author: Mr. Chief Justice Burger

text:
    BREED, DIRECTOR, CALIFORNIA YOUTH AUTHORITY v. JONES
    No. 73-1995.
    Argued February 25-26, 1975
    Decided May 27, 1975

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

      Russel Iungerich, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and Kent L. Richland, Deputy Attorney General.

      Robert L. Walker argued the cause for respondent. With him on the brief was Peter Bull

       Briefs of amici curiae urging affirmance were filed by Alfred L. Scanlan for the National Council of Juvenile Court Judges; by David Gilman for the National Council on Crime and Delinquency et al.; and by Richard S. Buckley and Laurance S. Smith for the California Public Defenders Assn.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether the prosecution of respondent as an adult, after Juvenile Court proceedings, which resulted in a finding that respondent had violated a criminal statute and a subsequent finding that he was unfit for treatment as a juvenile, violated the Fifth and Fourteenth Amendments to the United States Constitution.

On February 9, 1971, a petition was filed in the Superior Court of California, County of Los Angeles, Juvenile Court, alleging that respondent, then 17 years of age, was a person described by Cal. Welf. & Inst’ns Code § 602 (1966), in that, on or about February 8, while armed with a deadly weapon, he had committed acts which, if committed by an adult, would constitute the crime of robbery in violation of Cal. Penal Code § 211 (1970). The following day, a detention hearing was held, at the conclusion of which respondent was ordered detained pending a hearing on the petition.

The jurisdictional or adjudicatory hearing was conducted on March 1, pursuant to Cal. Welf. & Inst’ns Code § 701 (1966). After taking testimony from two prosecution witnesses and respondent, the Juvenile Court found that the allegations in the petition were true and that respondent was a person described by § 602, and it sustained the petition. The proceedings were continued for a dispositional hearing, pending which the court ordered that respondent remain detained.

At a hearing conducted on March 15, the Juvenile Court indicated its intention to find respondent “not. . . amenable to the care, treatment and training program available through the facilities of the juvenile court” under Cal. Welf. & Inst’ns Code §707 (Supp. 1967). Respondent’s counsel orally moved “to continue the matter on the ground of surprise,” contending that respondent “was not informed that it was going to be a fitness hearing.” The court continued the matter for one week, at which time, having considered the report of the probation officer assigned to the case and having heard her testimony, it declared respondent “unfit for treatment as a juvenile,” and ordered that he be prosecuted as an adult.

Thereafter, respondent filed a petition for a writ of habeas corpus in Juvenile Court, raising the same double jeopardy claim now presented. Upon the denial of that petition, respondent sought habeas corpus relief in the California Court of Appeal, Second Appellate District. Although it initially stayed the criminal prosecution pending against respondent, that court denied the petition. In re Gary 17 Cal. App. 3d 704, 95 Cal. Rptr. 185 (1971). The Supreme Court of California denied respondent’s petition for hearing.

After a preliminary hearing respondent was ordered held for trial in Superior Court, where an information was subsequently filed accusing him of having committed robbery, in violation of Cal. Penal Code § 211 (1970), while armed with a deadly weapon, on or about February 8, 1971. Respondent entered a plea of not guilty, and he also pleaded that he had “already been placed once in jeopardy and convicted of the offense charged, by the judgment of the Superior Court of the County of Los Angeles, Juvenile Court, rendered ... on the 1st day of March, 1971.” App. 47. By stipulation, the case was submitted to the court on the transcript of the preliminary hearing. The court found respondent guilty of robbery in the first degree under Cal. Penal Code § 211a (1970) and ordered that he be committed to the California Youth Authority. Nó appeal was taken from the judgment of conviction.

On December 10, 1971, respondent, through his mother as guardian ad litem, filed the instant petition for a writ of habeas corpus in the United States District Court for the Centra! District of California. In his petition he alleged that his transfer to adult court pursuant to Ca! Welf. & Inst’ns Code § 707 and subsequent trial there “placed him in double jeopardy.” App. 13. The District Court denied the petition, rejecting respondent’s contention that jeopardy attached at his adjudicatory hearing. It concluded that the “distinctions between the preliminary procedures and hearings provided by California law for juveniles and a criminal trial are many and apparent and the effort of [respondent] to relate them is unconvincing,” and that “even assuming jeopardy attached during the preliminary juvenile proceedings ... it is clear that no new jeopardy arose by the juvenile proceeding sending the case to the criminal court.” 343 F. Supp. 690, 692 (1972).

The Court of Appeals reversed, concluding that applying double jeopardy protection to juvenile proceedings would not “impede the juvenile courts in carrying out their basic goal of rehabilitating the erring youth,” and that the contrary result might “do irreparable harm to or destroy their confidence in our judicial system.” The court therefore held that the Double Jeopardy Clause “is fully applicable to juvenile court proceedings.” 497 F. 2d 1160, 1165 (CA9 1974).

Turning to the question whether there had been a constitutional violation in this case, the Court of Appeals pointed to the power of the Juvenile Court to “impose severe restrictions upon the juvenile’s liberty,” ibid., in support of its conclusion that jeopardy attached in respondent’s adjudicatory hearing. It rejected petitioner’s contention that no new jeopardy attached when respondent was referred to Superior Court and subsequently tried and convicted, finding “continuing jeopardy” principles advanced by petitioner inapplicable. Finally, the Court of Appeals observed that acceptance of petitioner’s position would “allow the prosecution to review in advance the accused’s defense and, as here, hear him testify about the crime charged,” a procedure it found offensive to “our concepts of basic, even-handed fairness.” The court therefore held that once jeopardy attached at the adjudicatory hearing, a minor could not be retried as an adult or a juvenile “absent some exception to the double jeopardy prohibition,” and that there “was none here.” Id., at 1168.

We granted certiorari because of a conflict between Courts of Appeals and the highest courts of a number of States on the issue presented in this case and similar issues and because of the importance of final resolution of the issue to the administration of the juvenile-court system.

I

The parties agree that, following his transfer from Juvenile Court, and as a defendant to a felony information, respondent was entitled to the full protection of the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. See Benton v. Maryland, 395 U. S. 784 (1969). In addition, they agree that respondent was put in jeopardy by the proceedings on that information, which resulted in an adjudication that he was guilty of robbery in the first degree and in a sentence of commitment. Finally, there is no dispute that the petition filed in Juvenile Court and the information filed in Superior Court related to the “same offence” within the meaning of the constitutional prohibition. The point of disagreement between the parties, and the question for our decision, is whether, by reason of the proceedings in Juvenile Court, respondent was “twice put in jeopardy.”

II

Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution. See Price v. Georgia, 398 U. S. 323, 326, 329 (1970); Serfass v. United States, 420 U. S. 377, 387-389 (1975). Although the constitutional language, “jeopardy of life or limb,” suggests proceedings in which only the most serious penalties can be imposed, the Clause has long been construed to mean something far broader than its literal language. See Ex parte Lange, 18 Wall. 163, 170-173 (1874). At the same time, however, we have held that the risk to which the Clause refers is not present in proceedings that are not “essentially criminal.” Helvering v. Mitchell, 303 U. S. 391, 398 (1938). See United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943); One Lot Emerald Cut Stones v. United States, 409 U. S. 232 (1972). See also J. Sigler, Double Jeopardy 60-62 (1969).

Although the juvenile-court system had its genesis in the desire to provide a distinctive procedure and setting to deal with the problems of youth, including those manifested by antisocial conduct, our decisions in recent years have recognized that there is a gap between the originally benign conception of the system and its realities. With the exception of McKeiver v. Pennsylvania, 403 U. S. 528 (1971), the Court’s response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional criminal prosecutions. In re Gault, 387 U. S. 1 (1967); In re Winship, 397 U. S. 358 (1970). In so doing the Court has evinced awareness of the threat which such a process represents to the efforts of the juvenile-court system, functioning in a unique manner, to ameliorate the harshness of criminal justice when applied to youthful offenders. That the system has fallen short of the high expectations of its sponsors in no way detracts from the broad social benefits sought or from those benefits that can survive constitutional scrutiny.

We believe it is simply too late in the day to conclude, as did the District Court in this case, that a juvenile is not put- in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years. For it is clear under our cases that determining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile, proceedings, requires that courts eschew “the ‘civil’ label-of-convenience which has been attached to juvenile proceedings,” In re Gault, supra, at 50, and that “the juvenile process ... be candidly appraised.” 387 U. S., at 21. See In re Winship, supra, at 365-366. .

As we have observed, the risk to which the term jeopardy refers is that traditionally associated with “actions intended to authorize criminal punishment to vindicate public justice.” United States ex rel. Marcus v. Hess, supra, at 548-549. Because of its purpose and potential consequences, and the nature and resources of the State, such a proceeding imposes heavy pressures and burdens — psychological, physical, and financial — on a person charged. The purpose of the Double Jeopardy Clause is to require that he be subject to the experience only once “for the same offence.” See Green v. United States, 355 U. S. 184, 187 (1957); Price v. Georgia, 398 U. S., at 331; United States v. Jorn, 400 U. S. 470, 479 (1971) (opinion of Harlan, J.).

In In re Gault, supra, at 36, this Court concluded that, for purposes of the right to counsel, a “proceeding where the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution.” See In re Winship, supra, at 366. The Court stated that the term “delinquent” had “come to involve only slightly less stigma than the term ‘criminal’ applied to adults,” In re Gault, supra, at 24; see In re Winship, supra, at 367, and that, for purposes of the privilege against self-incrimination, “commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ ” In re Gault, supra, at 50. See 387 U. S., at 27; In re Winship, supra, at 367.

Thus, in terms of potential consequences, there is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution. For that reason, it engenders elements of “anxiety and insecurity” in a juvenile, and imposes a “heavy personal strain.” See Green v. United States, supra, at 187; United States v. Jorn, supra, at 479; Snyder, The Impact of the Juvenile Court Hearing on the Child, 17 Crime & Delinquency 180 (1971). And we can expect that, since our decisions implementing fundamental fairness in the juvenile-court system, hearings have been prolonged, and some of the burdens incident to a juvenile’s defense increased, as the system has assimilated the process thereby imposed. See Note, Double Jeopardy and the Waiver of Jurisdiction in California’s Juvenile Courts, 24 Stan. L. Rev. 874, 902 n. 138 (1972). Cf. Canon & Kolson, Rural Compliance with Gault: Kentucky, A Case Study, 10 J. Fam. L. 300, 320-326 (1971).

We deal here, not with “the formalities of the criminal adjudicative process,” McKeiver v. Pennsylvania, 403 U. S., at 551 (opinion of Blackmun, J.), but with an analysis of an aspect of the juvenile-court system in terms of the kind of risk to which jeopardy refers. Under our decisions we can find no persuasive distinction in that regard between the proceeding conducted in this case pursuant to Cal. Welf. & Inst’ns Code § 701 (1966) and a criminal prosecution, each of which is designed “to vindicate [the] very vital interest in enforcement of criminal laws.” United States v. Jorn, supra, at 479. We therefore conclude that respondent was put in jeopardy at the adjudicatory hearing. Jeopardy attached when respondent was “put to trial before the trier of the facts,” 400 U. S., at 479, that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U. S., at 388.

Ill

Petitioner argues that, even assuming jeopardy attached at respondent’s adjudicatory hearing, the procedure by which he was transferred from Juvenile Court and tried on a felony information in Superior Court did not violate the Double Jeopardy Clause. The argument is supported by two distinct, but in this case overlapping, lines of analysis. First, petitioner reasons that the procedure violated none of the policies of the Double Jeopardy Clause or that, alternatively, it should be upheld by analogy to those cases which permit retrial of an accused who has obtained reversal of a conviction on appeal. Second, pointing to this Court’s concern for “the juvenile court’s assumed ability to function in a unique manner,” McKeiver v. Pennsylvania, supra, at 547, petitioner urges that, should we conclude traditional principles “would otherwise bar a transfer to adult court after a delinquency adjudication,” we should avoid that result here because it “would diminish the flexibility and informality of juvenile court proceedings without conferring any additional due process benefits upon juveniles charged with delinquent acts.”

A

We cannot agree with petitioner that the trial of respondent in Superior Court on an information charging the same offense as that for which he had been tried in Juvenile Court violated none of the policies of the Double Jeopardy Clause. For, even accepting petitioner’s premise that respondent “never faced the risk of more than one punishment,” we have pointed out that “the Double Jeopardy Clause ... is written in terms of potential or risk of trial and conviction, not punishment.” Price v. Georgia, 398 U. S., at 329. (Emphasis added.) And we have recently noted:

“The policy of avoiding multiple trials has been regarded as so important that exceptions to the principle have been only grudgingly allowed. Initially, a new trial was thought to be unavailable after appeal, whether requested by the prosecution or the defendant. ... It was not until 1896 that it was made clear that a defendant could seek a new trial after conviction, even though the Government enjoyed no similar right. . . . Following the same policy, the Court has granted the Government the right to retry a defendant after a mistrial only where ‘there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.’ United States v. Peres, 9 Wheat. 579, 580 (1824).” United States v. Wilson, 420 U. S. 332, 343-344 (1975). (Footnote omitted.)

Respondent was subjected to the burden of two trials for the same offense; he was twice put to the task of marshaling his resources against those of the State, twice subjected to the “heavy personal strain” which such an experience represents. United States v. Jorn, 400 U. S., at 479. We turn, therefore, to inquire whether either traditional principles or “the juvenile court’s assumed ability to function in a unique manner,” McKeiver v. Pennsylvania, supra, at 547, supports an exception to the “constitutional policy of finality” to which respondent would otherwise be entitled. United States v. Jorn, supra, at 479.

B

In-denying respondent’s petitions for writs of habeas corpus, the California Court of Appeal first, and the United States District Court later, concluded that no new jeopardy arose as a result of his transfer from Juvenile Court and trial in Superior Court. See In re Gary J., 17 Cal. App. 3d, at 710, 95 Cal. Rptr., at 189; 343 F. Supp., at 692. In the view of those courts, the jeopardy that attaches at an adjudicatory hearing continues until there is a final disposition of the case under the adult charge. See also In re Juvenile, 364 Mass. 531, 306 N. E. 2d 822 (1974). Cf. Bryan v. Superior Court, 7 Cal. 3d 575, 498 P. 2d 1079 (1972), cert. denied, 410 U. S. 944 (1973).

The phrase “continuing jeopardy” describes both a concept and a conclusion. As originally articulated by Mr. Justice Holmes in his dissent in Kepner v. United States, 195 U. S. 100, 134-137 (1904), the concept has proved an interesting model for comparison with the system of constitutional protection which the Court has in fact derived from the rather ambiguous language and history of the Double Jeopardy Clause. See United States v. Wilson, supra, at 351-352. Holmes’ view has “never been adopted by a majority of this Court.” United States v. Jenkins, 420 U. S. 358, 369 (1975).

The conclusion, “continuing jeopardy,” as distinguished from the concept, has occasionally been used to explain why an accused who has secured the reversal of a conviction on appeal may be retried for the same offense. See Green v. United States, 355 U. S., at 189; Price v. Georgia, 398 U. S., at 326; United States v. Wilson, supra, at 343-344, n. 11. Probably a more satisfactory explanar tion lies in analysis of the respective interests involved. See United States v. Tateo, 377 U. S. 463, 465-466 (1964); Price v. Georgia, supra, at 329 n. 4; United States v. Wilson, supra. Similarly, the fact that the proceedings against respondent had not “run their full course,” Price v. Georgia, supra, at 326, within the contemplation of the California Welfare and Institutions Code, at the time of transfer, does not satisfactorily explain why respondent - should be deprived of the constitutional protection against a second trial. If there is to be an exception to that protection in the context of the juvenile-court system, it must be justified by interests of society, reflected in that unique institution, or of juveniles themselves, of sufficient substance to render tolerable the costs and burdens, noted earlier, which the exception will entail in individual cases.

C

The possibility of transfer from juvenile court to a court of general criminal jurisdiction is a matter of great significance to the juvenile. See Kent v. United States, 383 U. S. 541 (1966). At the same time, there appears to be widely shared agreement that not all juveniles can benefit from the special features and programs of the juvenile-court system and that a procedure for transfer to an adult court should be available. See, e. g., National Advisory Commission on Criminal Justice Standards and Goals, Courts, Commentary to Standard 14.3, pp. 300-301 (1973). This general agreement is reflected in the fact that an overwhelming majority of jurisdictions permits transfer in certain circumstances. As might be expected, the statutory provisions differ in numerous details. Whatever their differences, however, such transfer provisions represent an attempt to impart to the juvenile-court system the flexibility needed to deal with youthful offenders who cannot benefit from the specialized guidance and treatment contemplated by the system.

We do not agree with petitioner that giving respondent the constitutional protection against multiple trials in this context will diminish flexibility and informality to the extent that those qualities relate uniquely to the goals of the juvenile-court system. We agree that such a holding will require, in most cases, that the transfer decision be made prior to an adjudicatory hearing. To the extent that evidence concerning the alleged offense is considered relevant, it may be that, in those cases where transfer is considered and rejected, some added burden will be imposed on the juvenile courts by reason of duplicative proceedings. Finally, the nature of the evidence considered at a transfer hearing may in some States require that, if transfer is rejected, a different judge preside at the adjudicatory hearing.

We recognize that juvenile courts, perhaps even more than most courts, suffer from the problems created by spiraling caseloads unaccompanied by enlarged resources and manpower. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 7-8 (1967). And courts should be reluctant to impose on the juvenile-court system any additional requirements which could so strain its resources as to endanger its unique functions. However, the burdens that petitioner envisions appear to us neither qualitatively nor quantitatively sufficient to justify a departure in this context from the fundamental prohibition against double jeopardy.

A requirement that transfer hearings be held prior to adjudicatory hearings affects not at all the nature of the latter proceedings. More significantly, such a reqüirement need not affect the quality of decisionmaking at transfer hearings themselves. In Kent v. United States, 383 U. S., at 562, the Court held that hearings under the statute there involved “must measure up to the essentials of due process and fair treatment.” However, the Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings.

Moreover, we are not persuaded that the burdens petitioner envisions would pose a significant problem for the administration of the juvenile-court system. The large number of jurisdictions that presently require that the transfer decision be made prior to an adjudicatory hearing, and the absence of any indication that the juvenile courts in those jurisdictions have not been able to perform their task within that framework, suggest the contrary. The likelihood that in many cases the lack of need or basis for a transfer hearing can be recognized promptly reduces the number of cases in which a commitment of resources is necessary. In addition, we have no reason to believe that the resources available to those who recommend transfer or participate in the process leading to transfer decisions are inadequate to enable them to gather the’information relevant to informed decision prior to an adjudicatory hearing. See generally State v. Halverson, 192 N. W. 2d 765, 769 (Iowa 1971); Rudstein, Double Jeopardy in Juvenile Proceedings, 14 Wm. & Mary L. Rev. 266, 305-306 (1972); Note, 24 Stan. L. Rev., at 897-899.

To the extent that transfer hearings held prior to adjudication result in some duplication of evidence if transfer is rejected, the burden on juvenile courts will tend to be offset somewhat by the cases in which, because of transfer, no further proceedings in juvenile court are required. Moreover, when transfer has previously been rejected, juveniles may well be more likely to admit the commission of the offense charged, thereby obviating the need for adjudicatory hearings, than if transfer remains a possibility. Finally, we note that those States which presently require a different judge to preside at an adjudicatory hearing if transfer is rejected also permit waiver of that requirement. Where the requirement is not waived, it is difficult to see a substantial strain on judicial resources. See Note, 24 Stan. L. Rev., at 900-901.

Quite apart from our conclusions with respect to the burdens on the juvenile-court system envisioned by petitioner, we are persuaded that transfer hearings prior to adjudication will aid the objectives of that system. What concerns us here is the dilemma that the possibility of transfer after an adjudicatory hearing presents for a juvenile, a dilemma to which the Court of Appeals alluded. See supra, at 527. Because of that possibility, a juvenile, thought to be the beneficiary of special consideration, may in fact suffer substantial disadvantages. If he appears uncooperative, he runs the risk of an adverse adjudication, as well as of an unfavorable dispositional recommendation. If, on the other hand, he is cooperative, he runs the risk of prejudicing his chances in adult court if transfer is ordered. We regard a procedure that results in such a dilemma as at odds with the goal that, to the extent fundamental fairness permits, adjudicatory hearings be informal and nonadversary, See In re Gault, 387 U. S., at 25-27; In re Winship, 397 U. S., at 366-367; McKeiver v. Pennsylvania, 403 U. S., at 534, 550. Knowledge of the risk of transfer after an adjudicatory hearing can only undermine the potential for informality and cooperation which was intended to be the hallmark of the juvenile-court system. Rather than concerning themselves with the matter at hand, establishing innocence or seeking a disposition best suited to individual correctional needs, the juvenile and his attorney are pressed into a posture of adversary wariness that is conducive to neither. Cf. Kay & Segal, The Role of the Attorney in Juvenile Court Proceedings: A Non-Polar Approach, 61 Geo. L. J. 1401 (1973); Carr; The Effect of the Double Jeopardy Clause on Juvenile Proceedings, 6 U. Tol. L. Rev. 1, 52-54 (1974).

IV

We hold that the prosecution of respondent in Superior Court, after an adjudicatory proceeding in Juvenile Court, violated the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment. The mandate of the Court of Appeals, which was stayed by that court pending our decision, directs the District Court “to issue a writ of habeas corpus directing the state court, within 60 days, to vacate the adult conviction of Jones and either set him free or remand him to the juvenile court for disposition.” Since respondent is no longer subject to the jurisdiction of the California Juvenile Court, we vacate the judgment and remand the case to the Court of Appeals for such further proceedings consistent with this opinion as may be appropriate in the circumstances.

So ordered.

       As of the date of filing of the petition in this case, Cal. Welf. & Inst’ns Code §602 (1966) provided:
      “Any person under the age of 21 years who violates any law of this State or of the United States or any ordinance of any city or county of this State defining crime or who, after having been found by the juvenile court to be a person described by Section-601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.”
      An amendment in 1971, not relevant here, lowered the jurisdictional age from 21 to 18. 1971 Cal. Stats. 3766, c. 1748, §66.

       See Cal. Welf. & Inst’ns Code §§632, 635, 636 (1966). The probation officer was required to. present a prima facie case that respondent had committed the offense alleged in the petition. In re William M., 3 Cal. 3d 16, 473 P. 2d 737 (1970). Respondent was represented by court-appointed counsel at the detention hearing and thereafter.

       At the time of the hearing, Cal. Welf. & Inst’ns Code § 701 (1966) provided:
      “At the hearing, the court shall first consider only the question whether the minor is a person described by Sections 600, 601, or 602, and for this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, a preponderance of evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602, and a preponderance of evidence, legally admissible in the trial of civil cases must be adduced to support a finding that the minor is a person described by Sections 600 or 601. When it appears that the minor has made an extrajudicial admission or confession and denies the same at the hearing, the court may continue the hearing for not to exceed seven days to enable the probation officer to subpoena witnesses to attend the hearing to prove the allegations of the petition. If the minor is not represented by counsel at the hearing, it shall be deemed that objections that could have been made to the evidence were made.” (Emphasis added.)
      A 1971 amendment substituted “proof beyond a reasonable doubt supported by evidence” for the language in italics. 1971 Cal. Stats. 1832, c. 934, § 1. Respondent does not claim that the standard of proof at the hearing failed to satisfy due process. See In re Winship, 397 U. S. 358 (1970); DeBacker v. Brainard, 396 U. S. 28, 31 (1969).

        Hereafter, the § 701 hearing will be referred to as the adjudicatory hearing.

       At the time, Cal. Welf. & Inst’ns Code § 702 (Supp. 1968) provided:
      “After hearing such evidence, the court shall make a finding, noted in the minutes of the court, whether or not the minor is a person described by Sections 600, 601, or 602. If it finds that the minor is not such a person, it shall order that the petition be dismissed and the minor be discharged from any detention or restriction theretofore ordered. If the court finds that the minor is such a person, it shall make and enter its findings and order accordingly and shall then proceed to hear evidence on the question of the proper disposition to be made of the minor. Prior to doing so, it may continue the hearing, if necessary, to receive the social study of the probation officer or to receive other evidence on its own motion or the motion of a parent or guardian for not to exceed 10 judicial days if the minor is detained during such continuance, and if the minor is not detained, it may continue the hearing to a date not later than 30 days after the date of filing of the petition. The court may, for good cause shown continue the hearing for an additional 15 days, if the minor is not detained. The court may make such order for detention of the minor or his release from detention, during the period of the continuance, as is appropriate.”

       At the time, Cal. Welf. & Inst’ns Code § 707 (Supp. 1967) provided:
      “At any time during a hearing upon a petition alleging that a minor is, by reason of violation of any criminal statute or ordinance, a person described in Section 602, when substantial evidence has been adduced to support a finding that the minor was 16 years of age or older at the time of the alleged commission of such offense and that the minor would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, or if, at any time after such hearing, a minor who was 16 years of age or older at the time of the commission of an offense and who was committed therefor by the court to the Youth Authority, is returned to the court by the Youth Authority pursuant to Section 780 or 1737.1, the court may make a finding noted in the minutes of the court that the minor is not a fit and proper subject to be dealt with under this chapter, and the court shall direct the district attorney or other appropriate prosecuting officer to prosecute the person under the applicable criminal statute or ordinance and thereafter dismiss the petition or, if a prosecution has been commenced in another court but has been suspended while juvenile court proceedings are held, shall dismiss the petition and issue its order directing that the other court proceedings resume.
      “In determining whether the minor is a fit and proper subject to be dealt with under this chapter, the offense, in itself, shall not be sufficient to support a finding that such minor is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.
      “A denial by the person on whose behalf the petition is brought of any or all of the facts or conclusions set forth therein or of any inference to be drawn therefrom is not, of itself, sufficient to support a finding that such person is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.
      “The court shall cause the probation officer to investigate and submit a report on the behavioral patterns of the person being considered for unfitness.”

       The Juvenile Court noted:
      “This record I have read is one of the most threatening records I have read about any Minor who has come before me.
      “We have, as a matter of simple fact, no less than three armed robberies, each with a loaded weapon. The degree of delinquency which that represents, the degree of sophistication which that represents and the degree of impossibility of assistance as a juvenile which that represents, I think is overwhelming ...” App. 33.

       In doing so, the Juvenile Court implicitly rejected respondent’s double jeopardy argument, made at both the original § 702 hearing and in a memorandum submitted by counsel prior to the resumption of that hearing after the continuance.

       The authority for the order of commitment derived from Cal.. Welf. & Inst’ns Code §1731.5 (Supp. 1971). At the time of the order, Cal. Welf. & Inst’ns Code § 1771 (1966) provided:
      “Every person convicted of a felony and committed to the authority shall be discharged when such person reaches his 25th birthday, unless an order for further detention has been made by the committing court pursuant to Article 6 (commencing with Section 1800) or unless a petition is filed under Article 5 of this chapter. In the event such a petition under Article 5 is filed, the authority shall retain control until the final disposition of the proceeding under Article 5.”

       In reaching this conclusion, the Court of Appeals also relied on Fain v. Duff, 488 F. 2d 218 (CA5 1973), cert. pending, No. 73-1768, and Richard M. v. Superior Court, 4 Cal. 3d 370, 482 P. 2d 664 (1971), and it noted that “California concedes that jeopardy attaches when the juvenile is adjudicated a ward of the court.” 497 F. 2d, at 1166.

       Distinctions which in other contexts have proved determinative of the constitutional rights of those charged with offenses against public order have not similarly confined the protection of the Double Jeopardy Clause. Compare Robinson v. Neil, 409 U. S. 505 (1973), with Baldwin v. New York, 399 U. S. 66 (1970), and Argersinger v. Hamlin, 407 U. S. 25 (1972). For the details of Robinson’s trial for violating a city ordinance, see Robinson v. Henderson, 268 F. Supp. 349 (ED Tenn. 1967), aff’d, 391 F. 2d 933 (CA6 1968).

       At the time of respondent’s dispositional hearing, permissible dispositions included commitment to the California Youth Authority until he reached the age of 21 years. See Cal. Welf. & Inst’ns Code §§607, 731 (1966). Petitioner has conceded that the “adjudicatory hearing is, in every sense, a court trial.” Tr. of Oral Arg. 4.

       Nor does the fact “that the purpose of the commitment is rehabilitative and not punitive . . . change its nature. . . . Regardless of the purposes for which the incarceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Incarceration of adults is also intended to produce rehabilitation.” Fain v. Duff, 488 F. 2d, at 225. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Juvenile Delinquency and Youth Crime 8-9 (1967).

       The same conclusion was reached by the California Court of Appeal in denying respondent’s petition for a writ of habeas corpus. In re Gary J., 17 Cal. App. 3d 704, 710, 95 Cal. Rptr. 185, 189 (1971).

       See generally Task Force Report, supra, n. 12, at 24-25. See also Rudstein, Double Jeopardy in Juvenile Proceedings, 14 Wm. & Mary L. Rev. 266, 297-300 (1972); Carr, The Effect of the Double Jeopardy Clause on Juvenile Proceedings, 6 U. Tol. L. Rev. 1, 21-22 (1974).

       That the flexibility and informality of juvenile proceedings are diminished by the application of due process standards is not open to doubt. Due process standards inevitably produce such an effect, but that tells us no more than that the Constitution imposes burdens on the functioning of government and especially of law enforcement institutions.

       Under Cal. Welf. & Inst’ns Code §707 (1972), the governing criterion with respect to transfer, assuming the juvenile is 16 years of age and is charged with a violation of a criminal statute or ordinance, is amenability "to the care, treatment and training program available through the facilities of the juvenile court.” The section further provides that neither “the offense, in itself” nor a denial by the juvenile of the facts or conclusions set forth in the petition shah be “sufficient to support a finding that [he] is not a fit and proper subject to be dealt with under the provisions of the Juvenile Court Law.” See n. 5, supra. The California Supreme Court has held that the only factor a juvenile court must consider is the juvenile’s “behavior pattern as described in the probation officer's report,” Jimmy H. v. Superior Court, 3 Cal. 3d 709, 714, 478 P. 2d 32, 35 (1970), but that it may also consider, inter alia, the nature and circumstances of the alleged offense. See id., at 716, 478 P. 2d, at 36.
      In contrast to California, which does not require any evidentiary showing with respect to the commission of the offense, a number of jurisdictions require a finding of probable cause to believe the juvenile committed the offense before transfer is permitted. See Rudstein, supra, n. 14, at 298-299; Carr, supra, n. 14, at 21-22. In addition, two jurisdictions appear presently to require a finding of delinquency before the transfer of a juvenile to adult court. Ala. Code, Tit. 13, §364 (1959) (see Rudolph v. State, 286 Ala. 189, 238 So. 2d 542 (1970)); W. Va. Code Ann. §49-5-14 (1966).

       See, e. g., Fla. Stat. Aim. § 39.09 (2) (g) (1974); Tenn. Code. Ann. § 37-234 (e) (Supp. 1974); Wyo. Stat. § 14-115.38 (c) (Supp. 1973); Uniform Juvenile Court Act § 34 (e), approved in July 1968 by the National Conference of Commissioners on Uniform State Laws. See also Donald L. v. Superior Court, 7 Cal. 3d 592, 598, 498 P. 2d 1098, 1101 (1972).

       We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding. See Collins v. Loisel, 262 U. S. 426 429 (1923); Serfass v. United States, 420 U. S. 377, 391-392 (1975). The instant case is not one in which the judicial determination was simply a finding of, e. g., probable cause. Rather, it was an adjudication that respondent had violated a criminal statute.

       See Rudstein, supra, n. 14, at 299-300; Carr, supra, n. 14, at 24, 57-58. See also Uniform Juvenile Court Act §§34 (a), (c); Council of Judges of the Nat. Council on Crime and Delinquency, Model Rules for Juvenile Courts, Rule 9 (1969); W. Sheridan, Legislative Guide for Drafting Family and Juvenile Court Acts §§ 27, 31 (a) (Dept. of HEW, Children’s Bureau Pub. No. 472-1969). In contrast, apparently only three States presently require that a hearing on the juvenile petition or complaint precede transfer. Ala. Code, Tit. 13, § 364 (1959) (see Rudolph v. State, supra); Mass. Gen. Laws Ann., c. 119, § 61 (1969) (see In re Juvenile, 364 Mass. 531, 542, and n. 10, 306 N. E. 2d 822, 829-830, and n. 10 (1974)); W. Va. Code Ann. § 49-5-14 (1966).

       We intimate no views concerning the constitutional .validity of transfer following the attachment of jeopardy at an adjudicatory hearing where the information which forms the predicate for the transfer decision could not, by the exercise of due diligence, reasonably have been obtained previously. Cf., e. g., Illinois v. Somerville; 410 U. S. 458 (1973).

       See the statutes cited in n. 16, supra. “The reason for this waiver provision is clear. A juvenile will ordinarily not want to dismiss a judge who has refused to transfer him to a criminal court. There is a risk of having another judge assigned to the case who is not as sympathetic. Moreover, in many cases, a rapport has been established between the judge and the juvenile, and the goal of rehabilitation is well on its way to being met.” Brief for National Council of Juvenile Court Judges as Amicus Curiae 38.

       Although denying respondent’s petition for a writ of habeas corpus, the judge of the Juvenile Court noted: “If he doesn’t open up with a probation officer there is of course the danger that the probation officer will find that he is so uncooperative that he cannot make a recommendation for the kind of treatment you think hé really should have and, yet, as the attorney worrying about what might happen a[t] the disposition hearing, you have to advise him to continue to more or less stand upon his constitutional right not to incriminate himself . . . .” App. 38. See Note, Double Jeopardy and the Waiver of Jurisdiction in California’s Juvenile Courts, 24 Stan. L. Rev. 874, 902 n. 137 (1972).

       With respect to the possibility of ''making the juvenile proceedings confidential and not being able to be used against the minor,” the judge of the Juvenile Court observed: “I must say that doesn’t impress me because if the minor admitted something in the Juvenile Court and named his companions nobody is going to eradicate from the minds of the district attorney or other people the information they obtained.” App. 41-42.


source: Caselaw Access Project

author:
Mr. Justice Marshall
      Mr. Justice Douglas. Mr. Justice Rehnquist,

license: Public Domain

text:
    FRY ET AL. v. UNITED STATES
    No. 73-822.
    Argued November 11, 1974
    Decided May 27, 1975

      Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, and Powell, JJ., joined. Douglas, J., filed a separate statement, post, p. 549. Rehnquist, J., filed a dissenting opinion, post, p. 549.

      John A. Brown argued the cause and filed briefs for petitioners.

      Deputy Solicitor General Lafontant argued the cause for the United States. On the brief were Solicitor General Bork, Assistant Attorney General Hills, Deputy Solicitor General Friedman, William L. Patton, and William G. Kanter.

       Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Willard A. Shank, Assistant Attorney General, and Talmadge R. Jones, Deputy Attorney General, for the State of California; by William J. Brown, Attorney General, Robert B. Meany, Assistant Attorney General, and James A. Laurenson for the State of Ohio; by John C. Danj'orth, Attorney General, and Gene E. Voigts for the State of Missouri; by Loren E. McMaster for the California State Employees’Assn.; and by Stephen S. Boynton for the Assembly of Governmental Employees.

        A. L. Zwerdling, Robert H. Chanin, and George Kaujmann filed a brief for the Coalition of American Public Employees as amicus curiae urging affirmance.

   Mr. Justice Marshall

delivered the opinion of the Court.

The Economic Stabilization Act of 1970 authorized the President to issue orders and regulations to stabilize wages and salaries at levels not less than those prevailing on May 25, 1970. By Executive Order, the President created the Pay Board to oversee wage and salary controls imposed under the Act’s authorization. Exec. Order No. 11627, 3 CFR 218 (1971 Comp.), note following 12 U. S. C. § 1904 (1970 ed., Supp. I). In implementing the wage stabilization program, the Pay Board issued regulations that limited annual salary increases for covered employees to 5.5% and required prior Board approval for all salary adjustments affecting 5,000 or more employees. The State of Ohio subsequently enacted legislation providing for a 10.6% wage and salary increase, effective January 1, 1972, for almost 65,000 state employees. The State applied to the Pay Board for approval of the increases, and a. public hearing was held. In March 1972, the Board denied the application for an exemption to the extent that it exceeded salary increases of 7% for the 1972 wage year. Petitioners, two state employees, sought a writ of mandamus in state court to compel Ohio officials to pay the full increases provided in the state pay act. The Ohio Supreme Court granted the writ and ordered the increases to be paid. State ex rel. Fry v. Ferguson, 34 Ohio St. 2d 252, 298 N. E. 2d 129 (1973).

After the State Supreme Court decision, the United States filed this action in the District Court to enjoin Ohio and its officials from paying wage and salary increases in excess of the 7% authorized by the Pay Board. The District Court certified to the Temporary Emergency Court of Appeals the question of the applicability of federal wage and salary controls to state employees. See §211 (c) of the Economic Stabilization Act, note following 12 U. S. C. § 1904 (1970 ed., Supp. I).

The Court of Appeals construed the Act as applying to state employees and as thus construed upheld its constitutionality. United States v. Ohio, 487 F. 2d 936 (1973). Relying on the decisions of this Court in Maryland v. Wirtz, 392 U. S. 183 (1968), and United States v. California, 297 U. S. 175 (1936), the court concluded that the interference with state affairs incident to the uniform implementation of federal economic controls was of no consequence since Congress had a rational basis upon which to conclude that the state activity substantially affected commerce. The Court of Appeals accordingly enjoined the payment of wage and salary increases in excess of the amount authorized by the Pay Board. We affirm.

I

At the outset, it is contended that Congress did not intend to include state employees within the reach of the Economic Stabilization Act and that the Pay Board therefore did not have the authority to regulate the compensation due state employees. We disagree. The language and legislative history of the Act leave no doubt that Congress intended that it apply to employees throughout the economy, including those employed by state and local governments. The Act contemplated general stabilization of “prices, rents, wages, salaries, dividends, and interest,” § 202, note following 12 U. S. C. § 1904 (1970 ed., Supp. I), and it provided that the controls should “call for generally comparable sacrifices by business and labor as well as other segments of the economy.” § 203 (b)(5). It contained no exceptions for employees of any governmental bodies, even at the federal level. The failure of the Act to make express reference to the States does not warrant the inference that controls could not be extended to their employees. See Case v. Bowles, 327 U. S. 92, 99 (1946); United States v. California, 297 U. S., at 186. Indeed, in framing the Act, Congress specifically rejected an amendment that would have exempted employees of state and local governments. 117 Cong. Rec. 43673-43677 (1971). And the Senate Committee Report makes it plain that the Committee considered and rejected a proposed exemption for the same group. S. Rep. No. 92-507, p. 4 (1971). It is clear, then, that Congress intended to reach state and local governmental employees. The only remaining question is whether it could do so consistent with the constitutional limitations on its power.

II

Petitioners acknowledge that Congress’ power under-the Commerce Clause is very broad. Even activity that is purely intrastate in character may be regulated by Congress, where the activity, combined with like conduct by others similarly situated, affects commerce among the States or with foreign nations. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 255 (1964); Wickard v. Filburn, 317 U. S. 111, 127-128 (1942). There is little difficulty in concluding that such an effect could well result from large wage increases to 65,000 employees in Ohio and similar numbers in other States; e. g., general raises to state employees could inject millions of dollars of purchasing power into the economy and might exert pressure on other segments of the work force to demand comparable increases.

Petitioners do not appear to challenge Congress’ conclusion that unrestrained wage increases, even for employees of wholly intrastate operations, could have a significant effect on commerce. Instead, they contend that applying the Economic Stabilization Act to state employees interferes with sovereign state functions and for that reason the Commerce Clause should not be read to permit regulation of all state and local governmental employees.

On the facts of this case, this argument is foreclosed by our decision in Maryland v. Wirtz, 392 U. S. 183 (1968), where we held that the Fair Labor Standards Act could constitutionally be applied to schools and hospitals run by a State. Wirtz reiterated the principle that States are not immune from all federal regulation under the Commerce Clause merely because of their sovereign status. 392 U. S., at 196-197. We noted, moreover, that the statute at issue in Wirtz was quite limited in application. The federal regulation in this case is even less intrusive. Congress enacted the Economic Stabilization Act as an emergency measure' to counter severe inflation that threatened the national economy. H. R. Rep. No. 91-1330, pp. 9-11 (1970). The method it chose, under the Commerce Clause, was to give the President authority to freeze virtually all wages and prices, including the wages of state and local governmental employees. In 1971, when the freeze was activated, state and local governmental employees composed 14% of the Nation’s work force. Brief for United States 20. It seems inescapable that the effectiveness of federal action would have been drastically impaired if wage increases to this sizeable group of employees were left outside the reach of these emergency federal wage controls.

We conclude that the Economic Stabilization Act was constitutional as applied to state and local governmental employees. Since the Ohio wage legislation conflicted with the Pay Board’s ruling; under the Supremacy Clause the State must yield to the federal mandate. See Public Utilities Comm’n of California v. United States, 355 U. S. 534, 542-545 (1958); Murphy v. O’Brien, 485 F. 2d 671, 675 (Temp. Emerg. Ct. App. 1973).

Affirmed.

Mr. Justice Douglas.

Less than three months after we granted certiorari, Congress allowed the Economic Stabilization Act to expire on April 30, 1974. There is therefore no continuing impediment to the payment of salary increases of the kind at issue in this case. I would therefore dismiss the writ as improvidently granted.

Mr. Justice Rehnquist,

dissenting.

Mr. Chief Justice Chase in his opinion for the Court in Texas v. White, 7 Wall. 700, 725 (1869), declared that “[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.” A little over a century later, there can be no doubt that we have an indestructible Union, but the Court’s opinion in this case is the latest in a series of decisions which casts some doubt upon whether those States are indeed “indestructible.”

Maryland v. Wirtz, 392 U. S. 183 (1968), held that Congress could impose the provisions of the Fair Labor Standards Act upon state entities, so as to regulate the maximum number of hours and minimum wages received by state employees of hospitals, institutions, and schools. The Court’s opinion in this case not unreasonably relies on Wirtz in holding that Congress may impose across-the-board limitations on salary increases for all state employees. In their briefs and arguments to this Court, petitioners sought to distinguish Wirtz on the ground that the employees there regulated were performing primarily “proprietary” functions. The Government countered this argument with language from United States v. California, 297 U. S. 175 (1936), a case which is not discussed by the Court but which was critical to the development of the doctrine which the Court today applies. There the Court held that the State of California, in operating a railroad wholly within its own boundaries, was subject to the provisions of the Federal Safety Appliance Act.

Today’s decision, like Maryland v. Wirtz, supra, and United States v. California, supra, is plausible on its facts. Congress in the Economic Stabilization Act of 1970 wished to check runaway inflation, and as a means to that end sought to control increases in wages and salaries. Since state employees constitute a significant portion of the labor force as a whole, Congress could reasonably conclude that a stabilization scheme which excluded such employees from its ambit would be less effective than one which included them. And, of course, precisely the same reasoning may be advanced in support of the result in Wirtz and in United States v. California,

Yet the danger to our federal system which is emphasized by these three cases taken together, as it is not by any one taken separately, seems to me quite manifest. The Tenth Amendment, the Court’s opinion in this case insists, does have meaning; but the critical question is how much meaning is left to it and the basic constitutional principles which it illumines. As stated' by Mr. Justice Douglas, dissenting in Maryland v. Wirtz, supra, at 205:

“If all this can be done, then the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment.”

I do not believe that the Constitution was intended to permit the result reached today, and so I dissent.

United States v. California, supra, stated a principle of Congress’ Commerce Clause power over state activities which was deemed “controlling” in Maryland v. Wirtz, supra, at 198. It is thus necessary to begin this analysis with Mr. Chief Justice Stone’s opinion for a unanimous Court in that case. One shoulders a heavy burden of proof in seeking to demonstrate that that opinion is analytically flawed. Yet its treatment of the issue of intergovernmental immunity is less than satisfactory, even though the case may have reached a sound result upon its facts. The case was decided in 1936, at the beginning of what might be called the present era of Commerce Clause law in this Court. The Court was in the process, later completed in cases such as NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937), and United States v. Darby, 312 U. S. 100 (1941), of freeing both Congress and the States from the anachronistic and doctrinally unsound constructions of the Commerce Clause which had previously been used to deny both to the States and to Congress authority to regulate economic affairs. It is quite understandable in this context that the Court in United States v. California should have been inclined to give somewhat short shrift to a claim of “States’ rights,” even when invoked by the State itself against congressional authority under the Commerce Clause. The claim of “States’ rights” had so frequently been invoked in the past as a form of ius tertii, not by a State but by a business enterprise seeking to avoid congressional regulation, that the different tenor of the claim made by the State of California may not have impressed the Court.

The Court’s California opinion states: “The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution. The power of a state to fix intrastate railroad rates must yield to the power of the national government when their regulation is appropriate to the regulation of interstate commerce.” 297 U. S., at 184. But this familiar doctrine of The Shreveport Rate Cases, 234 U. S. 342 (1914), that under the Supremacy Clause even intrastate commerce which affects interstate commerce is subject to Congress’ overriding authority to regulate commerce, is not a full answer to the claim of a State that it may not be regulated as a State. Neither California in that case, Maryland in Wirtz, nor Ohio in this case, questions that Congress may pre-empt state regulatory authority in areas where both bodies are otherwise competent to act. But this well-recognized principle of the Supremacy Clause is traditionally associated with federal regulation of persons or enterprises, rather than with federal regulation of the State itself, and it is difficult to understand how it supports the proposition that the States are without a constitutional counterweight which can limit Congress’ exercise against them of its commerce power.

The Court in California went on to consider the analogy of constitutional immunity of state instrumentalities from federal taxation, but rejected it as “not illuminating.” 297 U. S., at 184. Apparently conceding that if the principles relating to tax immunity were applied, the State would prevail, the Court rejected their relevance, saying:

“But there is no such limitation upon the plenary power to regulate commerce. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.” Id., at 185. (Emphasis added.)

The italicized statement seems to me demonstrably wrong, and I believe it is recognized as being wrong by the Court’s opinion today, with its reference to the fact that the Tenth Amendment “is not without significance.” Ante, at 547 n. 7. In explaining why it is wrong, it is useful to explore further the situation of an individual confronted with Commerce Clause regulation. Such an individual who attacks an Act of Congress on the ground that it is not within congressional authority under the Commerce Clause asserts only a claim of lack of legislative •power. Under cases such as The Shreveport Rate Cases, supra, Wickard v. Filburn, 317 U. S. 111 (1942), and Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964), this individual’s claim is ordinarily very difficult to sustain. But an individual who attacks an Act of Congress, justified under the Commerce Clause, on the ground that it infringes his rights under, say, the First or Fifth Amendment, is asserting an affirmative constitutional defense of his own, one which can limit the exercise of power which is otherwise expressly delegated to Congress. That the latter claim is of greater force, and may succeed when the former will fail, is well established. See, e. g., Leary v. United States, 395 U. S. 6 (1969); United States v. Jackson, 390 U. S. 570 (1968); United States v. Cardiff, 344 U. S. 174 (1952); Tot v. United States, 319 U. S. 463 (1943).

In this case, as well as in Wirtz and United States v. California, the State is not simply asserting an absence of congressional legislative authority, but rather is asserting an affirmative constitutional right, inherent in its capacity as a. State, to be free from such congressionally asserted authority. Whether such a claim on the part of a State should prevail against congressional authority is quite a different question, but it is surely no answer to the claim to say that a “state can no more deny the power if its exercise has been authorized by Congress than can an individual.” United States v. California, supra, at 185. Such an answer is simply a denial of the inherent affirmative constitutional limitation on congressional powrer which I believe the States possess.

It is not apparent to me why a State’s immunity from the plenary authority of the National Government to tax, United States v. Butler, 297 U. S. 1 (1936), should have been thought by the California court to be any higher on the scale of constitutional values than is a State’s claim to be free from the imposition of Congress’ plenary authority under the Commerce Clause. Especially is this true because the immunity from taxation has no explicit constitutional source and appears to rest solely on a concept of constitutional federalism which should likewise limit federal power under the Commerce Clause. Indeed, if history and precedent offered no guide, I would think as a matter of logic that it would be less of an encumbrance upon a State to pay a nondiscriminatory tax imposed by the Federal Government than it would be to comply with nondiscriminatory regulation enacted by that Government. Where the Federal Government seeks only revenue from the State, the State may provide the revenue and make up the difference where it chooses, among its sources of revenue or demands for expenditure. But where the Federal Government seeks not merely to collect revenue as such, but to require the State to pay out its moneys to individuals at particular rates, not merely state revenues but also state policy choices suffer.

Much of the law of intergovernmental tax immunity to which the Court referred in United States v. California, supra, has gone the way of all flesh, and the scope of the then-prevalent doctrine that the Federal Government might not impose a tax on an “instrumentality” of a State was shortly modified.. See Graves v. New York ex rel. O’Keefe, 306 U. S. 466 (1939), which made clear that today’s Congress may impose an income tax on state employees. Several years after the Graves decision, however, the Court had occasion to discuss the question of intergovernmental tax immunity in New York v. United States, 326 U. S. 572 (1946). There was no opinion for the Court; Mr. Justice Frankfurter, joined by Mr. Justice Rutledge, delivered the judgment of the Court and an opinion stating that with limited exceptions the federal taxing power could be imposed on a State so long as it was not exercised in a discriminatory manner. But a majority of the Court refused to adopt this formulation of the test. Mr. Chief Justice Stone, who was the author of the Court’s opinion in United States v. California, supra, spoke for himself and Justices Reed, Murphy, and Burton in stating that “we are not prepared to say that the national government may constitutionally lay a non-discriminatory tax on every class of property and activities of States and individuals alike.” 326 U. S., at 586. Mr. Justice Douglas, joined by Mr. Justice Black, dissented outright, and thought that the authority of Congress to tax revenues obtained by New York from the business of selling its mineral water could not be constitutionally sustained. Thus six Members of the Court, as it was then constituted, thought that the principles of federalism reflected in the Tenth Amendment to the Constitution did not stop with merely prohibiting Congress from discriminating between States and other taxable entities in the exercise of its taxing power.

In his concurring opinion, Mr. Chief Justice Stone expressed the matter as follows:

“[A] federal tax which, is not discriminatory as to the subject matter may nevertheless so affect the State, merely because it is a State that is being taxed, as to interfere unduly with the State’s performance of its sovereign functions of government. The counterpart of such undue interference has been recognized since Marshall’s day as the implied immunity of each of the dual sovereignties of our constitutional system from taxation by the other....
“... [I] t is plain that there may be non-discriminatory taxes which, when laid on a State, would nevertheless impair the sovereign status of the State quite as much as a like tax imposed by a State on property or activities of the national government. Mayo v. United States, 319 U. S. 441, 447-448. This is not because the tax can be regarded as discriminatory but because a sovereign government is the taxpayer, and the tax, even though non-discriminatory, may be regarded as infringing its sovereignty.” 326 U. S., at 687.

The Court’s decision in Hans v. Louisiana, 134 U. S. 1 (1890), offers impressive authority for the principle that the States as such were regarded by the Framers of the Constitution as partaking of many attributes of sovereignty quite apart from the provisions of the Tenth Amendment. The familiar history of this Court’s decision in Chisholm v. Georgia, 2 Dall. 419 (1793), and the subsequent reaction which gave rise to the enactment of the Eleventh Amendment, has been told and retold. Monaco v. Mississippi, 292 U. S. 313, 323-325 (1934); Edelman v. Jordan, 415 U. S. 651, 660-662 (1974). But the Eleventh Amendment by its terms forbade the federal courts only to entertain suits by the citizens of one State against another State. Hans v. Louisiana involved a suit by citizens of Louisiana against Louisiana, and was therefore not within the literal language of the Eleventh Amendment. Nevertheless this Court, after canvassing the understanding of the Framers of the Constitution and the controversial decision in Chisholm, unanimously, concluded that such an action would not lie, saying:

“It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writers on public law. It is enough for us to declare its existence.” 134 U. S., at 21.

As it was not the Eleventh Amendment by its terms which justified the result in Hans, it is not the Tenth Amendment by its terms that prohibits congressional action which sets a mandatory ceiling on the wages of all. state employees. Both Amendments are simply examples of the understanding of those who drafted and ratified the Constitution that the States were sovereign in many respects, and that although their legislative authority could be superseded by Congress in many areas where Congress was competent to act, Congress was nonetheless not free to deal with a State as if it were just another individual or business enterprise subject to regulation.

I would hold that the activity of the State of California in operating a railroad was so unlike the traditional governmental activities of a State that Congress could subject it to the Federal Safety Appliance Act. But the operation of schools, hospitals, and like facilities involved in Maryland v. Wirtz is an activity sufficiently closely allied with traditional state functions that the wages paid by the State to employees of such facilities should be beyond Congress’ commerce authority. Such a distinction would undoubtedly present gray areas to be marked out on a case-by-case basis, as is true in applying any number of other constitutional principles. But today’s case, in which across-the-board wage and salary ceilings are sustained with respect to virtually all state employees, is clearly on the forbidden side of that line.

Congress may well in time of declared war have extraordinary authority to regulate activities in the national interest which could not be reached by the commerce power alone. Cf. Yakus v. United States, 321 U. S. 414 (1944). Congress may well be empowered under the legislative authority granted to it by the Fourteenth and Fifteenth Amendments to the Constitution to impose significant restrictions on what would otherwise be thought state prerogatives. South Carolina v. Katzenbach, 383 U. S. 301 (1966). But I do not believe, that the Commerce Clause alone is sufficient to sustain the broad and sweeping federal regulation of the maximum salaries which Ohio may pay its employees, nor do I believe that the showing of national emergency made here is sufficient to make this case one in which congressional authority may be derived from sources other than the Commerce Clause.

The overruling of a case such as Maryland v. Wirtz quite obviously should not be lightly undertaken. But we have the authority of Mr. Chief Justice Taney, dissenting, in The Passenger Cases, 7 How. 283, 470 (1849); of Mr. Justice Brandeis, dissenting, in Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 405-411 (1932); and of Mr. Justice Douglas, dissenting, in New York v. United States, 326 U. S., at 590-591, for the proposition that important decisions of constitutional law are not subject to the same command of stare decisis as axe decisions of statutory questions. Surely there can be no more fundamental constitutional question than that of the intention of the Framers of the Constitution as to how authority should be allocated between the National and State Governments. I believe that re-examination of the issue decided in Maryland v. Wirtz would lead us to the conclusion that the judgment of the Temporary Emergency Court of Appeals in this case should be reversed.

       Title II of the Act of Aug. 15, 1970, Pub. L. 91-379, 84 Stat. 799, as amended, note following 12 U. S. C. § 1904 (1970 ed., Supp. I). The Act was extended five times before it expired on April 30, 1974.

       6 CFR §§ 101.21, 201.10 (1971). See also 6 CFR §101.28 (1972).

       Ohio Rev. Code Ann. § 143.10 (A) (Supp. 1972). The Act provided for salary increases for employees of the state government, state universities, and county welfare departments. Elected state officials were not included.

         The Pay Board determined that the implementation of the pay increase from March 1972 to November 1972 would reduce the effective rate to 7% for the wage year November 14, 1971, to November 13, 1972. The payments in issue here therefore represent the wages and salaries that were due from January 1, 1972, when the pay increase was to take effect, to March 16, 1972. The total amount involved is $10.5 million.

       Petitioners did not raise the statutory issue either in their petition for certiorari or in their brief. Rather than decide a constitutional question when there may be doubt whether there is any statutory basis for it, however, we deal first with the statutory question, which is addressed in the briefs of amici curiae seeking reversal.

       Congress did provide for the exemption of certain categories of employees, such as members of the working poor, those earning substandard wages, and those entitled to wage increases under the Fair Labor Standards Act. §§ 203 (d) and (f), note following 12 U. S. C. § 1904 (1970 ed., Supp. I). See also §§ 203 (c) (l)-(3), (f)(2), (3), and (g). The various stabilization agencies have uniformly interpreted the Act to include the States within its scope, see 36 Fed. Reg. 21790, 25428 (1971); 37 Fed. Reg. 1240, 24961, 24989-24991 (1972). We have long recognized that the interpretation of a statute by an implementing agency is entitled to great weight. Udall v. Tallman, 380 U. S. 1, 16-18 (1965).

       Petitioners have stated their argument, not in terms of the Commerce power, but in terms of the limitations on that power imposed by the Tenth Amendment. While the Tenth Amendment has been characterized as a “truism,” stating merely that “all is retained which has not been surrendered,” United States v. Darby, 312 U. S. 100, 124 (1941), it is not without significance. The Amendment expressly declares the constitutional policy that Congress may not exercise power in a fashion that impairs the States’ integrity or their ability to function effectively in a federal system. Despite the extravagant claims on this score made by some amici, we are convinced that the wage restriction regulations constituted no such drastic invasion of state sovereignty.

       It may seem but a short step from Congress’ requiring the employee of a State to pay a percentage of his salary to the Federal Government in the form of an income tax, on the one hand, to Congress’ using its Commerce Clause authority to direct the State to pay its employees no more than a certain amount of money in the form of salaries and wages. But rough similarities in practical effect do not necessarily lead to similar holdings on the question of constitutional power. Where Congress taxes the income of a state employee, its command is addressed to the .employee alone after he has performed his work for the State and received his pay therefor. Under the regulations which the Court upholds today, the State of Ohio is itself told that it may not pay more than specified amounts to its various employees. Though the economic effect of the two measures on the State may be in some respects similar, the fact that the command of Congress operates directly upon the State in the latter situation is of significance in a system of constitutional federalism such as ours. The Court in Helvering v. Gerhardt, 304 U. S. 405, 424 (1938), was careful to distinguish between the imposition of a federal income tax on the New York Port Authority, a question which it reserved, and such a tax upon an employee of the Authority, a question which it decided in favor of taxability.

       As noted earlier in this dissent, the Government contends that United States v. California, 297 U.S. 175 (1936), makes it impossible to distinguish Wirtz on the basis that the employees in that case were performing primarily “proprietary” functions. California may certainly be read as rejecting not only this distinction, but also any other among activities conducted by a State, and as enunciating a rule that all state activities may be regulated by Congress. But such a sweeping doctrine is rejected even by the Court’s present opinion, which if it means what it says must concede that a line will have to be drawn somewhere. It is conceivable that the traditional distinction between “governmental” and “proprietary” activities might in some form prove useful in such line drawing. The distinction suggested in New York v. United States, 326 U. S. 572 (1946), between activities traditionally undertaken by the State and other activities, might also be of service, although it too was specifically rejected in California. See 297 U. S., at 185. Here, of course, it is unnecessary to engage in the business of line drawing, since the regulation in question sweeps within its ambit virtually all state employees regardless of their tasks.