source: Caselaw Access Project

author: Chief Justice Rehnquist Justice Stevens, Justice Scalia,

license: Public Domain

text:
    UNITED STATES v. X-CITEMENT VIDEO, INC., et al.
    No. 93-723.
    Argued October 5, 1994
    Decided November 29, 1994

      Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, post, p. 79. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 80.

      Solicitor General Days argued the cause for the United States. With him on the briefs were Assistant Attorney General Harris, Deputy Solicitor General Kneedler, Malcolm L. Stewart, and Joel M. Gerskowitz. .

      Stanley Fleishman argued the cause for respondents. With him on the briefs were Barry A. Fisher and David Grosz.

       Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Richard A Cordray, State Solicitor, and Simon B. Karas, and by the Attorneys General for their respective jurisdictions as follows: Jimmy Evans of Alabama, Bruce M. Botelho of Alaska, Robert Marks of Hawaii, Roland W. Burris of Illinois, Richard P. Ieyoub of Louisiana, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Ernest D. Preate, Jr., of Pennsylvania, Pedro R. Pierlu-isi of Puerto Rico, T. Travis Medlock of South Carolina, Mark Barnett of South Dakota, Rosalie Simmonds Ballentine of the Virgin Islands, James S. Gilmore III of Virginia, and James E. Doyle of Wisconsin; for the National Family Legal Foundation by Len L. Munsil; and for the National Law Center for Children and Families et al. by H. Robert Showers and Cathleen A Cleaver.

      Briefs of amici curiae were filed for the American Booksellers Foundation for Free Expression et al. by Michael A Bamberger and Margaret S. Determan; for the Law and Linguistics Consortium by Clark D. Cunningham; for Morality in Media, Inc., by Paul J. McGeady; and for PHE, Inc., by Bruce J. Ennis, Jr., and John B. Morris, Jr.

   Chief Justice Rehnquist

delivered the opinion of the Court.

The Protection of Children Against Sexual Exploitation Act of 1977, as amended, prohibits the interstate transportation, shipping, receipt, distribution, or reproduction of visual depictions of minors engaged in sexually explicit conduct. 18 U. S. C. § 2252. The Court of Appeals for the Ninth Circuit reversed the conviction of respondents for violation of this Act. It held that the Act did not require that the defendant know that one of the performers was a minor, and that it was therefore facially unconstitutional. We conclude that the Act is properly read to include such a requirement.

Rubin Gottesman owned and operated X-Citement Video, Inc. Undercover police posed as pornography retailers and targeted X-Citement Video for investigation. During the course of the sting operation, the media exposed Traci Lords for her roles in pornographic films while under the age of 18. Police Officer Steven Takeshita expressed an interest in obtaining Traci Lords tapes. Gottesman complied, selling Takeshita 49 videotapes featuring Lords before her 18th birthday. Two months later, Gottesman shipped eight tapes of the underage Traci Lords to Takeshita in Hawaii.

These two transactions formed the basis for a federal indictment under the child pornography statute. The indictment charged respondents with one count each of violating 18 U. S. C. §§ 2252(a)(1) and (a)(2), along with one count of conspiracy to do the same under 18 U. S. C. § 371. Evidence at trial suggested that Gottesman had full awareness of Lords’ underage performances. United States v. Gottes-man, No. CR 88-295KN, Findings of Fact ¶ 7 (CD Cal., Sept. 20, 1989), App. to Pet. for Cert. 39a (“Defendants knew that Traci Lords was underage when she made the films defendant’s [sic] transported or shipped in interstate commerce”). The District Court convicted respondents of all three counts. On appeal, Gottesman argued, inter alia, that the Act was facially unconstitutional because it lacked a necessary scien-ter requirement and was unconstitutional as applied because the tapes at issue were not child pornography. The Ninth Circuit remanded to the District Court for reconsideration in light of United States v. Thomas, 893 F. 2d 1066 (CA9), cert. denied, 498 U. S. 826 (1990). In that case, the Ninth Circuit had held §2252 did not contain a scienter requirement, but had not reached the constitutional questions. On remand, the District Court refused to set aside the judgment of conviction.

On appeal for the second time, Gottesman reiterated his constitutional arguments. This time, the court reached the merits of his claims and, by a divided vote, found § 2252 facially unconstitutional. The court first held that 18 U. S. C. §2256 met constitutional standards in setting the age of majority at age 18, substituting lascivious for lewd, and prohibiting actual or simulated bestiality and sadistic or masochistic abuse. 982 F. 2d 1285, 1288-1289 (CA9 1992). It then discussed § 2252, noting it was bound by its conclusion in Thomas to construe the Act as lacking a scienter requirement for the age of minority. The court concluded that case law from this Court required that the defendant must have knowledge at least of the nature and character of the materials. 982 F. 2d, at 1290, citing Smith v. California, 361 U. S. 147 (1959); New York v. Ferber, 458 U. S. 747 (1982); and Hamling v. United States, 418 U. S. 87 (1974). The court extended these cases to hold that the First Amendment requires that the defendant possess knowledge of the particular fact that one performer had not reached the age of majority at the time the visual depiction was produced. 982 F. 2d, at 1291. Because the court found the statute did not require such a showing, it reversed respondents’ convictions. We granted certiorari, 510 U. S. 1163 (1994), and now reverse.

Title 18 U. S. C. § 2252 (1988 ed. and Supp. V) provides, in relevant part:

“(a) Any person who—
“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct;
“shall be punished as provided in subsection (b) of this section.”

The critical determination which we must make is whether the term “knowingly” in subsections (1) and (2) modifies the phrase “the use of a minor” in subsections (1)(A) and (2)(A). The most natural grammatical reading, adopted by the Ninth Circuit, suggests that the term “knowingly” modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word “knowingly” would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. But we do not think this is the end of the matter, both because of anomalies which result from this construction, and because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed, and that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.

If the term “knowingly” applies only to the relevant verbs in §2252 — transporting, shipping, receiving, distributing, and reproducing — we would have to conclude that Congress wished to distinguish between someone who knowingly transported a particular package of film whose contents were unknown to him, and someone who unknowingly transported that package. It would seem odd, to say the least, that Congress distinguished between someone who inadvertently dropped an item into the mail without realizing it, and someone who consciously placed the same item in the mail, but was nonetheless unconcerned about whether the person had any knowledge of the prohibited contents of the package.

Some applications of respondents’ position would produce results that were not merely odd, but positively absurd. If we were to conclude that “knowingly” only modifies the relevant verbs in § 2252, we would sweep within the ambit of the statute actors who had no idea that they were even dealing with sexually explicit material. For instance, a retail druggist who returns an uninspected roll of developed film to a customer “knowingly distributes” a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct. Or, a new resident of an apartment might receive mail for the prior resident and store the mail unopened. If the prior tenant had requested delivery of materials covered by §2252, his residential successor could be prosecuted for “knowing receipt” of such materials. Similarly, a Federal Express courier who delivers a box in which the shipper has declared the contents to be “film” “knowingly transports” such film. We do not assume that Congress, in passing laws, intended such results. Public Citi zen v. Department of Justice, 491 U. S. 440, 453-455 (1989); United States v. Turkette, 452 U. S. 576, 580 (1981).

Our reluctance to simply follow the most grammatical reading of the statute is heightened by our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them. The landmark opinion in Morissette v. United States, 342 U. S. 246 (1952), discussed the common-law history of mens rea as applied to the elements of the federal embezzlement statute. That statute read: “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States . . . [s]hall be fined.” 18 U. S. C. §641, cited in Morissette, 342 U. S., at 248, n. 2. Perhaps even more obviously than in the statute presently before us, the word “knowingly” in its isolated position suggested that it only attached to the verb “converts,” and required only that the defendant intentionally assume dominion over the property. But the Court used the background presumption of evil intent to conclude that the term “knowingly” also required that the defendant have knowledge of the facts that made the taking a conversion — i. e., that the property belonged to the United States. Id., at 271. See also United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978) (“[F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement”).

Liparota v. United States, 471 U. S. 419 (1985), posed a challenge to a federal statute prohibiting certain actions with respect to food stamps. The statute’s use of “knowingly” could be read only to modify “uses, transfers, acquires, alters, or possesses” or it could be read also to modify “in any manner not authorized by [the statute].” Noting that neither interpretation posed constitutional problems, id., at 424, n. 6, the Court held the scienter requirement applied to both elements by invoking the background principle set forth in Morissette. In addition, the Court was concerned with the broader reading which would “criminalize a broad range of apparently innocent conduct.” 471 U. S., at 426. Imposing criminal liability on an unwitting food stamp recipient who purchased groceries at a store that inflated its prices to such purchasers struck the Court as beyond the intended reach of the statute.

The same analysis drove the recent conclusion in Staples v. United States, 511 U. S. 600 (1994), that to be criminally liable a defendant must know that his weapon possessed automatic firing capability so as to make it a machinegun as defined by the National Firearms Act. Congress had not expressly imposed any mens rea requirement in the provision criminalizing the possession of a firearm in the absence of proper registration. 26 U. S. C. § 5861(d). The Court first rejected the argument that the statute described a public welfare offense, traditionally excepted from the background principle favoring scienter. Morissette, supra, at 255. The Court then expressed concern with a statutory reading that would criminalize behavior that a defendant believed fell within “a long tradition of widespread lawful gun ownership by private individuals.” Staples, 511 U. S., at 610. The Court also emphasized the harsh penalties attaching to violations of the statute as a “significant consideration in determining whether the statute should be construed as dispensing with mens rea.” Id., at 616.

Applying these principles, we think the Ninth Circuit’s plain language reading of § 2252 is not so plain. First, § 2252 is not a public welfare offense. Persons do not harbor settled expectations that the contents of magazines and film are generally subject to stringent public regulation. In fact, First Amendment constraints presuppose the opposite view. Rather, the statute is more akin to the common-law offenses against the “state, the person, property, or public morals,” Morissette, supra, at 255, that presume a scienter requirement in the absence of express contrary intent. Second, Staples’ concern with harsh penalties looms equally large respecting §2252: Violations are punishable by up to 10 years in prison as well as substantial fines and forfeiture. 18 U. S. C. §§ 2252(b), 2253, 2254. See also Morissette, supra, at 260.

Morissette, reinforced by Staples, instructs that the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct. Staples held that the features of a gun as technically described by the firearm registration Act was such an element. Its holding rested upon “the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in defiling with the regulated items.” Staples, supra, at 619. Age of minority in §2252 indisputably possesses the same status as an elemental fact because nonob-scene, sexually explicit materials involving persons over the age of 17 are protected by the First Amendment. Alexander v. United States, 509 U. S. 544, 549-550 (1993); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 224 (1990); Smith v. California, 361 U. S., at 152. In the light of these decisions, one would reasonably expect to be free from regulation when trafficking in sexually explicit, though not obscene, materials involving adults. Therefore, the age of the performers is the crucial element separating legal innocence from wrongful conduct.

The legislative history of the statute evolved over a period of years, and perhaps for that reason speaks somewhat indistinctly to the question whether “knowingly” in the statute modifies the elements of subsections (1)(A) and (2)(A) — that the visual depiction involves the use of a minor engaging in sexually explicit conduct — or merely the verbs “transport or ship” in subsection (1) and “receive or distribute . . . [or] reproduce” in subsection (2). In 1959, we held in Smith v. California, supra, that a California statute that dispensed with any mens rea requirement as to the contents of an obscene book would violate the First Amendment. Id., at 154. When Congress began dealing with child pornography in 1977, the content of the legislative debates suggest that it was aware of this decision. See, e. g., 123 Cong. Rec. 30935 (1977) (“It is intended that they have knowledge of the type of material. . . proscribed by this bill. The legislative history should be clear on that so as to remove any chance it will lead into constitutional problems”). Even if that were not the case, we do not impute to Congress an intent to pass legislation that is inconsistent with the Constitution as construed by this Court. Yates v. United States, 354 U. S. 298, 319 (1957) (“In [construing the statute] we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked”). When first passed, §2252 punished one who “knowingly transports or ships in interstate or foreign commerce or mails, for the purpose of sale or distribution for sale, any obscene visual or print medium” if it involved the use of a minor engaged in sexually explicit conduct. Pub. L. 95-225, 92 Stat. 7 (emphasis added). Assuming awareness of Smith, at a minimum, “knowingly” was intended to modify “obscene” in the 1978 version.

In 1984, Congress amended the statute to its current form, broadening its application to those sexually explicit materials that, while not obscene as defined by Miller v. California, 413 U. S. 15 (1973), could be restricted without violating the First Amendment as explained by New York v. Ferber, 458 U. S. 747 (1982). When Congress eliminated the adjective “obscene,” all of the elements defining the character and content of the materials at issue were relegated to subsections (1)(a) and (2)(a). In this effort to expand the child pornography statute to its full constitutional limits, Congress nowhere expressed an intent to eliminate the mens rea requirement that had previously attached to the character and content of the material through the word obscene.

The Committee Reports and legislative debate speak more opaquely as to the desire of Congress for a scienter requirement with respect to the age of minority. An early form of the proposed legislation, S. 2011, was rejected principally because it failed to distinguish between obscene and non-obscene materials. S. Rep. No. 95-438, p. 12 (1977). In evaluating the proposal, the Justice Department offered its thoughts:

“[T]he word ‘knowingly’ in the second line of section 2251 is unnecessary and should be stricken. . . . Unless ‘knowingly’ is deleted here, the bill might be subject to an interpretation requiring the Government to prove the defendant’s knowledge of everything that follows ‘knowingly’, including the age of the child. We assume that it is not the intention of the drafters to require the Government to prove that the defendant knew the child was under age sixteen but merely to prove that the child was, in fact, less than age sixteen....
“On the other hand, the use of the word ‘knowingly’ in subsection 2252(a)(1) is appropriate to make it clear that the bill does not apply to common carriers or other innocent transporters who have no knowledge of the nature or character of the material they are transporting. To clarify the situation, the legislative history might reflect that the defendant’s knowledge of the age of the child is not an element of the offense but that the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” Id., at 28-29.

Respondents point to this language as an unambiguous revelation that Congress omitted a scienter requirement. But the bill eventually reported by the Senate Judiciary Committee adopted some, but not all, of the Department’s suggestions; most notably, it restricted the prohibition in § 2251 to obscene materials. Id., at 2. The Committee did not make any clarification with respect to scienter as to the age of minority. In fact, the version reported by the Committee eliminated § 2252 altogether. Ibid. At that juncture, Senator Roth introduced an amendment which would be another precursor of § 2252. In one paragraph, the amendment forbade any person to “knowingly transport [or] ship . . . [any] visual medium depicting a minor engaged in sexually explicit conduct.” 123 Cong. Rec. 33047 (1977). In an exchange during debate, Senator Percy inquired:

“Would this not mean that the distributor or seller must have either, first, actual knowledge that the materials do contain child pornographic depictions or, second, circumstances must be such that he should have had such actual knowledge, and that mere inadvertence or negligence would not alone be enough to render his actions unlawful?” Id., at 33050.

Senator Roth replied:

“That is absolutely correct. This amendment, limited as it is by the phrase ‘knowingly,’ insures that only those sellers and distributors who are consciously and deliberately engaged in the marketing of child pornography ... are subject to prosecution . . ..” Ibid.

The parallel House bill did not contain a comparable provision to § 2252 of the Senate bill, and limited § 2251 prosecutions to obscene materials. The Conference Committee adopted the substance of the Roth amendment in large part, but followed the House version by restricting the proscribed depictions to obscene ones. The new bill did restructure the §2252 provision somewhat, setting off the age of minority requirement in a separate subclause. S. Conf. Rep. No. 95-601, p. 2 (1977). Most importantly, the new bill retained the adverb “knowingly” in § 2252 while simultaneously deleting the word “knowingly” from § 2251(a). The Conference Committee explained the deletion in § 2251(a) as reflecting an “intent that it is not a necessary element of a prosecution that the defendant knew the actual age of the child.” Id., at 5. Respondents point to the appearance of “knowingly” in § 2251(c) and argue that §2252 ought to be read like §2251. But this argument depends on the conclusion that § 2252(c) does not include a knowing requirement, a premise that respondents fail to support. Respondents offer in support of their premise only the legislative history discussing an intent to exclude a scienter requirement from § 2251(a). Because §§ 2251(a) and 2251(c) were passed at different times and contain different wording, the intent to exclude scienter from § 2251(a) does not imply an intent to exclude scienter from § 2251(c).

The legislative history can be summarized by saying that it persuasively indicates that Congress intended that the term “knowingly” apply to the requirement that the depiction be of sexually explicit conduct; it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement extend also to the age of the performers. But, turning once again to the statute itself, if the term “knowingly” applies to the sexually explicit conduct depicted, it is emancipated from merely modifying the verbs in subsections (1) and (2). And as a matter of grammar it is difficult to conclude that the word “knowingly” modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.

A final canon of statutory construction supports the reading that the term “knowingly” applies to both elements. Cases such as Ferber, 458 U. S., at 765 (“As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant”); Smith v. California, 361 U. S. 147 (1959); Hamling v. United States, 418 U. S. 87 (1974); and Osborne v. Ohio, 495 U. S. 103, 115 (1990), suggest that a statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts. It is therefore incumbent upon us to read the statute to eliminate those doubts so long as such a reading is not plainly contrary to the intent of Congress. Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988).

For all of the foregoing reasons, we conclude that the term “knowingly” in §2252 extends both to the sexually explicit nature of the material and to the age of the performers.

As an alternative grounds for upholding the reversal of their convictions, respondents reiterate their constitutional challenge to 18 U. S. C. § 2256. These claims were not encompassed in the question on which this Court granted cer-tiorari, but a prevailing party, without cross-petitioning, is “entitled under our precedents to urge any grounds which would lend support to the judgment below.” Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419 (1977). Respondents argue that § 2256 is unconstitutionally vague and overbroad because it makes the age of majority 18, rather than 16 as did the New York statute upheld in New York v. Ferber, supra, and because Congress replaced the term “lewd” with the term “lascivious” in defining illegal exhibition of the genitals .of children. We regard these claims as insubstantial, and reject them for the reasons stated by the Court of Appeals in its opinion in this case.

Respondents also argued below that their indictment was fatally defective because it did not contain a scienter requirement on the age of minority. The Court of Appeals did not reach this issue because of its determination that §2252 was unconstitutional on its face, and we decline to decide it here.

The judgment of the Court of Appeals is

Reversed.

Justice Stevens,

concurring.

In my opinion, the normal, commonsense reading of a subsection of a criminal statute introduced by the word “knowingly” is to treat that adverb as modifying each of the elements of the offense identified in the remainder of the subsection. Title 18 U. S. C. § 2252(a)(1) (1988 ed. and Supp. V) reads as follows:

“(a) Any person who—
“(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—
“(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
“(B) such visual depiction is of such conduct.” (Emphasis added.)

Surely reading this provision to require proof of scienter for each fact that must be proved is far more reasonable than adding such a requirement to a statutory offense that contains no scienter requirement whatsoever. Cf. Staples v. United States, 511 U. S. 600, 624 (1994) (Stevens, J., dissenting). Indeed, as the Court demonstrates, ante, at 69-70, to give the statute its most grammatically correct reading, and merely require knowledge that a “visual depiction” has been shipped in interstate commerce, would be ridiculous. Accordingly, I join the Court’s opinion without qualification.

Justice Scalia,

with whom Justice Thomas joins,

dissenting.

Today’s opinion is without antecedent. None of the decisions cited as authority support interpreting an explicit statutory scienter requirement in a manner that its language simply will not bear. Staples v. United States, 511 U. S. 600 (1994), discussed ante, at 71, and United States v. United States Gypsum Co., 438 U. S. 422 (1978), discussed ante, at 70, applied the background common-law rule of scienter to a statute that said nothing about the matter. Morissette v. United States, 342 U. S. 246 (1952), discussed ante, at 70, applied that same background rule to a statute that did contain the word “knowingly,” in order to conclude that “knowingly converts” requires knowledge not merely of the fact of one’s assertion of dominion over property, but also knowledge of the fact that that assertion is a conversion, i. e., is wrongful. Liparota v. United States, 471 U. S. 419 (1985), discussed ante, at 70, again involved a statute that did contain the word “ ‘knowingly,’ ” used in such a fashion that it could reasonably and grammatically be thought to apply (1) only to the phrase “ ‘uses, transfers, acquires, alters, or possesses’ ” (which would cause a defendant to be liable without wrongful intent), or ,(2) also to the later phrase “ ‘in any manner not authorized by [the statute].’” Once again applying the background rule of scienter, the latter reasonable and permissible reading was preferred.

There is no way in which any of these cases, or all of them in combination, can be read to stand for the sweeping proposition that “the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct,” ante, at 72, even when the plain text of the statute says otherwise. All those earlier cases employ the presumption as a rule of interpretation which applies when Congress has not addressed the question of criminal intent (Staples and Gypsum), or when the import of what it has said on that subject is ambiguous (Morissette and Liparota). Today’s opinion converts the rule of interpretation into a rule of law, contradicting the plain import of what Congress has specifically prescribed regarding criminal intent.

In United States v. Thomas, 893 F. 2d 1066, 1070 (CA9), cert. denied, 498 U. S. 826 (1990), the Ninth Circuit interpreted 18 U. S. C. § 2252 to require knowledge of neither the fact that the visual depiction portrays sexually explicit conduct, nor the fact that a participant in that conduct was a minor. The panel in the present case accepted that interpretation. See 982 F. 2d 1285, 1289 (CA9 1992). To say, as the Court does, that this interpretation is “the most grammatical reading,” ante, at 70, or “[t]he most natural grammatical reading,” ante, at 68, is understatement to the point of distortion — rather like saying that the ordinarily preferred total for two plus two is four. The Ninth Circuit’s interpretation is in fact and quite obviously the only grammatical reading. If one were to rack his brains for a way to express the thought that the knowledge requirement in subsection (a)(1) applied only to the transportation or shipment of visual depiction in interstate or foreign commerce, and not to the fact that that depiction was produced by use of a minor engaging in sexually explicit conduct, and was a depiction of that conduct, it would be impossible to construct a sentence structure that more clearly conveys that thought, and that thought alone. The word “knowingly” is contained, not merely in a distant phrase, but in an entirely separate clause from the one into which today’s opinion inserts it. The equivalent, in expressing a simpler thought, would be the following: “Anyone who knowingly double-parks will be subject to a $200 fine if that conduct occurs during the 4:30-to-6:30 rush hour.” It could not be clearer that the scienter requirement applies only to the double-parking, and not to the time of day. So also here, it could not be clearer that it applies only to the transportation or shipment of visual depiction in interstate or foreign commerce. There is no doubt. There is no ambiguity. There is no possible “less natural” but nonetheless permissible reading.

I have been willing, in the case of civil statutes, to acknowledge a doctrine of “scrivener’s error” that permits a court to give an unusual (though not unheard-of) meaning to a word which, if given its normal meaning, would produce an absurd and arguably unconstitutional result. See Green v. Bock Laundry Machine Co., 490 U. S. 504, 527 (1989) (ScALIA, J., concurring). Even if I were willing to stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear; and even if I were willing to extend the doctrine to criminal cases in which its application would produce conviction rather than acquittal; it would still have no proper bearing here. For the sine qua non of any “scrivener’s error” doctrine, it seems to me, is that the meaning genuinely intended but inadequately expressed must be absolutely clear; otherwise we might be rewriting the statute rather than correcting a technical mistake. That condition is not met here.

The Court acknowledges that “it is a good deal less clear from the Committee Reports and floor debates that Congress intended that the requirement [of scienter] extend ... to the age of the performers.” Ante, at 77. That is surely so. In fact, it seems to me that the dominant (if not entirely uncon-tradicted) view expressed in the legislative history is that set forth in the statement of the Carter Administration Justice Department which introduced the original bill: “[T]he defendant’s knowledge of the age of the child is not an element of the offense but. . . the bill is not intended to apply to innocent transportation with no knowledge of the nature or character of the material involved.” S. Rep. No. 95-438, p. 29 (1977). As applied to the final bill, this would mean that the scienter requirement applies to the element of the crime that the depiction be of “sexually explicit conduct,” but not to the element that the depiction “involvfe] the use of a minor engaging” in such conduct. See 18 U. S. C. §§ 2252(a)(1)(A) and (a)(2)(A). This is the interpretation that was argued by the United States before the Ninth Circuit. See 982 F. 2d, at 1289.

The Court rejects this construction of the statute for two reasons: First, because “as a matter of grammar it is difficult to conclude that the word ‘knowingly’ modifies one of the elements in subsections (1)(A) and (2)(A), but not the other.” Ante, at 77-78. But as I have described, “as a matter of grammar” it is also difficult (nay, impossible) to conclude that the word “knowingly” modifies both of those elements. It is really quite extraordinary for the Court, fresh from having, as it says, ibid., “emancipated” the adverb from the grammatical restriction that renders it inapplicable to the entire conditional clause, suddenly to insist that the demands of syntax must prevail over legislative intent — thus producing an end result that accords neither with syntax nor with supposed intent. If what the statute says must be ignored, one would think we might settle at least for what the statute was meant to say; but alas, we are told, what the statute says prevents this.

The Court’s second reason is even worse: “[A] statute completely bereft of a scienter requirement as to the age of the performers would raise serious constitutional doubts.” Ante, at 78. In my view (as in the apparent view of the Government before the Court of Appeals) that is not true. The Court derives its “serious constitutional doubts” from the fact that “sexually explicit materials involving persons over the age of 17 are protected by the First Amendment,” ante, at 72. We have made it entirely clear, however, that the First Amendment protection accorded to such materials is not as extensive as that accorded to other speech. “[Tjhere is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance . . . .” Young v. American Mini Theatres, Inc., 427 U. S. 50, 61 (1976). See also id., at 70-71 (“[E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . .”) (opinion of Stevens, J., joined by Burger, C. J., and White and Rehnquist, JJ.). Cf. FCC v. Pacifica Foundation, 438 U. S. 726, 743 (1978) (While some broadcasts of patently offensive references to excretory and sexual organs and activities may be protected, “they surely lie at the periphery of First Amendment concern”). Let us be clear about what sort of pictures are at issue here. They are not the sort that will likely be found in a catalog of the National Gallery or the Metropolitan Museum of Art. “‘[Sjexually explicit conduct,”’ as defined in the statute, does not include mere nudity, but only conduct that consists of “sexual intercourse ... between persons of the same or opposite sex,” “bestiality,” “masturbation,” “sadistic or masochistic abuse,” and “lascivious exhibition of the genitals or pubic area.” See 18 U. S. C. §2256(2). What is involved, in other words, is not the clinical, the artistic, nor even the risqué, but hard-core pornography. Indeed, I think it entirely clear that all of what is involved constitutes not merely pornography but fully proscribable obscenity, except to the extent it is joined with some other material (or perhaps some manner of presentation) that has artistic or other social value. See Miller v. California, 413 U. S. 15, 24 (1973). (Such a requirement cannot be imposed, of course, upon fully protected speech: one can shout “Down with the Republic!,” “Hooray for Mozart!,” or even “Twenty-Three Skidoo!,” whether or not that expression is joined with something else of social value.) And whereas what is on one side of the balance in the present case is this material of minimal First Amendment concern, the Court has described what is on the other side — “prevention of sexual exploitation and abuse of children” — as “a government objective of surpassing importance.” New York v. Ferber, 458 U. S. 747, 757 (1982).

I am not concerned that holding the purveyors and receivers of this material absolutely liable for supporting the exploitation of minors will deter any activity the United States Constitution was designed to protect. But I am concerned that the Court’s suggestion of the unconstitutionality of such absolute liability will cause Congress to leave the world’s children inadequately protected against the depredations of the pornography trade. As we recognized in Ferber, supra, at 766, n. 19, the producers of these materials are not always readily found, and are often located abroad; and knowledge of the performers’ age by the dealers who specialize in child pornography, and by the purchasers who sustain that market, is obviously hard to prove. The First Amendment will lose none of its value to a free society if those who knowingly place themselves in the stream of pornographic commerce are obliged to make sure that they are not subsidizing child abuse. It is no more unconstitutional to make persons who knowingly deal in hard-core pornography criminally liable for the underage character of their entertainers than it is to make men who engage in consensual fornication criminally liable (in statutory rape) for the underage character of their partners.

I would dispose of the present case, as the Ninth Circuit did, by reading the statute as it is written: to provide criminal penalties for the knowing transportation or shipment of a visual depiction in interstate or foreign commerce, and for the knowing receipt or distribution of a visual depiction so transported or shipped, if that depiction was (whether the defendant knew it or not) a portrayal of a minor engaging in sexually explicit conduct. I would find the statute, as so interpreted, to be unconstitutional since, by imposing criminal liability upon those not knowingly dealing in pornography, it establishes a severe deterrent, not narrowly tailored to its purposes, upon fully protected First Amendment activities. See Smith v. California, 361 U. S. 147, 153-154 (1959). This conclusion of unconstitutionality is of course no ground for going back to reinterpret the statute, making it say something that it does not say, but that is constitutional. Not every construction, but only “ ‘every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (quoting Hooper v. California, 155 U. S. 648, 657 (1895)) (emphasis added). “ ‘ “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute . . .” or judicially rewriting it.’” Commodity Futures Trading Comm’n v. Schor, 478 U. S. 833, 841 (1986) (quoting Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964)). Otherwise, there would be no such thing as an unconstitutional statute. As I have earlier discussed, in the present case no reasonable alternative construction exists, neither any that can be coaxed from the text nor any that can be substituted for the text on “scrivener’s error” grounds. I therefore agree with the Ninth Circuit that respondents’ conviction cannot stand.

I could understand (though I would not approve of) a disposition which, in order to uphold this statute, departed from its text as little as possible in order to sustain its constitutionality — i e., a disposition applying the scienter requirement to the pornographic nature of the materials, but not to the age of the performers. I can neither understand nor approve of the disposition urged by the United States before this Court and adopted today, which not only rewrites the statute, but (1) rewrites it more radically than its constitutional survival demands, and (2) raises baseless constitutional doubts that will impede congressional enactment of a law providing greater protection for the child-victims of the pornography industry. The Court today saves a single conviction by putting in place a relatively toothless child-pornography law that Congress did not enact, and by rendering congressional strengthening of that new law more difficult. I respectfully dissent.

       The indictment also charged six counts of violating federal obscenity statutes and two racketeering counts involving the same. Respondents were acquitted of these charges.

         Morissette’s treatment of the common-law presumption of mens rea recognized that the presumption expressly excepted “sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.” 342 U. S., at 251, n. 8. But as in the criminalization of pornography production at 18 U. S. C. §2251, see infra, at 76, n. 5, the perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age. The opportunity for reasonable mistake as to age increases significantly once the victim is reduced to a visual depiction, unavailable for questioning by the distributor or receiver. Thus we do not think the common-law treatment of sex offenses militates against our construction of the present statute.

       In this regard, age of minority is not a “jurisdictional fact” that enhances an offense otherwise committed with an evil intent. See, e. g., United States v. Feola, 420 U. S. 671 (1975). There, the Court did not require knowledge of “jurisdictional facts” — that the target of an assault was a federal officer. Criminal intent serves to separate those who understand the wrongful nature of their act from those who do not, but does not require knowledge of the precise consequences that may flow from that act once aware that the act is wrongful. Id., at 685. Cf. Hamling v. United States, 418 U. S. 87, 120 (1974) (knowledge that the materials at issue are legally obscene not required).

       The Miller test for obscenity asks whether the work, taken as a whole, “appeals to the prurient interest,” “depicts or describes [sexual conduct] in a patently offensive way,” and “lacks serious literary, artistic, political, or scientific value.” Miller, 413 U. S., at 24.

       The difference in congressional intent with respect to §2251 versus §2252 reflects the reality that producers are more conveniently able to ascertain the age of performers. It thus makes sense to impose the risk of error on producers. United States v. United States District Court for Central District of California, 858 F. 2d 534, 543, n. 6 (CA9 1988). Although producers may be convicted under § 2251(a) without proof they had knowledge of age, Congress has independently required both primary and secondary producers to record the ages of performers with independent penalties for failure to comply. 18 U. S. C. §§ 2257(a) and (i) (1988 ed. and Supp. V); American Library Assn. v. Reno, 33 F. 3d 78 (CADC 1994).

       Congress amended §2251 to insert subsection (c) in 1986. Pub. L. 99-628, 100 Stat. 3510. That provision created new offenses relating to the advertising of the availability of child pornography or soliciting children to participate in such depictions. The legislative history of § 2251(c) does address the scienter requirement: “The government must prove that the defendant knew the character of the visual depictions as depicting a minor engaging in sexually explicit conduct, but need not prove that the defendant actually knew the person depicted was in fact under 18 years of age or that the depictions violated Federal law.” H. R. Rep. No. 99-910, p. 6 (1986). It may be argued that since the House Committee Report rejects any requirement of scienter as to the age of minority for § 2251(c), the House Committee thought that there was no such requirement in § 2252. But the views of one Congress as to the meaning of an Act passed by an earlier Congress are not ordinarily of great weight, United States v. Clark, 445 U. S. 23, 33, n. 9 (1980), citing United States v. Southwestern Cable Co., 392 U. S. 157, 170 (1968), and the views of the committee of one House of another Congress are of even less weight, Pierce v. Underwood, 487 U. S. 552, 566 (1988).

      The case did not involve,- as the Court claims, a situation in which, “even more obviously than in the statute presently before us, the word ‘knowingly’ in its isolated position suggested that it only attached to the verb ‘converts,’ ” ante, at 70, and we nonetheless applied it as well to another word. The issue was simply the meaning of “knowingly converts.”


author:
      Chief Justice Rehnquist
      Justice Stevens,

text:
    FEDERAL ELECTION COMMISSION v. NRA POLITICAL VICTORY FUND et al.
    No. 93-1151.
    Argued October 11, 1994
    Decided December 6, 1994

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nok, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 100. Ginsburg, J., took no part in the consideration or decision of the case.

      Lawrence M. Noble argued the cause for petitioner. With him on the briefs were Richard B. Bader and Vivien Clair.

      Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Days, Assistant Attorneys General Dellinger and Hunger, Malcolm L. Stewart, and Douglas N. Letter.

      Charles J. Cooper argued the cause for respondents. With him on the brief were Michael A. Carvin and William L. McGrath.

   Chief Justice Rehnquist

delivered the opinion of the Court.

We granted certiorari in this case to review a judgment of the Court of Appeals for the District of Columbia Circuit holding that the congressionally mandated composition of petitioner Federal Election Commission (FEC), including as it did representatives of the Senate and House as nonvoting members, violated the separation-of-powers principle embodied in the Constitution. 512 U. S. 1218 (1994). We do not reach the merits of the question, however, because we conclude that the FEC is not authorized to petition for cer-tiorari in this Court on its own, and that the effort of the Solicitor General to authorize the FEC’s petition after the time for filing it had expired did not breathe life into it.

The Court of Appeals entered judgment in this case on October 22, 1998. 6 F. 3d 821. The FEC, in its own name, filed a petition for a writ of certiorari on January 18, 1994. The FEC neither sought nor obtained the authorization of the Solicitor General before filing its petition. By order dated March 21, 1994, 510 U. S. 1190, we invited the United States to file a brief addressing the question “[wjhether the [FEC] has statutory authority to represent itself in this case in this Court.” The United States filed a brief on May 27, 1994, contending that the FEC lacks such statutory authority. The United States stated, however, that pursuant to 28 U. S. C. § 518(a) and its implementing regulation, the Solicitor General had authorized the FEC’s petition by letter dated May 26,1994. See Brief for United States as Amicus Curiae 13. The FEC filed a brief in response on May 31, 1994, asserting that it has independent statutory authority to represent itself before this Court in this case.

A petition for certiorari in a civil case must be filed within 90 days of the entry of the judgment below. 28 U. S. C. § 2101(c). This “90-day limit is mandatory and jurisdictional.” Missouri v. Jenkins, 495 U. S. 33, 45 (1990). Here, the Court of Appeals entered judgment on October 22, 1993, and the FEC filed its petition for certiorari on January 18, 1994, two days before the 90-day time period expired. The FEC’s petition would appear to be timely. However, if the FEC lacks statutory authority to represent itself in this case before this Court, it cannot independently file a petition for certiorari, but must receive the Solicitor General’s authorization. See 28 CFR § 0.20(a) (1994). The question then becomes whether the Solicitor General’s May 26, 1994, letter authorizing the FEC’s petition relates back to the date of the FEC’s unauthorized filing so as to make it timely. We first examine the scope of the FEC’s independent litigating authority.

The FEC is an independent agency established by Congress to “administer, seek to obtain compliance with, and formulate policy” with respect to the Federal Election Campaign Act of 1971 (FECA) and chapters 95 and 96 of Title 26. 86 Stat. 3, as amended, 2 U. S. C. § 437c(b)(l). The FECA governs various aspects of all federal elections, see 2 U. S. C. §431 et seq., whereas chapters 95 and 96 specifically govern the administration of funds for Presidential election campaigns and the payment of matching funds for Presidential primary campaigns, see 26 U. S. C. § 9001 et seq. (Presidential Election Campaign Fund Act), 26 U. S. C. § 9031 et seq. (Presidential Primary Matching Payment Account Act). The FEC has “exclusive jurisdiction with respect to the civil enforcement of such provisions.” 2 U. S. C. §437c(b)(l); see Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 485, 489 (1985).

Two separate statutory provisions provide the FEC with independent litigating authority. The first provision, 2 U. S. C. § 437d(a)(6), applies to actions under both the FECA and chapters 95 and 96 of Title 26. It gives the FEC power “to initiate . . . , defend ... or appeal any civil action ... to enforce the provisions of [the FECA] and chapter 95 and chapter 96 of title 26, through its general counsel.” The second provision, which is contained in 26 U. S. C. §§ 9010(d) and 9040(d), applies only to actions under chapters 95 and 96 of Title 26. It authorizes the FEC “on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.”

The FEC brought this civil enforcement action seeking to establish a violation of 2 U. S. C. § 441b(a), a provision of the FECA. As noted above, 2 U. S. C. § 437d(a)(6) authorizes the FEC to “initiate” and “appeal” an FECA enforcement action such as the present one. Thus, no dispute exists as to the FEC’s authority to litigate this case in the District Court or the Court of Appeals; the question here concerns only the FEC’s independent litigating authority before this Court when it proceeds under § 437d(a)(6).

Title 28 U. S. C. § 518(a) provides in pertinent part:

“Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court... in which the United States is interested.”

By regulation, the Attorney General has delegated authority to the Solicitor General:

“The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official concerned:
“(a) Conducting, or assigning and supervising, all Supreme Court cases, including appeals, petitions for and in opposition to certiorari, briefs and arguments, and ... settlement thereof.” 28 CFR §0.20 (1994).

Thus, if a case is one “in which the United States is interested,” § 518(a), “it must be conducted and argued in this Court by the Solicitor General or his designee.” United States v. Providence Journal Co., 485 U. S. 693, 700 (1988); cf. United States v. Winston, 170 U. S. 522, 524-525 (1898); Confiscation Cases, 7 Wall. 454, 458 (1869).

It is undisputed that this is a case “in which the United States is interested.” 28 U. S. C. § 518(a). We have recognized, however, that Congress may “exempt litigation from the otherwise blanket coverage of [§ 518(a)].” Providence Journal, 485 U. S., at 705, n. 9. According to the FEC, one such exemption is found in 2 U. S. C. § 437d(a)(6). Bearing in mind the Solicitor General’s traditional role in conducting and controlling all Supreme Court litigation on behalf of the United States and its agencies — a role that is critical to the proper management of Government litigation brought before this Court, see id., at 702, n. 7, 706; id., at 709, 713-714 (Stevens, J., dissenting) — we “must... scrutinizfe] and subject] [§ 437d(a)(6)] to the ordinary tools of statutory construction to determine whether Congress intended to supersede § 518(a).” Id., at 705, n. 9.

Title 2 U. S. C. § 437d(a)(6) gives the FEC power “to initiate ... , defend ... or appeal any civil action ... to enforce the provisions of [the FECA] and chapter 95 and chapter 96 of title 26.” The statute clearly authorizes the FEC to “appeal,” but it omits any mention of authority to file a “petition for a writ of certiorari” or otherwise conduct litigation before the Supreme Court. The FEC argues that the term “appeal” is not defined in the FECA, and that in the absence of such a definition in the statute the term is construed “in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U. S. 471, 476 (1994). It then refers to the definition of “appeal” found in Black’s Law Dictionary 96 (6th ed. 1990), which includes, inter alia, the following:

“There are two stages of appeal in the federal and many state court systems; to wit, appeal from trial court to intermediate appellate court and then to Supreme Court.”

This argument might carry considerable weight if it were not for the cognate provision authorizing the FEC to enforce chapters 95 and 96 of Title 26. There, Congress has explicitly provided that “[t]he [FEC] is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review,” judgments or decrees. 26 U. S. C. §§ 9010(d), 9040(d) (emphasis added). It is difficult, if not impossible, to place these sections alongside one another without concluding that Congress intended to restrict the FEC’s independent litigating authority in this Court to actions enforcing the provisions of the Presidential election funds under chapters 95 and 96 of Title 26. Such a differentiation by Congress would be quite understandable, since Presidential influence through the Solicitor General might be thought more likely in cases involving Presidential election fund controversies than in other litigation in which the FEC is involved.

The FEC argues that 26 U. S. C. §§ 9010(d) and 9040(d) shed no light on the issue whether 2 U. S. C. § 437d(a)(6) gives it independent litigating authority before this Court because the provisions are found in different statutes, were drafted by different Congresses in different years, and were originally written to apply to different agencies of the Government. Brief for Petitioner in Response to Solicitor General 21. The FEC is only partially correct. Section 9010(d) was first enacted in 1971, and at that time it applied to the Comptroller General. See Presidential Election Campaign Fund Act, Pub. L. 92-178, 85 Stat. 497, 569-570. The Federal Election Campaign Act Amendments of 1974 established the FEC, see Pub. L. 93-443,88 Stat. 1263,1280, and enacted §437d(a)(6). See id., at 1282-1283. The 1974 statute transferred to the FEC the functions previously performed by the Comptroller General under 26 U. S. C. § 9010, see id., at 1293, but it also added § 9040 to Title 26. See id., at 1302. Thus, § 9040(d) was originally enacted in 1974 as part of the same legislation that created §437d(a)(6). Each of the two sections, with its contrasting language as to litigating authority, was before the Conference Committee whose report was ultimately adopted by both Houses. H. R. Conf. Rep. No. 93-1438, pp. 967, 989 (1974). Section 9040(d) may have been modeled on § 9010(d), but because both §§ 9040(d) and 437d(a)(6) were designed to deal with the FEC’s authority to represent itself in civil enforcement actions, we find the contrasting language to be particularly telling. See United States v. American Building Maintenance Industries, 422 U. S. 271, 277 (1975); cf. Keene Corp. v. United States, 508 U. S. 200, 208 (1993) (“Where Congress includes particular language in one section of a statute but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”) (internal quotation marks and citation omitted).

We recognize sound policy reasons may exist for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA. Congress’ decision to create the FEC as an independent agency and to charge it with the civil enforcement of the FECA was undoubtedly influenced by Congress’ belief that the Justice Department, headed by a Presidential appointee, might choose to ignore infractions committed by members of the President’s own political party. See, e. g., Federal Election Reform, 1973: Hearings before the Subcommittee on Priveleges [sic] and Elections and the Senate Committee on Rules and Administration, 93d Cong., 1st Sess., 17, 177, 186 (1973); Federal Election Campaign Act of 1973: Hearings before the Subcommittee on Communications of the Senate Committee on Commerce, 93d Cong., 1st Sess., 70-71 (1973). The fact that Congress had these policies in mind when giving the FEC independent enforcement powers, however, does not demonstrate that it intended to alter the Solicitor General’s statutory prerogative to conduct and argue the Federal Government’s litigation in the Supreme Court. See 28 U. S. C. § 518(a).

That statutory authority, too, represents a policy choice by Congress to vest the conduct of litigation before this Court in the Attorney General, an authority which has by rule and tradition been delegated to the Solicitor General. See 28 CFR § 0.20(a) (1994). This Court, of course, is well served by such a practice, because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with respect to the granting or denying of petitions for certiorari. But the practice also serves the Government well; an individual Government agency necessarily has a more parochial view of the interest of the Government in litigation than does the Solicitor General’s office, with its broader view of litigation in which the Government is involved throughout the state and federal court systems. Whether review of a decision adverse to the Government in a court of appeals should be sought depends on a number of factors which do not lend themselves to easy categorization. The Government as a whole is apt to fare better if these decisions are concentrated in a single official. See Providence Journal, 485 U. S., at 706.

Congress could obviously choose, if it sought to do so, to sacrifice the policy favoring concentration of litigating authority before this Court in the Solicitor General in favor of allowing the FEC to petition here on its own. See 26 U. S. C. §§ 9010(d), 9040(d). But we do not think that §437d(a)(6) bespeaks such a choice. Nor are we impressed by the FEC’s argument that it has represented itself before this Court on several occasions in the past without any question having been raised regarding its authority to do so under § 437d(a)(6). See, e. g., Federal Election Comm’n v. Massachusetts Citizens for Life, Inc., 479 U. S. 238 (1986) (finding 2 U. S. C. § 441b unconstitutional as applied); Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197 (1982) (involving interpretation of 2 U. S. C. §441b(b)(4)(C)); Bread Political Action Comm. v. Federal Election Comm’n, 455 U. S. 577 (1982) (involving application of 2 U. S. C. § 437h(a)); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27 (1981) (involving application of 2 U. S. C. §441a(d)(3)); California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182 (1981) (upholding constitutionality of certain campaign expenditure limitations imposed by 2 U. S. C. §431 et seq.). The jurisdiction of this Court was challenged in none of these actions, and therefore the question is an open one before us. See, e. g., Will v. Michigan Dept. of State Police, 491 U. S. 58, 63, n. 4 (1989) (“[T]his Court has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional issue before us”) (citation and internal quotation marks omitted); United States v. L. A. Tucker Truck Lines, Inc., 344 U. S. 33, 38 (1952) (same). And we do not think that the provisions discussed above, authorizing the FEC to litigate in the federal courts, are the sort of provisions that can be said to be within the province of the agency to interpret. Federal Election Comm’n v. Democratic Senatorial Campaign Comm., supra, at 37, relied upon by the FEC, dealt with the FEC’s interpretation of a substantive provision of the FECA, not with the provisions authorizing independent litigation.

Because the FEC lacks statutory authority to litigate this case in this Court, it necessarily follows that the FEC cannot independently file a petition for certiorari, but must receive the Solicitor General’s authorization. See 28 CFR § 0.20(a) (1994). By letter dated May 26, 1994, the Solicitor General authorized the petition filed by the FEC. The Solicitor General’s authorization, however, did not come until more than 120 days after the deadline for filing a petition had passed. See 28 U. S. C. § 2101(c). We must determine whether this “after-the-fact” authorization relates back to the date of the FEC’s unauthorized filing so as to make it timely. We conclude that it does not.

The question is at least presumptively governed by principles of agency law, and in particular the doctrine of ratification. “If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the other unless made before such time.” Restatement (Second) of Agency §90 (1958); see also id., Comment a (“The bringing of an action, or of an appeal, by a purported agent can not be ratified after the cause of action or right to appeal has been terminated by lapse of time”). Though in a different context, we have recognized the rationale behind this rule: “The intervening rights of third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the act was done, but also at the time the ratification was made.” Cook v. Tullis, 18 Wall. 332, 338 (1874) (emphasis added). Here, the Solicitor General attempted to ratify the FEC’s filing on May 26, 1994, but he could not himself have filed a petition for certiorari on that date because the 90-day time period for filing a petition had expired on January 20,1994. His authorization simply came too late in the day to be effective. See, e. g., Nasewaupee v. Sturgeon Bay, 77 Wis. 2d 110, 116-119, 251 N. W. 2d 845, 848-849 (1977) (refusing to uphold town board’s ratification of private attorney’s unauthorized commencement of lawsuit where ratification came after the statute of limitations had run); Wagner v. Globe, 150 Ariz. 82, 87, 722 P. 2d 250, 255 (1986) (holding invalid city council’s attempt to ratify police chief’s dismissal of police officer after police officer commenced a wrongful discharge action). But see Trenton v. Fowler-Thorne Co., 57 N. J. Super. 196, 154 A. 2d 369 (1959) (upholding city’s ratification of unauthorized lawsuit filed on its behalf even though ratification occurred after limitations period had expired).

The application of these principles of agency law here produces a result entirely consistent with, and perhaps required by, 28 U. S. C. § 2101(c), the statute governing the time for filing petitions for certiorari. “We have no authority to extend the period for filing except as Congress permits.” Jenkins, 495 U. S., at 45. If the Solicitor General were allowed to retroactively authorize otherwise unauthorized agency petitions after the deadline had expired, he would have the unilateral power to extend the 90-day statutory period for filing certiorari petitions by days, weeks, or, as in this case, even months. Such a practice would result in the blurring of the jurisdictional deadline. But “[t]he time of appealability, having jurisdictional consequences, should above all be clear.” Budinich v. Becton Dickinson & Co., 486 U. S. 196, 202 (1988).

We hold that the FEC may not independently file a petition for certiorari in this Court under 2 U. S. C. § 437d(a)(6), and that the Solicitor General’s “after-the-fact” authorization does not relate back to the date of the FEC’s unauthorized filing so as to make it timely. We therefore dismiss the petition for certiorari for want of jurisdiction.

It is so ordered.

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

Justice Stevens,

dissenting.

The Federal Election Commission (FEC) “is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the [Federal Election Campaign] Act.” Federal Election Comm’n v. National Right to Work Comm., 459 U. S. 197, 198, n. 2 (1982). Both the plain language of the governing statute, § 811(a)(6), 88 Stat. 1282, as amended, 2 U. S. C. §437d(a)(6), and the unfortunate chapter in our history that gave rise to the creation of the FEC, demonstrate that the FEC’s exclusive jurisdiction includes the authority to litigate in this Court without the prior approval of the Solicitor General.

Section 437d(a)(6) expressly provides that the FEC has the power “to initiate . . . , defend ... or appeal any civil action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of title 26, through its general counsel.” It is undisputed that when the statute was enacted, the FEC had the authority to invoke our mandatory jurisdiction by filing an appeal under § 437h of the Federal Election Campaign Act of 1971. Although the term “appeal” may be construed literally to encompass only mandatory review, a far more natural reading of the term as it is used in § 437d(a)(6) would embrace all appellate litigation whether prosecuted by writ of certiorari, writ of mandamus, or notice of appeal. Indeed, 28 U. S. C. § 518(a) (1988 ed., Supp. V), the statute that gives the Attorney General authority to conduct litigation in this Court, refers simply to “suits and appeals.” Because the term “suits” apparently refers to our original jurisdiction, it appears that the term “appeals” is intended to refer to a broad range of appellate litigation, including both mandatory appeals and petitions for certiorari.

The ambiguity in the word “appeal” is apparent even in §§ 9010(d) and 9040(d), the sections on which the majority relies to cabin the authority granted in §437d(a)(6). In those sections, Congress uses the word “appeal” to describe two different categories of appellate litigation. In the text of those sections, “appeal” is used in contradistinction to “writ of certiorari” to indicate mandatory appeals. But Congress also uses “appeal” as the title to both §§ 9010(d) and 9040(d). See n. 4, infra. As thus used, “appeal” describes an entire category of appellate litigation that includes mandatory appeals and writs of certiorari. I see no reason for assuming that “appeal” in §437d(a)(6) was intended to incorporate the narrow, rather than the broad, understanding of “appeal.”

The historical context in which Congress adopted §437d(a)(6) demonstrates that the interpretation that the Court adopts today is unfaithful to the intent of Congress. Section 437d(a)(6) was passed as part of the Federal Election Campaign Act Amendments of 1974 (FECA). The 1974 amendments represented a response by Congress to perceived abuses arising out of the 1972 Presidential election campaign and culminating in the resignation of President Nixon. Indeed, the legislative history reveals Congress’ belief that “[p]robably the most significant reform that could emerge from the Watergate scandal is the creation of an independent nonpartisan agency to supervise the enforcement of the laws relating to the conduct of elections.”

One of the most dramatic events of the entire Watergate scandal was the firing of special prosecutor Archibald Cox in October 1973. When Cox threatened to secure a judicial determination that the President was violating a court order to deliver certain Presidential tapes, President Nixon ordered the Attorney General to fire Cox. Both the Attorney General and the Deputy Attorney General refused, and instead resigned. The President’s order to fire Cox was then carried out by the Solicitor General, in his capacity as Acting Attorney General. See generally In re Olson, 818 F. 2d 34, 41-42 (CADC 1987) (per curiam). This incident, which came to be known as the “Saturday Night Massacre,” sparked tremendous public outrage, of which Congress was surely aware. Against this background, Congress would not have been likely, less than one year later, to have made the FEC dependent for its Supreme Court litigation on the approval of the Solicitor General.

In short, the legislative history of the 1974 amendments shows that Congress intended the FEC to have ample authority to oversee Presidential campaigns free of Executive influence. The FEC’s authority to conduct civil litigation, including appellate litigation, must be construed in the light of Congress’ intent.

Given the language and historical context of §437d(a)(6), it is unsurprising that the FEC has had a long and uninterrupted history of independent litigation before this Court. Though, as the majority notes, ante, at 97, that history does not preclude us from reexamining the FEC’s authority, the contemporaneous practice of independent litigation, uninterrupted in subsequent years, provides confirmation of Congress’ original intent. See BankAmerica Corp. v. United States, 462 U. S. 122, 131 (1983). Moreover, during the administrations of Presidents Ford, Carter, Reagan, and Bush, the Attorneys General and Solicitors General of the United States did not object to the FEC’s exercise of authority to litigate in this Court without the prior approval of the Solicitor General. As this Court has noted:

“‘[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.’” Ibid., quoting FTC v. Bunte Brothers, Inc., 312 U. S. 349, 352 (1941).

See also FPC v. Panhandle Eastern Pipe Line Co., 337 U. S. 498, 513 (1949) (“Failure to use such an important power for [over 10 years] indicates to us that the Commission did not believe the power existed”).

In rejecting the result dictated by language, history, and longstanding practice, the majority relies primarily on the differences between §437d(a)(6) and 26 U. S. C. §§ 9010(d), 9040(d). The relevant language in § 9010, which originally conferred additional and unusual responsibilities on the Comptroller General of the United States, was enacted in 1971 as part of the Presidential Election Campaign Fund Act (Fund Act), which authorized public funding of Presidential campaigns. As the majority notes, ante, at 95, § 9040(d) was enacted at the same time as § 437d(a)(6), in 1974. The majority suggests that the differences between §§ 9040(d) and 437d(a)(6) reveal Congress’ intent to give the FEC a more limited litigation authority under the latter statute.

The differences between §§437d(a)(6) and 9040(d) cannot support the weight that the majority wishes them to bear. The striking similarity between §§9010 and 9040 suggests that when Congress enacted §9040, it did little more than copy the provisions of § 9010. No evidence whatsoever suggests that Congress considered the significance of the wording of those sections when it created §437d(a)(6). The fact that the FEC’s authority to file petitions for certiorari is expressed more explicitly in §§ 9010(d) and 9040(d) of Title 26 than in § 437d(a)(6) of Title 2 is thus not a sufficient reason for failing to give the latter provision its ordinary and well-accepted interpretation.

Furthermore, the majority’s reading of the statutes rests on the anomalous premise that Congress decided to give the FEC authority to litigate Fund Act cases in this Court while denying it similar authority in connection with its broader regulatory responsibilities under the FEC A. The majority explains this anomaly by hypothesizing that “Presidential influence through the Solicitor General might be thought more likely in cases involving Presidential election fund controversies than in other litigation in which the FEC is involved.” Ante, at 94. This hypothesis is untenable. Indeed, the Court has previously noted:

“[B]oth the Fund Act and FECA play a part in regulating Presidential campaigns. The Fund Act comes into play only if a candidate chooses to accept public funding of his general election campaign, and it covers only the period between the nominating convention and 30 days after the general election. In contrast, FECA applies to all Presidential campaigns, as well as other federal elections, regardless of whether publicly or privately funded.” Federal Election Comm’n v. National Conservative Political Action Comm., 470 U. S. 480, 491 (1985).

Finally, though admittedly important, the 1971 Act was a relatively undramatic piece of legislation, enacted before Watergate seized the national (and congressional) attention. The notion that Congress was motivated by a concern about improper Presidential influence in 1971 when it enacted the Fund Act, but ignored such concerns in 1974 when it enacted FECA, is simply belied by “a page of history.” See New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (Holmes, J.).

During two decades of FEC litigation we have repeatedly recognized that the FEC’s express statutory authority to initiate, defend, or “appeal any civil action” to enforce FECA “through its general counsel” encompasses discretionary appellate review as well as the now almost extinct mandatory appellate review in this Court. Because I remain persuaded that this settled practice was faithful to both the plain language and the underlying purpose of §437d(a)(6), I respectfully dissent.

       Under 28 U. S. C. §§ 516 and 519, the conduct of litigation on behalf of the United States and its agencies is subject to control of the Attorney General “[ejxcept as otherwise authorized by law.” The FEC’s “initiation” and “appeal” of this action fall within this “otherwise authorized by law” exception.

       The dissent says it is incongruous “to assume that Congress wanted the FEC to have independent authority to invoke our mandatory [appellate] jurisdiction when proceeding under § 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.” Post, at 100, n. 1. But Congress could have thought the Solicitor General would better represent the FEC’s interests in cases involving our discretionary jurisdiction “because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with respect to the granting or denying of petitions for certiorari.” Infra, at 96.

       Under the original statutory scheme, certain constitutional challenges were to be certified to a court of appeals sitting en banc, with “appeal directly to the Supreme Court.” 2 U. S. C. §437h (1976 ed. and Supp. III). See generally California Medical Assn. v. Federal Election Comm’n, 453 U. S. 182, 188-189 (1981). Thus, even under the majority’s interpretation of the word “appeal,” the FEC would have had independent litigating authority, at least when proceeding under §437h. It is incongruous, to say the least, to assume that Congress wanted the FEC to have independent authority to invoke our mandatory jurisdiction when proceeding under §437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.

       See Final Report of the Select Committee on Presidential Campaign Activities, S. Rep. No. 93-981, 93d Cong., 2d Sess., 564 (1974).

       The FEC has represented itself in cases resulting in decisions, on the merits, see ante, at 97, and as amicus curiae, see, e. g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978); Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Cf. R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 68, n. 56 (7th ed. 1993) (noting FEC’s authority to litigate on its own behalf pursuant to § 437d(a)(6)).

       Sections 9010(d) and 9040(d) are identical. They read:
      “(d) Appeal. The Commission is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section.”

       The 1974 amendment transferred those responsibilities to the FEC.

       As noted at n. 4, swpra, §§ 9010(d) and 9040(d) are identical. The other provisions of those statutes, though not identical, are substantially similar. Compare, e. g., § 9010(b) (“The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary of the Treasury as a result of examination, and audit made pursuant to section 9007”) with § 9040(b) (“The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of an examination and audit made pursuant to section 9038”).

       As an aside, I note that the majority’s strict reading of §§ 9010(d) and 9040(d) creates its own oddities. For example, it seems to me that an open question under the Court’s narrow reading of the statutes is whether the FEC has the right to file briefs in opposition to the certiorari petitions filed by its adversaries. Compare § 9010(d) (granting the FEC authority to “petition the Supreme Court for certiorari to review”) with 28 CFR § 0.20 (1994) (delegating to the Solicitor General authority to file “petitions for and in opposition to certiorari”) (emphasis added).


author: Justice O’Connor

text:
    REICH v. COLLINS, REVENUE COMMISSIONER OF GEORGIA, et al.
    No. 93-908.
    Argued October 11, 1994
    Decided December 6, 1994

      O’Connor, J., delivered the opinion for a unanimous Court.

      Carlton M. Henson argued the cause and filed briefs for petitioner.

      Warren R. Calvert, Senior Assistant Attorney General of Georgia, argued the cause for respondents. With him on the briefs were Michael J. Bowers, Attorney General, and Daniel M. Formby, Senior Assistant Attorney General.

       Briefs of amici curiae urging reversal were filed for the Committee on State Taxation by Kendall L. Houghton and William D. Peltz; for James B. Beam Distilling Co. by Morton Siegel and John L. Taylor, Jr.; for the National Association of Retired Federal Employees et al. by Michael J. Kator; and for the Tax Executives Institute, Inc., by Timothy J. McCormally and Mary L. Fahey.

      Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by James S. Gilmore III, Attorney General of Virginia, David E. Anderson, Chief Deputy Attorney General, Catherine C. Hammond, Deputy Attorney General, Roger L. Chaffe and Gregory E. Lucyk, Senior Assistant Attorneys General, and Cynthia W. Comer and Barbara H. Vann, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: James H. Evans of Alabama, Grant Woods of Arizona, Robert Butterworth of Florida, Robert A. Marks of Hawaii, Roland W. Burris of Illinois, Pamela Carter of Indiana, Bonnie J. Campbell of Iowa, Robert T. Stephan of Kansas, Richard P. Ieyoub of Louisiana, Hubert H. Humphrey III of Minnesota, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazwrek of Montana, Jeffrey R. Howard of New Hampshire, Deborah T. Poritz of New Jersey, Heidi Heitkamp of North Dakota, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Charles W. Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, Christine O. Grego-ire of Washington, and James E. Doyle of Wisconsin; and for the National Governors’ Association et al. by Richard Ruda and Charles Rothfeld.

        Michael F. Easley, Attorney General, Edwin M. Speas, Jr., Senior Deputy Attorney General, Thomas F. Moffitt and Norma S. Harrell, Special Deputy Attorneys General, and Marilyn R. Mudge, Assistant Attorney General, filed a brief for the State of North Carolina as amicus curiae.

   Justice O’Connor

delivered the opinion of the Court.

In a long line of cases, this Court has established that due process requires a “clear and certain” remedy for taxes collected in violation of federal law. Atchison, T. & S. F. R. Co. v. O’Connor, 223 U. S. 280, 285 (1912) (Holmes, J.). A State has the flexibility to provide that remedy before the disputed taxes are paid (predeprivation), after they are paid (postdeprivation), or both. But what it may not do, and what Georgia did here, is hold out what plainly appears to be a “clear and certain” postdeprivation remedy and then declare, only after the disputed taxes have been paid, that no such remedy exists.

I

For many years, numerous States, including Georgia, exempted from state personal income tax retirement benefits paid by the State, but not retirement benefits paid by the Federal Government (or any other employer). In March 1989, this Court held that such a tax scheme violates the constitutional intergovernmental tax immunity doctrine, which dates back to McCulloch v. Maryland, 4 Wheat. 316 (1819), and has been generally codified at 4 U. S. C. § 111. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989).

In the aftermath of Davis, most of these States, Georgia included, repealed their special tax exemptions for state retirees, but few offered federal retirees any refunds for the unconstitutional taxes they had paid in the years before Davis was decided. Not surprisingly, a great deal of litigation ensued in an effort to force States to provide refunds. The instant suit is part of that litigation.

In April 1990, Reich, a retired federal military officer, sued Georgia in Georgia state court, seeking a refund for the tax years 1980 and after. The principal legal basis for Reich’s lawsuit was Georgia’s tax refund statute, which provides: “A taxpayer shall be refunded any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from him under the laws of this state, whether paid voluntarily or involuntarily . . . Ga. Code Ann. §48-2-35(a) (Supp. 1994).

The Georgia trial court first decided that, because of § 48-2-35’s statute of limitations, Reich’s refund request was limited to the tax years 1985 and after. Even as to these later tax years, however, the trial court refused to grant a refund, and the Georgia Supreme Court affirmed. See Reich v. Collins, 262 Ga. 625, 422 S. E. 2d 846 (1992) (Reich I). The Georgia high court explained that it was construing the refund statute not to apply to “the situation where the law under which the taxes are assessed and collected is itself subsequently declared to be unconstitutional or otherwise invalid.” Id., at 628-629, 422 S. E. 2d, at 849.

Reich then petitioned the Georgia Supreme Court for reconsideration of its decision on the grounds that even if the Georgia tax refund statute does not require a refund, federal due process does — due process, that is, as interpreted by McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18 (1990), and the long line of cases upon which McKesson depends. See id., at 32-36, citing Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239 (1931); Montana Nat. Bank of Billings v. Yellowstone County, 276 U. S. 499 (1928); Carpenter v. Shaw, 280 U. S. 363 (1930); Ward v. Board of Commr’s of Love Cty., 253 U. S. 17 (1920); Atchison, T. & S. F. R. Co. v. O’Connor, supra; see generally Fallon & Meltzer, New Law, NonRetroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1733, 1824-1830 (1991). As we said, these cases stand for the proposition that “a denial by a state court of a recovery of taxes exacted in violation of the laws or Constitution of the United States by compulsion is itself in contravention of the Fourteenth Amendment,” Carpenter, supra, at 369, the sovereign immunity States traditionally enjoy in their own courts notwithstanding. (We should note that the sovereign immunity States enjoy in federal court, under the Eleventh Amendment, does generally bar tax refund claims from being brought in that forum. See Ford Motor Co. v. Department of Treasury of Ind., 323 U. S. 459 (1945).)

Reich’s petition for reconsideration in light of McKesson was denied. He then petitioned for certiorari. While the petition was pending, we decided Harper v. Virginia Dept. of Taxation, 509 U. S. 86 (1993), which relied on McKesson in circumstances similar to this case. Accordingly, we remanded Reich’s case to the Georgia Supreme Court for further consideration in light of Harper. See Reich v. Collins, 509 U. S. 918 (1993).

On remand, the Georgia Supreme Court focused on the portion of Harper explaining that, under McKesson, a State is free to provide its “clear and certain” remedy in an exclusively predeprivation manner. “[A] meaningful opportunity for taxpayers to withhold contested tax assessments and to challenge their validity in a predeprivation hearing,” we said, is “ ‘a procedural safeguard [against unlawful deprivations] sufficient by itself to satisfy the Due Process Clause.’ ” See Harper, supra, at 101, quoting McKesson, supra, at 38, n. 21. The court then reviewed Georgia’s predeprivation procedures, found them “ample,” and denied Reich’s refund claim. Reich v. Collins, 263 Ga. 602, 604, 437 S. E. 2d 320, 322 (1993).

Reich again petitioned for certiorari, and we granted the writ, 510 U. S. 1109 (1994), to consider whether it was proper for the Georgia Supreme Court to deny Reich relief on the basis of Georgia’s predeprivation remedies.

II

The Georgia Supreme Court is no doubt right that, under McKesson, Georgia has the flexibility to maintain an exclusively predeprivation remedial scheme, so long as that scheme is “clear and certain.” Due process, we should add, also allows the State to maintain an exclusively postdeprivation regime, see, e. g., Bob Jones Univ. v. Simon, 416 U. S. 725, 746-748 (1974), or a hybrid regime. A State is free as well to reconfigure its remedial scheme over time, to fit its changing needs. Such choices are generally a matter only of state law.

But what a State may not do, and what Georgia did here, is to reconfigure its scheme, unfairly, in mid-course — to “bait and switch,” as some have described it. Specifically, in the mid-1980’s, Georgia held out what plainly appeared to be a “clear and certain” postdeprivation remedy, in the form of its tax refund statute, and then declared, only after Reich and others had paid the disputed taxes, that no such remedy exists. In this regard, the Georgia Supreme Court’s reliance on Georgia’s predeprivation procedures was entirely beside the point (and thus error), because even assuming the constitutional adequacy of these procedures — an issue on which we express no view — no reasonable taxpayer would have thought that they represented, in light of the apparent applicability of the refund statute, the exclusive remedy for unlawful taxes. See generally Rakowski, Harper and Its Aftermath, 1 Fla. Tax Rev. 445, 474 (1993).

Nor can there be any question that, during the 1980’s, prior to Reich I, Georgia did appear to hold out a “clear and certain” postdeprivation remedy. To recall, the Georgia refund statute says that the State “shall” refund “any and all taxes or fees which are determined to have been erroneously or illegally assessed and collected from [a taxpayer] under the laws of this state, whether paid voluntarily or involuntarily . . . .” Ga. Code Ann. §48-2-35(a) (Supp. 1994) (emphasis added). In our view, the average taxpayer reading this language would think it obvious that state taxes assessed in violation of federal law are “illegally assessed” taxes. Certainly the United States Court of Appeals for the Eleventh Circuit thought this conclusion was obvious when, in a 1986 case, it denied federal court relief to taxpayers raising claims similar to Reich’s, in part because it thought Georgia’s refund statute applied to the claims. See Waldron v. Collins, 788 F. 2d 736, 738, cert. denied, 479 U. S. 884 (1986).

Respondents, moreover, do not point to any Georgia Supreme Court cases prior to Reich I that put any limiting construction on the statute’s sweeping language; indeed, the cases we have found are all entirely consistent with that language’s apparent breadth. See, e. g., Georgia v. Private Truck Council of America, Inc., 258 Ga. 531, 371 S. E. 2d 378 (1988); Henderson v. Carter, 229 Ga. 876, 195 S. E. 2d 4 (1972); Parke, Davis & Co. v. Cook, 198 Ga. 457, 31 S. E. 2d 728 (1944); Wright v. Forrester, 192 Ga. 864, 16 S. E. 2d 873 (1941). Even apart from the statute and the cases, we find it significant that, for obvious reasons, States ordinarily prefer that taxpayers pursue only postdeprivation remedies, i. e., that taxpayers “pay first, litigate later.” This preference is significant in that it would seem especially unfair to penalize taxpayers who may have ignored the possibility of pursuing predeprivation remedies out of respect for that preference.

In many ways, then, this case bears a remarkable resemblance to NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958) (Harlan, J.). There, an Alabama trial court held the National Association for the Advancement of Colored People in contempt for failing to comply with a discovery order to produce its membership lists, and the Alabama Supreme Court denied review of the constitutionality of the contempt judgment on the grounds that the organization failed earlier to pursue a mandamus action to quash the underlying discovery order. The Court found that the Alabama high court’s refusal to review the contempt judgment was in error. Prior Alabama law, the Court said, showed “unambiguous[ly]” that judicial review of contempt judgments had consistently been available, the existence of mandamus notwithstanding. Id., at 456. For good measure, the Court also looked at prior Alabama law on mandamus and found nothing “suggesting] that mandamus is the exclusive remedy” in this situation. Id., at 457 (emphasis in original). Justice Harlan thus concluded: “Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights.” Id., at 457-458, citing Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U. S. 673 (1930) (due process violated when state court denied injunction against collection of unlawful taxes on the basis of taxpayer’s failure to pursue administrative remedies, where State’s prior “settled” law made clear that no such administrative remedies existed); see generally Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1137-1139 (1986).

Finally, Georgia contends that Reich had no idea (before Davis) that the taxes he was paying throughout the 1980’s might be unconstitutional. Even assuming Reich had no idea, however, we are not sure we understand the argument. If the argument is that Reich would not have taken advantage of the State’s predeprivation remedies no matter how adequate they were (and thus has no standing to complain of those remedies), the argument is beside the point for the same reason that we said that the Georgia Supreme Court’s reliance on those remedies was beside the point: Reich was entitled to pursue what appeared to be a “clear and certain” postdeprivation remedy, regardless of the State’s predepri-vation remedies. Alternatively, if the argument is that Reich needed to have known of the unconstitutionality of his taxes in order to pursue the State’s postdeprivation remedy, the argument is wrong. It is wrong because Georgia’s refund statute has a relatively lengthy statute of limitations period, and, at least until this case, see Reich I, 262 Ga., at 629, 422 S. E. 2d, at 849, contained no contemporaneous protest requirement. Under such a regime, taxpayers need not have taken any steps to learn of the possible unconstitutionality of their taxes at the time they paid them. Accordingly, they may not now be put in any worse position for having failed to take such steps.

For the reasons stated, the judgment is reversed and the case is remanded for the provision of ‘“meaningful backward-looking relief,’” Harper, 509 U. S., at 101, quoting McKesson, 496 U. S., at 31, consistent with due process and our McKesson line of cases. See, e. g., Carpenter v. Shaw, 280 U. S. 363 (1930).

It is so ordered.