author: Mr. Chief Justice Burger

text:
    BROWN v. TEXAS
    No. 77-6673.
    Argued February 21, 1979
    Decided June 25, 1979

      BurgeR, C. J., delivered the opinion for a unanimous Court.

      Raymond C. Caballero argued the cause and filed a brief for appellant.

      Renea Hicks, Assistant Attorney General of Texas, argued the cause for appellee pro hac vice. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General.

        Evelle J. Younger, Attorney General, Jack B. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Karl Phaler, Deputy Attorney General, filed a brief for the State of California as amicus curiae.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman’s demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request.

I

At 12:45 in the afternoon of December 9, 1977, Officers Venegas and Sotelo of the El Paso Police Department were cruising in a patrol car. They observed appellant and another man walking in opposite directions away from one another in an alley. Although the two men were a few feet apart when they first were seen, Officer Venegas later testified that both officers believed the two had been together or were about to meet until the patrol car appeared.

The car entered the alley, and Officer Venegas got out and asked appellant to identify himself and explain what he was doing there. The other man was not questioned or detained. The officer testified that he stopped appellant because the situation “looked suspicious and we had never seen that subject in that area before.” The area of El Paso where appellant was stopped has a high incidence of drug traffic. However, the officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed.

Appellant refused to identify himself and angrily asserted that the officers had no right to stop him. Officer Venegas replied that he was in a “high drug problem area”; Officer Sotelo then “frisked” appellant, but found nothing.

When appellant continued to refuse to identify himself, he was arrested for violation of Tex. Penal Code Ann., Tit. 8, § 38.02 (a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer “who has lawfully stopped him and requested the information.” Following the arrest the officers searched appellant; nothing untoward was found.

While being taken to the El Paso County Jail appellant identified himself. Nonetheless, he was held in custody and charged with violating § 38.02 (a). When he was booked he was routinely searched a third time. Appellant was convicted in the El Paso Municipal Court and fined $20 plus court costs for violation of § 38.02. He then exercised his right under Texas law to a trial de novo in the El Paso County Court. There, he moved to set aside the information on the ground that § 38.02 (a) of the Texas Penal Code violated the First, Fourth, and Fifth Amendments and was unconstitutionally vague in violation of the Fourteenth Amendment. The motion was denied. Appellant waived a jury, and the court convicted him and imposed a fine of $45 plus court costs.

Under Texas law an appeal from an inferior court to a county court is subject to further review only if a fine exceeding $100 is imposed. Tex. Code Crim. Proc. Ann., Art. 4.03 (Vernon 1977). Accordingly, the County Courtis rejection of appellant's constitutional claims was a decision “by the highest court of a State in which a decision could be had.” 28 U. S. C. § 1257 (2). On appeal here we noted probable jurisdiction. 439 U. S. 909 (1978). We reverse.

II

When the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers “lawfully stopped” appellant. See Tex. Penal Code Ann., Tit. 8, § 38.02 (1974). The Fourth Amendment, of course, “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U. S. 721 (1969); Terry v. Ohio, 392 U. S. 1, 16-19 (1968). ‘[W] hen ever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person,’ id., at 16, and the Fourth Amendment requires that the seizure be ‘reasonable.’ ” United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975).

The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 209-210 (1979); Terry v. Ohio, 392 U. S. 1, 20 (1968), depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Pennsylvania v. Mimms, 434 U. S. 106, 109 (1977); United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U. S., at 878-883.

A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, 440 U. S. 648, 654-655 (1979); United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society’s legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, 428 U. S. 543, 558-562 (1976).

The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a “reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed.” We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have “probable cause” to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, 306 U. S. 451 (1939),

The flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Yenegas testified at appellant’s trial that the situation in the alley “looked suspicious,” but he was unable to point to any facts supporting that conclusion. There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant’s activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.

In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant’s right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661.

The application of Tex. Penal Code Ann., Tit. 8, § 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct. Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is

Reversed.

APPENDIX TO OPINION OF THE COURT

“THE COURT: . . . What do you think about if you stop a person lawfully, and then if he doesn’t want to talk to you, you put him in jail for committing a crime.
“MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant’s statement in his motion that the First Amendment gives an individual the right to silence.
“THE COURT: . . . I’m asking you why should the State put you in jail because you don’t want to say anything.
“MR. PATTON: Well, I think there’s certain interests that have to be viewed.
“THE COURT: Okay, I’d like you to tell me what those are.
“MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual’s interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances.
“THE COURT: But why should it be a crime to not answer?
“MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt.
“THE COURT: What does it disrupt?
“MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes.
“THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?
“MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it’s presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual’s name and address, and to determine what exactly is going on.
“THE COURT: I’m not questioning, I’m not asking whether the officer shouldn’t ask questions. I’m sure they should ask everything they possibly could find out. What I’m asking is what’s the State’s interest in putting a man in jail because he doesn’t want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn’t have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don’t confess, you can’t put them in jail, can you, for refusing to confess to a crime?” App. 15-17 (emphasis added).

       The entire section reads as follows:
      “§ 38.02. Failure to Identify as Witness
      “(a) A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peace officer who has lawfully stopped him and requested the information.”

       This situation is to be distinguished from the observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer. See United States v. Brignoni-Ponce, 422 U. S. 873, 884-885 (1975); Christensen v. United States, 104 U. S. App. D. C. 35, 36, 259 E. 2d 192, 193 (1958).

       We need not decide whether an individual may be punished for refusing to identify himself in the context of a lawful investigatory stop which satisfies Fourth Amendment requirements. See Dunaway v. New York, 442 U. S. 200, 210 n. 12 (1979); Terry v. Ohio, 392 U. S. 1, 34 (1968) (White, J., concurring). The County Court Judge who convicted appellant was troubled by this question, as shown by the colloquy set out in the Appendix to this opinion.


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Brennan,

license: Public Domain

text:
    BARRY, CHAIRMAN, RACING AND WAGERING BOARD OF NEW YORK, et al. v. BARCHI
    No. 77-803.
    Argued November 7, 1978
    Decided June 25, 1979

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Blackmun, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in part, in which Stewart, Marshall, and Stevens, JJ., joined, post, p. 68.

      Robert S. Hammer, Assistant Attorney General of New York, argued the cause for appellants. With him on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.

      Joseph A. Faraldo argued the cause and filed a brief for appellee.

      Briefs of amici curiae urging affirmance were filed by Dominic H. Frinzi and Joseph F. Asher for Harness Horsemen International, Inc.; by Philip P. Ardery for the Horsemen’s Benevolent and Protective Association; and by Roger D. Smith for the Jockeys’ Guild, Inc.

        0. Carlysle McCandless, Miles M. Tepper, Ira A. Finkelstein, and Ruth jD. MacNaughton filed a brief for the New York Racing Association, Inc., as amicus curiae.

   Mr. Justice White

delivered the opinion of the Court.

The New York State Racing and Wagering Board (Board) is empowered to license horse trainers and others participating in harness horse-race meets in New York. The Board also issues regulations setting forth the standards of conduct that a horse trainer must satisfy to retain his license. Among other things, the rules issued by the Board forbid the drugging of horses within 48 hours of a race and make trainers responsible for the condition and soundness of their horses before, during, and after a race. A trainer is forbidden to permit a horse in his custody to start a race “if he knows, or if by the exercise of reasonable care he might have known or have cause to believe” that a horse trained by him has been drugged. Every trainer is required to “guard or cause to be guarded each horse trained by him in such manner ... as to prevent any person not employed by or connected with the owner or trainer from administering any drug . ...” And when a postrace test, which must be administered to horses finishing first, second, or third, reveals the presence of drugs, it is to be presumed — subject to rebuttal — that the drug “was either administered by the trainer or resulted from his negligence in failing to adequately protect against such occurrence.”

On June 22, 1976, Be Alert, a harness race horse trained by appellee, John Barchi, finished second in a race at Monticello Raceway. Two days later, Barchi was advised by the Board steward that a postrace urinalysis had revealed a drug in Be Alert’s system. Barchi proclaimed his innocence, and two lie-detector tests supported his lack of knowledge of the drugging. On July 8, relying on the trainer’s responsibility rules and the evidentiary presumption arising thereunder, the steward suspended Barchi for 15 days, commencing July 10. Under § 8022 of the New York Unconsolidated Laws, a suspended licensee is entitled to a post-suspension hearing, but the section ordains that “[p]ending such hearing and final determination thereon, the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect.” The section specifies no time in which the hearing must be held, and it affords the Board as long as 30 days after the conclusion of the hearing in which to issue a final order adjudicating a case. Without resorting to the § 8022 procedures, Barchi filed this suit in the United States District Court.

Barchi alleged that his trainer’s license was protected by the Due Process Clause of the Fourteenth Amendment of the United States Constitution and that § 8022 was unconstitutional because it permitted his license to be suspended without a prior hearing to determine his culpability and because a summary suspension could not be stayed pending the administrative review provided by the statute. Barchi also challenged the rule permitting the Board to presume rebuttably from the drugging of a horse that its trainer was responsible. His claim was that “there is no rational connection between the fact proved, that the horse was illegally drugged, and the ultimate fact presumed that the trainer is guilty of the act or carelessly guarded against the act occurring,” App. 15a (complaint), it being impossible, Barchi alleged, for the trainer to guard the horse against all those who by stealth might gain access to it. Barchi’s third claim was that, in prohibiting a stay of his suspension pending administrative review, § 8022 denied him equal protection of the laws, since in the context of' thoroughbred racing, in contrast to harness racing, suspensions can be stayed pending appeal.

The District Court upheld the evidentiary presumption on its face, concluding: “[T]he duty of a trainer to oversee his horses is sufficiently connected to the occurrence of tampering to support the presumption established by the trainer’s ‘insurer’ rules. The state’s definition of trainer responsibility is reasonably related to the interests involved and, given the rebuttable nature of the 4120.5 presumption, the high standard of accountability is not unconstitutional.” Barchi v. Sarafan, 436 F. Supp. 775, 784 (SDNY 1977). The District Court went on to hold, however, that § 8022 of the New York law was unconstitutional under the Due Process Clause since it permitted the State “to irreparably sanction a harness race horse trainer without a pre-suspension or a prompt post-suspension hearing in violation of plaintiff’s right to due process.” App. to Juris. Statement 2a (order of judgment). The court further concluded that the difference between the procedures applicable to harness racing and those applicable to thoroughbred racing was so unwarranted as to violate the Equal Protection Clause of the Fourteenth Amendment.

We noted probable jurisdiction of the appeal. 435 U. S. 921 (1978). In this Court, the appellants adhere to their fundamental position that, as a constitutional matter, Barchi was entitled to no more process than was available to him under § 8022 either before or after the suspension was imposed and became effective. Barchi, on the other hand, continues to insist that his suspension could in no event become effective without a prior hearing to establish that his horse had been drugged and that he was culpable.

We agree with appellants that § 8022 does not affront the Due Process Clause by authorizing summary suspensions without a presuspension hearing, and we reject Barchi’s contrary contention. In disagreement with appellants, however, we conclude that Barchi was not assured a sufficiently timely postsuspension hearing and that § 8022 was unconstitutionally applied in this respect.

It is conceded that, under New York law, Barchi’s license could have been suspended only upon a satisfactory showing that his horse had been drugged and that he , was at least negligent in failing to prevent the drugging. As a threshold matter, therefore, it is clear that Barchi had a property interest in his license sufficient to invoke the protection of the Due Process Clause. We do not agree with Barchi’s basic contention, however, that an evidentiary hearing was required prior to the effectuation of his suspension. Unquestionably, the magnitude of a trainer’s interest in avoiding suspension is substantial; but the State also has an important interest in assuring the integrity of the racing carried on under its auspices. In these circumstances, it seems to us that the State is entitled to impose an interim suspension, pending a prompt judicial or administrative hearing that would definitely determine the issues, whenever it has satisfactorily established probable cause to believe that a horse has been drugged and that a trainer has been at least negligent in connection with the drugging. Cf. Gerstein v. Pugh, 420 U. S. 103, 111-112 (1975); Mitchell v. W. T. Grant Co., 416 U. S. 600, 609 (1974); Bell v. Burson, 402 U. S. 635, 542 (1971). In such circumstances, the State’s interest in preserving the integrity of the sport and in protecting the public from harm becomes most acute. At the same time, there is substantial assurance that the trainer’s interest is not being baselessly compromised.

Under this standard, Barchi received all the process that was due him prior to the suspension of his license. As proof that Barchi’s horse had been drugged, the State adduced the assertion of its testing official, who had purported to examine Barchi’s horse pursuant to prescribed testing procedures. To establish probable cause, the State need not postpone a suspension pending an adversary hearing to resolve questions of credibility and conflicts in the evidence. At the interim suspension stage, an expert’s affirmance, although untested and not beyond error, would appear sufficiently reliable to satisfy constitutional requirements.

As for Barchi’s culpability, the New York trainer’s responsibility rules, approved by the District Court, established a rebuttable presumption or inference, predicated on the fact of drugging, that Barchi was at least negligent. In light of the duties placed upon the trainer by the trainer’s responsibility rules, we accept this inference of culpability as defensible and would not put the State to further presuspension proof that Barchi had not complied with the applicable rules. Furthermore, although Barchi was not given a formal hearing prior to the suspension of his license, he was immediately notified of the alleged drugging, 16 days elapsed prior to the imposition of the suspension, and he was given more than one opportunity to present his side of the story to the State’s investigators. In fact, he stated his position in the course of taking two lie-detector examinations. He points to nothing in the record demonstrating convincingly that he was not negligent, and the State’s investigators apparently failed to unearth an explanation for the drugging that would completely exonerate him. Even if the State's presuspension procedures, then, were not adequate finally to resolve the issues fairly and accurately, they sufficed for the purposes of probable cause and interim suspension.

That the State’s presuspension procedures were satisfactory, however, still leaves unresolved how and when the adequacy of the grounds for suspension is ultimately to be determined. As the District Court found, the consequences to a trainer of even a temporary suspension can be severe; and we have held that the opportunity to be heard must be “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U. S. 545, 552 (1965). Here, the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. Indeed, insofar as the statutory requirements are concerned, it is as likely as not that Barchi and others subject to relatively brief suspensions would have no opportunity to put the State to its proof until they have suffered the full penalty imposed. Yet, it is possible that Barchi’s horse may not have been drugged and Barchi may not have been at fault at all. Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount, it seems to us. We also discern little or no state interest, and the State has suggested none, in an appreciable delay in going forward with a full hearing. On the contrary, it would seem as much in the State’s interest as Barchi’s to have an early and reliable determination with respect to the integrity of those participating in state-supervised horse racing.

In these circumstances, it was necessary that Barchi be assured a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay. Because the statute as applied in this case was deficient in this respect, Barchi’s suspension was constitutionally infirm under the Due Process Clause of the Fourteenth Amendment.

The question remains whether the State’s prohibition of administrative stays pending a hearing in the harness racing context without a like prohibition in thoroughbred racing denies harness racing trainers equal protection of the laws. The District Court acknowledged that the inquiry in this respect is “whether or not the classification is without a reasonable basis.” 436 F. Supp., at 783. Put another way, a statutory classification such as this should not be overturned “unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U. S. 93, 97 (1979). In holding that §8022 violated the Equal Protection Clause, the District Court misapplied this standard. The legislative history of § 8022 makes clear that the section and other provisions applicable to harness racing resulted from a legislative conclusion that harness racing should be subject to strict regulation, and neither Barchi nor the District Court has demonstrated that the acute problems attending harness racing also plague the thoroughbred racing industry. Barchi has not shown that the two industries should be identically regulated in all respects; he has not convinced us that “the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, supra, at 111. It was not the State’s burden to disprove by resort to “current empirical proof,” 440 U. S., at 110, Barchi’s bare assertions that thoroughbred and harness racing should be treated identically.

It also seems clear to us that the procedural mechanism selected to mitigate the threats to the public interest arising in the harness racing context is rationally related to the achievement of that goal. The State could reasonably conclude that swift suspension of harness racing trainers was necessary to protect the public from fraud and to foster public confidence in the harness racing sport. Accordingly, we think the District Court erred in disapproving the difference in the procedural courses applicable to harness racing and thoroughbred racing.

We thus affirm the judgment of the District Court insofar as it ruled Barchi’s suspension unconstitutional for lack of assurance of a prompt postsuspension hearing. We reverse its judgment, however, to the extent that it declared § 8022 unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The judgment of the District Court is accordingly affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Brennan,

with whom Mr. Justice Stewart, Mr. Justice Marshall, and Mr. Justice Stevens join, concurring in part.

I agree that the District Court properly declined either to abstain in this case or to require exhaustion of state remedies that were themselves being challenged as unconstitutional.

I also agree that appellee’s trainer’s license clothes him with a constitutionally protected interest of which he cannot be deprived without procedural due process. What was said of automobile drivers’ licenses in Bell v. Burson, 402 U. S. 535, 539 (1971), is even more true of occupational licenses such as Barchi’s:

“Once licenses are issued, . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses . . . involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.”

See Dixon v. Love, 431 U. S. 105, 112 (1977); Gibson v. Berryhill, 411 U. S. 564 (1973); cf. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U. S. 96 (1978). Board of Regents v. Roth, 408 U. S. 564 (1972), stated, in identifying protected interests, that Bell v. Burson was an example of situations in which “[t]he Court has . . . made clear that the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” Appellants seek to avoid these cases by characterizing appellee’s license as a “privilege” and arguing that one who has accepted the benefits of a license is precluded from challenging the conditions attached to it, including the procedures for suspension and revocation. See Arnett v. Kennedy, 416 U. S. 134 (1974) (plurality opinion). The Court properly rejects this contention — indeed, does not even mention it. Board of Regents v. Roth, supra, at 571, emphasized that “the Court has fully and finally rejected the wooden distinction between 'rights’ and 'privileges’ that once seemed to govern the applicability of procedural due process rights.” Having once determined that the interest at stake is protected by the Due Process Clause, a court has occasion only to inquire what process is due. See Dixon v. Love, supra, at 112; Mathews v. Eldridge, 424 U. S. 319, 332-333 (1976).

Turning then to the question whether the procedures available to Barchi satisfied the mandates of due process, appellants argue that the State’s interests in protecting horses and in protecting the repute of racing and the State’s income derived from racing justify summary suspensions of trainers’ licenses when traces of drugs are allegedly found in their horses’ urine. Prior decisions establish that- ''[bjefore a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event,’ ” Board of Regents v. Roth, supra, at 570 n. 7, quoting Boddie v. Connecticut, 401 U. S. 371, 379 (1971); see Smith v. Organization of Foster Families, 431 U. S. 816, 848 (1977); Bell v. Burson, supra, at 542. Even where a State’s interests justify action, after only summary informal proceedings, that temporarily infringes on protected interests pending a later full hearing, that full hearing must be available promptly after the temporary deprivation occurs. See North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U. S. 601 (1975); Goldberg v. Kelly, 397 U. S. 254, 266-267 (1970). In any event,

“[t]his Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. [Citations omitted.] The 'right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society.’ Joint Anti-Fascist Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Armstrong v. Manzo, 380 U. S. 545, 552 (1965). See Grannis v. Ordean, 234 U. S. 385, 394 (1914).” Mathews v. Eldridge, supra, at 333.

The District Court held in this case that “[o]n balance . . . the absence of either a pre-suspension hearing or a prompt post-suspension hearing denie[d Barchi] the meaningful review due process requires.” Barchi v. Sarafan, 436 F. Supp. 775, 782 (SDNY 1977). I agree with the District Court and with the Court that the absence of an opportunity for a prompt postsuspension hearing denied Barchi due process. Given the “in the alternative” phrasing of the District Court’s judgment and the absence of a cross-appeal by Barchi, however, I would not reach the question whether due process required a presuspension hearing in this case. Even assuming that the presuspension procedures afforded Barchi satisfied due process in light of the State’s allegedly substantial interests, the State has failed to identify any substantial interest in postponing Barchi’s opportunity for a full hearing once Barchi’s license was suspended. Yet the District Court found that no opportunity for an immediate postsuspension full hearing was available. Furthermore, the District Court found that, in harness racing, even a temporary suspension can irreparably damage a trainer’s livelihood. Not only does a trainer lose the income from races during the suspension, but also, even more harmful, he is likely to lose the clients he has collected over the span of his career. Where, as here, even a short temporary suspension threatens to inflict substantial and irreparable harm, an “initial” deprivation quickly becomes “final,” and the procedures afforded either before or immediately after suspension are de facto the final procedures. A final full hearing and determination after Barchi had been barred from, racing his horses and had lost his clients to other trainers was aptly described by the District Court as an “exercise in futility,” 436 F. Supp., at 782, and would certainly not qualify as a “meaningful opportunity to be heard at a meaningful time.” To be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided — i. e., either before or immediately after suspension.

I therefore join those parts of the Court’s opinion holding that the District Court properly refused to abstain or to require exhaustion and that the procedures available to Barchi failed to satisfy the requirements of due process because they did not assure a suspended trainer an opportunity for an immediate postsuspension full hearing and determination. In light of this holding, of Barchi’s failure to cross appeal from the judgment of the District Court, and of possibly significant changes in the procedures applicable to all future suspensions, I would not reach the additional questions whether Barchi was constitutionally entitled to a pre-suspension hearing and whether the difference between the procedures in harness racing and those in flat racing violates the Equal Protection Clause.

Accordingly, I would affirm the judgment of the District Court insofar as it nullifies Barchi’s suspension because the procedures applicable to his case at the time of his suspension did not satisfy due process. Like the Court, I express no view as to the constitutionality of procedures under § 8022 as it may have been modified by subsequent legislation; I would therefore vacate that portion of the District Court’s judgment that declares § 8022 unconstitutional and enjoins its enforcement.

      New York Unconsol. Laws §8010(1) (McKinney 1979) authorizes the “state harness racing commission,” whose powers are now exercised by the New York State Racing and Wagering Board, see §§ 7951-a, 8162 (McKinney 1979), to “license drivers and such other persons participating in harness horse race meets, as the commission may by rule prescribe ....” See also 9 N. Y. C. R. R. § 4101.24 (1975).

       The Board has issued, in particular, a series of rules specifying a trainer’s responsibility for the condition of horses under the trainer’s care, 9 N. Y. C. R. R. §§ 4116.11, 4120.5, 4120.6 (1974):
      “4116.11. Trainer’s responsibility. A trainer is responsible for the condition, fitness, equipment, and soundness of each horse at the time it is declared to race and thereafter when it starts in a race.”
      “4120.5. Presumptions. Whenever [certain tests required to be made pn horses that place first, second, or third in a race] disclose the presence

        in any horse of any drug, stimulant, depressant or sedative, in any amount whatsoever, it shall be presumed:
      “ (a) that the same was administered by a person or persons having the control and/or care and/or custody of such horse with the intent thereby to affect the speed or condition of such horse and the result of the race in which it participated;
      “(b) that it was administered within the period prohibited [by § 4120.4 (d), see n. 3, infra]; and
      “(c) that a sufficient quantity was administered to affect the speed or condition of such animal.
      “4120.6. Trainer’s responsibility. A trainer shall be responsible at all times for the condition of all horses trained by him. No trainer shall start a horse or permit a horse in his custody to be started if he knows, or if by the exercise of reasonable care he might have known or have cause to believe, that the horse has received any drug, stimulant, sedative, depressant, medicine, or other substance that could result in a positive test. Every trainer must guard or cause to be guarded each horse trained by him in such manner and for such period of time prior to racing the horse so as to prevent any person not employed by or connected with the owner or trainer from administering any drug, stimulant, sedative, depressant, or other substance resulting in a positive test.”

       Title 9 N. Y. C. R. R. §4120.4 (1974) provides in part:
      “No person shall, or attempt to, or shall conspire with another or others to:
      “(a) Stimulate or depress a horse through the administration of any drug, medication, stimulant, depressant, hypnotic or narcotic.

      “(d) Administer any drug, medicant, stimulant, depressant, narcotic or hypnotic to a horse within 48 hours of its race.”
      See also § 4116.11, quoted in n. 2, supra.

       9 N. Y. C. R. R. § 4120.6 (1974), quoted in n. 2, supra.

        Ibid.

        Barchi v. Sarafan, No. 76 Civ. 3070 (SDNY, Dec. 23, 1976), reprinted in-App. to Juris. Statement 24a; see Barchi v. Sarafan, 436 F. Supp. 775, 784 (SDNY 1977); App. 25a (affidavit of John Barchi). The Assistant Attorney General of New York interpreted the presumption in this way both before the three-judge court and in oral argument before this Court:
      “QUESTION: What this is is a presumption to get the matter started and that can be rebutted by other evidence.
      “MR. HAMMER: Absolutely, Your Honor. This is a permissive presumption. It is a rule of evidence, nothing more.” Tr. of Oral Arg. 7. See id., at 5; Tr. 33-34 (trainer not held absolutely responsible for drugging of horse “if it is shown that the trainer was not culpable, that he, himself, could not administer the drug and he was not found to be negligent in supervising the people under him”).

       Title 9 N. Y. C. R. R. §4105.8 (f) (1974) authorizes presiding judges “[w]here a violation of any rule is suspected to conduct an inquiry promptly and to take such action as may be appropriate . . . .” New York Unconsol. Laws § 8010 (2) (McKinney 1979) states the grounds for revocation or suspension:
      "... The commission may suspend or revoke a license issued pursuant to this section if it shall determine that (a) the applicant or licensee (1) has been convicted of a crime involving moral turpitude; (2) has engaged in boolonaking or other form of illegal gambling; (3) has been found guilty of any fraud in connection with racing or breeding; (4) has been guilty of any violation or attempt to violate any law, rule or regulation of any racing jurisdiction for which suspension from racing might be imposed in such jurisdiction; (5) or . . . has violated any rule, regulation or order of the commission, or [that (b)] the experience, character or general fitness of any applicant or licensee is such [that] the participation of such person in harness racing or related activities would be inconsistent with the public interest, convenience or necessity or with the best interests of racing generally.”

       New York Unconsol. Laws §8022 (McKinney 1979) provides in full:
      “If the state harness racing commission shall refuse to grant a license applied for under this act, or shall revoke or suspend such a license granted by it, or shall impose a monetary fine upon a participant in harness racing the applicant or licensee or party fined may demand, within ten days after notice of the said act of the commission, a hearing before the commission and the commission shall give prompt notice of a time and place for such hearing at which the commission will hear such applicant or licensee or party fined in reference thereto. Pending such hearing and final determination thereon, the action of the commission in refusing to grant or in revoking or suspending a license or in imposing a monetary fine shall remain in full force and effect. The commission may continue such hearing from time to time for the convenience of any of the parties. Any of the parties affected by such hearing may be represented by counsel, and the commission may be represented by the attorney-general, a deputy attorney-general or its counsel. In the conduct of such hearing the commission shall not be bound by technical rules of evidence, but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. In connection with such hearing, each member of the commission shall have the power to administer oaths and examine witnesses, and may issue subpoenas to compel attendance of witnesses, and the production of all material and relevant reports, books, papers, documents, correspondence and other evidence. The commission may, if occasion shall require, by order, refer to one or more of its members or officers, the duty of taking testimony in such matter, and to report thereon to the commission, but no determination shall be made therein except by the commission. Within thirty days after the conclusion of such hearing, the commission shall make a final order in writing, setting forth the reasons for the action taken by it and a copy thereof shall be served on such applicant or licensee or party fined, as the case may be. The action of the commission in refusing to grant a license or in revoking or suspending a license or in imposing a monetary fine shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules.”

       The provision applicable to thoroughbred racing, N. Y. Unconsol. Laws §7916 (3) (McKinney 1979), provides:
      “No license shall be revoked unless such revocation is at a meeting of the state racing commission on notice to the licensee, who shall be entitled to a hearing in respect of such revocation. In the conduct of such hearing the commission shall not be bound by technical rules of evidence but all evidence offered before the commission shall be reduced to writing, and such evidence together with the exhibits, if any, and the findings of the commission, shall be permanently preserved and shall constitute the record of the commission in such case. The action of the commission in refusing, suspending or in revoking a license shall be reviewable in the supreme court in the manner provided by the provisions of article seventy-eight of the civil practice law and rules. Such hearing may be held by the chairman thereof or by any commissioner designated by him in writing, and the chairman or said commissioner may issue subpoenas for witnesses and administer oaths to witnesses. The chairman or commissioner holding such hearing shall, at the conclusion thereof, malee his findings with respect thereto and said findings, if concurred in by two members of the commission, shall become the findings and determination of the commission.”

       The District Court declined to abstain to permit the state courts to construe § 8022 prior to adjudication of Barchi’s constitutional claims on their merits. Appellants had maintained that the provision might be construed to give the Board discretion to stay suspensions pending the outcome of the postsuspension hearing provided by § 8022. The District Court thought the language of the statute unequivocally foreclosed that construction. We cannot say that the District Court erred in this respect. Section 8022 provides that, pending a full hearing and final determination thereon, “the action of the [Board] in . . . suspending a license . . . shall remain in full force and effect.” (Emphasis added.) The provision gives no assurance of a presuspension or prompt postsuspension hearing and determination. And it makes clear that the Board need not reach a determination until “thirty days after the conclusion of [the] hearing.”
      We reject appellants’ further contention that Barchi should not have commenced suit prior to exhausting the procedure contemplated under § 8022. Under existing authority, exhaustion of administrative remedies is not required when “the question of the adequacy of the administrative remedy . . . [is] for all practical purposes identical with the merits of [the plaintiff’s] lawsuit.” Gibson v. Berryhill, 411 U. S. 564, 575 (1973).

       Under New York law, a license may not be revoked or suspended at the discretion of the racing authorities. Cf. Bishop v. Wood, 426 U. S. 341 (1976). Rather, suspension may ensue only upon proof of certain contingencies. See N. Y. Unconsol. Laws § 8010 (McKinney 1979), quoted in n. 7, supra. Notably, when a horse is found to have been drugged, the license of the horse’s trainer may be suspended or revoked if he did the drugging, if he knew'or should have known that the horse had been drugged, or if he negligently failed to prevent it. Accordingly, state law has engendered a clear expectation of continued enjoyment of a license absent proof of culpable conduct by the trainer. Barchi, therefore, has asserted a legitimate “claim of entitlement . . . that he may invoke at a hearing.” Perry v. Sindermann, 408 U. S. 593, 601 (1972); see Board of Regents v. Roth, 408 U. S. 564 (1972); Bell v. Burson, 402 U. S. 535, 539 (1971); Goldberg v. Kelly, 397 U. S. 254 (1970).

       In response to the slaying of a union official who represented employees at a harness track and the resulting disclosure of “a pattern of activities . . . clearly inimical to the public interest,” Governor Dewey appointed a commission to inquire into the general regulation of harness tracks. N. Y. Legis. Doc. No. 86, 177th Sess., 3 (1954). The investigation disclosed that harness racing had become “a lush and attractive field for every kind of abuse.” Id., at 4; see Report of the New York State Commission, in Public Papers of Governor Thomas E. Dewey 505 (1954). The Commission- recommended major changes in the harness racing laws, including enactment of the provisions of § 8022 ruled unconstitutional by the District Court. See 1954 N. Y. Laws, ch. 510, § 8; Report of the New York State Commission, supra, at 512.

       We express no view on whether the procedures under § 8022, as that section may have been modified by subsequent legislation, satisfy the strictures of the Due Process Clause. After the District Court rendered its decision, the Appellate Division of the New York Supreme Court nullified a Board order summarily suspending a veterinarian’s license to practice medicine at racetracks on the ground that the Board had not made “any finding that the public health, safety, or welfare imperatively required such emergency action as a suspension prior to a hearing.” Gerard v. Barry, 59 App. Div. 2d 901, 399 N. Y. S. 2d 876 (1977). The court relied on § 401 (3) of the State Administrative Procedure Act, N. Y. State Admin. Proc. Act § 401 (3) (McKinney Supp. 1977), which provides:
      “If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered, effective on the date specified in such order or upon service of a certified copy of such order on the licensee, whichever shall be later, pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”
      Section 401 (3) did not take effect until September 1, 1976, two months after Barchi was suspended. The section has no bearing on the constitutionality of procedures under § 8022 as applied to persons like Barchi who were suspended prior to its effective date. See N. Y. State Admin. Proc. Act § 103 (3) (McKinney Supp. 1977).

      I also agree that the Court need not address the District Court’s, holding that the rebuttable presumption of trainer responsibility is constitutional; appellee did not cross appeal, and he is not to be heard upon the challenge to that holding made in his brief, since agreement with that challenge would result in greater relief than was awarded him by the District Court. See FEA v. Algonquin SNG, Inc., 426 U. S. 548, 560 n. 11 (1976); United States v. Raines, 362 U. S. 17, 27 n. 7 (1960).
      Lower court decisions conflict on the question whether an irrebuttable presumption of trainer responsibility is constitutional. Compare Brennan v. Illinois Racing Board, 42 Ill. 2d 352, 247 N. E. 2d 881 (1969) (irrebut-table presumption unconstitutional), with Hubei v. West Virginia Racing Comm’n, 513 F. 2d 240 (CA4 1975) (irrebuttable presumption constitutional). See generally Note, Brennan v. Illinois Racing Board: The Validity of Statutes Making a Horse Trainer the Absolute Insurer for the Condition of His Horse, 74 Dick. L. Rev. 303 (1970).

       408 U. S., at 571-572. Both explained that “[t]o have a [protected] property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id., at 577. No extended inquiry into' the formal and informal “rules or understandings that secure certain benefits and that support claims of entitlement to those benefits,” ibid., is necessary here. Cf. Perry v. Sindermann, 408 U. S. 593, 599-603 (1972). Appellee’s claim to an entitlement in his duly issued trainer’s license is confirmed by the state statutes authorizing the issuance of licenses. See N. Y. Unconsol. Laws § 8010 (McKinney 1979).

       Cf. Hubel v. West Virginia Racing Comm’n, swpra, which described West Virginia’s interests as follows:
      “The state has at least two substantial interests to be served. It has a humanitarian interest in protecting the health of the horse, and it has a broader and more weighty interest in protecting the purity of the sport, both from the standpoint of protecting its own substantial revenues derived from taxes on legalized pari-mutuel betting and protecting patrons of the sport from being defrauded. ... If a horse is fleeter or slower than his normal speed because of having been drugged, the integrity of the race is irretrievably lost. Of course, if stimulated, his artificial position at the finish may be corrected and he may be deprived of any purse that he apparently won. But the interests of bettors cannot be protected. Winning tickets must be paid promptly at the end of the race before the disqualification of the horse, except for the most obvious reasons, can be accomplished.” 513 F. 2d, at 243-244.

       See n. 1, supra.

       My reservation of the presuspension hearing issue does not imply agreement with the Court on this matter. The record in this case, in my view, raises serious doubts that the alleged state interests in this context are sufficient to justify postponing a trainer’s hearing until after his suspension. See Mackey v. Montrym, ante, at 25-26 (Stewart, J., dissenting). The asserted importance of New York’s interests in summary action is plainly depreciated by the State Board’s claimed practice of staying suspensions when appropriate. See Tr. of Oral Arg. 10-12; Tr. 27-30; affidavit of John M. Dailey, Aug. 26, 1976, App. 34a. Moreover, in this case 16 days elapsed between the positive urine test and the suspension order. These practices are hardly consistent with appellants’ claim that summary suspensions are necessary to serve important state interests whenever a drug test is positive.

       “Race horse trainers may be entrusted with the care of a number of trotters at any given time. A trainer’s income is derived in large measure from the proceeds of horse races (as opposed to a salary), and, since, harness ‘meetings’ are sporadic, trainers cannot recapture the racing opportunities lost by missed meetings. Once a trainer is suspended, even for a brief period, an owner will immediately seek the services of another trainer so that the horse is not barred from racing. This change is often permanent in order to avoid further disruption in the care of the animal. Significantly, plaintiff has proffered the affidavit of a third-party trainer/ driver who experienced just such a loss during a suspension for a similar drug infraction. He had also suffered irreparable damage for a subsequent ex parte suspension that was later reversed. Racing opportunities lost because of a suspension cannot be recovered by a later reversal in [a] review hearing for obvious reasons. Furthermore, defendants do not dispute the fact that a loss of horses in a trainer’s stable occasioned during his suspension can often be an irremediable injury, even though such suspension is erroneous and without justification.” Barchi v. Sarafan, 436 F. Supp. 775, 778 (SDNY 1977).
      See affidavit of John Barchi, July 12, 1976, App. 23a; affidavit of Lucien Fontaine, Aug. 17, 1976, App. 39a.

       See ante, at 68-69, n. 13.


author: Mr. Justice Blackmun Mr. Justice Powell,

text:
    CALIFANO, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WESTCOTT et al.
    No. 78-437.
    Argued April 16, 1979
    Decided June 25, 1979

      Blackmun, J., delivered the opinion of the Court, in which Brennan, White, Marshall, and Stevens, JJ., joined. Powell, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined, post, p. 93.

      William H. Alsup argued the cause for appellant in No. 78-437. On the brief were Solicitor General McCree and Sara

      Sun Beale. Paul W. Johnson, Assistant Attorney General of Massachusetts, argued the cause for appellant in No. 78-689. With him on the briefs were Francis X. Bellotti, Attorney General, and S. Stephen Rosenjeld, Assistant Attorney General.

      Henry A. Freedman argued the cause for appellees in both cases. With him on the brief for appellees Westcott et al. were Kenneth P. Neiman and Michael B. Trister. Solicitor General McCree filed a brief for the federal appellee in No. 78-689.

      Together with No. 78-689, Pratt, Commissioner, Department of Public Welfare of Massachusetts v. Westcott et al., also on appeal from the same court.

        Buth Bader Ginsburg, Diana A. Steele, Phyllis N. Segal, and Nancy Duff Campell filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance in both cases.

        Stephan Landsman, Anthony Touschner, Charles B. Guerrier, and Barbara Kaye Besser filed a brief for Cathy Stevens et al. as amici curiae urging affirmance in No. 78-437.

   Mr. Justice Blackmun

delivered the opinion of the Court.

Section 407 of the Social Security Act, 75 Stat. - 75, as amended, 42 U. S. C. § 607, part of the Aid to Families with Dependent Children program, provides benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but does not provide such benefits when the mother becomes unemployed. The United States District Court for the District of Massachusetts held that this distinction violates the Due Process Clause of the Fifth Amendment, and ordered that benefits be paid to families deprived of support because of the unemployment of the mother to the same extent they are paid to families deprived of support because of the unemployment of the father. 460 F. Supp. 737 (1978). In these appeals, the Secretary of the Department of Health, Education, and Welfare (HEW), in No. 78-437, challenges the holding on the constitutionality of § 407, but does not question the relief ordered by the District Court; the Commissioner of the Massachusetts Department of Public Welfare (DPW), in No. 78-689, acquiesces in the decision on the merits, but contests the relief.

I

The Aid to Families with Dependent Children (AFDC) program, 49 Stat. 626, as amended, 42 U. S. C. § 601 et seq., provides financial assistance to families with needy dependent children. The program is administered by participating States, in conformity with federal standards, and is financed by the Federal Government and the States on a matching-funds basis. King v. Smith, 392 U. S. 309, 316-317 (1968); Shea v. Vialpando, 416 U. S. 251, 253 (1974).

As originally enacted in 1935, the AFDC program provided benefits to families whose dependent children were needy because of the death, absence, or incapacity of a parent. Batterton v. Francis, 432 U. S. 416, 418 (1977). This provision, which forms the core of the AFDC program today, is gender neutral: benefits are available to any family so long as one parent of either sex is dead, absent from the home, or incapacitated, and the family otherwise meets the financial requirements of eligibility. 42 U. S. C. § 606.

In 1961, and again in 1962, Congress temporarily extended the AFDC program to provide assistance to families whose dependent children were deprived of support because of a parent’s unemployment. Batterton v. Francis, 432 U. S., at 419; Philbrook v. Glodgett, 421 U. S. 707, 709-710 (1975). Again, this provision was gender neutral. A “dependent child,” for purposes of determining eligibility for AFDC benefits, was defined to include “a needy child . . . who has been deprived of parental support or care by reason of the unemployment ... of a parent.” 75 Stat. 75 (emphasis added).

In 1968, as part of a general revision of the Social Security Act, Congress made this extension permanent. In so doing, however, it added a gender qualification to the statute. The definition of “dependent child” in § 407 was amended to include a “needy child . . . who has been deprived of parental support or care by reason of the unemployment ... of his father.” 42 U. S. C. § 607 (a) (emphasis added). This portion of the AFDC program is known as Aid to Families with Dependent Children, Unemployed Father (AFDC-UF). Although all 50 States have chosen to participate in the basic AFDC program, only 26 States (plus Guam and the District of Columbia) take part in the AFDC-UF program. One of these is the Commonwealth of Massachusetts.

Appellees are two couples who, it is stipulated, satisfy all the requirements for AFDC-UF benefits except for the requirement that the unemployed parent be the father. Cindy and William Westcott are married and have an infant son. They applied to the Massachusetts DPW for public assistance, but were informed that they did not qualify because William, who was unable to find work, had not previously been employed for a sufficient period to qualify as an “unemployed” father under the Act and applicable regulations. Cindy, until her recent unemployment, was the family breadwinner, and would have satisfied the “unemployment” criteria had she been male.

Susan and John Westwood are also married and have an infant son. They applied for Medicaid benefits as a family eligible for, but not receiving, AFDC-UF benefits. They, too, were turned down on the ground that John’s prior work history was insufficient. Susan, like Cindy Westcott, had been the family breadwinner before losing her job, and would have qualified the family for benefits had she been male.

Appellees instituted this class action in the United States District Court for the District of Massachusetts, naming as defendants the Secretary of HEW and the Commissioner of the DPW. Appellees alleged that § 407 and its implementing regulations discriminate on the basis of gender in violation of the Fifth and Fourteenth Amendments. They sought declaratory and injunctive relief.

The District Court certified the case as a class action, and granted appellees’ motion for summary judgment. 460 F. Supp. 737 (1978). The court found that the gender qualification of § 407 was not substantially related to the achievement of any important governmental interests. 460 F. Supp., at 748-751. It was, rather, the product of an “archaic and over-broad generalization” — that “mothers in two parent families are not breadwinners, so that loss of their earnings would not substantially affect the families’ well being.” Id., at 751. The court accordingly declared § 407 unconstitutional “insofar as it establishes a classification which discriminates . . . solely on the basis of sex.” 460 F. Supp., at 754.

The District Court then turned to the question of relief. The court saw two remedial alternatives: a simple injunction against further operation of the AFDC-UF program, or extension of the program to all families with needy children where either parent is unemployed. Id., at 753. The court decided that extension, rather than nullification, was the proper remedial course; it noted the strength of Congress’ commitment to the “specific goal of assisting needy children,” and emphasized that if provision of benefits “were halted because of the constitutional defect, many persons would lose their very means of subsistence.” Id., at 753-754. The court therefore, by order dated April 20, 1978, enjoined the Commissioner from refusing to grant benefits to families made needy by the unemployment of the mother “in the same amounts and under the same standards” as he grants benefits to families made needy by the unemployment of the father. App. to Juris. Statement in No. 78-437, pp. 41A-42A. The court likewise enjoined the Secretary from refusing to provide federal matching funds for payment of such benefits. Id., at 40A-41A.

Although the Commissioner originally had agreed that this was the appropriate remedy, Juris. Statement in No. 78-689, p. 6, he later sought modification of the District Court’s order, so as to effect a more limited extension of the AFDC-UF program. The Commissioner requested that he be permitted to pay benefits “only to those families where needy children have been deprived of parental support or care by the unemployment of the family’s principal wage-earner.” App. to Juris. Statement in No. 78-689, p. 3a (emphasis added). This modification, he argued, would accomplish a gender-neutral extension of the program at a much lower cost. Id., at 4a. On August 9, 1978, the District Court denied the Commissioner’s motion, believing that “any reformulation of the statutory scheme . . . which goes beyond the remedy already ordered in this case is properly left to Congressional action.” Id., at 13a.

The Secretary, pursuant to 28 U. S. C § 1252, appealed directly to this Court from the District Court’s April 20 decision holding § 407 unconstitutional. App. to Juris. Statement in No. 78-437, p. 43A. The Commissioner took a separate appeal, also pursuant to § 1252, from the District Court’s August 9 refusal to modify its remedial order. App. to Juris. Statement in No. 78-689, p. 15a. We noted probable jurisdiction and consolidated the cases for argument. 439 U. S. 1044 (1978).

II

THE SECRETARY’S APPEAL

The Secretary advances two arguments in support of .the constitutionality of § 407. First, he contends that although § 407 incorporates a gender distinction, it does not discriminate against women as a class. Second, he urges that the distinction is substantially related to the achievement of an important governmental objective: the need to deter real or pretended desertion by the father in order to make his family eligible for AFDC benefits.

A

The Secretary readily concedes that § 407 entails a gender distinction. Brief for Appellant in No. 78-437, p. 36. He submits, however, that the Act does not award AFDC benefits to a father where it denies them to a mother. Rather, the grant or denial of aid based on the father’s unemployment necessarily affects, to an equal degree, one man, one woman, and one or more children. As the Secretary puts it, even if the statute is “gender-based,” it is not “gender-biased.” Ibid.

We are not persuaded by this analysis. For mothers who are the primary providers for their families, and who are unemployed, § 407 is obviously gender biased, for it deprives them and their families of benefits solely on the basis of their sex. The Secretary’s argument, at bottom, turns on the fact that the impact of the gender qualification is felt by family units rather than individuals. But this Court has not hesitated to strike down gender classifications that result in benefits being granted or denied to family units on the basis of the sex of the qualifying parent. See Frontiero v. Richardson, 411 U. S. 677 (1973) (military quarters allowances and medical and dental benefits); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975) (survivor’s benefits); Califano v. Goldfarb, 430 U. S. 199 (1977) (survivor’s benefits); Califano v. Jablon, 430 U. S. 924 (1977), summarily aff’g 399 F. Supp. 118 (Md. 1975) (spousal benefits). Here, as in those cases, the statute “discriminates against one particular category of family — that in which the female spouse is a wage earner.” Goldfarb, 430 U. S., at 209 (plurality opinion).

The Secretary appears to acknowledge the force of these precedents, but suggests that each involved benefits that either were a form of compensation earned by a woman as a member of the labor force, or were directly related to such compensation. In the present case, in contrast, the benefits are part of a noncontributory welfare program. Thus, the Secretary argues, the gender qualification of § 407 is distinguishable from those contained in the earlier cases, for it does not denigrate “the efforts of women who do work and whose earnings contribute significantly to their families’ support.” Wiesenfeld, 420 U. S., at 645.

The distinction between employment-related benefits and other forms of government largesse may be relevant to equal protection analysis, for example in determining whether the differential treatment of survivor’s benefits denigrates the efforts of the deceased spouse. Wiesenfeld, 420 U. S., at 645-647; Goldfarb, 430 U. S., at 206-207 (plurality opinion). This does not mean, however, that the Constitution is indifferent to a statute that conditions the availability of noncontributory welfare benefits on the basis of gender. The Secretary’s argument to the contrary in effect invites a return to the discredited view that welfare benefits are a “privilege” not subject to the guarantee of equal protection. See Graham v. Richardson, 403 U. S. 365, 374 (1971). Putting labels aside, the exclusion here is if anything more pernicious than those in Frontiero, Wiesenfeld, and Goldfarb. AFDC-UF benefits are not “fringe benefits,” nor are they a type of social assistance paid without regard to need. Rather, they are subsistence payments made available as a last resort to families that would otherwise lack basic necessities. The deprivation imposed by § 407, moreover, is not a mere procedural barrier, like the proof-of-dependency requirement in Frontiero and Goldfarb, but is an absolute bar to qualification for aid. We therefore reject the contention that the classification imposed by § 407 does not discriminate on the basis of gender.

B

The Secretary next argues that the gender distinction imposed by § 407 survives constitutional scrutiny because it is substantially related to achievement of an important governmental objective. Orr v. Orr, 440 U. S. 268, 279 (1979); Califano v. Webster, 430 U. S. 313, 316-317 (1977); Craig v. Boren, 429 U. S. 190, 197 (1976). The Secretary identifies two important objectives served by § 407.

First and most obviously, the statute was intended to provide aid for children deprived of basic sustenance because of a parent’s unemployment. H. R. Rep. No. 28, 87th Cong., 1st Sess., 2 (1961). As then HEW Secretary Ribicoff put it in testimony before the House Ways and Means Committee, “there is no justification whatsoever for denying to the child of the unemployed parent the food that you give to the child of the parent who deserts or is absent or dead.” Hearings on H. R. 3864 and 3865 before the House Committee on Ways and Means, S7th Cong., 1st Sess., 102 (1961). The appellant Secretary does not contend, however, that the gender qualification of § 407 serves to achieve this goal. Tr. of Oral Arg. 6, 7-8. Nor could he, since families where the mother is the principal wage earner and is unémployed are often in as much need of AFDC-UF benefits and Medicaid as families where the father is unemployed.

Second, the statute was designed to remedy a structural fault in the original AFDC program. Under that program, a family was eligible for benefits if deprived of parental support because of the “continued absence from the home ... of a parent.” 42 U. S. C. §606 (a). In times of economic adversity, this provision was thought to create an incentive for the father to desert, or to pretend to desert, in order to make the family eligible for assistance. Section 407, by providing AFDC benefits to families rendered needy by parental unemployment, was intended to reduce this incentive and thereby promote the goal of family stability. The Secretary submits that reducing the incentive for the father to desert was an important objective of the AFDC-UF program, and he argues that the gender qualification is substantially related to its achievement.

We perceive, however, at least two flaws in this argument. Although it is relatively clear that Congress was concerned about the problem of parental desertion, see S. Rep. No. 744, 90th Cong., 1st Sess., 160 (1967); H. R. Rep. No. 28, 87th Cong., 1st Sess., 2 (1961), there is no evidence that the gender distinction was designed to address this problem. See Weinberger v. Wiesenfeld, 420 U. S., at 648. Both the original AFDC program, and the temporary versions of the AFDC-UF program enacted in 1961 and 1962, were gender neutral. The gender qualification added to the permanent version of AFDC-TJF in 1968 escaped virtually unnoticed in the hearings and floor debates. The only explanation for this addition is contained in the following passage, which appears in nearly identical form in both the House and Senate Reports:

“This program was originally conceived by Congress as one to provide aid for the children of unemployed fathers. However, some States make families in which the father is working but the mother is unemployed eligible for assistance. The bill would not allow such situations. Under the bill, the program could apply only to the children of unemployed fathers.” S. Rép. No. 744, at 160.

See also H. R. Rep. No. 554, 90th Cong., 1st Sess., 108 (1967).

This suggests that the gender qualification was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs. Congress was concerned that certain States were making AFDC-TJF assistance available to families where the mother was out of work, but the father remained fully employed and able to support the family. Apparently, Congress was not similarly concerned about States making benefits available where the father was out of work, but the mother remained fully employed. From all that appears, Congress, with an image of the “traditional family” in mind, simply assumed that the father would be the family breadwinner, and that the mother’s employment role, if any, would be secondary. In short, the available evidence indicates that the gender distinction was inserted to reduce costs and eliminate what was perceived to be a type of superfluous eligibility for AFDC-UF benefits. There is little to suggest that the gender qualification had anything to do with reducing the father’s incentive to desert.

Even if the actual purpose of the gender qualification was to deal with the problem of paternal desertion, it does not appear that the classification is substantially related to the achievement of that goal. The Secretary argues there is “[s]olid statistical evidence” that fathers are more susceptible to pressure to desert than mothers, and thus that Congress was justified in excluding families headed by unemployed mothers from the AFDC-UF program. - Brief for Appellant in No. 78-437, p. 33. We may assume, for purposes of discussion, that Congress could legitimately view paternal desertion as a problem separate and distinct from maternal desertion. Even so, the gender qualification of § 407 is not substantially related to the stated purpose. There is no evidence, in the legislative history or elsewhere, that a father has less incentive to desert in a family where the mother is the breadwinner and becomes unemployed, than in a family where the father is the breadwinner and becomes unemployed. In either case, the family’s need will be equally great, and the father will be equally subject to pressure to leave the home to make the family eligible for benefits. The Secretary urges that Congress could take “one firm step” toward the goal of eliminating the incentive to desert, quoting Califano v. Jobst, 434 U. S. 47, 57-58 (1977). But Congress may not legislate “one step at a time” when that step is drawn along the line of gender, and the consequence is to exclude one group of families altogether from badly needed subsistence benefits. Cf. Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955).

We conclude that the gender classification of § 407 is not substantially related to the attainment of any important and valid statutory goals. It is, rather, part of the “baggage of sexual stereotypes,” Orr v. Orr, 440 U. S., at 283, that presumes the father has the “primary responsibility to provide a home and its essentials,” Stanton v. Stanton, 421 U. S. 7, 10 (1975), while the mother is the “ 'center of home and family life/ ” Taylor v. Louisiana, 419 U. S. 522, 534 n. 15 (1975). Legislation that rests on such presumptions, without more, cannot survive scrutiny under the Due Process Clause of the Fifth Amendment.

Ill

THE COMMISSIONER’S APPEAL

A

“Where a statute is defective because of underinclusion,” Mr. Justice Harlan noted, “there exist two remedial alternatives: a court may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.” Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result). In previous cases involving equal protection challenges to underinclusive federal benefits statutes, this Court has suggested that extension, rather than nullification, is the proper course. See, e. g., Jimenez v. Weinberger, 417 U. S. 628, 637-638 (1974); Frontiero v. Richardson, 411 U. S., at 691 and n. 25 (plurality opinion). Indeed, this Court regularly has affirmed District Court judgments ordering that welfare benefits be paid to members of an unconstitutionally excluded class. E. g., Califano v. Goldfarb, 430 U. S. 199 (1977), aff’g 396 F. Supp. 308, 309 (EDNY 1975); Califano v. Silbowitz, 430 U. S. 924 (1977), summarily aff’g 397 F. Supp. 862, 871 (SD Fla. 1975); Jablon v. Califano, 430 U. S. 924 (1977), summarily aff’g 399 F. Supp. 118, 132-133 (Md. 1975); Weinberger v. Wiesenfeld, 420 U. S. 636 (1975), aff’g 367 F. Supp. 981, 991 (NJ 1973); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 (1973), aff’g 345 F. Supp. 310, 315-316 (DC 1972); Richardson v. Griffin, 409 U. S. 1069 (1972), summarily aff’g 346 F. Supp. 1226, 1237 (Md.).

The District Court ordered extension rather than invalidation by way of remedy here, and equitable considerations surely support its choice. Approximately 300,000 needy children currently receive AFDC-UF benefits, see 42 Soc. Sec. Bull. 78 (Jan. 1979), and an injunction suspending the program’s operation would impose hardship on beneficiaries whom Congress plainly meant to protect. The presence in the Social Security Act of a strong severability clause, 42 U. S. C. § 1303, likewise counsels against nullification, for it evidences a congressional intent to minimize the burdens imposed by a declaration of unconstitutionality upon innocent recipients of government largesse.

There is no need, however, to elaborate here the conditions under which invalidation rather than extension of an under-inclusive federal benefits statute should be ordered, for no party has presented that issue for review. All parties before the District Court agreed that extension was the appropriate remedy. Juris. Statement in No. 78-689, p. 6; Motion to Affirm 5; Juris. Statement in No. 78-437, p. 6 n. 5. Appellees support that remedy here, and the Secretary, while arguing in favor of § 407’s constitutionality, urges that, if the statute is invalidated, the District Court’s remedy should be affirmed. Brief for Federal Appellee in No. 78-689, pp. 5-10. The Commissioner likewise argues that extension, rather than nullification, is proper, Tr. of Oral Arg. 18; indeed, the Commissioner did not appeal from the District Court’s April 20 extension order, but only from its August 9 refusal to limit extension along “principal wage-earner” fines. App. to Juris. Statement in No. 78-689, p. 15a. Since no party has presented the issue of extension versus nullification for review, we would be inclined to consider it only if the power to order extension were clearly beyond the constitutional competence of a federal district court. This Court’s previous decisions, however, which routinely have affirmed District Court judgments ordering extension of federal welfare programs, suggest strongly that no such remedial incapacity exists.

B

The narrower question presented by the Commissioner’s appeal concerns not the merits of extension versus nullification, but rather the form that extension should take. The District- Court ordered that benefits be paid to families in which either the mother or the father is unemployed within the meaning of the Act. The Commissioner agrees that either the mother’s or the father’s unemployment should be able to qualify a needy family for benefits, but proposes to award them only if the parent in question can show that he or she is both unemployed and the family’s “principal wage-earner.” Citing the legislative history of the AFDC-UF program, the Commissioner argues that his proposed remedy comports with Congress’ intent to aid families made needy by their breadwinner’s unemployment. This argument, as the preceding portions of this opinion show, is not without force. We may assume arguendo that, if Congress knew in 1968 what it knows now, it might well have adopted the “principal wage-earner” model suggested by the Commissioner. But this does not mean that the AFDC-UF program should be restructured along these lines by a federal court.

First, the Commissioner's proposed remedy would have the effect of terminating benefits to many families currently receiving them. Under the Act and implementing regulations, benefits are paid to needy families of all unemployed fathers, whether or not the father is actually the “principal wage-earner.” See 42 U. S, C. § 607 (a); 45 CFR § 233.100 (a) (1) (1978). No one contends that the Act and regulations, insofar as they provide benefits to families of <all unemployed fathers, are invalid. Absent some such showing of invalidity, we would hesitate to terminate needy families’ entitlement to statutory benefits merely because the unemployed father cannot prove “breadwinner” status.

Second, the Commissioner’s proposed remedy would involve a restructuring of the Act that a court should not undertake lightly. Whenever a court extends a benefits program to redress unconstitutional underinclusiveness, it risks infringing legislative prerogatives. The extension ordered by the District Court possesses at least the virtue of simplicity: by ordering that “father” be replaced by its gender-neutral equivalent, the court avoided disruption of the AFDC-UF program, for benefits simply will be paid to families with an unemployed parent on the same terms that benefits have long been paid to families with an unemployed father. The “principal wage-earner” solution, by contrast, would introduce a term novel in the AFDC scheme, and would pose definitional and policy questions best suited to legislative or administrative elaboration. The Commissioner, with his “principal wage-earner” gloss on parental unemployment, in essence asks this Court to redefine “unemployment” within the meaning of the Act. Yet “Congress in § 407 (a) expressly delegated to the Secretary the power to prescribe standards for determining what constitutes 'unemployment’ for purposes of AFDC-UF eligibility. In a situation of this kind, Congress entrusts to the Secretary, rather than to the courts, the primary responsibility for interpreting the statutory term.” Batterton v. Francis, 432 U. S., at 425 (emphasis in original).

The remedy the Commissioner proposes, of course, undeniably would be cheaper than the remedy the District Court decreed, in part because it would terminate some current recipients’ eligibility. Although cost may prove a dispositive factor in other contexts, we do not regard it as controlling here. The United States, which will bear the main burden of added coverage through federal matching grants, urges that the District Court’s remedy be affirmed. The AFDC-UF program, furthermore, is optional with the States, id., at 431, and any State is free to drop out of it if dissatisfied with the added expense. This Court, in any event, is ill-equipped both to estimate the relative costs of various types of coverage, and to gauge the effect that different levels of expenditures would have upon the alleviation of human suffering. Under these circumstances, any fine-tuning of AFDC coverage along “principal wage-earner” lines is properly left to the democratic branches of the Government. In sum, we believe the District Court, in an effort to render the AFDC-UF program gender neutral, adopted the simplest and most equitable extension possible.

The judgment of the District Court accordingly is affirmed.

It is so ordered.

Mr. Justice Powell,

with whom The Chief Justice,

Mr. Justice Stewart, and Mr. Justice Rehnquist join, concurring in part and dissenting in part.

I agree with the Court that § 407 violates the equal protection component of the Fifth Amendment. In my view, however, the court below erred when it ordered the extension of benefits to all families in which a mother has become unemployed. This extension reinstates a system of distributing benefits that Congress rejected when it amended § 407 in 1968. Rather than frustrate the clear intent of. Congress, the court simply should have enjoined any further payment of benefits under the provision found to be unconstitutional.

As Mr. Justice Harlan observed:

“Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion.” Welsh v. United States, 398 U. S. 333, 361 (1970) (concurring in result).

In choosing between these alternatives, a court should attempt to accommodate as fully as possible the policies and judgments expressed in the statutory scheme as a whole. See id., at 365-366, and n. 18. It should not use its remedial powers to circumvent the intent of the legislature.

The Court correctly observes that “the gender qualification [of § 407] was part of the general objective of the 1968 amendments to tighten standards for eligibility and reduce program costs.” Ante, .at 87. It is clear that Congress intended to proscribe the payment of benefits to families where only one parent was unemployed and where the principal wage earner continued to work.

“From all that appears, Congress, with an image of the 'traditional family' in mind, simply assumed that the father would be the family breadwinner, and that the mother's employment role, if any, would be secondary.” Ante, at 88.

Yet the result of the Court’s decision affirming the District Court’s relief is to compel exactly the extension of benefits Congress wished to prevent.

Rather than thus rewriting § 407, we should leave this task to Congress. Now that we have held that this statute constitutes impermissible gender-based discrimination, it is the duty and function of the Legislative Branch to review its AFDC-UF program in light of our decision and make such changes therein as it deems appropriate. Leaving the resolution to Congress is especially desirable in cases such as this one, where the allocation and distribution of welfare funds are peculiarly within the province of the Legislative Branch. See Califano v. Jobst, 434 U. S. 47 (1977); Maher v. Roe, 432 U. S. 464, 479 (1977); Dandridge v. Williams, 397 U. S. 471 (1970).

We cannot predict what Congress will think to be in the best interest of its total welfare program. The extension of AFDC benefits to families suffering only from unemployment was a relatively recent development in the history of the program, a development that Congress made permanent only on the understanding that payments could be limited to cases where the principal wage earner was out of work. We cannot assume that Congress in 1968 would have approved this extension if it had known that ultimately payments would be made whenever either parent became unemployed. Nor can we assume that Congress now would adopt such a system in light of the Court's ruling that § 407 is invalid.

The Court emphasizes the hardships that may be caused by enjoining the program until Congress can act. There is the possibility, not mentioned by the Court, that other hardships might be occasioned in the allocating of limited funds as a result of court-ordered extension of these particular benefits. In any event, Congress has the option to mitigate hardships by providing promptly for retroactive payments. An injunction prohibiting further payments at least will conserve the funds appropriated until Congress determines which group, if any, it does want to assist. The relief ordered by the Court today, in contrast, ensures the irretrievable payment of funds to a class of recipients Congress did not wish to benefit.

Because it is clear that Congress intended to prevent the result mandated today, and that the re-examination of § 407 required under our decision properly should be made by Congress, I dissent.

      To be eligible for benefits under the AFDC-UF program, a family must meet both financial and categorical requirements. The financial requirements are determined by the participating States, and vary widely from one State to another. Rosado v. Wyman, 397 U. S. 397, 408-409 (1970). The categorical requirements, however, are largely determined by the Federal Government. The Act itself specifies that the father must have had 6 or more quarters of work in any 13-quarter period ending within one year prior to the application for aid, and must be currently employed for less than 100 hours per month. 42 U. S. C. § 607 (b) (1) (C). In addition, § 407 of the Act gives the Secretary of HEW authority to promulgate regulations further defining the “unemployment” that will render a family eligible for AFDC-UF benefits. Batterton v. Francis, 432 U. S. 416, 425 (1977). The regulations, like the statute, speak in terms of the unemployment of the “father.”' 45 CFR §233.100 (a)(1) (1978).

       In States that participate in both the AFDC program and the Medicaid program, 42 U. S. C. § 1396 et seq., individuals who qualify for AFDC benefits are also entitled to receive Medicaid benefits. § 1396a (a)(10).

       The class was defined as
      “those Massachusetts families with two parents in the home and with minor dependent children, born or unborn, who would otherwise be eligible for AFDC under Massachusetts AFDC program, and hence Medicaid as well, but for the sex discrimination in the federal statute [42 U. S. C. § 607] and Massachusetts regulations [6 CHSR III, Subch. A, Pt. 301, § 301.03; Pt. 303, Subpt. A, §§303.01 & 303.04] which provide for the granting of federally funded AFDC and Medicaid to families deprived of support because of the unemployment of their father, but not to families deprived of support because of the mother’s unemployment.” App. to Juris. Statement in No. 78-437, pp. 39A-40A.
      The Secretary does not contest the class certification. Juris. Statement in No. 78-437, p. 5 n. 4.

       The Commissioner proposed to define “principal wage-earner” as the parent whose earned income or unemployment compensation was greater during the six months preceding the month of application. App. to Juris. Statement in No. 78-689, pp. 7a-8a.

       During the Senate floor debate on the Conference Report, Senator Muskie briefly noted and opposed the gender limitation of § 407. 113 Cong. Rec. 36914 (1967).

       The overriding purpose of the 1968 AFDC amendments was “[t]o give greater emphasis to getting appropriate members of families drawing aid to families with dependent children (AFDC) payments into employment and thus no longer dependent on the welfare rolls.” H. R. Rep. No. 544, 90th Cong., 1st Sess., 3 (1967). The principal changes in the AFDC-UF program designed to accomplish this end included provisions “to authorize a Federal definition of unemployment by the Secretary (but within certain limits set forth in the legislation), to tie the program more closely to the work and training program authorized by the bill, and to protect only the children of unemployed fathers who have had a recent attachment to the work force.” Id., at 108.

       This conclusion is reinforced by the fact that both the House and Senate Reports included material dealing specifically with the problem of parental desertion, yet none of this material mentioned the gender qualification of § 407. H. R. Rep. No. 544, 90th Cong., 1st Sess., 102-103 (1967); S. Rep. No. 744, 90th Cong., 1st Sess., 160-163 (1967).

       “If any provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.” 42 U. S. C. § 1303.

       The Act, for example, provides benefits to two-parent families made needy by the incapacity of either parent, regardless of which parent may have been the “principal wage-earner.” 42 U. S. C. § 606 (a).

       The relief that perhaps would best approximate what Congress appears to have intended would limit payment of benefits to those families in which the principal wage earner, regardless of gender, has become unemployed. But this approach presents several difficulties, as the Court demonstrates. Ante, at 91-93. Under these circumstances, the modification of the order sought by appellant in No. 78-689 properly was rejected.
      The Court suggests that payments to families where a breadwinner remains employed are not inconsistent with the Act, because in cases where a parent becomes incapacitated, benefits are paid regardless of the other parent’s employment status or history. 42 U. S. C. § 606 (a); see ante, at 92 n. 9. This overlooks the special circumstances involved when a parent suffers from an incapacity. In such cases, the family usually must bear not only the costs of income lost through the one parent’s unemployment, but also medical and other expenses resulting from the disability that often are quite substantial.

       The fact that none of the parties here has sought this step, a point which the Court emphasizes, is irrelevant. This issue should turn on the intent of Congress, not the interests of the parties. A court no less is “infringing legislative prerogatives,” ante, at 92, when it acts at the behest of the particular litigants before it, than when it chooses a remedy on its own initiative.