author: Mb. Chief Justice Burger Mr. Justice Marshall,

text:
    SCHICK v. REED, CHAIRMAN, UNITED STATES BOARD OF PAROLE, et al.
    No. 73-5677.
    Argued October 23, 1974
    Decided December 23, 1974
    Burger, C. J., delivered the opinion of the Court, in which Stewart, White, BlackmüN, Powell, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which Douglas and Brennan, JJ., joined, post, p. 268.

      Homer E. Moyer, Jr., argued the cause for petitioner pro hac vice. With him on the briefs was Robert N. Sayler.

      Louis F, Claiborne argued the cause for respondents. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Harry R. Sachse.

   Mb. Chief Justice Burger

delivered the opinion of the Court.

In I960, the President, acting under the authority of Art. II, § 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick’s sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.

The pertinent facts are undisputed. In 1964 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner’s defense and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U. S. C. § 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U. S. C. M. A. 419, 22 C. M. R. 209 (1956).

The case was then forwarded to President Eisenhower for final review as required by Art. 71 (a) of the UCMJ, 10 U. S. C. § 871 (a). The President acted on March 25, 1960:

“[PJursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner’s] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U. S. C. 4201 et seq., 10 USC 3662 et seq., 10 USC 871, 874), or any acts amendatory or supplementary thereof.” App. 35.

The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment he would have been eligible for parole consideration in March 1969; the condition in the President’s order of commutation barred parole at any time.

In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District Court granted the Board of Parole’s motion for summary-judgment and the Court of Appeals affirmed, unanimously upholding the President’s power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2-1 vote petitioner’s argument that Furman v. Georgia, 408 U. S. 238, decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. 157 U. S. App. D. C. 263, 483 F. 2d 1266. We affirm the judgment of the Court of Appeals.

I

When the death sentence was imposed in 1954 it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President’s action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.

The essence of petitioner’s case is that, in light-of this Court’s holding in Furman v. Georgia, supra, which he could not anticipate, he made a “bad bargain” by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence — and remained alive — until the Furman case was decided 18 years after, that sentence was originally imposed.

It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner’s-commutation. However, petitioner’s death sentence was not pending in 1972 because it had long since been commuted. The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that even in 1960 President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.

In sum, petitioner’s claim gives rise to three questions: First, was the conditional commutation of his death sentence lawful in I960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.

II

The express power of Art. II, § 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to “grant Reprieves and Pardons . .. except in Cases of Impeachment.” Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse. Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There were other limits, but they were few in number and similarly specifically defined.

At the time of the drafting and adoption of our Constitution it was considered elementary that the prerogative of the English Crown could be exercised upon conditions:

“It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” 2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787).

Various types of conditions, both penal and nonpenal in nature, were employed. For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects .of “banishment.” This practice was never questioned despite the fact that British subjects generally could not be' forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject’s consent to transportation was necessary, but in most cases he was simply “agreeing” that his life should be spared. Thus, the requirement of consent was a legal fiction at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely independent of legislative authorization. 11 W. Holds-worth, History of English Law 569-575 (1938). In short, by 1787 the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.

The history of our executive pardoning power reveals a consistent pattern of adherence to the English common-law practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on § 2, cl. 1, of Art. II. The first report of the Committee on Detail proposed that the pertinent clause read: “He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment.” This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399-400. An effort was made in the Convention to amend what finally emerged as § 2, cl. 1, and is reflected in James Madison’s Journal for August 25, 1787, where the following note appears:

“Mr. Sherman moved to amend the ‘power to grant reprieves and pardons’ so as to read ‘to grant reprieves until the next session of the Senate, and pardons with consent of the Senate.’ ” 2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911).,

The proposed amendment was rejected by a vote of 8-1. Ibid. This action confirms that, as in England in 1787, the pardoning power was intended to be generally free from legislative control.

Later Edmund Randolph proposed to add the words “ ‘except cases of treason.’ ” Madison’s description of Randolph’s argument reflects familiarity with the English form and practice: “The prerogative of pardon in these [treason] cases was too great a trust.” Id., at 626 (emphasis added). Randolph’s proposal was rejected by a vote of 8-2, and the clause was adopted in its present form. Thereafter, Hamilton’s Federalist No. 69 summarized the proposed § 2 powers, including the power to pardon, as “resembl[ing] equally that of the King of Great-Britain and the Governor of New-York.” The Federalist No. 69, p. 464 (J. Cooke ed. 1961).

We see, therefore, that the draftsmen of Art. II, § 2, spoke in terms of a “prerogative” of the President, which ought not be “fettered or embarrassed.” In light of the English common law from which such language was drawn, the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.

The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common-law practice:

“As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.” Id., at 160.

Similarly, in Ex parte Wells, 18 How. 307 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon “ 'upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington.’ Id., at 308. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:

“[A] President granting such a pardon assumes a power not conferred by the constitution — that he legislates a new punishment into existence, and sentences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences . . . , and that of the judiciary, to sentence .. . according to them.” Id., at 309.

However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:

“The real language of [Art. II, § 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them. . . .
“In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms.
“. . . [T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made.
“ ‘. . . And a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress per minas.’ ” Id., at 314-315.

In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually.

The teachings of Wilson and Wells have been followed consistently by this Court. See, e. g., Ex parte Grossman, 267 U. S. 87 (1925) (upholding a Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute. Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts. See 41 Op. Atty. Gen. 251 (1955). These facts are not insignificant for our interpretation of Art. II, § 2, cl. 1, because, as observed by Mr. Justice Holmes: “If a thing has been practised for two hundred years by common consent, it will need a strong case” to overturn it. Jackman v. Rosenbaum Co., 260 U. S. 22, 31 (1922).

Ill

A fair reading of the history of the English pardoning power, from which our Art. II, § 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the broad power conferred by § 2, cl. 1, was to allow plenary authority in the President to “forgive” the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner’s contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i. e., that parole must be available to petitioner because it is to others. That such an interpretation of § 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.

Petitioner’s claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole; it does not offend the Constitution. Similarly, the President’s action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner’s commutation was “made possible only through the court-martial’s imposition of the death sentence.” Post, at 269-270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide, it could not affect a conditional commutation which was granted 12 years earlier.

We are not moved by petitioner’s argument that it is somehow “unfair” that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier, petitioner’s life was undoubtedly spared by President Eisenhower’s commutation order of March 25, 1960. Nor is petitioner without further remedies since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity.

Affirmed.

Mr. Justice Marshall,

with whom Mr. Justice Douglas .and Mr. Justice Brennan join,

dissenting.

The Court today denies petitioner relief from the no-parole condition of his commuted death sentence, paying only lip service to our intervening decision in Furman v. Georgia, 408 U. S. 238 (1972). Because I believe the retrospective application of Furman requires us to vacate petitioner’s sentence and substitute the only lawful alternative — life with the opportunity for parole, I respectfully dissent.

The Court misconstrues petitioner’s retroactivity argument. Schick does not dispute the constitutional validity of the death penalty in 1954 under then-existing case law. Nor does he contend that he was under sentence of death in 1972 when the decision issued in Furman, invalidating “the imposition and carrying out” of discretionary death sentences. Id., at 239. Rather, he argues that the retroactive application of Furman to his no-parole commutation is required because the imposition of the death sentence was the indispensable vehicle through which he became subject to his present sentence. In other words, the no-parole condition could not now exist had the court-martial before which Schick was tried not imposed the death penalty.

The relationship between the death sentence and the condition is clear. Article 118 of the Uniform Code of Military Justice (UCMJ) authorizes only two sentences for the crime of premeditated murder: death or life imprisonment which entails at least the possibility of parole. Confinement without possibility of parole is unknown to military law; it is not and has never been authorized for any UCMJ offense, 10 U. S. C. §§ 877-934; Manual for Courts-Martial, 34 Fed. Reg. 10502 (1969). In short, the penal restriction of the commutation was a creature of Presidential clemency made possible only through the court-martial’s imposition of the death sentence.

The retroactivity of Furman is equally unclouded. The Court “[has] not hesitated” to give full retroactive effect to the Furman decision. Robinson v. Neil, 409 U. S. 505, 508 (1973). See Stewart v. Massachusetts, 408 U. S. 845 (1972); Marks v. Louisiana, 408 U. S. 933 (1972); Walker v. Georgia, 408 U. S. 936 (1972). The ;per curiam decision struck down both “the imposition and the carrying out” of discretionary death sentences as cruel and unusual punishment in violation of the Eighth Amendment. 408 U. S., at 239. The opinion specifically held that the “judgment . . . is . . . reversed insofar as it leaves undisturbed the death sentence imposed_” Id., at 240. The retroactive application of Furman results in more than the simple enjoining of execution; it nullifies the very act of sentencing. In effect a post-Furman court must ensure a prisoner the same treatment that he would have been afforded had the death penalty not been imposed initially.

The full retroactivity of a constitutional ruling is aimed at the eradication of all adverse consequences of prior violations of that rule. We have recognized the importance of erasing “root and branch” the adverse legal consequences, both direct and indirect, of prior constitutional violations. See, e. g., McConnell v. Rhay, 393 U. S. 2, 3 (1968); Linkletter v. Walker, 381 U. S. 618, 639 (1965). The effective operation of this procedure was demonstrated in the decisions on the right to counsel in state felony trials. See Pickelsimer v. Wainwright, 375 U. S. 2 (1963); Kitchens v. Smith, 401 U. S. 847 (1971); Burgett v. Texas, 389 U. S. 109 (1967); United States v. Tucker, 404 U. S. 443 (1972).

Since Furman is fully retroactive petitioner’s case should be simple to resolve. The terms of Art. 118 of the UCMJ provide that a person convicted of premeditated murder “shall suffer death or imprisonment for life as a court-martial may direct.” A death sentence was imposed by the court-martial and affirmed by the Board of Review and the United States Court of Military Appeals, 7 U. S. C. M. A. 419, 22 C. M. R. 209 (1956). The death sentence so imposed was declared unconstitutional by Furman and is therefore null and void as a matter of law. The only legal alternative — simple life imprisonment— must be substituted. Concomitantly, the adverse consequence of the death sentence — the no-parole condition of petitioner’s 1960 commutation — must also be voided, as it exceeds the lawful alternative punishment that should have been imposed. Petitioner should now be subject to treatment as a person sentenced to life imprisonment on the date of his original sentence and eligible for parole.

The Court today suggests that petitioner cannot claim any benefit from Furman because no death penalty was pending against him at the time of the decision. The 1960 commutation is touted as the panacea for the constitutional defects of petitioner’s original sentence. Unfortunately, such is not the case.

The imposition of the death sentence was the indispensable vehicle through which petitioner became subject to his present sentence. The commutation of the sentence did not cure the constitutional disabilities of the punishment. A noted expert on the subject of Presidential clemency states:

“Unlike a pardon, a commutation does not absolve the beneficiary from most of the legal consequences of an offense.”

Although petitioner is not under direct threat of the death sentence, “he has suffered and continues to suffer enhanced punishment — the loss of his statutory right to be considered for parole — as a result of an illegally imposed death sentence ” The full retrospective application of Furman requires the eradication of this vestige of the prior constitutional violation. If petitioner had been granted stays of execution until Furman was decided, there is no doubt that his sentence would have to be vacated and a life sentence imposed instead. The situation should be no different simply because the Chief Executive commuted his sentence — in effect granting a permanent stay of execution. Nullification of the no-parole provision would relieve petitioner of this unconstitutional burden and clear the way for lawful resen-tencing with eligibility for parole.

II

Since the majority devotes its opinion to a discussion of the scope of Presidential power, I am compelled to comment. I have no quarrel with the proposition that the source of the President’s commutation power is found in Art. II, § 2, cl. 1, of the Constitution, which authorizes the President to grant reprieves and pardons for offenses against the United States except for cases of impeachment. Biddle v. Perovich, 274 U. S. 480 (1927). Commutation is defined as the substitution of a lesser type of punishment for the punishment actually imposed at trial.

The issue here is whether the President’s expansion of an unencumbered life term by addition of a condition proscribing Schick’s eligibility for parole went beyond the authority conferred by Art. II. Article 118 of the UCMJ and the implementing court-martial regulations prescribe mandatory adjudication of either death or life imprisonment for the crime of premeditated murder. 10 U. S. C. § 918; 34 Fed. Reg. 10704. I take issue with the Court’s conclusion that annexation of the “no-parole condition ... does not offend the Constitution.” Ante, at 267. In my view the President’s action exceeded the limits of the Art. II pardon power. In commuting a sentence under Art. II the Chief Executive is not imbued with the constitutional power to create unauthorized punishments.

The congressionally prescribed limits of punishment mark the boundaries within which the Executive must exercise his authority. By virtue of the pardon power the Executive may abstain from enforcing a judgment by judicial authorities; he may not, under the aegis of that power, engage in lawmaking or adjudication. Cf. United States v. Benz, 282 U. S. 304, 311 (1931) (an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua judgment); United States ex rel. Brazier v. Commissioner of Immigration, 5 F. 2d 162 (CA2 1924) (pardon power does not embrace right to bar congres-sionally prescribed deportation of prisoners).

While the clemency function of the Executive in the federal criminal justice system is consistent with the separation of powers, the attachment of punitive conditions to grants of clemency is not. Prescribing punishment is a prerogative reserved for the lawmaking branch of government, the legislature. As a consequence, President Eisenhower’s addition to Schick’s commutation of a condition that did not coincide with punishment prescribed by the legislature for any military crime, much less this specific offense, was a usurpation of a legislative function. While the exercise of the pardon power was proper, the imposition of this penal condition was not embraced by that power.

The Court today advances the antecedent English pardon power and prior holdings of this Court in support of the legality of the no-parole condition. Neither body of law has established an Executive right to define extra-legislative punishments. Nor does the historical status of the pardon power in England or analysis of prior non-penal conditions supply any relevance here.

A

The English annals offer dubious support to the Court. The majority opinion recounts in copious detail the historical evolution of the pardon power in England. Ante, at 260-262. See also Ex parte Wells, 18 How. 307, 309-313 (1856). The references to English statutes and cases are no more than dictum; as the Court itself admonishes, “the [pardon] power flows from the Constitution alone.” Ante, at 266. Accordingly, the primary resource for analyzing the scope of Art. II is our own republican system of government. See Grosjean v. American Press Co., 297 U. S. 233, 248-249 (1936). The separation of powers doctrine does not vest the Chief Executive with an unrestrained clemency power, supra, at 274-275, but views his functions as distinct from the other coordinate branches. Ante, at 262-264. The references to the early American experience are not dispositive.

Indeed, history recounts that even the pardon power of the King to “annex [a condition] to his bounty” was subject to statutory limitation. 4 W. Blackstone, Commentaries *401. As noted in the Wells case:

“The sovereign of England, with all the prerogatives of the crown, in granting a conditional pardon, cannot substitute a punishment which the law does not authorize.” 18 How., at 323 (McLean, J., dissenting).

Even the authority quoted by Blackstone in support of the proposition, 2 W. Hawkins, Pleas of the Crown 547 (8th ed. 1824), does not actually support the suggestion of unlimited.power in the King. In fact, the conditions discussed were either imposed pursuant to statute or of a nonpunitive nature. See Coles Case, Moore K. B. 466, 72 Eng. Rep. 700 (1597); E. Coke, A Commentary upon Littleton 274b (19th ed. 1832). The Court acknowledges instances in which statutory authority placed restrictions on the monarch’s power. Ante, at 260. The critical role of statutes in the imposition of the condition of banishment on pardons of convicted felons was recognized in a letter addressed to a member of the House of Lords:

“There is hardly anything to be found respecting conditional pardons in the old English law-books; but the authority of the Crown to grant a conditional pardon in capital cases is . . . recognized in statute 5 Geo. 4, c. 84, s. 2 . . . .” W. Forsyth, Cases and Opinions on Constitutional Law 460 (1869).

The King’s prerogative was thus not as broad as the majority’s reading of Blackstone indicates. The great discretion available to the King to dispense mercy did not incorporate into the pardoning power the royal right to invade the legislative province of assessing punishments.

B

Contrary to the Court’s suggestion, limitation of Executive action to the statutory framework is not undermined by earlier decisions of this Court. In Biddle v. Perovich, 274 U. S. 480, 483 (1927), the Solicitor General expressly noted that “[a] commutation is the substitution of a milder punishment known to the law for the one inflicted by the court.” Mr. Justice Holmes, writing' for a unanimous Court, concluded on a related matter that consent to commutation was unnecessary since “[b]y common understanding imprisonment for life is a less penalty than death.” Id., at 487. The Court held that the “only question is whether the substituted punishment was authorized by law_” Ibid. While Holmes’ specific reference is to the law of the Constitution, he then proceeds with a discussion of the statutory sanctions. Commutation to life imprisonment without any opportunity for parole would penalize the prisoner here beyond the terms of the UCMJ sanctions.

The requirement that the substituted sentence be one provided by law is not hampered by Ex parte Wells, supra, in which this Court upheld conditional commutation from a death sentence to a simple life term. The validity of mitigation of a sentence without depriving the prisoner of any additional rights is not inconsistent with rejection of unauthorized penal conditions. In Wells the Court acknowledged that'limitations on the pardon power mandated its exercise “according to law; that is, as it had been used in England, and these States.” 18 How., at 310. Although the Wells Court was not faced with the question whether all possible conditions were in the ambit of Art. II, it addressed the specific limitation on penal conditions attached to commutations:

“So, conditional pardons by the king do not permit transportation or exile as a commutable punishment, unless the same has been provided for by legislation.” Id., at 313.

The remaining cases on which the Court relies to sustain the condition offer minimal support and are easily distinguished.

In conclusion I note that where a President chooses to exercise his clemency power he should be mindful that

“[t]he punishment appropriate for the diverse federal offenses is a matter for the discretion of Congress, subject only to constitutional limitations, more particularly the Eighth Amendment.” Bell v. United States, 349 U. S. 81, 82 (1955).

See Ex parte United States, 242 U. S. 27, 42 (1916). The Congress has not delegated such authority to the President. I do not challenge the right of the President to issue pardons on nonpenal conditions, but, where the Executive elects to exercise the Presidential power for commutation the clear import of the Constitution mandates that the lesser punishment imposed be sanctioned by the legislature.

In sum, the no-parole condition is constitutionally defective in the face of the retrospective application of Furman and the extra-legal nature of the Executive action. I would nullify the condition, and direct the lower court to remand the case for resentencing to the only alternative available — life with the opportunity for parole — and its attendant benefits.

      See generally 6 W. Holdsworth, History of English Law 203 (1938).

       See 3 E. Coke, Institutes 233 (6th ed. 1680); 5 J. Comyns, Digest of the Laws of England 230 (5th ed. 1822); J. Chitty, Prerogatives of the Crown 90-91 (1820); 4 W. Blackstone, Commentaries *398.

       Typical conditions were that the felon be confined at hard labor for a stated period of time, 4 Blackstone, supra, n. 2, at *401, or that he serve in the Armed Forces. 2 D. Hume, Crimes 481 (2d ed. 1819).

       In Ex parte Wells, 18 How. 307 (1856), this Court expressed the view that legislative authorization was essential to the use of banishment from the realm as a commutable punishment by the English Crown. Id., at 313. However, that conclusion was no more than dictum and is historically incorrect. Indeed, about the time that Wells was decided Parliament abolished banishment as a penalty in England, but the Crown retained and continued to exercise the power to annex such conditions to pardons. 11 Holds-worth, supra, n. 1, at 575.

       2 M. Farrand, Records of the Federal Convention of 1787, p. 185 (1911).

       In the Federalist No. 74 Hamilton enlarged on this point:
      “Humanity and good policy conspire to dictate; that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the ' sense of responsibility is always strongest in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives, which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations, which were calculated to shelter a fit object of its vengeance. The reflection, that the fate of a fellow creature depended on his sole fiat, would naturally inspire scrupulousness and caution: The dread of being accused of weakness or connivance would beget equal circumspection, though of a different kind.” The Federalist No. 74, pp. 500-501 (J. Cooke ed. 1961).

       See, e. g., 21 U. S. C. § 848 (c); Mass. Gen. Laws Ann., c. 265, §2 (1970); Nev. Rev. Stat., Tit. 16, c. 200.030, §6, c. 200.363, § 1 (a) (1973).

       But see Part II, infra.

       Article 118, 10 U. S. C. §918, reads:
      “Any person subject to this code who, without justification or excuse, unlawfully Mils a human being, when he—
      “(1) has a premeditated design to kill;
      “shall suffer death or imprisonment for life as a court-martial may direct.” May 5, 1950, c. 169, § 1, 64 Stat. 140.

       Military prisoners incarcerated in federal penitentiaries are governed by the samé parole statutes and regulations applicable to all federal prisoners. Under the federal parole eligibility statute, 18 U. S. C. §§4202-4203 (1970 ed. and Supp. II), petitioner, an inmate for 20 years at Lewisburg, now has satisfied the 15-year prerequisite for parole consideration. See 10 U. S. C. § 858. Likewise, if Schick had been confined in a military facility he would now be eligible for parole under 10 U. S. C. §§ 952-953.

       Where only one alternative punishment is available to the trial court, that punishment has been automatically imposed either by the appellate court itself, e. g., State v. Johnson, 31 Ohio St. 2d 106, 285 N. E. 2d 751 (1972); Commonwealth v. Bradley, 449 Pa. 19, 295 A. 2d 842 (1972); Anderson v. State, 267 So. 2d 8, 10 (Fla. 1972); or by the trial judge on direction from the appellate court, e. g., Capler v. State, 268 So. 2d 338 (Miss. 1972); State v. Square, 263 La. 291, 268 So. 2d 229 (1972); Garcia v. State, 501 P. 2d 1128 (Okla. Crim. 1972).

       Nothing in Furman suggests that it is inapplicable to the military. The per curiam carves out no exceptions to the prohibition against discretionary death sentences. The opinions of the five-member majority recognize no basis for excluding the members of the Armed Forces from protection against this form of punishment. Even the list of four capital punishment statutes not affected by the Court’s decision, provided by my Brother Stewart, does not include the federal military statutes. 408 U. S. 238, 307 (1972). Even more persuasive is the language of my Brother Powell in dissent which states that “numerous provisions of . . . the Uniform Code of Military Justice are also voided.” Id., at 417-418.
      Beyond the language of Furman the Court has made clear in Trop v. Dulles, 356 U. S. 86 (1958), that the Eighth Amendment is applicable to the military. While the Court divided on the penal nature of the statute which provided additional sanctions for servicemen convicted of wartime desertion, there was no disagreement on the application of the Amendment.
      I would also note that the UCMJ, enacted in 1950, has by decision and practice incorporated the Bill of Rights and afforded its protection to the members of the Armed Forces. See, e. g., United States v. Templa, 16 U. S. C. M. A. 629, 634, 37 C. M. R. 249, 254 (1967); United States v. Jacoby, 11 U. S. C. M. A. 428, 430-431, 29 C. M. R. 244, 246-247 (1960); United States v. Jobe, 10 U. S. C. M. A. 276, 279, 27 C. M. R. 350, 353 (1959).
      The fact that a court-martial rather than a jury imposes the death sentence is irrelevant. In my view the penalty is equally severe, and in my view equally offensive to the Eighth Amendment for that reason, see Furman v. Georgia, 408 U. S., at 314-374 (Marshall, J., concurring). Moreover, the potential for abuse and discrimination with which my Brethren were concerned in Furman is as evident here as in the civilian courts.

       W. Humbert, The Pardoning Power of the President 27 (1941).

       157 U. S. App. D. C. 263, 270, 483 F. 2d 1266, 1273 (1973) (Wright, J., dissenting).

       Although pardon and commutation emanate from the same source, they represent clearly distinct forms of clemency. Whereas commutation is a substitution of a milder form of punishment, pardon is an act of public conscience that relieves the recipient of all the legal consequences of the conviction. See, e. g., United States ex rel. Brazier v. Commissioner of Immigration, 5 F. 2d 162 (CA2 1924); Chapman v. Scott, 10 F. 2d 156, 159 (Conn. 1925), aff’d, 10 F. 2d 690 (CA2), cert. denied, 270 U. S. 657 (1926); Note, Executive Clemency in Capital Cases, 39 N. Y. U. L. Rev. 136, 138 (1964); Humbert, supra, n. 6, at 27; Black’s Law Dictionary 351, 1268-1269 (4th ed. 1968).

       Indeed, Mr. Chief Justice Marshall expanded on the notion of separation of powers, stating: “[T]he power of punishment is vested in the legislative . . . department. It is the legislature . . . which is to define a crime, and ordain its punishment.” United States v. Wiltberger, 5 Wheat. 76, 95 (1820).

       Article 71 (a) of the UCMJ, 10 U. S. C. §871 (a), outlines the Presidential role in the review of military convictions.
      With the exception of premeditated murder and felony murder the UCMJ authorizes punishment at the discretion of the court-martial. Thus, in the majority of eases the President would not be limited to only two alternatives but could commute to any lesser sentence than that imposed by the court-martial consistent with the statutory authorization. It is only in the face of the mandate of Art. 118, limiting the alternatives to death or life imprisonment with the possibility of parole, that the restriction to the statutory alternatives may appear at first blush unduly Draconian.

       As already indicated, confinement without opportunity for parole is unknown to military law. See text accompanying n. 3, supra. Moreover, the only federal-law recognition of this punishment in a civilian context is found in the very limited no-parole provisions dealing with continuing narcotics enterprises. 21 U. S. C. § 848. Guided by the special nature of drug offenses and drug offenders the Congress enacted this narrow exception to universal eligibility for parole. See H. R. Rep. No. 2388, 84th Cong., 2d Sess., 4, 8, 11, 64 (1956).

       The Court cites Ex parte Wells, 18 How. 307 (1856), and an opinion of Attorney General Brownell, 41 Op. Atty. Gen. 251 (1955), in support of the statement that “Presidents . . . have [frequently] exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute.” Ante, at 266. Wells involved the simple substitution of the lesser penalty of life imprisonment for death; no separate punitive condition was attached to the Executive action. A legal opinion from the Attorney General supplies reasoned interpretations but hardly bears the force of law.

       The King’s pardon power, from which the President’s Art. II power derives, also was subject historically to statutory limitations. See Ex parte Wells, supra, at 312-313; id., at 322 (McLean, J., dissenting).

       With few exceptions conditional pardons were not granted by state governors except where authorized by law, Ex parte Wells, supra, at 322 (McLean, J., dissenting). The Court’s references to the Framers’ writings on the pardon power fail to take account of the separation of powers doctrine so fervently embraced by the constitutional drafters. National Mutual Ins. Co. v. Tidewater Transfer

        Co., 337 U. S. 582 (1949); The Federalist No. 47 (J. Madison) (J. Cooke ed. 1961); E. Corwin, The President: Office and Powers 140 (1940). In fact Corwin notes:
      “[T]he President is not authorized to add to sentences imposed by the courts [pursuant to legislative direction] — he may only mitigate them ...Ibid, (emphasis in original).

        United States v. Wilson, 7 Pet. 150 (1833), turned on the technical question of whether a pardon must be pleaded and only referred in dictum to the possibility that the President could condition a pardon. In Ex parte Garland, 4 Wall. 333 (1867), and Ex parte Grossman, 267 U. S. 87 (1925), the Court focused on the discretionary aspect of the pardon power which is here unchallenged. The emphasis was on the right of the President to' grant a pardon to any criminal, for any offense, at any time. The question of conditional action was raised in only a tangential manner.

       The Court likens the no-parole condition to “sanctions imposed by legislatures such as mandatory minimum sentences The similarity is all too close, in my view. Indeed, it is precisely because the President has invaded the legislative domain that the condition must fail.


source: Caselaw Access Project

author: Mr. Justice Douglas

license: Public Domain

text:
    BOWMAN TRANSPORTATION, INC. v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al.
    No. 73-1055.
    Argued November 20, 1974—
    Decided December 23, 1974

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

      Charles S. Rhyne argued the cause for appellants in Nos. 73-1055, 73-1069, 73-1070, and 73-1071. With him on the briefs were Bryce Rea, Jr., Donald E. Cross, Courts Oulahan, Robert L. Jones, Jr., Maurice F. Bishop, Sander W. Shapiro, and Jerry C. Prestridge. William L. Patton argued the cause for the United States et al. in No. 73-1072. With him on the brief were Solicitor General Bork, Assistant Attorney General Kauper, Carl D. Lawson,

      Fritz R. Kahn, Betty Jo Christian, and Richard H. Streeter.

      Phineas Stevens argued the cause for appellees in all cases. With him on the brief were Drew L. Carraway, Phillip Robinson, M. Ward Bailey, Don A. Smith, Thomas Harper, Wentworth E. Griffin, Frank W. Taylor, Jr., William 0. Turney, and J. William Cain, Jr.

      Together with No. 73-1069, Johnson Motor Lines, Inc. v. Arkansas-Best Freight System, Inc., et al.; No. 73-1070, Red Ball Motor Freight, Inc. v. Arkansas-Best Freight System, Inc., et al.; No. 73-1071, Lorch-Westway Corp. et al. v. Arkansas-Best Freight System, Inc., et al.; and No. 73-1072, United States et al. v. Arkansas-Best Freight System, Inc., et al., also on appeal to the same court.

   Mr. Justice Douglas

delivered the opinion of the Court.

This is a direct appeal from a final judgment of a three-judge District Court, 28 U. S. C. §§ 1253, 2101, invalidating an order of the Interstate Commerce Commission. Ten applications of motor carriers to conduct general commodities operations between points in the Southwest and Southeast were consolidated in one proceeding. Three additional applicants were allowed to intervene. The hearing examiners, after extensive hearings, rejected each application. The Commission granted three of the applications of appellant carriers. Appel-lees, competing carriers, brought an action in the District Court, 28 U. S. C. § 1336, to suspend, enjoin, and annul that portion of the order of the Commission that authorizes issuance of certificates of public convenience and necessity to Red Ball, Bowman, and Johnson. The District Court refused to enforce the Commission’s order because its findings and conclusions were arbitrary, capricious, and without rational basis within the meaning of the Administrative Procedure Act, 5 U. S. C. § 706, and likewise refused to remand the case believing that no useful purpose would be served, 364 F. Supp. 1239, 1264.

The Administrative Procedure Act in 5 U. S. C. § 706 provides that:

“The reviewing court shall... (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
“(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] ...
“(E) unsupported by substantial evidence . . . .”

These two provisions of 5 U. S. C. § 706 (2) are part of six which are “separate standards.” See Citizens to Preserve Overton Park v. Volpe, 401 U. S. 402, 413 (1971). The District Court properly concluded that, though an agency’s finding may be supported by substantial evidence, based on the definition in Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951), it may nonetheless reflect arbitrary and capricious action. There seems, however, to be agreement that the findings and conclusions of the Commission are supported by substantial evidence. The question remains whether, as the District Court held, the Commission’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” as provided in 5 U. S. C. § 706 (2) (A). We disagree, with the District Court and accordingly reverse its judgment and remand the cases for consideration of one issue not reached by the District Court or by this Court.

I

The Motor Carrier provisions of the Interstate Commerce Act, 49 Stat. 551, 49 U. S. C. § 307, empower the Commission to grant an application for a certificate if it finds (1) that the applicant is “fit, willing, and able properly to perform the service proposed”; and (2) that the service proposed “is or will be required by the present or future public convenience and necessity.” The Commission made both findings, relying upon the applicants’ general service record in support of a finding of fitness, and upon expressions of customer dissatisfaction with the existing service in support of its conclusion that the service proposed was consistent with the public convenience and necessity. The competing appellee carriers made presentations designed to show that their existing service was satisfactory and that the applicants would not offer measurably superior performance. The District Court concluded that the Commission had acted arbitrarily in its treatment of the presentations made by the protesting carriers. While the Commission had acknowledged the appellees’ evidence, its reasons for refusing to credit it would not, in the District Court’s view, withstand scrutiny, making its action tantamount to an arbitrary refusal to consider matters in the record.

Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, supra, at 416. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U. S. 156, 168 (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U. S. 194, 196 (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U. S. 581, 595 (1945). Having summarized the appropriate scope of review, we proceed to consider the District Court’s objections seriatim.

A. Evidence as to Existing Service

The applicant carriers presented exhibits showing the time in transit of selected shipments that had been consigned to appellee carriers by particular shippers during a designated study period. As the Commission acknowledged, the selection of particular shipménts from those occurring during the study period had been made with an eye toward demonstrating service inadequacies. These “worst case” studies figured in the Commission’s finding that service would be improved by the entry of new carriers to the routes at issue.

The appellee carriers offered studies of their own. These covered the same period and the same shippers as the applicants’ presentations, but whereas the applicants had selected particular shipments to emphasize inadequacies, the appellee carriers included in their presentations all of the shipments consigned during the study period. These exhibits, argued the protesting carriers, placed the incidents cited by the applicants in perspective and demonstrated that the existing service was generally acceptable. The Commission acknowledged the appel-lees’ presentations but concluded that they offered an inadequate rebuttal to the applicants’ exhibits because (1) they “relate to short periods of time or cover traffic handled for specified shippers”; and (2) the studies represented service provided by appellees after the Commission had designated the applications for hearing. Herrin Transportation Co., 114 M. C. C. 571, 599 (1971). The District Court ruled that the Commission had applied inconsistent standards in reviewing the evidence of the parties, since the appellees’ exhibits were based upon the same study periods and the same shippers as the applicants’ exhibits. 364 F. Supp., at 1259-1260.

We agree with the District Court that the first reason assigned by the Commission — that the appellees’ exhibits were based only upon short periods and particular shippers — failed to distinguish the presentations of applicants and opponents. To counter the applicants’ presentations, the protesting carriers chose the identical study periods and shippers but expanded the presentation to show all the shipments consigned. Since the protesters confined themselves to the periods and shippers the applicants had selected, there was no basis for an inference that the former had chosen so as to make the exhibits unrepresentative in their favor.

The Commission’s second reason, however — that the appellees’ studies covered periods subsequent to a notice of hearing — provides support for the Commission’s assessment of the evidence. The Commission recognized that protesting carriers might have been spurred to improve their service by the threat of competition raised by the designation of applicants for hearing. Therefore, reasoned the Commission, the protesting carriers’ performance subsequent to the notice of hearing might be superior to the service they normally offered, and their exhibits, covering those periods, had to be read in light of that possibility. But the Commission was not precluded from relying upon the demonstrated shortcomings of the protesters’ service during that period, for the incentive effect the Commission identified would have, if anything, distorted the performance studies in the protesters’ favor.

The issue before the Commission was not whether the appellees’ service met some absolute standard of performance but whether the “public convenience and necessity” would be served by the entry of new carriers into the markets served by appellees. United States v. Dixie Express, 389 U. S. 409, 411-412 (1967). Even if the Commission had accepted appellees’ exhibits at face value, it could still have concluded that the deficiencies were sufficient to justify the admission of additional carriers. Certainly the Commission was entitled to regard the appellees’ studies as possibly nonrepresentative of the usual service afforded, to reason that the shortcomings were probably greater than these studies showed, and to conclude that service would be improved by granting the applications.

B. Evidence of Applicants’ Fitness

The applicants supported their service proposals with exhibits showing transit times over comparable distances on other routes. The appellees once again pointed out that the applicants had been selective and offered transit times on different routes- served by the applicants that were substantially longer than- those applicants proposed to provide on the routes at issue. Appellees thus argued that the applicants could not reasonably be expected to live up to their service proposals. In addition, the appel-lees cited service restrictions that the applicants practiced on other routes — refusal to make scheduled pickup of merchandise, refusal to handle shipments less than a certain weight, refusal to transport goods to certain destinations, and the like.

The Commission attributed little significance to the appellees’ rebuttal. With respect to transit times, the Commission noted that different highway conditions might make transit times over identical distances totally incomparable. 114 M. C. C., at 611. The District Court held that the Commission had acted arbitrarily in so treating the evidence, for it had apparently relied on the applicants’ transit-time evidence (id., at 586, 600) to support its finding of fitness. 364 F. Supp., at 1260-1261. Similarly, the District Court viewed as arbitrary the Commission’s failure to mention in its opinion the service restrictions by applicants that appel-lees’ had cited, since the Commission had relied upon identical restrictions practiced by appellees to support its finding that existing service was not satisfactory. 114 M. C. C., at 600.

The Commission’s treatment of the evidence of the applicants’ performance on other routes is not a paragon of clarity. Had the Commission responded in a more considered manner to the evidence appellees presented, review would have been greatly facilitated, and further review by this Court perhaps avoided entirely. But we can discern in the Commission’s opinion a rational basis for its treatment of the evidence, and the “arbitrary and capricious” test does not require more. The question before the Commission was whether service on the routes at issue would be enhanced by permitting new entry, and as to this the performance by prospective entrants on new routes was of limited relevance. The Commission noted with respect to transit times that different highway conditions might make experience there a poor indication of the times applicants could provide on the routes they sought to enter. More generally, the applicants’ performance on other routes might, because of market conditions peculiar to that route (e. g., the nature of demand for service, or the number of competing carriers), offer an inaccurate basis for predicting what the applicants would do if admitted to the routes they sought in competition with the carriers already there. A carrier performing lethargically on a route where it was the sole provider of motor transportation, for example, could ill afford to continue the same practice where the situation was more competitive.

The particular features of the applicants’ performance elsewhere that the appellees cited were not shown by the Commission to be explainable by special market conditions on the routes where they occurred. It is said that the Commission could conclude that the evidence of performance elsewhere would be unlikely to prove disposi-tive, and that accordingly, absent some compelling demonstration by a proponent of a “performance elsewhere” study that it offered important predictive value, the Commission should disregard such evidence. Of course, evidence of especially egregious performance elsewhere might have been viewed as an exception; a general assumption that competition would force new entrants to exceed the pre-existing quality of service in an effort to attract business might have to yield in the face of an applicant whose shortcomings elsewhere were many and flagrant. But no such evidence was offered here, and none of the applicants was so characterized. Indeed the examiners found that “in the main the carriers participating in these proceedings are substantial and responsible carriers” (2 App. 878), and no party has disputed this finding. We do not find the Commission’s treatment of the evidence arbitrary.

II

Having found that the admission of the applicant carriers to the routes they sought would produce benefits to the consumers served, the Commission proceeded to consider the effect of new entry upon the appellees. ■While the Commission acknowledged that competition from new entrants might cause at least short-run business losses for existing carriers, it found that, with the exception of one carrier, none would be “seriously adversely affected.” Further, the Commission concluded that in any event, “the gains to be derived by the shipping public in general far outweigh any adverse effect this carrier or any other protestant may experience.” 114 M. C. C., at 611. .

The District Court thought the Commission’s treatment unsupportable, in view of the findings by the hearing examiners as to adverse impacts if the applications were granted. 364 F. Supp., at 1262-1263. Insofar as the District Court’s comments express the view that the Commission failed to consider the examiners’ findings or the appellees’ interests, the record shows otherwise. The Commission stated in its opinion that “grants of authority will subject some of protestants’ traffic to the possibility of diversion,” but went on to make findings that there would be no “serious adverse impact.” 114 M. C. C., at 610-611.

The evidence that moved the examiners to a contrary view consisted of testimony by appellees’ witnesses about the volume of shipments for which new entrants would compete if allowed to enter the market. The testimony thus presented the carriers’ maximum potential exposure, leaving considerable leeway for predicting what was likely if applications were granted. Cf. Market Street R. Co. v. Railroad Comm’n, 324 U. S. 548 (1945). The examiners emphasized the magnitude of potential harm; the Commission took a more optimistic view. We see nothing arbitrary in this posture. That a carrier’s entire business will be subject to competition hardly compels the conclusion that its operations will show no profit. It was rational for the Commission so to conclude that the new entrant may be expected not to swallow up existing carriers, especially if the latter make efforts to attract business. Moreover, the testimony offered by appellees’ witnesses gave the carriers’ exposure to competition if every new application sought by appellees were granted. Thus, the examiners were reporting upon potential diversions of traffic under conditions that were never realized. Since the Commission granted only three of the 10 pending applications, much of the testimony on this matter had to be regarded with qualification, and some of it disregarded entirely.

The Commission’s conclusion that consumer benefits outweighed any adverse impact upon the existing carriers reflects the kind of judgment that is entrusted to it, a power to weigh the competing interests and arrive at a balance that is deemed “the public convenience and necessity.” United States v. Pierce Auto Lines, 327 U. S. 515, 535-536 (1946). If the Commission has “drawn out and crystallized these competing interests [and] attempted to judge them with as much delicacy as the prospective nature of the inquiry permits,” ICC v. J-T Transport Co., 368 U. S. 81, 89 (1961), we can require no more. Here the Commission identified the competing interests. We cannot say that the balance it struck was arbitrary or contrary to law.

Ill

The District Court expressed concern about the considerable lapse of time between the conclusion of eviden-tiary hearings and the Commission’s decision. 364 F. Supp., at 1261-1262. While it is unclear whether this was an independent ground for setting aside the Commission’s order, we deem it advisable to deal directly with the suggestion that the record has grown too stale to support the order.

Hearings on the applications in these cases began in 1966 and concluded in 1967. Thereafter, the parties prepared extensive briefs for the examiners, who rendered their decision in November 1969. The decision of the Commission was handed down on December 30, 1971. Thus, the evidentiary material pertained to service conditions which were dated by five years at the time the Commission rendered its decision.

We appreciate the difficulties that arise when the lapse between hearing and ultimate decision is so long. Undoubtedly economic changes dated the 1966 studies that the parties, both applicants and appellees, had placed in the record. Nevertheless, we have always been loath to require that factfinding begin anew merely because of delay in proceedings of such magnitude and complexity. To repeat what was said in ICC v. Jersey City, 322 U. S. 503, 514-515 (1944):

“Administrative consideration of evidence — particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it — always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.”

Only in Atchison, T. & S. F. R. Co. v. United States, 284 U. S. 248 (1932), did we remand a case for reopening of evidentiary proceedings; there the Commission’s refusal to reopen in light of the economic metamorphosis brought on by the Great Depression led the Court to find an abuse of discretion. The same exceptional circumstances that compelled that disposition, however, have been found lacking in more recent cases. See United States v. Northern Pacific R. Co., 288 U. S. 490 (1933); Illinois Commerce Comm’n v. United States, 292 U. S. 474 (1934); St. Joseph Stock Yards Co. v. United States, 298 U. S. 38 (1936); ICC v. Jersey City, supra; United States v. Pierce Auto Lines, supra; Northern Lines Merger Cases, 396 U. S. 491 (1970). Illinois Commerce Comm’n v. United States, supra, is of particular relevance, for there the Court refused to compel the Interstate Commerce Commission to reopen for the inclusion of new economic studies a record already closed for a comparable period. We believe appellees failed to meet the heavy burden thrust upon them by our cases.

The protracted character of the proceedings resulted, not from bureaucratic inertia, but from the number and complexity of the issues and from the agency procedures that extended to the parties, in an effort to insure fairness in appearance as well as reality, and an opportunity to comment upon the proceedings at every stage. More than 900 witnesses testified in the original hearings, which consumed 150 days. At the conclusion the parties submitted briefs requiring seven months to prepare. The examiners’ decision did not issue until nearly two years later. It is doubtful that the Commission could have made the record more current by judicial notice alone; while live testimony might not have been required, the Commission would at least have had to entertain evidence in affidavit form. Yet there would have been little assurance that at the conclusion of such a reopening, and the time required to digest the new material, the record would not again have become “stale.” Accordingly, we conclude that there is sound basis for adhering to our practice of declining to require reopening of the record, except in the most extraordinary circumstances.

IV

We conclude by addressing a concern voiced by the District Court, that the Commission’s decision

“indicates a predilection to grant these particular applications, followed by a strained attempt to marshal findings to support such conclusion.” 364 F. Supp., at 1264.

We disagree with the District Court insofar as its remarks charge the Commission with prejudging the issue and deciding without giving consideration to the evidence. But we think the approach adopted by the Commission does differ from that taken by the examiners in significant respects that are important to identify.

The examiners viewed the evidence against a backdrop of assumptions about the relationship between consumer needs and carrier responsibilities. The examiners ruled, for example, that all shippers were not entitled to “single-line service” and that the shippers’ difficulties were attributable, in part, to lack of diligence. The examiners put it that

“[n]ormally existing carriers should have an opportunity . .. . to transport all of the traffic they can handle adequately and efficiently in the territory they are authorized to serve without the competition of new operations.”

And to the extent that service inadequacies were demonstrated, the examiners viewed complaints to force compliance with certificates held by existing carriers as a preferred mode of relief.

The Commission’s approach, on the other hand, was more congenial to new entry and the resulting competition. This is the Commission’s prerogative in carrying out its mandate to insure “safe, adequate, economical, and efficient service,” National Transportation Policy, preceding 49 U. S. C. § 1. The Commission was not compelled to adopt the same approach as the examiners. It could conclude that the benefits of competitive service to consumers might outweigh the discomforts existing certificated carriers could feel as a result of new entry. Our decisions have dispelled any notion that the Commission’s primary obligation is the protection of firms holding existing certificates. ICC v. J-T Transport Co., supra, disapproved the proposition that shippers must take their grievances through complaint procedures before improvement through new entry is permitted. 368 U. S., at 91. And in United States v. Dixie Express, 389 U. S. 409 (1967), we rejected the suggestion by a reviewing court that existing carriers have “a property right” to an opportunity to make amends before new certificates issue. Id., at 411.

A policy in favor of competition embodied in the laws has application in a variety of economic affairs. Even where Congress has chosen Government regulation as the primary device for protecting the public interest, a policy of facilitating competitive market structure and performance is entitled to consideration. McLean Trucking Co. v. United States, 321 U. S. 67 (1944); FMC v. Svenska Amerika Linien, 390 U. S. 238 (1968); Gulf States Utilities Co. v. FPC, 411 U. S. 747 (1973); Denver & R. G. W. R. Co. v. United States, 387 U. S. 485 (1967). The Commission, of course, is entitled to conclude that preservation of a competitive structure in a given case is overridden by other interests, United States v. Drum, 368 U. S. 370, 374-375 (1962), but where, as here, the Commission concludes that competition “aids in the attainment of the objectives of the national transportation policy,” McLean Trucking Co. v. United States, supra, at 85-86, we have no basis for disturbing the Commission’s accommodation.

y

Our opinion disposes of appellees’ objections to the Commission’s order insofar as it granted the applications of Johnson and Red Ball. As to appellant Bowman, however, án issue remains. In granting Bowman a certificate the Commission noted that the authority sought by Bowman exceeded that set forth in Bowman’s application. The “excess” was granted, subject to a condition precedent of publication in the Federal Register of Bowman’s request for the excess authority. Various appel-lees filed, objections to the augmented authority sought by Bowman, which the Commission overruled. Appel-lees challenged the Commission’s procedure in the District Court on a variety of grounds, and though the District Court indicated disapproval of the Commission’s action, the court did not have to rule on the merits of appellees’ objections since it set aside the Commission’s approval of all the applications.

While we have on occasion decided residual issues in the interest of an expeditious conclusion of protracted litigation, see Consolo v. FMC, 383 U. S. 607, 621 (1966), we believe that the issue of conformity of the Bowman certificate to its application is one for the District Court. The issue was not briefed or argued here, owing to the limitations set forth in our order noting probable jurisdiction. And while the District Court spoke of the Commission’s action in this regard, we do not construe its expressions as a final ruling, since they were unnecessary to the District Court’s disposition of the case. Accordingly, the issue remains open on remand.

We hasten to add, however, that our remand provides no basis for depriving Bowman of authority conferred by the Commission that was within its original application.

Reversed and remanded.

       The hearings lasted over 18 months; this transcript covers 23,423 pages; there are 1,989 exhibits; a total of 950 witnesses testified on behalf of 10 applicants; 66 rail and motor carriers entered appearances in opposition to the applications; 48 of the protestants offered evidence through 62 witnesses and numerous exhibits.

       “The substantiality of evidence must take into account whatever in the record fairly detracts from its weight." 340 U. S., at 488. And see 4 K. Davis, Administrative Law Treatise § 29.03, p. 129 (1958); L. Jaffe, Judicial Control of Administrative Action 601 (1965).

       The Commission stated: “Many of the service exhibits do not cover all of the shipper’s pertinent traffic during the study period and some include shipments which were listed because complaints were received on this traffic.” Herrin Transportation Co., 114 M. C. C. 571, 596 (1971).

         The District Court also ruled that since there had been no suggestion during the evidentiary hearings that performance studies subsequent to notice of hearing might not be viewed as representative, the appellees had been denied fair notice of the standards by which their evidence would be judged. 364 F. Supp. 1239, 1260. We disagree. A party is entitled, of course, to know the issues on which decision will turn and to be apprised of the factual material on which the agency relies for decision so that he may rebut it. Indeed, the Due Process Clause forbids an agency to use evidence in a way that forecloses an opportunity to offer a contrary presentation. Ohio Bell Telephone Co. v. Public Utilities Comm’n, 301 U. S. 292 (1937); United States v. Abilene & S. R. Co., 265 U. S. 274 (1924). But these salutary principles do not preclude a factfinder from observing strengths and weaknesses in the evidence that no party identified. If the examiners had raised the qualifications to appellees’ evidence the Commission later interposed, there would have been no basis for suggesting unfairness. See American Trucking Assns. v. Frisco Transportation Co., 358 U. S. 133, 144 (1958). The situation is not altered by the fact that the Commission parted company with the examiners. Even as to matters such as the credibility of witnesses, where the examiner is thought to have an advantage, the reviewing agency is not rigidly barred from taking a contrary position. Universal Camera Corp. v. NLRB, 340 U. S. 474 (1951). We perceive no reason for binding an agency to the experience and viewpoint of the examiner in the interpretation of studies in the record. Ap-pellees are not in a position to claim unfair surprise. The Commission offered the identical rationale in interpreting transit-time studies in a case decided just as hearings in this case began. See Braswell Freight Lines, 100 M. C. C. 482, 493-494 (1966). Appellees offered their studies knowing that the Commission might interpose qualifications.

       We thus distinguish the case where a firm already in possession of a franchise that offers a high degree of protection from competítion seeks its renewal. Cf. Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 341, 359 F. 2d 994, 1007 (1966) (“history of programming misconduct.. . would preclude .. . the required finding that renewal of the license would serve the public interest”).

       Fairness as well as rationality, however, command evenhanded application of such a rule. The Commission should not have cited applicants’ “performance elsewhere” presentations without noting appropriate qualifications. Compare 114 M. C. C., at 586, with id., at 611. Yet in view of the examiners’ undisputed conclusion that all the carriers were “substantial and responsible,” there was adequate remaining basis for the Commission’s finding of the applicants’ fitness. And the service benefits the Commission anticipated from new entry included, not merely a possibility of improved transit times, but many other improvements in service quality. The Commission .identified as service deficiencies that would be removed by new entry the following: “restrictions or embargoes [or] outright refusals by existing carriers to handle . . . traffic”; “pickup and delivery problems; interline difficulties relating to loss, damage, tracing, shortages, and misrouting . ...” Id., at 600.

       Each carrier presented the possible diversion of traffic that would result if the applications it was opposing were granted. In many cases, the protesting carrier was opposing applications not ultimately granted by the Commission. See, e. g., Examiners’ Decision, App. D, a.t 6, 13, 14, 19, 24, 25, 34, 35, and 48 (reproduced in 2 App. 864, 1191).

       The same must be said of the examiners’ concern that service to 'small communities might be adversely affected by granting all the applications, since these fears derived from those about impact upon protesting carriers.

       Much is made, for example, of the Commission’s failure to notice a number of terminal closings by appellant Red Ball that had occurred since evidentiary proceedings had concluded. 364 F. Supp., at 1261. The Commission, however, cited the number of Red Ball terminals — reduced by intervening events — only in support of its conclusion that Red Ball, rather than three other carriers, should be certificated to offer new service. 114 M. C. C., at 603. Since these three carriers are not among appellees, we have doubt that appellees can show substantial prejudice from the Commission’s failure to update the information.

       In commenting upon the perceived lack of diligence by the shippers in seeking out service, the examiners rejected the notion that “the burden is upon carriers to inform shippers of their services through personal, solicitation.” The Commission, however, would have been free to conclude that greater promotional effort by carriers, brought about through competition, might most economically facilitate the matching of services to needs.

       At oral argument counsel for appellees disposed of any “substantial evidence” objections to the Commission’s order by conceding that “we did not allege that any finding of faet itself was not supported by substantial evidence.” Tr. of Oral Arg. 25.