author: Mb. Justice Blackmun

text:
    OTTE, TRUSTEE IN BANKRUPTCY v. UNITED STATES et al.
    No. 73-375.
    Argued October 15, 1974
    Decided November 19, 1974

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

      Howard Karasik argued the cause and filed a brief for petitioner.

      Keith A. Jones argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Crampton, and Crombie J. D. Garrett. Samuel J. Warms argued the cause for respondent city of New York. With him on the brief were Adrian P. Burke, Raymond Herzog, and Cornelius F. Roche.

   Mb. Justice Blackmun

delivered the opinion of the Court.

This bankruptcy case raises issues (a) as to whether priority claims for wages earned by employees prior to an employer's bankruptcy, but unpaid at the inception of the bankruptcy proceeding, are subject to withholding taxes, and, if so, (b) as to whether the taxing entities must file proofs of claim, and (c) as to which priority of payment, if any, the withholding taxes enjoy under § 64a of the Bankruptcy Act (the Act), 11 U. S. C. § 104 (a).

I

On September 15, 1964, Freedomland, Inc., a New York corporation, filed a petition with the United States District Court for the Southern District of New York for an arrangement under Chapter XI of the Act, 11 U. S. C. §§ 701-799. The arrangement failed, and on August 30, 1965, Freedomland was adjudicated a bankrupt. Petitioner, William Otte, was appointed and qualified as the trustee.

During the statutorily prescribed six-month period for the filing of proofs of claim against the estate, see §§57 and 63 of the Act, 11 U. S. C. §§ 93 and 103, 413 former employees of Freedomland filed proofs for unpaid wages (each claim in the amount of $600 or less and all the claims aggregating approximately $80,000) that had been earned within three months preceding the filing of the Chapter XI petition. These wage claims concededly were entitled to a second priority of payment under § 64a (2). No proofs for any federal income or Federal Insurance Contributions Act taxes on these wage claims, with-holdable under Chapters 24 and 21, respectively, of the Internal Revenue Code of 1954, 26 U. S. C. §§ 3401-3404 and 3101-3126, were filed by the United States, and no proofs for any New York City personal income tax, with-holdable under Chapter 46, Titles T and U, of the New York City Administrative Code, were filed by the city.

In November 1969 the trustee filed a motion for an order directing distribution to the 413 priority wage claimants without deduction for any federal, state, or city withholding taxes. He also asked that the referee declare that the trustee was not required to withhold or pay any such tax or to file any report or return relative thereto with the respective taxing authorities. The State of New York, although served, filed no response to the trustee’s motion. The United States and the city did respond. The referee issued an order granting the trustee the relief he requested. App. 48a-50a. In a supporting memorandum decision, the referee stated that the withholding and reporting requirements of the federal and city statutes “would impose a further burden on the administration of these estates which is entirely inconsistent with the objective of efficient expeditious economic administration of bankrupt estates,” and that “compliance with withholding and reporting requirements ... is utterly inconsistent with the spirit and the letter of the Bankruptcy Act.” Id., at 36a, 37a.

The United States and the city filed petitions with the United States District Court to review the referee’s order and decision. After a hearing, the District Court reversed the order and decision insofar as they pertained to federal taxes. It directed the withholding of federal taxes on the priority wage claims, and also concluded that the amounts to be withheld were “taxes which became legally due and owing by che bankrupt,” within the language of § 64a (4), and, therefore, were to be paid as tax claims of the fourth priority. The court observed that little more than a simple bookkeeping effort would be involved in withholding 25% of the wage distributions. It held that proofs of claim were not required because the employees’ proofs gave notice to the trustee and other creditors of the total amounts distributable on account of the claims. The District Court, however, ruled against the city on the ground that the city’s personal income tax did not become effective until 1966, and thus no city tax was due and owing by the bankrupt in 1964 when the Chapter XI petition was filed. In re Freedomland, Inc., 341 F. Supp. 647 (1972).

The trustee, the United States, and the city all appealed. The United States Court of Appeals for the Second Circuit affirmed in part and reversed in part. It held that the trustee was obligated to withhold, to report, and to pay over the withholding taxes on the wage claims, and that the taxing entities were not required to file proofs of claim. It further held, however — and thus to this extent disagreed with the District Court — that both the United States and the city were entitled to be paid as second priority claimants under §64a(2). In re Freedomland, Inc., 480 F. 2d 184 (1973).

We granted the trustee’s petition for certiorari (unopposed by the United States) primarily because the circuits are in disarray as to the priority to be accorded to withholding taxes on prebankruptcy wage claims. 414 U. S. 1156 (1974). No cross-petition was filed by either the United States or the city of New York.

II

Withholding, Reports, and Returns

Every Court of Appeals which has faced the issue, including the Second Circuit in the present case, has held, contrary to the ruling of the referee, that the withholding provisions of the Internal Revenue Code, and of state or municipal tax statutes, require that a trustee in bankruptcy withhold income and social security taxes from payments of wage claims, and that he prepare and submit to the wage claimants and to the taxing authorities the reports and returns statutorily required of employers. United States v. Fogarty, 164 F. 2d 26, 30-33 (CA8 1947); United States v. Curtis, 178 F. 2d 268, 269 (CA6 1949), cert. denied, 339 U. S. 965 (1950); Lines v. California Dept. of Employment, 242 F. 2d 201, 202, reh. den., 246 F. 2d 70 (CA9), cert. denied, 355 U. S. 857 (1957); In re Connecticut Motor Lines, Inc., 336 F. 2d 96 (CA3 1964). To the same effect is In re Daigle, 111 F. Supp. 109, 111 (Me. 1953).

A. The requirement of withholding. Section 3402 (a) of the Internal Revenue Code, 26 U. S. C. § 3402 (a), requires “[e]very employer making payment of wages” to “deduct and withhold upon such wages ... a tax determined . . . .” Section 3401 (a) defines “wages” for withholding purposes to mean, with certain exceptions, “all remuneration ... for services performed by an employee for his employer,” and § 3401 (d) defines “employer” as “the person for whom. an individual performs or performed any service, of whatever nature, as the employee of such person.” The latter section makes an exception where “the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services”; in that case, “employer” means “the person having control of the payment of such wages.” Sections T46-51.0 (a) and U46-8.0 of. the New York City Administrative Code are generally to the same effect.

The trustee contends that the payment of wage claims under the Bankruptcy Act, although for “wages” within the meaning of that Act, is not the “payment of wages” under § 3402 (a), and that, in any event, the trustee is not the wage claimant’s “employer” to whom § 3402 (a) relates.

The payments to the wage claimants who filed in this case are payments for services performed by them for their former employer, Freedomland, before the commencement of the proceeding under the Act. There is’ and can be, no dispute as to this. . The fact that the services were performed for the bankrupt, rather than for the trustee, and the fact that payment is made after the employment relationship terminated, do not convert the remuneration into something other than “wages,” as defined by § 3401 (a) of the Internal Revenue Code. That statute, as has been noted, broadly defines “wages” to include, with stated exceptions not material here, “all remuneration.” And § 3401 (d), in defining “employer,” twice refers to services that the employee “performs or performed.” It thus speaks in the past tense as well as the present and thereby plainly reveals that a continuing employment relationship is not a prerequisite for a payment’s qualification as “wages.” The income tax withholding regulations since 1943 have so provided in specific terms. 26 CFR § 31.3401 (a)-l (a)(5); Treas. Reg. 120 § 406.206 (b) (1954); Treas. Reg. 116 § 405.105 (1944 and 1951 eds.); Treas. Reg. 115 § 404.101 (a) (1943). The regulations are not in conflict with the statute; they further the statutory purpose and are reasonable; and they are a valid exercise of the rule-making power. Cammarano v. United States, 358 U. S. 498, 507-512 (1959).

The payment of the wage claims is thus “payment of wages” under § 3402 (a) of the Internal Revenue Code.

The fact that in bankruptcy payment of wage claims is effected by one other than the bankrupt former employer does not defeat any withholding requirement. Although § 3402 (a) refers to the “employer making payment of wages,” § 3401 (d)(1), as also has been noted, provides that if the person for whom the services were performed “does not have control of the payment of the wages for such services,” the term “employer” then means “the person having control of the payment of such wages.” This obviously was intended to place responsibility for withholding at the point of control. The petitioner trustee suggests that control rests in the referee rather than in the trustee, because of the former’s duty, under § 39a (5) of the Act, 11 U. S. C. § 67 (a)(5), to “declare dividends.” We need not determine whether it is the trustee, with his responsibility, under §§ 47a (8) and (11) of the Act, 11 U. S. C. §§ 75 (a)(8) and (11), for making recommendations and actual payments, or the referee, with his supervision over the general administration of the bankrupt estate, or the estate itself, that has “control of the payment of such wages,” within the meaning of §3401 (d)(1) of the Internal Revenue Code. One of them is the “employer” and, as such, has the duty to withhold or to order the withholding, as the case may be. An “employer,” under § 3402 (a), is thus present.

The situation is the same with respect to PICA withholding. Section 3102 (a) of the Internal Revenue Code, 26 U. S. C. §3102 (a), provides that the tax is to be collected by the employer by deducting “from the wages as and when paid.” Here, too, the payments clearly are “wages” under that statute, even though again, at the time of payment, the employment relationship between the bankrupt and the claimant no longer exists. And here; also, the regulations long and consistently have been to this effect. 26 CFR § 31.3121 (a)-l (i); Treas. Reg. 128 1408.226 (a) (1951); Treas. Reg. 106 §402.-227 (a) (1940). The fact that the PICA withholding provisions of the Code do not define “employer” is of no significance, for that term is not to be given a narrower construction for PICA withholding than for income tax withholding.

Because of the identity of definition already observed, n. 4, supra,, the same rationale necessarily applies to the New York City withholding tax.

The trustee finally suggests that the placing of a withholding obligation upon the trustee amounts to the imposition of a penalty barred by § 57j of the Act, 11 U. S. C. § 93 (j). This argument, however, rests upon the presence of § 6672 of the Internal Revenue Code, 26 U. S. C. § 6672, and §§ T46-65.0 (g) and U46-35.0 (g) of the New York City Administrative Code, all of which impose a penalty, apart from the tax, on a person who willfully fails to fulfill his obligation to withhold or who willfully attempts to evade or defeat any tax. That, obviously, is not this case.

B. The requirement of reports and returns. This routinely follows from the obligation to withhold. Section 6051 (a) of the Internal Revenue Code, 26 U. S. C. § 6051 (a), provides that a person required to withhold must furnish the employee a written statement showing the wages subject to withholding and the amount withheld on account of each tax. A duplicate of that statement is to be available for filing with the Internal Revenue Service. §6051 (d). Sections 6001 and 6011 require every person responsible for payment or collection of taxes to keep such records and make such returns as the Secretary prescribes. The applicable regulations respond to these statutes. 26 CFR §§ 31.6001-1, 31.6001-2, 31.6001-5, 31.6011 (a)-6 (a)(1), and 31.6051-1; Rev. Proc. 71-18, 1971-1 Cum. Bull. 684. It is undisputed that the petitioner trustee must comply with these provisions if he is subject to the withholding requirements of §§ 3402 and 3102. Nicholas v. United States, 384 U. S. 678, 693 (1966).

The New York City Administrative Code provisions are to similar effect, §§ T46-52.0 and T46-54.0, U46-9.0 and U46-11.0, and we reach the same conclusions with respect to reports and returns thereunder.

C. Expense and delay. The trustee argues, as the referee held, that the imposition of obligations to withhold, report, and file returns places a burden on the administration of bankrupt estates that is at odds with economic and expeditious administration and with the spirit of the Act. He places some reliance, as did the referee, on the paper by Referee Hiller, The Folly of the Fogarty Case, 32 Ref. J. 54 (1958), where the author states that “the application of the Fogarty rule is sheer nonsense”- and that the case is “out of harmony with sound bankruptcy law.” Id., at 54, 56.

There is, of course, an overriding concern in the Act with keeping fees and administrative expenses at a minimum so as to preserve as much of the estate as possible for the creditors. 3A W. Collier, Bankruptcy ¶¶ 62.05 [ 1 ], 62.02 [5] (14th ed. 1972). And it cannot be denied that paperwork takes time and occasions expense. In this particular case, withholding must be computed on the 413 wage claims; returns (Forms W-2, W-3, and 941) must be prepared and furnished the claimant and the Internal Revenue Service; records must be maintained; and the taxes withheld must be remitted to the respective taxing entities.

We are not persuaded, however, that this burden would be so undue as to be inconsistent with or violative of the spirit of the Act. It is the same burden, no more and no less, that any employer of the same size must bear, and it is the same burden that is borne by any receiver or arrangement debtor or any other fiduciary with a like number of employees. The burden is not disproportionate. Further, the Internal Revenue Service has endeavored to lighten the load by its alternative 25% combined bankruptcy withholding rate for income and FICA taxes. See n. 2, supra. New York City has done the same with its 1% withholding rate. Neither should the burden make it necessary, as is so often and so easily suggested, to employ an accountant. Computations at the rates of 25% and 1%, respectively, are simple and elementary arithmetic exercises, hardly worthy of an accountant’s talent; a high school student is able to make those computations as is any bookkeeper, clerk, or the trustee himself. The added tasks of withholding, reporting, returning, and remitting are contemplated, in our view, by the Act. The interests of the taxing entities, who are creditors, too, and, through them, the interests of the public, outweigh the minuscule added burden for the estate. See Swarts v. Hammer, 194 U. S. 441, 444 (1904). If relief is to be considered for bankrupt estates in this respect, it is a matter for legislative, not judicial, concern. There is nothing in the Act or in the Internal Revenue Code that relieves the trustee of these duties. Cf. §§ 7507, 108 (b), 371, and 372 of the Internal Revenue Code, 26 U. S. C. §§ 7507, 108 (b), 371, and 372.

Ill

Proofs of Claim

The trustee asserts that because the United States and the city failed to file proofs of claim for the taxes at issue, payment thereof is barred. It is said that these taxing entities were on notice, by reason of Freedomland’s bankruptcy schedules, that the bankrupt owed the priority wage claims; that these claims were to be filed within six months; that the entities could obtain an extension of time, under § 57n of the Act, 11 U. S. C. § 93 (n), in which to compute and file their claims; and that they chose to ignore the referee’s bar order directed, among others, to “taxing authorities and agencies,” App. 24a.

This argument, in our view, misconceives the nature of the taxes that are to be withheld. Liability for the taxes accrues only when the wage is paid. Sections 3402 (a) and 3101 (a) of the 1954 Code; New York City Administrative Code §§ T46-51.0 (a) and U46-8.0. The wages that are the subject of the wage claims, although earned before bankruptcy, were not paid prior to bankruptcy. Freedomland had incurred no liability for the taxes. Liability came into being only during bankruptcy. The taxes do not partake, therefore, of the nature of debts, of the bankrupt for which proofs of claim must be filed.

Furthermore, the filing of proofs by the United States and New York City obviously would serve no purpose here. Proofs apprise the trustee and other creditors of the existence of claims against the estate. The priority wage claims themselves, however, cover the gross wages earned and unpaid. These include any tax that is to be withheld. The tax is not an added increment.

We conclude, therefore, that proofs of claim on the part of the United States and of New York City with respect to withholding taxes on priority wage claims are not required.

IV

With withholding taxes thus determined as properly applicable to priority wage claims, their placement in the payment scale under § 64a must be determined. The choice lies between the first priority (costs and expenses of administration), urged by the United States; the second priority (wages and commissions, limited as the statute specifies), urged by the city of New York; the fourth priority (“taxes which became legally due and owing by the bankrupt”), urged by none of the parties here; and no priority at all. The third and fifth priorities clearly have no possible application to these taxes.

We readily reject the fourth priority. The withholding taxes are not taxes which became due and owing by the bankrupt. As has been noted above, the taxes did not become due and owing at all until the claims, constituting wages, were paid. This took place after bankruptcy, not before. The situation, thus, differs from that where the bankrupt paid wages prior to bankruptcy, but the taxes withheld were not remitted to the taxing entities by the time of the inception of the bankruptcy proceeding. The latter would be taxes “which became legally due and owing by the bankrupt.” See In re John Horne Co., 220 F. 2d 33 (CA7 1955); Pomper v. United States, 196 F. 2d 211 (CA2 1952).

We similarly reject the first priority, although we recognize that this appears to be the favorite conclusion reached by those courts that have passed upon the issue. See n. 3, supra. The leading case for this approach is United States v. Fogarty, supra. The Court there, however, without a statement of underlying reasons, merely concluded that the taxes “should be allowed and classified as an expense of administration,” 164 F. 2d, at 33. In Lines v. California Dept. of Employment, supra, the court followed Fogarty and held that, because the tax accrued “subsequent to the filing of the petition in bankruptcy, such tax had the character of an expense of administration.” 246 F. 2d, at 71.

We think that more than a general observation that the taxes arose during bankruptcy is required to dignify withholding taxes with the prime status of first priority. We grant that the very language of § 64a (1) (“including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition”) necessarily indicates that first priority items include some in addition to those that preserve or develop the bankrupt estate. Withholding taxes, however, do not strike us as costs or expenses of doing business. They are attributable in their entirety to the availability of funds for the payment of priority wage claims. They accrue only as those claims are paid and, to the extent of that payment, the payment of the taxes should be assured. In addition, it is anomalous to accord withholding taxes a higher priority than the wage claims to which they so directly relate. They can be computed only upon the amount of funds available for payment of the wage claims and should not have a computational base greater than those payments. The withholding taxes are, in full effect, part of the claims themselves and derive from and are carved out of the payment of those claims. We therefore fully agree with the Second Circuit’s observation, 480 F. 2d, at 190: “Conceptually the tax payments should be treated in the same way as the wages from which they derive and of which they are a part.”

We see nothing in United States v. Randall, 401 U. S. 513 (1971), with its observation, id., at 515, that the Bankruptcy Act “is an overriding statement of federal policy on this question of priorities,” that is contrary to the result we reach here. That case concerned § 7501 (a) of the Internal Revenue Code, 26 IT. S. C. § 7501 (a), with its provision for a trust fund for withheld taxes, and the impact of that statute, when not complied with, upon payment of first priority costs and expenses of administration. Randall is not a holding, as the trustee would claim, Brief for Petitioner 18-19, that the withholding taxes do not have the same priority as the wage claims themselves.

We therefore conclude that these federal and city withholding taxes are entitled, as are the priority wage claims from which they emerge, to second priority of payment under § 64a (2) of the Act, 11 U. S. C. § 104 (a).

The judgment of the Court of Appeals is affirmed.

It is so ordered.

       “§ 104. Debts which have priority.
      “(a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be (1) the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition . . . ;
      (2) wages and commissions, not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding, due to workmen . . . ;
      (4) taxes which became legally due and owing by the bankrupt to the United States or to any State or any subdivision thereof which are not released by a discharge in bankruptcy . . .

       Under Internal Revenue Service directives, a trustee in bankruptcy, upon paying priority wage claims, has the option of withholding income and FICA taxes either at a combined flat rate of 25% or at the rates prescribed by §§3101 and 3402 of the Code, 26 U. S. C. §§ 3101 and 3402.

       First priority: United States v. Fogarty, 164 F. 2d 26, 33 (CA8 1947); Lines v. California Dept. of Employment, 242 F. 2d 201, 203, reh. den., 246 F. 2d 70 (CA9), cert. denied, 355 U. S. 857 (1957). Second priority: In re Freedomland, Inc., 480 F. 2d 184, 190 (CA2 1973). Fourth priority: In re Connecticut Motor Lines, Inc., 336 F. 2d 96, 102-106, 108 (CA3 1964).
      In In re John Horne Co., 220 F. 2d 33, 35 (CA7 1955), a case concerning wages paid prior to bankruptcy, the court stated: “We are not impressed with the reasoning of the court in the Fogarty case.” See also Note, 56 Mich. L. Rev. 631 (1958); Comment, Bankruptcy — Priorities—Fourth Priority Assigned Payroll Taxes on Second Priority Wages, 40 N. Y. U. L. Rev. 360 (1965); Note, 19 Rutgers L. Rev. 546 (1965).

       The terms “wages” and “employer,” as they appear in Titles T and U of the City Code are given the same meanings they have in the Internal Revenue Code. New York City Administrative Code §§ T46-1.0 (c) and U46-1.0 (b), (e), and (l) (1971).

       We see nothing to the contrary in United States v. Embassy Restaurant, Inc., 359 U. S. 29 (1959), which is pressed upon us by the trustee. The issue there was whether contributions by an employer to a union welfare fund, as required under a collective-bargaining agreement, were entitled to second priority as “wages . . . due to workmen.” There is no such issue here, for the trustee acknowledges, as he must, that the present claims are, indeed, for “wages,” within the meaning of the Bankruptcy Act.

       “The result would be no different if it is argued that the bankruptcy court rather than its trustee is 'the person having control of the payment of such wages.’ There is no provision excepting a court from the requirement of withholding on amounts paid an employee.” United States v. Fogarty, 164 F. 2d, at 32.

       The District Court, on review of the referee’s order and decision, received evidence with respect to costs of compliance. It concluded that compliance “adds only slightly to the trustee’s inescapable task and cost of verifying each claim before payment.” 341 F. Supp. 647, 654 (SDNY 1972).

       The trustee has paid the priority wage claims, with the taxes withheld and set aside. This was done, however, pursuant to an agreement that the rights of the parties would not be affected thereby. The United States, therefore, is not in a position to claim that a trust fund has been established under § 7501 (a) of the Internal Revenue Code, 26 U. S. C. § 7501 (a). See United States v. Randall, 401 U. S. 513 (1971); Nicholas v. United States, 384 U. S. 678, 690-691 (1966).

       This conclusion makes it unnecessary for us to consider whether, if the Government were to prevail in its first-priority argument, the judgment of the Court of Appeals here could be modified in the absence of a cross-petition by the United States. We are advised that the bankrupt estate’s assets are sufficient to pay all first- and second-priority claims in full. Tr. of Oral Arg. 28-29. Whether the withholding taxes have first- rather than second-priority status is, therefore, of no practical consequence to the Government in the present case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FRANCISCO v. GATHRIGHT, CORRECTIONAL SUPERINTENDENT
    No. 73-5768.
    Argued October 15, 1974—
    Decided November 19, 1974

      Daniel C. Kaufman argued the cause and filed a brief for petitioner.

      Robert E. Shepherd, Jr., argued the cause for respondent. On the brief were Andrew P. Miller, Attorney General of Virginia, and Gilbert W. Haith, Assistant Attorney General.
   Per Curiam.

Petitioner was convicted in a Virginia state court of possession of heroin with intent to distribute, and was sentenced to eight years in prison. The Supreme Court of Virginia denied review and affirmed the conviction by order, and petitioner then sought federal habeas corpus in the United States District Court for the Eastern District of Virginia.

In that court he contended that the judgment of conviction under which he was held was subject to two constitutional infirmities. His first claim was that the state statute under which he had been convicted violated his Fourteenth Amendment rights insofar as it permitted the jury to base the conviction “solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed.” His second claim was that evidence admitted at his trial had been obtained’ as a result of an unlawful search and seizure in violation of his rights under the Fourth and Fourteenth Amendments.

Respondent conceded that petitioner had “exhausted his State court remedies,” App. 11, but nevertheless urged the District Court to dismiss the petition in order to permit the petitioner to present his due process argument to the state courts for reconsideration in light of the decision of the Supreme Court of Virginia in Sharp v. Commonwealth, 213 Va. 269, 192 S. E. 2d 217 (1972). In Sharp, which was decided after the Virginia Supreme Court had declined to review petitioner’s conviction on direct appeal, but before he had filed his petition for a writ of habeas corpus in the District Court, the Virginia Supreme Court held § 54-524.101 (a) to be violative of both the State and Federal Constitutions.

The District Court ruled against petitioner on the merits of his search-and-seizure claim, and agreed with respondent that the challenge to the statute should be resubmitted to the Virginia state courts. It therefore granted summary judgment in favor of respondent without passing on petitioner’s claim that the statute was invalid under the Fourteenth Amendment.

Petitioner appealed to the Court of Appeals for the' Fourth Circuit. That court, in an unreported decision, agreed that the state court should have an opportunity to re-examine petitioner’s claim in the light of Sharp, supra, and went on to hold that the District Court had acted prematurely in reaching the independent federal claim of unlawful search and seizure. It said:

“If relief is granted under Sharp, the state will have the option of releasing Francisco or retrying him. In either event the possibility exists that this claim for relief will be mooted.” App. 51.

The court vacated that portion of the District Court’s opinion ruling on the merits of petitioner’s second claim, and remanded the case to the District Court with instructions to dismiss the petition without prejudice. We granted certiorari. 415 U. S. 957 (1974).

Petitioner presents two contentions here. He first contends that the District Court and the Court of Appeals were wrong in requiring him to resubmit his constitutional attack on the Virginia statute to the state courts. We agree with petitioner on this point, since we believe that the proper disposition of his claim of statutory invalidity is controlled by Roberts v. LaVallee, 389 U. S. 40 (1967). In Roberts the petitioner was denied a transcript of his preliminary hearing because he was unable to pay the fee required under New York law. When his equal protection challenge to the New York statute was rejected on direct appeal, he sought habeas relief in federal court. After the United States District Court denied the writ, in another case the New York Court of Appeals found the statute unconstitutional under both the Federal and State Constitutions. The Court of Appeals for the Second Circuit dismissed the petition in order to permit Roberts to apply to the state courts for relief under the intervening state court decision. This Court reversed, saying:

“Petitioner has already thoroughly exhausted his state remedies, as the Court of Appeals recognized. Still more state litigation would be both unnecessarily time-consuming and otherwise burdensome. This is not a case in which there is any substantial state interest in ruling once again on petitioner’s case.” Id., at 43.

The only distinction between the present case and Roberts is that here the intervening state court decision came down before petitioner filed his petition for habeas relief in federal court, whereas in Roberts the state decision issued after the habeas petition had been acted upon by the District Court. This distinction does not alter the result as to the exhaustion requirement. In both cases the state courts had a full opportunity to determine the federal constitutional issues before resort was made to a federal forum, and the policies served by the exhaustion requirement would not be furthered by requiring resubmission of the claims to the state courts. Roberts, supra; Brown v. Allen, 344 U. S. 443, 447-450 (1953); Picard v. Connor, 404 U. S. 270, 275 (1971).

The second question presented by petitioner in this Court is “[wjhether a person . . . who claims that [his] custody is, in two independent respects, in violation of the Constitution of the United States, must await federal habeas corpus relief on one ground merely because the other ground should have been presented to the State courts.” Brief for Petitioner 2. Petitioner apparently attributes the refusal of the Court of Appeals to rule on the merits of his second claim to its conclusion that petitioner was required again to submit his first claim to the state courts. Since we have held that petitioner’s claim of statutory invalidity need not be presented again to the state courts before being adjudicated by the federal habeas court, the case in its present posture no longer presents the question framed by petitioner, and we have no occasion to address it.

The judgment of the Court of Appeals is reversed, and the cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

       Petitioner was convicted of violating Va. Code Ann. § 54-524.-101 (a) (1950). At the time he was charged, that statute provided in relevant part:
      “Except as authorized by this chapter, it shall be unlawful for any person knowingly or intentionally: (1) To distribute, or to possess with intent to distribute, a controlled drug .... A conviction for a violation of this § 54-524.101 (a) may be based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed.”
      The statute has since been repealed. Va. Acts 1972, c. 798.

       The trial court instructed the jury:
      “The Court instructs the jury that a conviction for possession of a controlled drug with intent to distribute may be based solely upon the evidence as to the quantity of the controlled drug unlawfully possessed.” App. 19.

       The habeas petition, accompanied by a motion to proceed in forma pauperis, was actually received by the United States District Court on October 5, 1972, four days before Sharp was decided. On October 26 petitioner’s motion to proceed in forma pauperis was denied. Upon receipt of the filing fee on. October 31, the clerk of the United States District Court filed the habeas petition.

       The Supreme Court of Virginia found the statute unconstitutionally vague because “a person of ordinary intelligence in possession of a quantity of marijuana could not with reasonable certainty know whether he was guilty of the misdemeanor of mere possession or the felony of possession with intent to distribute.” 213 Va., at 271, 192 S. E. 2d, at 218. The court also concluded that the “statutory inference or presumption of possession with intent to distribute did not have sufficient rational connection with the fact of possession of a quantity of a controlled drug.” Ibid. The Virginia court cited federal and state decisions to support its holding, and at oral argument the parties agreed that Sharp rests on both state and federal constitutional grounds. We, of course, express no view on the correctness of this holding insofar as it rests on an interpretation of the Fourteenth Amendment.

       Since petitioner had presented the issue once to the state courts, the District Court granted him leave to reinstitute the petition in federal court unless the State granted him a hearing within 45 days. The State sought to initiate state habeas proceedings the following day, but petitioner refused to file a habeas petition in state court and indicated that he would not cooperate with state authorities.

       We are not presented with a case “in which an intervening change in federal law cast the legal issue in a fundamentally different light.” Picard v. Connor, 404 U. S. 270, 276 (1971).


author: Mr. Justice Douglas Mr. Justice White,

text:
    SAXBE, ATTORNEY GENERAL, et al. v. BUSTOS et al.
    No. 73-300.
    Argued October 17, 1974
    Decided November 25, 1974

    Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Powell, and Rehnquist, JJ., joined. White, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 80.

      Mark L. Evans argued the cause for petitioners in No. 73-300 and respondents in No. 73-480. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Lajontant, Jerome M. Feit, and Charles Gordon.

      Bruce J. Terris argued the cause for respondents in No. 73-300 and petitioners in No. 73-480. With him on the brief were John W. Karr and Joseph Onek.

      Together with No. 73-480, Cardona et al. v. Saxbe, Attorney General, et al., also on certiorari to the same court. .

       Briefs of amici curiae were filed by J. Albert Woll, Laurence Gold,, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; by Ronald H. Bonaparte, John A. Joannes, Milton C. Gelenian, Thomas F. Olson, and Allen Lauter-bach for the American Farm Bureau Federation et al.; and by Richard D. Maltzman and Philip B. Bass for Bud Antle, Inc.

   Mr. Justice Douglas

delivered the opinion of the Court.

Some aliens who have their homes in Canada or Mexico commute daily to places of employment in this country and others do so on a seasonal basis, a practice permitted by the Immigration and Naturalization Service. The question is whether the practice on the facts of these cases conforms with the Immigration and Nationality Act. It turns on the meaning of § 101 (a)(27.)(B), 66 Stat. 169, as amended, 79 Stat. 916, 8 U. S. C. § 1101 (a)(27)(B), which defines as one variety of “special immigrant” an immigrant “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.”

Those who qualify under § 1101 (a)(27)(B) may be permitted entry without the usual documentation requirements. 8 U. S. C. § T181 (b). The regulations implement § 1181 (b) by allowing such an immigrant to use an alien registration receipt card, normally called a “green card,” in lieu of an immigrant visa and without regard to numerical limitations if he is “returning to an unrelinquished lawful permanent residence in the United States after a temporary absence abroad not exceeding 1 year.”

The Act presumes that an alien is an immigrant “until he establishes . . . that he is entitled to a nonimmigrant status”; and it defines “immigrant” as every alien who cannot bring himself into an enumerated class of non-immigrants. One class of nonimmigrants is “an alien having a residence in a foreign country which he has no intention of abandoning . . . (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.”

An alien does not qualify as a nonimmigrant under this class of nonimmigrants if he seeks to perform temporary labor at a time when unemployed persons capable of performing that labor can be found in this country. If he cannot qualify as a nonimmigrant some other way, such an alien is subject to the Act’s numerical limitations, unless he is included in the classes of “immediate relatives” of a United States citizen or “special immigrants.” On the other hand, as already noted, one variety of “special immigrant” is an alien “lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” One who so qualifies is excluded from the labor certification provisions in 8 U. S. C. § 1182 (a) (14). The term “lawfully admitted for permanent residence” is defined as “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant..., such status not having changed.” An alien achieves that status in the first instance by complying with any applicable numerical limitations and with the Act’s other requirements for admission, details not important here. After his initial admission on that basis, he is free to leave this country temporarily and to re-enter without regard to numerical limitations. The Act authorizes the Attorney General to re-admit such an alien without a visa or other formal documentation. § 1181 (b). He has exercised that authority, allowing such an immigrant to return with what was called in the briefs and oral argument the “green card.”

This suit was brought by the United Farm Workers Organizing Committee for declaratory and injunctive relief against the practice of giving alien commuters the documentation and labor certification benefits of classification as immigrants “lawfully admitted for permanent residence” who are “returning from a temporary visit abroad.” The District Court dismissed the action without opinion. The Court of Appeals held that the admission of daily commuters was proper but that the admission of seasonal commuters was not, 156 U. S. App. D. C. 304, 481 F. 2d 479 (1973). We granted the petition and cross-petition in light of a conflict between the decision below and that of the Court of Appeals for the Ninth Circuit in Gooch v. Clark, 433 F. 2d 74 (1970).

Our conclusions are that commuters are immigrants, that they are “lawfully admitted for permanent residence,” and that they are “returning from a temporary visit abroad” when they enter the United States. Moreover, the wording and legislative history of the statute and the long administrative construction indicate that the same treatment is appropriate for both daily and seasonal commuters. Commuters are thus different from those groups of aliens who can be admitted only on certification by the Secretary of Labor that unemployed persons cannot be found in this country and that the employment of the aliens “will not adversely affect the wages and working conditions of the workers in the United States.” 8 U. S. C. § 1182 (a)(14). We thus agree with the con-elusion of the Ninth Circuit in Gooch. Accordingly, we affirm the judgment now before us as respects daily commuters and reverse it as respects seasonal commuters.

A main reliance of plaintiffs is on the provision of the Act which in the much-discussed subsection (15) (H) (ii) provides that one category of alien .nonimmi-grant is “an alien having a residence in a foreign country which he has no intention of abandoning ... (ii) who is coming temporarily to the United States to perform temporary services or labor, if unemployed persons capable of performing such service or labor cannot be found in this country.” Under the argument tendered, these alien commuters partially meet the definition of nonimmigrants in subsection (15)(H)(ii) in that they-have a foreign residence which they do not intend to abandon and come here temporarily to perform temporary service, but fail to satisfy subsection (15) (H) (ii) completely in that they do not show that unemployed people capable of performing the services cannot be found in this Nation. That should invoke the presumption in the Act, already noted, that an alien is an immigrant until or unless he proves he is a nonimmigrant.

We agree, moreover, with the Ninth Circuit that this provision “was intended to confer nonimmigrant status on certain aliens who were needed in the American labor force but who, unlike commuters, would be unable to achieve admittance under immigrant status.” 433 F. 2d, at 78. The administrative construction of this subsection (15)(H)(ii) by the Immigration Service has been that it does not cover an alien, like the commuter, who has a “permanent residence” here and who comes to perform a job of a permanent character, even though the period of his service is limited. To repeat, the Act provides that “[ejvery alien shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer . .. and the immigration officers ... that he is entitled to a nonimmigrant status under section 1101 (a) (15).” Before an alien can be classified as a nonimmi-grant under subsection (15)(H)(ii) his prospective employer must submit a petition on his behalf under 8 U. S. C. § 1184 (c); and after the INS approves the petition, the alien must apply for nonimmigrant status and demonstrate that he in fact qualifies for that status.

We conclude that commuters are not nonimmigrants under subsection (15)(H)(ii). None of the other categories of nonimmigrants are applicable, and thus under § 1184 (b) the commuters are immigrants.

The fact that an alien commuter who has not shown he must be classified as a nonimmigrant must be classified as an immigrant is not the end of our problem. The question remains whether he may properly be treated as one who is in the group defined as “special immigrants” under subsection (27)(B), that is, whether commuters are “lawfully admitted for permanent residence” when they have no actual residence in this country.

Section 1101 (a) (20) defines “lawfully admitted for permanent residence” as “the status of having been lawfully accorded the ■privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed” (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.

One argument of the plaintiffs is that the status has changed because residence in this country was never claimed. But we read the Act as did the Ninth Circuit in the Gooch case to mean that the change in status which Congress had in mind was a change from an immigrant lawfully admitted for permanent residence to the status of a nonimmigrant pursuant to 8 U. S. C. § 1257. 433 F. 2d, at 79.

The status referred to in § 1101 (a) (20) is acquired when an alien satisfies (1) any numerical limitations on the entry of immigrants, (2) requirements as to qualitative matters such as health, morals, and economic status, and (3) the need for an immigrant visa. The applicant must also state whether he plans to remain in the United States permanently. But the Act does not declare or suggest that the status will be denied him, if he does not intend to reside permanently here. As we read the Act, the “status” acquired carries several important privileges: He may remain in the United States indefinitely; he is free to work in this country; he may return to this country after a temporary absence abroad; and he has the privilege of establishing a permanent residence in the United States.

Thus we conclude that commuters are immigrants “lawfully admitted for permanent residence.” As did both the majority and dissent in Gooch, we also find that commuters can be viewed as “returning from a temporary visit abroad.” 433 F. 2d, at 79-81, 82 n. 1. The court below so agreed as respects daily commuters, disagreeing only as to seasonal commuters. Neither the court below nor the Court of Appeals in Gooch took the position now taken in dissent here.

Our conclusion reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration was a part of the Department of Labor. In 1940 the Bureau was transferred to the Department of Justice where it remains today. On April 1,1927, it issued General Order No. 86. Under the order, commuters were required to gain admission as immigrants before they could have border crossing privileges. The order provides that “[a]liens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.” “Thus,” said the Court of Appeals in the instant cases, “the daily commuter was born,” 156 U. S. App. D. C., at 304, 481 F. 2d, at 485.

This longstanding administrative construction is entitled to great weight, particularly when, as here, Congress has revisited the Act and left the practice untouched. Such a history of administrative construction and congressional acquiescence may add a gloss or qualification to what is on its face unqualified statutory language. Massachusetts Trustees v. United States, 377 U. S. 235 (1964); United States v. Midwest Oil Co., 236 U. S. 459 (1915). As the defendants below acknowledge, the meaning of the phrase “lawfully admitted for permanent residence” in § 1101 (a)(27)(B) may not be identical to the meaning of the same language in other sections of the Act where the same history of administrative construction is not present.

We see no difference in the treatment of daily commuters and seasonal commuters. The status of the seasonal! commuter is the same as the status of the daily commuter because the identical statutory words cover each. The Court of Appeals, however, rested essentially on a different legislative history of seasonal commuters than had obtained in cases of daily commuters.

Prior to 1917 there were essentially no limitations on the practice of commuting from Mexico or Canada to the United States. Legislation was passed in 1917, 1921, and 1924. But under those statutes commuters remained able freely to cross the border subject only to qualitative restrictions in the 1917 Act.

As already noted, the administrative approach changed in 1927 when the Bureau of Immigration issued its General Order No. 86. While the 1952 Act, 66 Stat. 163, made no mention of commuters and while the 1965 amendments of the 1952 Act, 79 Stat. 911, were likewise silent as respects commuters, the Court of Appeals assumed that the longstanding practice of allowing daily commuters was not repealed sub silentio; and we agree. The Court of Appeals, however, took quite a different view of the seasonal commuter problem because of its different history.

The seasonal commuter problem dates back at least to 1943 when this Government and Mexico agreed to the seasonal importation of Mexican agricultural workers. 56 Stat. 1759. Congress legislated on the problem in 1951, requiring farmers in this Nation to make reasonable efforts to attract domestic workers prior to certification by the Secretary of Labor of the need for foreign labor. That was known as the bracero program and the Court of Appeals called the seasonal commuter merely a new name for the former bracero. That is quite inaccurate. The braceros were at the start nonimmigrants; the seasonal commuters were immigrants. Some braceros, indeed quite a few, H. R. Rep. No. 722, 88th Cong., 1st Sess., 7 (1963), acquired permanent residence status. The seasonal commuter, like the daily commuter, has always been in that category.

In 1964 the bracero type of seasonal program lapsed; and the next year Congress amended the Immigration and Nationality Act by making stricter the certification by the Secretary of Labor of the need for foreign labor and requiring findings on the lack of any adverse effect of the employment of aliens on the wages and working conditions of workers in this country.

But that provision, which we have quoted, does not apply to aliens lawfully admitted for permanent residence returning from a temporary visit abroad and to certain close relatives. An alien' who first sought admission after the effective date of the 1965 Amendment would need a certificate of the Secretary of Labor; but if he already was an alien lawfully admitted to the United States for permanent residence and returning from a temporary visit abroad, the 1965 amendments would not affect him. The purpose of Congress was to limit new admissions of alien laborers, not to prejudice the status of aliens who, whether daily or seasonal commuters, had acquired permanent residence here and were returning to existing jobs.

We have mentioned General Order No. 86 issued on April 1,1927, which treated the commuters as immigrants (not nonimmigrants), who on obtaining their admission cards would be “considered as having entered for permanent residence.” Cf. Karnuth v. United States ex rel. Albro, 279 U. S. 231, 244 (1929). The thrust of General Order No. 86 was to lift aliens who were natives of Canada and Mexico from the quota provisions for non-immigrants. Thus, they entered from that time down to date, with nonquota immigration documents. That regulation was carried forward in various regulations before 1952. The practice was reviewed ánd sustained in various published administrative decisions. Some suggested that the 1952 Act eliminated the alien commuter. The Board of Immigration Appeals, however, reaffirmed the validity of the practice. Matter of H - O -, 5 I. & N. Dec. 716 (1954). Thereafter repeated administrative decisions affirmed the adherence to the alien-commuter concept. We do not labor the administrative construction phase of these cases further, because when the 1952 Act was reported, the Senate Judiciary Committee tendered a voluminous report of nearly 1,000 pages touching on the alien commuters, describing the practice in some detail, and including the sections which we have discussed in this opinion. The commuters from Canada and Mexico were treated as lawfully admitted immigrants. No doubt as to the desirability of the practice was expressed. It is clear that S. Rep. No. 1515, 81st Cong., 2d Sess. (1950) (the Omnibus Study Report), reveals a congressional acceptance of the system.

The changes relevant to commuters in the 1965 amendments were, as stated in Gooch, minor and technical and contain no suggestion of a change in the commuter problem, 433 F. 2d, at 80-81. H. R. Rep. No. 745, 89th Cong., 1st Sess. (1965); S. Rep. No. 748, 89th Cong., 1st Sess. (1965).

Since 1965 there have been numerous reports by committees of the Congress on the alien commuter problem which indicate that Congress is very knowledgeable about the problem and has not reached a consensus that the administrative policy reaching back at least to General Order No. 86 is wrong. We know from the Western Hemisphere Report that the dimensions of the problem are considerable. Daily commuters from Mexico number more than 42,000 of whom 25,000 are engaged in occupations other than agriculture. The total of Canadian commuters exceeds 10,000. Seasonal commuters number at least 8.300 according to the Service’s estimate. The United States Commission on Civil Rights estimates that if Mexican commuters were cut off, they would lose $50 million annually. The State Department estimates there are 250,000 family members dependent on income earned by commuters and that commuters account for 25% to 30% of the income earned by the labor force in some Mexican border communities. Termination of the alien commuter practice might well have a great impact on American border communities because the Mexicans who have the status of permanent residents could settle here, increasing the problems of housing and education in the border towns this side of the Rio Grande. Former Secretary of State Rogers submitted to the District Court an affidavit stating that any “sudden judicial termination of the commuter system, displacing the present immigrant commuters, would have a serious deleterious effect upon our relations with both Mexico and Canada.”

Our conclusion is twofold. First, the provisions of the Act which sanction daily commuters are the ones that also support seasonal commuters. We would have to read the same language in two opposed ways to sanction the daily commuter program and strike down the seasonal commuter program. There is no difference in administrative treatment of the two classes of commuters.

Second, if alien commuters are to be abolished or if seasonal commuters are to be treated differently from daily commuters, the Congress must do it. The changes suggested implicate so many policies and raise so many problems of a political, economic, and social nature that it is fit that the Judiciary recuse itself. At times judges must legislate “interstitially” to resolve ambiguities in laws. But the problem of taking all or some alien commuters engaging in farm work out of the Act is not “interstitial” or, as Mr. Justice Holmes once put it, “molecular.” It is a massive or “molar” action for which the Judiciary is ill-equipped.

We affirm the Court of Appeals insofar as it held daily commuters are lawfully admitted and reverse it insofar as seasonal commuters are concerned.

So ordered.

Mr. Justice White,

joined by Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Blackmun,

dissenting.

The Court, in reaching an interpretation of the immigration statutes which permits a finding that daily and seasonal commuters from Mexico and Canada are “special immigrants” not subject to documentation and numerical restrictions upon entry to this country, contravenes one of the cardinal principles of statutory construction: “administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction.” Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 315 (1933) (Cardozo, J.). Administrative construction over a long period of time is an available tool for judicial interpretation of a statute only when the statutory terms are doubtful or ambiguous. . United States v. Southern Ute Indians, 402 U. S. 159, 173 n. 8 (1971); Estate of Sanford v. Commissioner, 308 U. S. 39, 52 (1939); Norwegian Nitrogen Products Co. v. United States, supra. In light of the characteristics of the aliens whose status is in question and the ordinary meaning of the very specific terms Congress used in these immigration statutes, this principle applies with force here.

I

Daily and seasonal commuters both reside in fact in either Mexico or Canada and cross the border into this country either daily or seasonally to work. The daily commuter’s defining characteristic is his limited presence in this country; he comes across the border to work each day and returns to his actual dwelling place in Mexico or Canada when his work is done. The seasonal commuter, in contrast, remains in this country continuously during the seasons in which he works here, but then absents himself completely for the remaining portions of the year. For the Court to reach its result, it must undertake the unlikely project of demonstrating that these aliens are in legal effect permanent residents of the United States under the immigration laws.

To qualify as a “special immigrant” given dispensations from normal documentation requirements and numerical limitations, a commuter must be “an immigrant, lawfully admitted for permanent residence, who is returning from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B). The included phrase “lawfully admitted for permanent residence” means in turn “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.” §1101 (a) (20). The immigration laws define “permanent residence” as “the place of general abode,” a person’s “principal, actual dwelling place in fact, without regard to intent,” § 1101 (a) (33), with the relationship of the person to the place of residence being “of continuing or lasting nature, as distinguished from temporary . . . §1101 (a) (31). Under the Immigration and Naturalization Service’s own regulations, in order to be exempt from the normal documentation requirements upon entry, an alien must be returning to his “unrelin-quished lawful permanent residence” from a “temporary absence abroad.” 8 CFR §211.1 (b)(1). On its face, the present practice of the Service is flatly contrary to its own regulation.

Confronted with the obvious difficulty that this statutory language defining permanent resident status and the regulations will not accommodate the daily and seasonal commuters, the majority, without the aid of legislative history, contends that these plain words should be given special, technical meanings:

“Section 1101 (a) (20) defines ‘lawfully admitted for permanent residence’ as ‘the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed’ (italics added). The definition makes the phrase descriptive of a status or privilege which need not be reduced to a permanent residence to be satisfied, so long as that status has not changed.” Ante, at 71 (italics supplied by the Court).

The use of italics will not alter the ordinary meaning of the statutory terminology, however, and the Court gives no basis for believing that Congress intended something other than the ordinary meaning of the words it used. No one could reasonably suggest that Congress was seeking to accommodate the commuters when it enacted these definitions and to provide special status to those who do not reside and do not intend to reside in this country. Clearly it was dealing with those aliens who seek permanent-resident status in this country and who fulfill that intention.

Since the language of the statute simply will not bend to allow the proposition which the Government and the Court adopt — that in defining “lawfully admitted for permanent residence” Congress meant to include persons who have never intended to reside permanently in this country, who do not currently reside in this country, and who never will become actual permanent residents — the ultimate rationale for the decision must be .that the plain meaning of the statute has been changed by a longstanding administrative practice accepted by Congress as the appropriate construction.

II

Administrative construction of a statute which conflicts with the express meaning of the statutory terms can be viewed as authoritative only if it appears that Congress has in fact accepted that construction, and the burden of proof necessarily is on the proponent of the administrative view. Since [c] ongressional inaction frequently betokens unawareness, preoccupation, or paralysis,” Zuber v. Allen, 396 U. S. 168, 185-186, n. 21 (1969), congressional silence standing alone cannot constitute congressional acceptance of a continuing administrative practice. The Court, however, elevates such silence to acquiescence by stressing proof of the practice and the absence of any indication that Congress has “repealed” it. Ante, at 75.

The administrative practice of treating daily commuters as immigrant aliens began in 1927 with the Department of Labor’s General Order No. 86. Since Mexicans and Canadians were not subject to numerical limitations on entry into this country, this classification of the commuters had no practical effect upon them; informal documentation requirements were followed. It was not until 1952 that Congress enacted a provision which could have limited the entry of commuters. Under § 212 (a) (14) of the 1952 Act, 66 Stat. 183, Congress provided that an immigrant could not enter if the Secretary of Labor certified that there were sufficient domestic workers available in his field of work or that his entry would have an adverse impact on the wages or working conditions of domestic workers. In 1965, Congress tightened this restriction by providing that aliens were inadmissible unless the Secretary of Labor certified that there were insufficient domestic workers available in the field and that the employment of aliens would not adversely affect wages and conditions of American workers. 8 TJ. S. C. § 1182 (a) (14). In another 1965 amendment, Congress imposed the first quota on immigration from the Western Hemisphere, effective in 1968.

There can be no reasonable presumption, therefore, that prior to 1952 Congress concerned itself with the propriety of the administrative classification of daily commuters under the immigration statutes. Only with the passage of the 1952 legislation and subsequent amendments was there evidence of some possible concern on the part of Congress with the number of Mexican and Canadian aliens entering this country to work. Thus if Congress both expressed concern at the influx of alien workers but approved the commuter practice, then the Court’s conclusion of congressional acquiescence in the administrative construction would have some persuasive force. Since that construction conflicts with the meaning of the statute on its face, however, something more than silence is required to establish acquiescence. Cf. Leary v. United States, 395 U. S. 6, 24-25 (1969). The only evidence of congressional acceptance cited by the Court is a brief description of the prior practice with respect to commuters contained in an extremely extensive report of an investigation of this Nation’s immigration system published by the Senate Judiciary Committee in 1950. The fact that “[n]o doubt as to the desirability of the practice was expressed,” ante, at 78, will not overcome the fact that the terms of the statute passed two years later are incompatible with that practice, and neither the Court nor the Government can point to any express congressional acceptance of that practice in spite of the incompatibility. The Court does say that since 1965 there have been numerous committee reports indicating congressional knowledge of the commuter problem and that Congress “has not reached a consensus that the administrative policy ... is wrong.” Ibid. But the Court has clearly, and erroneously, placed the burden upon Congress to show that it has not accepted the practice rather than on the administrative agency to establish that Congress has acquiesced.

Very recently, in noting an exception to the principle of giving great weight to an administrative construction of a statute, we said that “an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.” FMC v. Seatrain Lines, Inc., 411 U. S. 726, 745 (1973). But the Court has allowed an agency to do so in this case.

Ill

The majority acknowledges the many political, economic, and social implications of the issues in this case and the need for the Court to legislate only when interstitial ambiguities in a statute require resolution, but it then rests its rejection of these unambiguous provisions of the immigration laws'upon legislative considerations: the economic consequences to the alien commuters and to their communities of finding that the administrative practice is not consistent with the statute, the possible impact upon American border communities if those commuters who are legally capable of doing so choose to take up actual residence in this country, and the need to avoid negative effects upon this country’s relations with Mexico and Canada. Ante, at 78-79. But these interests, as well as the opposing interests of domestic labor, form part of the congressional calculus, and this Court is hardly equipped or authorized to predict by its decision the direction in which that balance of interests will ultimately tip. Because I believe that the Court has strayed from the neutral judicial function of applying traditional principles of statutory construction, I must respectfully dissent.

       8 CFR §211.1 (b)(1).

       8 U. S. C. §§ 1181 (a) and 1151-1153.

       § 1184(b).

       § HOI (a) (15).

       § 1101 (a) (15) (H). Legislation proposed in 1973 would limit the stay of these nonimmigrants to one year with possible extension to two years. H. R. Rep. No. 93-461, p. 16 (1973).

       8 U. S. C. §1101 (a) (15) (H) (ii).

       § 1151 (a).

      § 1101 (a)(27)(B). The 1973 House Report, supra, n. 5, at 16, recognizes the difference between a “special immigrant” and non-immigrants covered by § 1101 (a)(15)(H).

       “Title 8 U. S. C. §1182 (a)(14) provides:
      “(a) Except as otherwise provided in this chapter, the following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States:
      “(14) Aliens seeking to enter the United States for the purpose of performing skilled or unskilled labor, unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.”

       §1101 (a) (20).

      A collective-bargaining agent for farmworkers. Two farm laborers were also plaintiffs and four more intervened in the District Court. The parties herein are referred to as they were in the District Court.

       In the District Court and the Court of Appeals plaintiffs also argued that 8 CFR § 211.1 (b) (1) should be read to preclude the entry of a commuter to work at a place where a labor dispute exists, even if the commuter has previously been employed there. This claim was not decided by the Court of Appeals and was not presented in plaintiffs’ petition for certiorari. Hence we offer no views on the merits of this claim.

       8 U. S. C. §1101 (a) (15) (H).

       §1184 (b).

        Matter of Contopoulos, 10 I. & N. Dec. 654 (1964).

       8 U. S. C. §1184 (b).

       1 C. Gordon & H. Rosenfield, Immigration Law and Procedure § 2.14b (rev. ed. 1974).

       The subsection is in 8 U. S. C. § 1101 (a).

       8 U. S. C. §1151 (a).

      § 1182.

       §§ 1181 (a), 1201.

       §1202 (a).

       See 32 Stat. 826 ; 34 Stat. 596; c. 141, 37 Stat. 736.

       By then it was called the Immigration and Naturalization Service. Reorganization Plan No. V, 54 Stat. 1238.

       General Order No. 86 reads as follows:
      “Subject: Land border crossing procedure
      "1. Hereafter aliens residing in foreign contiguous countries and entering the United States to engage in existing employment or to seek employment in this country will not be considered as visiting the United States temporarily as tourists, or temporarily for business or pleasure, under any provisions of the Immigration Law which exempt visitors from complying with certain requirements thereof; that is, they will be considered as aliens of the ‘immigrant’ class.
      “2, However, the following aliens of the said ‘immigrant’ class residing in foreign contiguous countries and who are now enjoying the border crossing privilege may continue so to enjoy it upon the payment of head tax, provided such head tax was assessible [sic] on aliens entering permanently at the time of original admission and, provided further, that they are not coming to seek employment.
      “A. Aliens whose original admission occurred prior to June 3,1921.
      “B. Natives of nonquota countries whose original admission occurred prior to July 1,1924.
      “3. Aliens of all nationalities of the ‘immigrant’ class whose original admission occurred subsequent to June 30, 1924, will be required to meet all provisions of the Immigration Laws applying to aliens of the ‘immigrant’ class. Aliens of this class already enjoying the border crossing privilege, however, will be granted a reasonable time, not to exceed six months from July 1, 1927, within which to obtain immigration visas and otherwise comply with the laws.
      “4. Aliens who have already complied with the requirements of the Immigration Laws and this General Order may be permitted to continue to enjoy the border crossing privilege.
      “5. Aliens who have complied with the requirements of this General Order governing permanent admission will be considered as having entered for permanent residence.
      “6. The use and issuance of identification cards to all classes of aliens entitled to same will continue as heretofore.
      “7. Identification cards held by or issued to aliens of the 'immigrant' class shall be rubber-stamped as follows:
      “IMMIGRANT
      “10. All identification cards heretofore issued, held by aliens who cannot, or do not, meet the requirements of law, regulations and this order, will be taken up and canceled upon an incoming trip of the holder and appropriate action taken.
      “12. The status of holders of identification cards shall be inquired into periodically .... When the holder of a 'nonimmigrant' identification card qualifies as an 'immigrant,' a new identification card shall be issued, stamped to show the correct status.”

       C. 29, 39 Stat. 874; 42 Stat. 5; c. 190, 43 Stat. 153.

       65 Stat. 119.

       N. 9, supra. See 1 Gordon & Rosenfield, supra, n. 17, § 2.40.

       We find in the reports on the 1965 Act no suggestion that the commuter program was to be uprooted in its entirety, S. Rep. No. 748, 89th Cong., 1st Sess. (1965). That report emphasizes the purpose to prevent an “influx” of foreign labor, not to destroy existing labor arrangements. Id., at 15.

       For the text of General Order No. 86 see n. 25, supra.

       The aliens in Karnuth wanted to be treated as nonimmigrants. One of the categories of nonimmigrants under § 3 of the Immigration Act of 1924, 43 Stat. 154, was defined as “an alien visiting the United States temporarily ... for business or pleasure.” The Court held they did not qualify as laborers for hire.

       Immigration Rules and Regulations, Jan. 1, 1930, Rule 3, Subd. C; 8 CFR § 3.6 (1939); 8 CFR § 110.6 (1947).

        Matter of D -- C -, 3 I. & N. Dec. 519 (1949); Matter of L.-, 4 I. & N. Dec. 454 (1951).

        Matter of M-D -S-, 8 I. & N. Dec. 209 (1958); Matter of Bailey, 11 I. & N. Dec. 466 (1966); Matter of Burciaga-Salcedo, 11 I. & N. Dec. 665 (1966); Matter of Gerhard, 12 I, & N. Dec. 556 (1967); Matter of Wighton, 13 I. & N. Dec. 683 (1971); Matter of Hoffman-Arvayo, 13 I. & N. Dec. 750 (1971).

       Report of Select Commission on Western Hemisphere Immigration 104 (196S). See S. Rep. No. 91-83. p. 65 (1969), stating that the alien commuter problem “can be resolved not by drastically putting an end to the commuter system, but by refining its current operations.” See Hearings on H. R. 9112, H. R. 15092, H. R. 17370 before Subcommittee No. 1 of the House Committee on the Judiciary, 91st Cong., 2d Sess., 205-207.

       Stranger in One’s Land 12 (Clearinghouse Publication No. 19, 1970).

       Statement of Assistant Secretary of State Oliver to the Senate Subcommittee on Immigration, Sept. 25,1967, p. 6.

        Id., at 4.

        “I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions.” Southern Pacific Co. v. Jensen, 244 U. S. 205, 221 (1917) (dissenting opinion).

       Counsel for the federal parties (hereinafter the Government) indicated at oral argument that commuters actually form a spectrum rather than two hard-and-fast categories. Some commuters stay in this country for whole seasons and then switch later to daily commuting. Some daily commuters come across the border less regularly than every workday, and sometimes seek only temporary employment and switch employers. Tr. of Oral Arg. 18, 52, 54.

       Strain between the statute and the administrative practice is also evident in the need for the Government to fit the daily commuter’s trip each day from his home in Mexico or Canada to his workplace in this country as a return to this country “from a temporary visit abroad.” 8 U. S. C. § 1101 (a) (27) (B) (emphasis added). As indicated in the text, the regulations refer to a return to “an unrelinquished lawful permanent residence” in this country from “a temporary absence abroad . . . .” 8 CFR §211.1 (b).

       In an effort to make the facts fit the statute, the Court of Appeals found that the commuter’s place of work could be considered his permanent residence. 156 U. S. App. D. C. 304, 311, 481 F. 2d 479, 486 (1973). Others have noted the “logical inconsistency” and the lack of a precise fit between the practice and the law but have justified the discordance by citing “practical needs and considerations of foreign policy.” 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure §2.19, p. 2-105 (1973 Cum. Supp.). The practice has been viewed as an “amiable fiction” and the product of “administrative ingenuity.” Id., §2.8b, p. 2-43 (1974). The Board of Immigration Appeals has similarly acknowledged that the commuter practice “manifestly does not fit into any precise category found in the immigration statutes” and that “[t]he status is an artificial one, predicated upon good international relations maintained and cherished between friendly neighbors.” Matter of M - D - S -, 8 I. & N. Dec. 209, 213 (1958).

       The effect of the Court’s decision is not only to stretch the meaning of the statute so as to include commuters within the permanent resident status, but also to throw into question the meaning of “permanent resident” throughout the immigration laws with obvious anomalous consequences. See Gooch v. Clark, 433 F. 2d 74, 83-85 (CA9 1970) (Wright, J., dissenting). For example, the “spouses, unmarried sons or unmarried daughters of an alien lawfully admitted for permanent residence” are included in the second preference group for immigration visas. 8 U. S. C. §1153 (a)(2). Thus a commuter’s immediate kin are perhaps eligible for a preference although the commuter may himself have been entitled to no preference. The Government suggests that the commuter’s status for other purposes is not before the Court and need not be decided. Brief for Federal Parties 28. But the Court should be reluctant to accept an invitation to make an ad hoc decision with respect to one aspect of a statutory definition where it is clear that the definition is a central one which Congress has provided with the intent of having it applied generally.

       See the relevant text of General Order No. 86, ante, at 73-74, n. 25.

       The Court’s opinion suggests that General Order No. 86 removed commuters from quota restrictions applicable to nonimmigrants. Ante, at 77. But Mexican and Canadian commuters had not been subject to any quotas. The Immigration Act of 1924 imposed no quotas on nonimmigrants, and Mexicans and Canadians were not subject to immigrant quotas. 43 Stat. 153. The General Order was designed primarily to prevent quota aliens from entering this' country through Canada and Mexico as nonimmigrants. Letter from Secretary of Labor, dated Nov. 26, 1928, in App. A of H. R. Rep. No. 2401, 70th Cong., 2d Sess., 5-10 (1929). Informal documentation was maintained despite the classification of the commuters as immigrants because the immigration authorities did not view Congress as intending to interfere with the practice of border crossings by commuters. Report of Select Commission on Western Hemisphere Immigration 101-102 (1968).

       The Secretary of Labor has not issued a certification allowing the entry of aliens seeking employment as farm laborers. 29 CFR §§ 60.2 (a) (2), 60.7 (Schedule B).

       § 21 (e), 79 Stat. 921.

       The Government refers to the inclusion in an early draft of a House bill, H. R. 5138, which ultimately became the Alien Registration Act of 1940, of a provision which would have prohibited any alien from entering this country from Mexico or Canada for the purposes of working or seeking employment. Hearing on H. R. 5138 before Subcommittee No. 3 of the House Committee on the Judiciary, 76th Cong., 1st Sess., ser. 3, p. 3 (1939). The deletion of that provision prior to the reporting of the bill does not signal congressional approval of the administrative classification of commuters, but rather, as with the absence of quotas restricting the entry of Mexicans and Canadians, an unwillingness to restrict such entry .which persisted at least until 1952.

       S. Rep. No. 1515, 81st Cong., 2d Sess., 535-536, 616 (1950).

       The Government concedes that the seasonal commuter practice grew after the bracero program had lapsed. Tr. of Oral Arg. 53; Brief for Federal Parties 75. See also Gordon, The Amiable Fiction — Alien Commuters Under Our Immigration Laws, in Employment of “Green Card” Aliens During Labor Disputes, Hearings on H. It. 12667 before the Special Subcommittee on Labor of the House Committee on Education and Labor, 91st Cong., 1st Sess., 181, 183 (1969). Therefore, there is even less reason for believing that Congress acquiesced in the administrative classification of seasonal commuters.

       The majority cites Massachusetts Trustees v. United States, 377 U. S. 235 (1964), and United States v. Midwest Oil Co., 236 U. S. 459 (1915), in support of its rationale of statutory construction. Ante, at 74. A comparison of the statutes and facts of those cases with the situation here, however, graphically reveals the extent of the majority’s departure from accepted canons of construction.
      In Massachusetts Trustees the Court was faced with the problem of harmonizing apparently inconsistent sections of the same statute governing an agency’s authority. The literal language of the statute was found insufficiently precise to dispose of the question. Under these circumstances, the Court looked to the agency’s practice, which could be given “some weight”; but the successive extensions by Congress of the agency’s authority in the face of the agency’s prior practice was not, even then, to be controlling. 377 U. S., at 241-245.
      In Midwest Oil Co. the Presidential power to withdraw public lands from private acquisition which Congress by legislation had made free and open to occupation and purchase was found in the hundreds of such withdrawal orders, beginning in the early years of the Government, which had not been repudiated by Congress. In addition, the Executive Order in question was issued seven years after the Secretary of the Interior, in response to a resolution of the Senate calling for information as to the authority for such withdrawals, sent to the Senate a report which cited the longstanding practice and the Executive’s claim of authority. Congress took no action to repudiate that claim. Legislation soon after the order in question authorized such withdrawals by the President prospectively, expressed no intention on the part of Congress to repudiate past withdrawals, and left the question of the validity of past withdrawals to the courts. 236 U. S., at 469-471, 480-483. Nothing in this case remotely resembles the historical record upon which congressional acquiescence was premised in Midwest Oil Co.