270 (Scalia, J., dissenting) (“This later amendment can of course not cause [the statute] to have meant, at the time of petitioner’s conviction, something different from what it then said”). If the enacted intent of a later Congress cannot change the meaning of an earlier statute, then it should go without saying that the later unenacted intent cannot possibly do so. It should go without saying, and it should go without arguing as well.

I have in the past been critical of the Court’s using the so-called legislative history of an enactment (hearings, committee reports, and floor debates) to determine its meaning. See, e. g., Conroy v. Aniskoff, 507 U. S. 511, 518-529 (1993) (Scalia, J., concurring in judgment); United States v. Thompson/Center Arms Co., 504 U. S. 505, 521 (1992) (Scalia, J., concurring in judgment); Blanchard v. Bergeron, 489 U. S. 87, 98-100 (1989) (Scalia, J., concurring in part and concurring in judgment). Today, however, the Court’s fascination with the files of Congress (we must consult them, because they are there) is carried to a new silly extreme. Today’s opinion ever-so-earefully analyzes, not legislative history, but the history of legislation-that-never-was. If we take this sort of material seriously, we require conscientious counsel to investigate (at clients’ expense) not only the hearings, committee reports, and floor debates pertaining to the history of the law at issue (which is bad enough), but to find, and then investigate the hearings, committee reports, and floor debates pertaining to, later bills on the same subject that were never enacted. This is beyond all reason, and we should say so.

      “§3713. Priority of Government claims
      “(a)(1) A claim of the United States Government shall be paid first when—
      “(A) a person indebted to the Government is insolvent and—
      “(i) the debtor without enough property to pay all debts makes a voluntary assignment of property;
      “(ii) property of the debtor, if absent, is attached; or
      “(iii) an act of bankruptcy is committed; or
      “(B) the estate of a deceased debtor, in the custody of the executor or administrator, is not enough to pay all debts of the debtor.
      “(2) This subsection does not apply to a case under title 11.” 81 U. S. G. §3713.
      The present statute is the direct deseendent of §3466 of the Revised Statutes, which had been codified in 31U. S. G. §191.

       Letter of Nov. 13, 1789, to Jean Baptiste Le Roy, in 10 Writings of Benjamin Franklin 69 (A. Smyth ed. 1907). As is often the case, the original meaning of the aphorism is clarified somewhat by its context: “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.” Ibid.

       The Federal Tax Lien Act of 1966, 26 U. S. C. §6321 et seq., provides in pertinent part:
      “§6321. Lien for taxes
      “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”
      “§ 6323. Validity and priority against certain persons
      “(a) Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors
      “The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.”
      Section 6323(f)(l)(A)(i) provides that the required notice “shall be filed[,] . . . [i]n the case of real property, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated.” If the State has not designated such an office, notice is to be filed with the clerk of the federal district court “for the judicial district in which the property subject to the lien is situated.” § 6323(f)(1)(B).

       The Pennsylvania Supreme Court has elaborated:

        “We must now decide whether judgment creditors are also entitled to personal or general notice by the [County Tax Claim] Bureau as a matter of due process of law.
      “Judgment liens are a product of centimes of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real property of the debtor in that county.” In re Upset Sale, Tax Claim Bureau of Berks County, 505 Pa. 327, 334, 479 A. 2d 940, 943 (1984).

       The post-avü War Reconstruction Congress imposed a tax of three cents per pound on “the producer, owner, or holder” of cotton and a lien on the cotton until the tax was paid. Act of July 13, 1866, § 1, 14 Stat. 98. The same statute also imposed a general lien on all of a delinquent taxpayer’s property, see § 9,14 Stat. 107, which was nearly identical to a provision in the revenue Act of Mar. 3, 1865, 13 Stat. 470-471, quoted in n. 6, infra.

       The 1865 revenue Act contained the following sentence: “And if any person, bank, association, company, or corporation, liable to pay any duty, shall neglect or refuse to pay the same after demand, the amount shall be a lien in favor of the United States from the time it was due until paid, with the interests, penalties, and costs that may accrue in addition thereto, upon all property and rights to property; and the collector, after demand, may levy or by warrant may authorize a deputy collector to levy upon all property and rights to property belonging to such person, bank, association, company, or corporation, or on which the said lien exists, for the payment of the sum due as aforesaid, with interest and penalty for nonpayment, and also of such further sum as shall be sufficient for the fees, costs, and expenses of such levy.” 13 Stat. 470-471. This provision, as amended, became §3186 of the Revised Statutes.

       For a more thorough description of the early history and of Congress’ reactions to this Court’s tax lien decisions, see Kennedy, The Relative Priority of the Federal Government: The Pernicious Career of the Inchoate and General Lien, 63 Yale L. J. 905, 919-922 (1954) (hereinafter Kennedy).

       The Act of Mar. 3, 1797, § 5, 1 Stat. 515, provided:

        “And be it further enacted, That where any revenue officer, or other person hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied; and the priority hereby established shall be deemed to extend, as well to eases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed.” Compare § 3466 of the Revised Statutes with the present statute quoted in n. 1, supra.

      It has long been settled that the federal priority covers the Government’s claims for unpaid taxes. Price v. United States, 269 U. S. 492, 499-502 (1926); Massachusetts v. United States, 333 U. S. 611, 625-626, and n. 24 (1948).

       “The earliest priority statute was enacted in the Act of July 31,1789, 1 Stat. 29, which dealt with bonds posted by importers in lieu of payment of duties for release of imported goods. It provided that the ‘debt due to the United States’ for such duties shall be discharged first ‘in all cases of insolvency, or where any estate in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased....’ § 21, 1 Stat. 42. A 1792 enactment broadened the Act’s coverage by providing that the language ‘eases of insolvency’ should be taken to include eases in which a debtor makes a voluntary assignment for the benefit of creditors, and the other situations that § 3466, 31 U. S. C. § 191, now covers. 1 Stat. 263.” United States v. Moore, 423 U. S., at 81.

       “In construing the statutes on this subject, it has been stated by the court, on great deliberation, that the priority to which the United States are entitled, does not partake of the character of a lien on the property of public debtors. This distinction is always to be recollected.” United States v. Hooe, 3 Cranch 73, 90 (1805).

       Although this argument was not presented to the state courts, respondent may defend the judgment on a ground not previously raised. Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983). We will rarely consider such an argument, however. Ibid.; see also Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 379, n. 5 (1996).

       The relevant portion of the opinion reads, in fell, as follows:
      “These [statutory] expressions are as general as any whieh could have been used, and exclude all debts due to individuals, whatever may be their dignity.... The law makes no exception in favour of prior judgment creditors; and no reason has been, or we think can be, shown to warrant this court in making one.
      “... The United States are to be first satisfied; but then it must be out of the debtor’s estate. If, therefore, before the right of preference has accrued to the United States, the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt; or if his property has been seized under a fi. fa., the property is devested out of the debtor, and cannot be made liable to the United States. A judgment gives to the judgment creditor a lien on the debtor’s lands, and a preference over all subsequent judgment creditors. But the act of congress defeats this preference in favour of the United States, in the cases specified in the 65th section of the act of 1799.” Thelusson v. Smith, 2 Wheat. 396, 425-426 (1817).
      In the later Canard case, Justice Story apologized for Thelusson: “The reasons for that opinion are not, owing to accidental circumstances, as fully given as they are usually given in this Court.” Conard v. Atlantic Ins. Co. of N. Y., 1 Pet. 386, 442 (1828).

       Justice Washington’s opinion for this Court in Thelusson affirmed, and was essentially the same as, his own opinion delivered in the Circuit Court as a Circuit Justice. 2 Wheat., at 426, n. h.

       Relying on this and several other cases, in 1857 the Attorney General of the United States issued an opinion concluding that Thelusson “has been distinctly overruled” and that the priority of the United States under this statute “will not reach back over any lien, whether it be general or specific.” 9 Op. Atty. Gen. 28, 29. See also Kennedy 908-911 (advancing this same interpretation of the early priority Act decisions).

       Congress amended the priority statute in 1978 to make it expressly inapplicable to Title 11 bankruptcy cases. Pub. L. 95-598, § 322(b), 92 Stat. 2679, codified in 31 U. S. C. § 3713(a)(2). The differences between the bankruptcy laws and the priority statute have been the subject of criticism: “[A]s a result of the continuing discrepancies between the bankruptcy and insolvency rules, some creditors have had a distinct incentive to throw into bankruptcy a debtor whose ease might have been handled, with less expense and less burden on the federal courts, in another form of proceeding.” Plumb, The Federal Priority in Insolvency: Proposals for Reform, 70 Mch. L. Rev. 3, 8-9 (1971) (hereinafter Plumb).