author: Justice White Justice Kennedy,

text:
    DENNIS v. HIGGINS, DIRECTOR, NEBRASKA DEPARTMENT OF MOTOR VEHICLES, et al.
    No. 89-1555.
    Argued October 31, 1990
    Decided February 20, 1991

      White, J., delivered the opinion of the Court, in which Marshall, Blackmun, Stevens, O’Connor, Scalia, and Souter, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 451.

      Richard E. Allen argued the cause and filed briefs for petitioner.

      L. Jay Bartel, Assistant Attorney General of Nebraska, argued the cause for respondents. With him on the brief were Robert M. Spire, Attorney General, and Arthur E. Wil-marth, Jr.

         Andrew L. Frey, Kenneth S. Getter, Andrew J. Pincus, Daniel R. Barney, Robert Digges, Jr., Laurie T. Baulig, and William S. Busker filed a brief for the American Trucking Associations, Inc., as amicus curiae urging reversal.

        Charles Rothfeld and Benna Ruth Solomon filed a brief for the National Conference of State Legislatures et al. as amici curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

This case presents the question whether suits for violations of the Commerce Clause may be brought under 93 Stat. 1284, as amended, 42 U. S. C. § 1983. We hold that they may.

I

Petitioner does business as an unincorporated motor carrier with his principal place of business in Ohio. He owns tractors and trailers that are registered in Ohio and operated in several States including Nebraska. On December 17, 1984, he filed a class action in a Nebraska trial court challenging the constitutionality of certain “retaliatory” taxes and fees imposed by the State of Nebraska on motor carriers with vehicles registered in other States and operated in Nebraska. In his complaint, petitioner claimed, inter alia, that the taxes and fees constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U. S. C. § 1983. Petitioner sought declaratory and injunc-tive relief, refunds of all retaliatory taxes and fees paid, and attorney’s fees and costs.

After a bench trial based on stipulated facts, the court concluded that the taxes and fees at issue violated the Commerce Clause “because they are imposed only on motor carriers whose vehicles are registered outside the State of Nebraska, while no comparable tax or fee is imposed on carriers whose vehicles are registered in the State of Nebraska.” App. to Pet. for Cert. 29a. It therefore permanently enjoined respondents from “assessing, levying, or collecting” the taxes and fees. Id., at 30a. The court also held that petitioner was entitled to attorney’s fees and expenses under the equitable “common fund” doctrine. The court, however, entered judgment for respondents on the remaining claims, including the § 1983 claim. Petitioner appealed the dismissal of his § 1983 claim, and respondents cross-appealed the trial court’s allowance of attorney’s fees and expenses under the common fund doctrine. Respondents did not, however, appeal the trial court’s determination that the retaliatory taxes and fees violated the Commerce Clause.

The Supreme Court of Nebraska affirmed the dismissal of petitioner’s § 1983 claim, but reversed the trial court’s allowance of fees and expenses under the common fund doctrine. See Dennis v. State, 234 Neb. 427, 451 N. W. 2d 676 (1990). With respect to the §1983 claim, the Nebraska Supreme Court held that “[djespite the broad language of § 1983 . . . there is no cause of action under § 1983 for violations of the commerce clause.” Id., at 430, 451 N. W. 2d, at 678. The court relied largely on the reasoning in Consolidated Freightways Corp. of Delaware v. Kassel, 730 F. 2d 1139 (CA8), cert. denied, 469 U. S. 834 (1984), which held that claims under the Commerce Clause are not cognizable under § 1983 because, among other things, “the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments.” 730 F. 2d, at 1144.

As the Supreme Court of Nebraska recognized, see 234 Neb., at 430, 451 N. W. 2d, at 678, there is a division of authority on the question whether claims for violations of the Commerce Clause may be brought under § 1983. We granted certiorari to resolve this issue, 495 U. S. 956 (1990), and we now reverse.

II

A broad construction of § 1983 is compelled by the statutory language, which speaks of deprivations of “any rights, privileges, or immunities secured by the Constitution and laws.” (Emphasis added.) Accordingly, we have “repeatedly held that the coverage of [§ 1983] must be broadly construed.” Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 105 (1989). The legislative history of the section also stresses that as a remedial statute, it should be “ ‘liberally and beneficently construed.’” Monell v. New York City Dept. of Social Services, 436 U. S. 658, 684 (1978) (quoting Rep. Shellabarger, Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871)).

As respondents argue, the “prime focus” of § 1983 and related provisions was to ensure “a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto,” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 611 (1979), but the Court has never restricted the section’s scope to the ef-fectuation of that goal. Rather, we have given full effect to its broad language, recognizing that § 1983 “provide[s] a remedy, to be broadly construed, against all forms of official violation of federally protected rights.” Monell, supra, at 700-701. Thus, for example, we have refused to limit the phrase “and laws” in § 1983 to civil rights or equal protection laws. See Maine v. Thiboutot, 448 U. S. 1, 4, 6-8 (1980).

Even more relevant to this case, we have rejected attempts to limit the types of constitutional rights that are encompassed within the phrase “rights, privileges, or immunities.” For example, in Lynch v. Household Finance Corp., 405 U. S. 538 (1972), we refused to limit the phrase to “personal” rights, as opposed to “property” rights. We first noted that neither the words nor the legislative history of the statute distinguished between personal and property rights. Id., at 543. We also rejected that distinction because of the “virtual impossibility” of applying it, particularly in “mixed” cases involving both types of rights. Id., at 550-551. We further concluded that “the dichotomy between personal liberties and property rights is a false one. . . . The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a ‘personal’ right, whether the ‘property’ in question be a welfare check, a home, or a savings account.” Id., at 552. See also United States v. Price, 383 U. S. 787, 800-806 (1966).

Petitioner contends that the Commerce Clause confers “rights, privileges, or immunities” within the meaning of §1983. We agree. The Commerce Clause provides that “Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U. S. Const., Art. I, §8, cl. 3. Although the language of that Clause speaks only of Congress’ power over commerce, “the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade.” Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 35 (1980).

Respondents argue, as the court below held, that the Commerce Clause merely allocates power between the Federal and State Governments and does not confer “rights.” Brief for Respondents 14-17. There is no doubt that the Commerce Clause is a power-allocating provision, giving Congress pre-emptive authority over the regulation of interstate commerce. It is also clear, however, that the Commerce Clause does more than confer power on the Federal Government; it is also a substantive “restriction on permissible state regulation” of interstate commerce. Hughes v. Oklahoma, 441 U. S. 322, 326 (1979). The Commerce Clause “has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce.” South-Central Timber Development, Inc. v. Wunnicke, 467 U. S. 82, 87 (1984). In addition, individuals injured by state action that violates this aspect of the Commerce Clause may sue and obtain injunctive and declaratory relief. See, e. g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 U. S. 18, 31 (1990). Indeed, the trial court in the case before us awarded petitioner such relief, and respondents do not contest that decision. We have also recently held that taxpayers who are required to pay taxes before challenging a state tax that is subsequently determined to violate the. Commerce Clause are entitled to retrospective relief “that will cure any unconstitutional discrimination against interstate commerce during the contested tax period.” Id., at 51. This combined restriction on state power and entitlement to relief under the Commerce Clause amounts to a “right, privilege, or immunity” under the ordinary meaning of those terms.

The Court has often described the Commerce Clause as conferring a “right” to engage in interstate trade free from restrictive state regulation. In Crutcher v. Kentucky, 141 U. S. 47 (1891), in which the Court struck down a license requirement imposed on certain out-of-state companies, the Court stated: “To carry on interstate commerce is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States.” Id., at 57. Similarly, Western Union Telegraph Co. v. Kansas ex rel. Coleman, 216 U. S. 1, 26 (1910), referred to “the substantial rights of those engaged in interstate commerce.” And Garrity v. New Jersey, 385 U. S. 493, 500 (1967), declared that engaging in interstate commerce is a “righ[t] of constitutional stature.” More recently, Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318 (1977), held that regional stock exchanges had standing to challenge a tax on securities transactions as violating the Commerce Clause because, among other things, the exchanges were “asserting their right under the Commerce Clause to engage in interstate commerce free of discriminatory taxes on their business and they allege that the transfer tax indirectly infringes on that right.” Id., at 320, n. 3.

Last Term, in Golden State Transit Corp. v. Los Angeles, 493 U. S. 103 (1989), we set forth three considerations for determining whether a federal statute confers a “right” within the meaning of § 1983:

“In deciding whether a federal right has been violated, we have considered [1] whether the provision in question creates obligations binding on the governmental unit or rather ‘does no more than express a congressional preference for certain kinds of treatment.’ Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 19 (1981). [2] The interest the plaintiff asserts must not be ‘too vague and amorphous’ to be ‘beyond the competence of the judiciary to enforce.’ Wright v. Roanoke Redevelopment and Housing Authority, 479 U. S. 418, 431-432 (1987). [3] We have also asked whether the provision in question was ‘intend[ed] to benefit’ the putative plaintiff. Id., at 430; see also id., at 433 (O’Connor, J., dissenting) (citing Cort v. Ash, 422 U. S. 66, 78 (1975).” Id., at 106.

See also Wilder v. Virginia Hospital Assn., 496 U. S. 498, 509 (1990). Respondents do not dispute that the first two considerations weigh in favor of recognition of a right here, but seize upon the third consideration — intent to benefit the plaintiff — arguing that the Commerce Clause does not confer rights within the meaning of § 1983 because it was not designed to benefit individuals, but rather was designed to promote national economic and political union. Brief for Respondents 19-24.

This argument, however, was implicitly rejected in Boston Stock Exchange, supra, at 321, n. 3, where we found that the plaintiffs were arguably within the “zone of interests” protected by the Commerce Clause. Moreover, the Court’s repeated references to “rights” under the Commerce Clause constitute a recognition that the Clause was intended to benefit those who, like petitioner, are engaged in interstate commerce. The “[cjonstitutional protection against burdens on commerce is for [their] benefit . . . .” Morgan v. Virginia, 328 U. S. 373, 376-377 (1946). As Justice Jackson, writing for the Court, eloquently explained:

“Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality.” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 539 (1949).

Respondents attempt to analogize the Commerce Clause to the Supremacy Clause, Brief for Respondents 17-18, which we have held does not by itself confer any “rights, privileges, or immunities” within the meaning of § 1983. See Golden State, supra, at 106; Chapman, 441 U. S., at 613. The Supremacy Clause, however, is “not a source of any federal rights”; rather, it “‘secure[s]’ federal rights by according them priority whenever they come in conflict with state law.” Ibid. By contrast, the Commerce Clause of its own force imposes limitations on state regulation of commerce and is the source of a right of action in those injured by regulations that exceed such limitations.

Respondents also argue that the protection from interference with trade conferred by the Commerce Clause cannot be a “right” because it is subject to qualification or elimination by Congress. Brief for Respondents 21. That argument proves too much, however, because federal statutory rights may also be altered or eliminated by Congress. Until Congress does so, such rights operate as “a guarantee of freedom for private conduct that the State may not abridge.” Golden State, supra, at 112. The same is true of the Commerce Clause.

Ill

We conclude that the Supreme Court of Nebraska erred in holding that petitioner’s Commerce Clause claim could not be brought under 42 U. S. C. § 1983. The judgment of the Supreme Court of Nebraska is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Kennedy,

with whom The Chief Justice joins, dissenting.

In Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 114 (1989), I dissented from the Court’s determination that 42 U. S. C. § 1983 creates a cause of action for damages when the only wrong committed by the State or local entity is its misapprehension of the boundary between state and federal power. Today’s decision compounds the error of Golden State. The majority drifts far from the purposes and history of § 1983 and again holds § 1983 applicable to a State’s quite innocent but mistaken judgment respecting the shifting boundary between two sovereign powers. The majority removes one of the statute’s few remaining limits and increases the burden that a state or local government will face in defending its economic regulation and taxation. With respect, I dissent.

h-H

The majority must acknowledge, under even Golden State, that not all violations of federal law give rise to a §1983 action. The plaintiff must assert “rights, privileges, or immunities secured by the Constitution and laws.” 42 U. S. C. § 1983. The majority appears to base its decision upon three grounds. First, the “ordinary meaning” of the term “right” as confirmed by Black’s Law Dictionary indicates that the Commerce Clause provides petitioner a right. Ante, at 447, and n. 7. Second, our cases contain scattered references to a “right” to engage in interstate commerce. Ante, at 448. And third, the Commerce Clause purportedly meets Golden State’s test to determine whether a statutory violation gives rise to a § 1983 cause of action, because the Commerce Clause was intended to benefit those who engage in interstate commerce. Ante, at 448-450. The majority errs, I must submit, when it ignores what the sponsors of § 1983 told us about the scope of the phrase “rights, privileges or immunities secured by the Constitution,” and errs further when it applies the Golden State test in this context. Even were I to apply the majority’s various tests, moreover, I would reach the opposite conclusion.

A

The Golden State test, arguably necessary in assessing whether any of the hundreds of statutory provisions that confer express obligations upon the States secure rights within the meaning of § 1983, is not appropriate in this case, where the question is whether a right is secured by a provision of the Constitution. Constitutional provisions are not so numerous, nor enacted with such frequency, that we are compelled to apply an ahistorical test. There is a ready alternative. We can distinguish between those constitutional provisions which secure the rights of persons vis-a-vis the States, and those provisions which allocate power between the Federal and State Governments. The former secure rights within the meaning of § 1983, but the latter do not.

The Commerce Clause, found at Art. I, §8, cl. 3, of the Constitution, is a grant of power to Congress. It states simply that “[t]he Congress shall have Power ... To regulate commerce . . . among the several States.” By its own terms as well as its design, as interpreted by this Court, the Commerce Clause is a structural provision allocating authority between federal and state sovereignties. It does not purport to secure rights. The history leading to the drafting and ratification of the Constitution confirms these premises.

The lack of a national power over commerce during the Articles of Confederation led to ongoing disputes among the States, and the prospect of a descent toward even more intense commercial animosity was one of the principal arguments in favor of the Constitution. See, e. g., The Federalist No. 7, pp. 62-63 (C. Rossiter ed. 1961) (A. Hamilton); id., No. 11, pp. 89-90 (A. Hamilton); id., No. 22, pp. 143-145 (A. Hamilton); id., No. 42, pp. 267-269 (J. Madison); id., No. 53, p. 333 (J. Madison).

“The sole purpose for which Virginia initiated the movement which ultimately produced the Constitution was ‘to take into consideration the trade of the United States; to examine the relative situations and trade of the said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony.’” H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S. 525, 533 (1949) (citation omitted).

The Framers intended the Commerce Clause as a way to preserve economic union and to suppress interstate rivalry. The Clause assigned prerogatives to the general government, not personal rights to those who engaged in commerce. See, e. g., id., at 533-535; Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935); Collins, Economic Union as a Constitutional Value, 63 N. Y. U. L. Rev. 43, 51-56 (1988). “The necessity of centralized regulation of commerce among the states was so obvious and so fully recognized that the few words of the Commerce Clause were little illuminated by debate.” H. P. Hood & Sons, Inc., supra, at 534. An exhaustive examination of the debates reports only nine references to interstate commerce in the records of the Convention, all directed at the dangers of interstate rivalry and retaliation. See Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 470-471, and nn. 169-175 (1941). It is not for serious dispute that the Framers of the Commerce Clause had economic union as their goal, nor that their deliberations are devoid of any evidence of intent to secure personal rights under this Clause.

Section 1983 has its origins in § 2 of the Civil Rights Act of 1866, 14 Stat. 27, and § 1 of the Civil Rights Act of 1871, 17 Stat. 13. See Lynch v. Household Finance Corp., 405 U. S. 538, 543, n. 7 (1972). Until recent cases, we have placed great reliance upon the sponsors of the 1871 Act in interpreting the scope of § 1983. See, e. g., Monell v. New York City Dept. of Social Services, 436 U. S. 658, 690 (1978) (“[Analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities ... to be included among those persons to whom § 1983 applies” (emphasis in original)); Lynch, supra, at 545-546 (sponsors intended § 1983 to protect property rights as well as personal rights); Monroe v. Pape, 365 U. S. 167, 172-185 (1961) (legislative history of § 1983 supports the conclusion that § 1983 plaintiff need not exhaust state remedies).

Those same sponsors of § 1983 understood and announced a distinction between power-allocating and rights-securing provisions of the Constitution. In discussing the meaning of the phrase “rights, privileges or immunities” in the original House version of § 2 of the 1871 Act, Representative Shella-barger, Chairman of the House Select Committee which drafted the Act, and floor manager for the bill, explained:

“Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in tenth section of first article, that ‘no State shall make a treaty,’ ‘grant letters of marque,’ ‘coin money,’ ‘emit bills of credit,’ &c., relate to the divisions of the political powers of the State and General Governments. They do not relate directly to the rights of persons within the States and as between the States and such persons therein. These prohibitions upon the political powers of the States are all of such nature that they can be, and even have been, when the occasion arose, enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States ‘enforced’ these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States.
“These three are: first, that as to fugitives from Justice; second, that as to fugitives from service, (or slaves;) third, that declaring that the ‘citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’” Cong. Globe, 42d Cong., 1st Sess., App. 69-70 (1871) (hereinafter Cong. Globe) (referring to Art. IV, § 2, of the Constitution as securing rights of persons).

This passage confirms Representative Shellabarger’s view that all but three provisions of the Constitution as first enacted allocate power rather than secure the rights of persons “as between such persons and the States,” and that the power-allocating provisions had not been “enforced” by legislation, but instead could be asserted as grounds for invalidating state action. Ibid. To those original provisions which secure rights of persons with respect to States, and within the meaning of § 1983, the sponsors of § 1983 added the constitutional guarantees contained in the Civil War Amendments, including the provisions of the Bill of Rights incorporated into the Fourteenth Amendment. Every specific mention of rights secured by the 1871 Act refers to these constitutional provisions. See, e. g., Cong. Globe 475-476 (Rep. Dawes; privileges and immunities, Bill of Rights); id., at App. 84-85 (Rep. Bingham; equal protection, first eight Amendments); id., at App. 153 (Rep. Garfield; right to vote, privileges and immunities, equal protection).

Statements of other supporters of the 1871 Act provide further evidence that Congress did not consider the Commerce Clause to secure the rights of persons within the meaning of § 1983. Representative Hoar distinguished between two objectives of the Constitution: to “provide ... for •the protection and regulation of commercial intercourse, domestic and foreign”; and to “promote the general welfare by prohibiting the States from doing what is inconsistent with civil liberty, and compelling them to do what is essential to its maintenance.” Cong. Globe 333. The 1871 Act was designed to enforce only those provisions of the Constitution providing for “the protection of personal liberty and civil rights,” not “the protection of commerce.” Ibid. Representative Trumbull made the same distinction between these categories of constitutional provisions. Id., at 575. The sponsors of § 1983 thus gave us a straightforward answer to the question of which constitutional violations give rise to a § 1983 action, and told us that violations of power-allocating provisions such as the Commerce Clause do not.

Not only did the 42d Congress understand the difference between rights-securing and power-allocating provisions of the Constitution, but this Court’s decisions of more than 100 years support the distinction. All previous cases in which this Court has determined (or assumed) that a constitutional violation gives rise to a § 1983 cause of action alleged violations of rights-securing provisions of the Constitution, not power-allocating provisions. See, e. g., Monroe v. Pape, 365 U. S., at 171 (“Allegation of facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment satisfies to that extent the requirement of R. S. §1979 [§1983]”); Lane v. Wilson, 307 U. S. 268 (1939) (Fifteenth Amendment violation supports § 1983 cause of action).

In our only previous case discussing a § 1983 claim brought for the violation of a supposed right secured by Article I of the Constitution, we held that violation of the Contracts Clause does not give rise to a § 1983 cause of action. Carter v. Greenhow, 114 U. S. 317 (1885). As is true of the Commerce Clause, the Court held that the Contracts Clause can be said to secure individual rights “only indirectly and incidentally.” Id., at 322. The Court further explained that the only right secured by the Contracts Clause is the “right to have a judicial determination, declaring the nullity of the attempt to impair [a State’s] obligation.” Ibid.

The Contracts Clause of Art. I, § 10, provides that “[n]o State shall. . . pass any . . . Law impairing the Obligation of Contracts.” At least such language would provide some support for an argument that the Contracts Clause prohibits States from “doing what is inconsistent with civil liberty.” Cong. Globe 333 (Rep. Hoar). If the Contracts Clause, an express limitation upon States’ ability to impair the contractual rights of citizens, does not secure rights within the meaning of § 1983, it assuredly demands a great leap for the majority to conclude that the Commerce Clause secures the rights of persons. The Commerce Clause is, if anything, a less obvious source of rights for purposes of § 1983, as its text only implies a limitation upon state power.

At best, all that can be said is that the Commerce Clause grants Congress the power to regulate interstate commerce; from this grant of power, the Court has implied a limitation upon the power of a State to regulate interstate commerce; and in turn, courts provide a person injured by taxation that exceeds the limits of the Commerce Clause the “right to have a judicial determination, declaring the nullity of the attempt to” levy a discriminatory tax. Carter, supra, at 322. I find it ironic that Carter draws a distinction of nearly the same character as Golden State, between provisions which directly secure rights and those which do so “only as an incident” of their purpose. Golden State, 493 U. S., at 109. Yet, the majority finds that the Commerce Clause was “intended to benefit the putative plaintiff,” Golden State, supra, at 108, while Carter held that the Contracts Clause only provides incidental benefits.

In Lynch v. Household Finance Corp., 405 U. S. 538 (1972), we rejected an attempt to limit § 1983 to personal rights as opposed to property rights, in that case a deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment. The legislative history of § 1983 did not support such a distinction, and we recognized both its false nature and the impossibility of its application. Today, on the other hand, the Court rejects a distinction which finds strong support in the legislative history of § 1983 and would bring no difficulties of application. I see no good reason for this rejection and suggest that the Court’s decision only can do mischief.

B

The majority rejects the weight of historical evidence in favor of scattered statements in'our cases that refer to a “right” to engage in interstate commerce. Ante, at 448. None of these cases, however, hold that the Commerce Clause secures a personal right. Instead, they interpret the Commerce Clause as allocating power among sovereigns. See Crutcher v. Kentucky, 141 U. S. 47, 57 (1891) (regulation of interstate commerce “not within the province of state legislation, but within that of national legislation”); Western Union Telegraph Co. v. Kansas ex rel. Coleman, 216 U. S. 1, 21 (1910) (same). If the majority chooses to rely upon such statements, far removed from the issue at hand, I would remind it that this Court, in a much closer context, has established that a case in which the plaintiff relies upon the dormant Commerce Clause “may be one arising under the Constitution, within the meaning of that term, as used in other statutes, but it is not one brought on account of the deprivation of a right, privilege or immunity secured by the Constitution.” Bowman v. Chicago & Northwestern R. Co., 115 U. S. 611, 615-616 (1885). The statements upon which the majority relies are weak support for its conclusion.

In similar fashion, McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 U. S. 18 (1990), in which the majority finds recent support for its view of the Commerce Clause, merely applies our traditional due process analysis for deprivation of property to the context of exaction of an unlawful tax. McKesson Corp. holds that if a State insists that taxpayers pay first and obtain review of a tax’s validity in a later refund action, then due process requires meaningful postpayment relief for taxes paid pursuant to an unconstitutional scheme. Id., at 31. In discussing the nature of the constitutional violation, McKesson Corp. acknowledges that States are accorded great flexibility in structuring the remedy for a discriminatory tax that violates the Commerce Clause. Rather than refunding the tax, “to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner’s competitors who benefited from the [discriminatory] rate reductions during the contested tax period.” Id., at 40. If the State refused to provide any remedy, then the taxpayer would arguably have a §1983 claim, but that claim would be for a deprivation of property without due process of law, a violation of the Fourteenth Amendment, not of the Commerce Clause. McKesson Corp. in no way supports the existence of a § 1983 cause of action for Commerce Clause violations.

Finally, following Golden State, the majority asks whether the provision in question was intended to benefit the putative plaintiff. Ante, at 449. The majority fails to locate in the text or history of the Commerce Clause any such intent, but nevertheless concludes that any argument to the contrary was “implicitly rejected in Boston Stock Exchange [v. State Tax Comm’n, 429 U. S.,] at 321, n. 3, where we found that the plaintiffs were arguably within the ‘zone of interests’ protected by the Commerce Clause.” Ante, at 449. I fail to see how a determination that a particular plaintiff is within the “zone of interests” protected by a provision requires a finding that the provision was intended to benefit that plaintiff, or secures a right for purposes of § 1983. To the contrary, our zone of interest cases have rejected any requirement that there be a “congressional purpose to benefit the would-be plaintiff.” Clarke v. Securities Industry Assn., 479 U. S. 388, 399-400 (1987). The plaintiff need only demonstrate a “plausible relationship” between his interest and the policies to be advanced by the relevant provision. Id., at 403.

The majority’s treatment of the question confuses the concept of standing with that of a cause of action. We have considered these as distinct categories and should continue to do so. See Davis v. Passman, 442 U. S. 228, 239-240, n. 18 (1979). A taxpayer such as petitioner may be arguably within the zone of interests protected by the Commerce Clause. This is not, however, sufficient to demonstrate that the Commerce Clause secures a right of petitioner within the meaning of § 1983. Thus, in INS v. Chadha, 462 U. S. 919, 935-936 (1983), we held that an individual had standing to raise a separation of powers challenge alleging a violation of the Presentment Clauses, Art. I, § 7, els. 2 and 3. In a very fundamental sense, separation of powers is designed to secure individual liberty. Yet, we would not say that the Presentment Clauses secure personal rights. Rather, Chadha was able to assert the interests of the other branches of Government because he met our traditional test of standing.

I cannot doubt the truth of the statement, ante, at 449-450 (quoting H. P. Hood & Sons, Inc. v. Du Mond, 336 U. S., at 539), that the Commerce Clause benefits individuals and entities engaged in interstate commerce. Nor do I question the importance of our dormant Commerce Clause jurisprudence in guaranteeing a single, national market. Benefits to those engaged in commerce, however, are incidental to the purpose of the Commerce Clause; they are but evidence of its sound application. That the Commerce Clause benefits individual traders or consumers does not satisfy the majority’s test that a provision must have been intended for the benefit of a particular plaintiff; nor do such benefits prove that the provision secures a plaintiff’s constitutional right to engage in any one activity, to receive any direct benefit, or to avoid any specific detriment. Rather, the Commerce Clause “benefits particular parties only as an incident of” its allocation of power between federal and state sovereignties. Golden State, 493 U. S., at 109.

I continue to draw the distinction made .in my Golden State dissent, id., at 113, and would hold that while the dormant Commerce Clause does not secure a right, it gives rise to a legal interest in petitioner against taxation which violates the dormant Commerce Clause. Thus, petitioner can rely upon the unconstitutionality of the tax in defending a collection action brought by the State, or in pursuing state remedies. This ability to invoke the Commerce Clause against a State, however, is not equivalent to finding a secured right under § 1983. If that were so, all violations of federal law would give rise to a § 1983 cause of action, and there would be little reason to search for statements supporting the existence of a right to engage in interstate commerce or to apply the Golden State test. The majority does not purport to rest its decision upon such an all-inclusive view of § 1983, but that is the necessary consequence of its reasoning.

The Court’s analysis demonstrates the poverty of the “intended to benefit” test in the constitutional context, for it shows that even structural provisions that benefit individuals incidentally come within its purview. The Court’s logic extends far beyond the Commerce Clause, and creates a whole new class of § 1983 suits derived from Article I. For example, the Court’s rationale creates a §1983 cause of action when a State violates the constitutional doctrine of intergovernmental tax immunity, Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 813 (1989) (violation of statute “coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity”), interferes with the federal power over foreign relations, see Zschernig v. Miller, 389 U. S. 429 (1968), applies a duty upon imports in violation of Art. I, § 10, cl. 2, see Hooven & Allison Co. v. Evatt, 324 U. S. 652 (1945), invades the federal power over regulation of the entrance and residence of aliens in violation of Art. I, § 8, cl. 4, see Hines v. Davidowitz, 312 U. S. 52, 66-67 (1941), or attempts to tax income upon a federal obligation in derogation of Congress’ Art. I, § 8, cl. 2, power to “borrow Money on the credit of the United States,” see Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U. S. 313 (1930). There is no textual or other support for holding that § 1983 imposes such far-reaching liabilities upon the States.

H — < I — i

Petitioner here does not complain that the State of Nebraska has failed to provide him an adequate forum in which to contest the validity of Nebraska’s tax. Nebraska has done so. The Nebraska courts acknowledged the invalidity of the State’s tax, enjoined its collection, and directed petitioner to file a refund claim for the taxes he had paid to the State. Rather, the significance of the Court’s decision, in this and future Commerce Clause litigation, is that a § 1983 claim may permit dormant Commerce Clause plaintiffs to recover attorney’s fees and expenses under 42 U. S. C. § 1988.

In the Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, 90 Stat. 2641, codified at 42 U. S. C. § 1988, Congress authorized the award of attorney’s fees to prevailing parties in, inter alia, § 1983 litigation. The award of attorney’s fees encourages vindication of federal rights which, Congress recognized, might otherwise go unenforced because of the plaintiffs’ lack of resources and the small size of any expected monetary recovery. See S. Rep. No. 94-1011, p. 6 (1976). Congress was reassured that § 1988 would be “limited to cases arising under our civil rights laws, a category of cases in which attorneys fees have been traditionally regarded as appropriate.” Id., at 4.

• The significant economic interests at stake in dormant Commerce Clause cases, as well as the resources available to the typical dormant Commerce Clause plaintiff, make such concerns far removed from the realities of dormant Commerce Clause litigation. The pages of the United States Reports testify to the ability of major corporations and industry associations to commence and maintain dormant Commerce Clause litigation without receiving attorney’s fee awards under §1988. By making such fee awards available, the Court does not vindicate the purposes of § 1983 or § 1988, but merely shifts the balance of power away from the States and toward interstate businesses.

Today’s decision raises far more questions about the proper conduct of challenges to the validity of state taxation than it answers. The Tax Injunction Act, 28 U. S. C. § 1341, prevents any attempt in federal court to “enjoin, suspend or restrain” assessment or collection of a state tax, so long as “a plain, speedy and efficient remedy may be had in the courts of such State.” The principle of comity likewise prevents a federal court from entertaining any action for damages under §1983 to redress allegedly unconstitutional state taxation. Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 (1981). Relying upon the “overriding interests of the state in an efficient, expeditious and nondisruptive resolution of . . . tax disputes,” Backus v. Chilivis, 236 Ga. 500, 505, 224 S. E. 2d 370, 374 (1976), state courts have refused to permit plaintiffs to proceed under § 1983 where there exists a complete remedy under state law. Ibid,.; Spencer v. South Carolina Tax Comm’n, 281 S. C. 492, 497, 316 S. E. 2d 386, 388-389 (1984), aff’d by an equally divided Court, 471 U. S. 82 (1985) (per curiam). These questions now become of paramount importance, as we risk destruction of state fiscal integrity in a manner which may require congressional correction.

Today’s opinion gives no hint of § 1983’s character as an extraordinary remedy passed during Reconstruction to protect basic civil rights against oppressive state action. Section 1983 now becomes simply one more weapon in the litigant’s arsenal, to be considered whenever the defendant is a state actor and its use is advantageous to the plaintiff. I dissent from the opinion and judgment of the Court.

      The taxes and fees at issue were imposed pursuant to Neb. Rev. Stat. §60-305.02 (1984), which has since been amended. The taxes and fees were considered “retaliatory” because they were imposed on vehicles registered in certain other States (Arizona, Arkansas, Idaho, Nevada, New York, Ohio, Oregon, Pennsylvania, and Wyoming) in an amount equal to the “third structure taxes” imposed by those States on Nebraska-registered vehicles. “Third structure taxes” are taxes and fees imposed in addition to registration fees and fuel taxes (so-called “first structure” and “second structure” taxes).

       Compare Kraft v. Jacka, 872 F. 2d 862, 869 (CA9 1989); J & J Anderson, Inc. v. Erie, 767 F. 2d 1469, 1476-1477 (CA10 1985); and Consolidated Freightways Corp. of Delaware v. Kassel, 730 F. 2d 1139 (CA8), cert. denied, 469 U. S. 834 (1984), with Continental Illinois Corp. v. Lewis, 838 F. 2d 457, 458 (CA11 1988), vacated on other grounds, 494 U. S. 472 (1990); Martin-Marietta Corp. v. Bendix Corp., 690 F. 2d 558, 562 (CA6 1982); and Kennecott Corp. v. Smith, 637 F. 2d 181, 186, n. 5 (CA3 1980). See also Private Truck Council of America, Inc. v. Quinn, 476 U. S. 1129 (1986) (White, J., joined by Brennan and O’Connor, JJ., dissenting from denial of certiorari) (noting conflict of authority).

       Section 1983 provides:
      “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

       The dissent contends that the legislative history of § 1983 supports the proposition that § 1983 does not apply to constitutional provisions that allocate power. See post, at 454-457. That argument is untenable. The dissent chiefly relies upon a partial quotation of a statement made by Representative Shellabarger, one of the principal sponsors of the statute. In context, the statement reads:

        “My next proposition is historical, and one simply in aid and support of the truth of the first [i. e., that “Congress is bound to execute, by legislation, every provision of the Constitution, even those provisions not specially named as to be so enforced”]. It is that the United States always has assumed to enforce, as against the States, and also persons, every one of the provisions of the Constitution. Most of the provisions of the Constitution which restrain and directly relate to the States, such as those in tenth section of first article, that ‘no State shall make a treaty,’ ‘grant letters of marque,’ ‘coin money,’ ‘emit bills of credit,’ &c., relate to the divisions of the political powers of the State and General Governments. They do not relate directly to the rights of persons within the States and as between the States and such persons therein. These prohibitions upon the political powers of the States are all of such nature that they can be, and even have been, when the occasion arose, enforced by the courts of the United States declaring void all State acts of encroachment on Federal powers. Thus, and thus sufficiently, has the United States ‘enforced’ these provisions of the Constitution. But there are some that are not of this class. These are where the court secures the rights or the liabilities of persons within the States, as between such persons and the States.
      “These three are: first, that as to fugitives from justice; second, that as to fugitives from service, (or slaves;) third, that declaring that the ‘citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.’

        “And, sir, every one of these — the only provisions where it was deemed that legislation was required to enforce the constitutional provisions — the only three where the rights or liabilities of persons in the States, as between these persons and the States, are directly provided for, Congress has by legislation affirmatively interfered to protect or to subject such persons. ” Cong. Globe, at App. 69-70 (emphasis added to reflect omissions in dissent).
      It should first be noted that Shellabarger was not in the above quotation addressing the part of the 1871 statute that became §1983, i. e., §1. Rather, he was discussing § 2 of the bill, which made it a federal crime to engage in a conspiracy “to do any act in violation of the rights, privileges, or immunities of another person . . . committed within a place under the sole and exclusive jurisdiction of the United States.” Id., at 68. A principal objection to that section was that Congress lacked the authority to enact it, because it infringed upon the powers reserved to the States by overriding their authority to define and punish crimes. See id., at 69. In answering that argument, Shellabarger contended that Congress had the power to enforce by legislation “every one of the provisions of the Constitution.” He observed that most of the provisions of the Constitution “which restrain and directly relate to the States” had been enforced by the courts without federal legislation, but noted that three provisions limiting state authority — the Extradition Clause, the Privileges and Immunities Clause, and the Fugitive Slave Clause — had been enforced pursuant to federal legislation.
      It becomes clear that fully quoted and properly read, Shellabarger’s remarks do not in any way aid the dissent. The dissent’s attempt to characterize Shellabarger’s argument for expansive federal power to enact criminal legislation as support for a narrow construction of § 1983 is strained, to say the least. Shellabarger simply did not address the issues of which constitutional provisions establish “rights, privileges, or immunities,” whether the Commerce Clause falls into that category, or whether provisions that allocate power cannot also confer rights. Nor would it be likely that he would have made any of the statements on these points argued by the dissent, given this Court’s then-recent holding that the affirmative grant of power to Congress in the Credit Clause established a “right, privilege, or immunity.” See The Banks v. The Mayor, 7 Wall. 16, 22 (1869). The other snippets of legislative history relied upon by the dissent, see post, at 456-457, are similarly inapposite and inconclusive.
      In any event, even if the dissent’s cut-and-paste history could be read to provide some support for its formalistic distinction between power-allocating and rights-conferring provisions of the Constitution, it plainly does not constitute a “a clearly expressed legislative intent contrary to the plain language of [§ 1983].” American Tobacco Co. v. Patterson, 456 U. S. 63, 75 (1982). Rather, if Congress had intended to limit the “broad and unqualified” language of § 1983, “it is not unreasonable to assume that it would have made this explicit.” St. Paul Fire & Marine Ins. Co. v. Barry, 438 U. S. 531, 550 (1978).

       The statute at issue in Lynch was the jurisdictional counterpart to § 1983, 28 U. S. C. § 1343(3), which contains the same “rights, privileges, or immunities” phrase. Even the dissent in Lynch agreed “without reservation” that the phrase was not limited to violations of “personal” rights, but disagreed with the majority on a different issue. See 405 U. S., at 556.

       See, e. g., CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 87 (1987); Hughes v. Oklahoma, 441 U. S. 322, 326 (1979); Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U. S. 366, 370-371 (1976); Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 318 (1852). These cases are distinguishable from cases involving assertions that state regulations of commerce directly conflict with federal regulations enacted under the authority of the Commerce Clause. An example of the latter is Gibbons v. Ogden, 9 Wheat. 1 (1824), in which the Court struck down a New York statute to the extent that it excluded federally licensed boats from operating in New York waters.

       See, e. g., Black’s Law Dictionary 1324 (6th ed. 1990) (defining “right” as “[a] legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act”) (citing Restatement of Property § 1 (1936)). That the right at issue here is an implied right under the Commerce Clause does not diminish its status as a “right, privilege, or immunity” under § 1983. Indeed, we have already rejected a distinction between express and implied rights under § 1983 in the statutory context. “The violation of a federal right that has been found to be implicit in a statute’s language and structure is as much a ‘direct violation’ of a right as is the violation of a right that is clearly set forth in the text of the statute.” Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 112 (1989).

       An additional reason why claims under the Supremacy Clause, unlike those under the Commerce Clause, should be excluded from the coverage of § 1983 is that if they were included, the “and laws” provision in § 1983 would be superfluous. See Golden State, 493 U. S., at 107, n. 4.

       In arguing that the Commerce Clause does not secure any rights, privileges, or immunities within the meaning of § 1983, the dissent relies upon Carter v. Greenhow, 114 U. S. 317 (1885). See post, at 457-458. This Court, however, has already given that decision a narrow reading, stating that the ease “held as a matter of pleading that the particular cause of action set up in the plaintiff’s pleading was in contract and was not to redress deprivation of the ‘right secured to him by that clause of the Constitution’ [the contract clause], to which he had ‘chosen not to resort.’” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 613, n. 29 (1979); see also Hague v. Committee for Industrial Organization, 307 U. S. 496, 527 (1939) (opinion of Stone, J.).

       Shellabarger was discussing the power of Congress to enact § 2 of the 1871 Act, and not the scope of § 1, which we know as 42 U. S. C. § 1983. Reliance upon Shellabarger’s statement is nevertheless appropriate. The proposed § 2 used the phrase “rights, privileges or immunities of another person,” Cong. Globe App. 69, and Shellabarger was discussing his understanding of the rights, privileges, and immunities secured by the Constitution and laws, not of any language which would differ in meaning as between § 1 and § 2 of the 1871 Act. It matters not whether one repeats Shellabarger’s speech of many pages, or only the relevant portion thereof, for I do not rely upon Shellabarger’s views of congressional power to legislate, but rather the distinction he articulated between power-allocating provisions and rights-conferring provisions, between those provisions which “do not relate directly to the rights of persons within the States and as between the States and such persons therein,” and those which do “secure” “rights” of persons. Ibid, (emphasis added). Shellabarger’s distinction is borne out by the remainder of the legislative history.

       The defendant in Bowman had refused to ship the plaintiff’s product, relying upon an Iowa statute that prohibited shipment of intoxicating liquors. The plaintiff apparently argued that Iowa’s statute violated the Commerce Clause and therefore could not excuse the defendant’s failure to perform. The Court's opinion was construing the jurisdictional analogue to § 1983, which permitted appeal without regard to the amount in controversy “in any case brought on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States.” Rev. Stat. § 699 (1874). See Collins, “Economic Rights,” Implied Constitutional Actions, and the Scope of Section 1983, 77 Geo. L. J. 1493, 1519-1520, 1549-1551 (1989).

       In a search for evidence that the Commerce Clause was intended to benefit persons who engage in interstate commerce, the majority quotes Morgan v. Virginia, 328 U. S. 373, 376-377 (1946), as stating that “‘[c]on-stitutional protection against burdens on commerce is for [their] benefit . . . ” Ante, at 449. The majority’s snippet is part of a sentence which, if read in its entirety, does not state, as the quotation would make it seem, that the Commerce Clause was intended to benefit those who engage in interstate commerce. Rather, the entire passage is as follows:
      “We think, as the Court of Appeals apparently did, that the appellant is a proper person to challenge the validity of this statute as a burden on commerce. If it is an invalid burden, the conviction under it would fail. The statute affects appellant as well as the transportation company. Constitutional protection against burdens on commerce is for her benefit on a criminal trial for violation of the challenged statute. Hatch v. Reardon, 204 U. S. 152, 160 [(1907)]; Federation of Labor v. McAdory, 325 U. S. 450, 463 [(1945)].” Morgan, supra, at 376-377 (emphasis added; footnote omitted).

        Morgan merely held that a criminal defendant had standing to assert the Commerce Clause as a defense to a prosecution under a Virginia law that required segregation by race of passengers on interstate buses, rejecting the State of Virginia’s argument that only the transportation company had standing to challenge the segregation law. 328 U. S., at 376-377.


source: Caselaw Access Project

author: Justice Stevens

license: Public Domain

text:
    INTERNATIONAL ORGANIZATION OF MASTERS, MATES & PILOTS et al. v. BROWN
    No. 89-1330.
    Argued November 27, 1990
    Decided February 20, 1991

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

      W. Michel Pierson argued the cause and filed briefs for petitioners.

      Paul Alan Levy argued the cause for respondent. With him on the brief were Alan B. Morrison and Michael E. Tankersley.

      James A. Feldman argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General Starr, Deputy Solicitor General Shapiro, Allen H. Feldman, Steven J. Mandel, and Mark S. Flynn.

        Walter Kamiat and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

        Michael J. Goldberg, Clyde W. Summers, Helen Hershkoff, John A. Powell, and Susan Goering filed a brief for the Association for Union Democracy et al. as amici curiae urging affirmance.

   Justice Stevens

delivered the opinion of the Court.

Labor unions have a statutory duty to distribute campaign literature to their membership in response to the reasonable request of any candidate for union office. In this case the union denied such a request because the candidate wanted the literature mailed in advance of the union’s nominating convention and a union rule prohibited such preconvention mailing. The question presented is whether a court must evaluate the reasonableness of the union’s rule before it decides whether the candidate’s request was reasonable. Like the Court of Appeals and the District Court, we conclude that the statute requires us to give a negative answer to that question.

I

The International Organization of Masters, Mates & Pilots (Union) represents about 8,500 members employed in, or in work related to, the maritime industry. Many of the members are away from home for extended periods of time because they work on ships that ply the high seas. Elections of Union officers are conducted every four years by means of a mail ballot. An international ballot committee, which oversees the election, is elected at the convention, and an impartial balloting agency, which conducts the balloting, is also selected by the delegates at the convention. App. 36, 25-26. The ballots are mailed to the membership no later than 30 days after the convention at which candidates are nominated, and must be returned within the ensuing 90-day period. Union rules authorize the mailing of campaign literature at the candidate’s expense after nominations have been made but not before. Any Union member in good standing may be a candidate; moreover, a candidate may nominate himself.

Respondent was an unsuccessful candidate for Union office in 1980 and 1984. On May 9, 1988, he formally advised the international secretary-treasurer of the Union that he would be a candidate in the election to be held in the fall and requested that the Union provide him with mailing labels containing the names and addresses of voting Union members to be given to a mailing service so that he could arrange, at his own expense, for a timely mailing of “election literature prior to the Convention.” Id., at 41.

On June 2, 1988, respondent wrote to the international president of the Union advising him that he would be a candidate for that office, that he intended to send his first mailing to the membership on July 6, and that he had not “had the courtesy of a reply” to his earlier letter to the secretary-treasurer. Id., at 43. Five days later, the secretary-treasurer provided respondent with the following explanation as to why his request could not be accommodated:

“Although I can understand your eagerness in wanting to send out your campaign literature early, please be advised that as soon as the rules are established for mailing campaign literature, all candidates will be notified at the same time.
“As the practice has been in the past, and the Constitution prescribes, the IOMM&P Convention is the event in which all candidates officially are nominated to run for a particular office. Only after the Convention takes place, and when the Impartial Balloting Agency is designated, will the mailing agency to handle campaign literature be designated. Please refer to Article V, Section 10 of the International Constitution. This procedure has been established so that each candidate will have a fair and equal amount of time in which to adequately reach the membership and to prohibit any one candidate from having an edge over the other.” Id., at 44-45.

On June 15, respondent appealed that denial to the Union general executive board, repeating his desire for action by July 5. Id., at 46. On July 6, the General Executive Board denied his appeal. Five days later, respondent filed this action under § 401(c) of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 73 Stat. 532, 29 U. S. C. § 481(c). In his complaint, respondent alleged that the convention was scheduled to begin on August 22 and that he wanted “to encourage the membership to. begin consideration of his candidacy and of the issues he hope[d] to raise during his campaign before the deadline for making nominations, both in order to persuade the membership that he should be nominated and elected, and to attract support from individuals who might otherwise be inclined to run for office themselves or to encourage other members to do so.” App. 8-9.

Two weeks later, after both sides had filed affidavits and a hearing had been held, the District Court entered a preliminary injunction directing the Union and its two main officers “within forty-eight hours, and again in response to any future requests” to deliver the names and addresses of the Union members to a mailing service acceptable to the parties. Id., at 74. The order also provided that respondent should pay for the costs of the mailing service. Id., at 74-75. The District Court based its decision on alternative grounds. First, it held that the clear language of § 401(c) required it to focus on the reasonableness of respondent’s request rather than on the reasonableness of the Union rule under which the request was denied. In addition, the District Court concluded that the request to make a campaign distribution approximately one month before the convention was “clearly reasonable,” and that if the application of a Union rule resulted in the rejection of such a request, the rule was invalid. Id., at 77.

Second, and alternatively, the District Court held that even if the standard of review is the reasonableness of the Union rule, rather than the reasonableness of respondent’s request, the rule was unreasonable because preconvention campaigning was essential to introducing a candidate and his ideas to Union members and because the postconvention ballot period of 90 days was inadequate for effective campaigning in a Union whose members’ work kept them away from home for substantial periods of time. Id., at 77-78.

The United States Court of Appeals for the Fourth Circuit affirmed. Brown v. Lowen, 857 F. 2d 216 (1988). The majority held that the question whether respondent was entitled to have his request granted depended “entirely on whether his request may be said to be reasonable.” Id., at 217. This conclusion involved “nothing more than a reading of the plain language of the statute,” ibid., and was búttressed by the statutory purpose of ensuring Union democracy:

“When the union bureaucracy has exclusive control of the union membership lists, with addresses, as in this case, and that bureaucracy has continuous contact with the union membership and particularly the local union officers, the advantages of incumbency over any attempt of an insurgent to promote his candidacy before or after the quadrennial nominating convention of the union are obvious. By requiring unions to comply with all reasonable requests of candidates for access to the union lists these advantages of incumbency are reasonably moderated. And it was to provide that very moderation of the advantages of incumbency which was the intention of the Act.” Id., at 218.

The majority found nothing unreasonable in respondent’s request and rejected the Union’s argument that it could limit the time in which literature could be distributed in order to avoid discrimination, “since any candidate, whether an incumbent or an insurgent, has the same rights as the plaintiff.” Ibid.

The dissenting judge found nothing unreasonable or discriminatory in the Union’s election procedures. According to the dissent, a candidate’s request that did not conform to a reasonable union rule was itself “per se unreasonable.” Id., at 219. After a rehearing en banc, by a vote of 8 to 2, the Court of Appeals adopted the majority’s holding and affirmed the District Court. Brown v. Lowen, 889 F. 2d 58 (1989) (per curiam). We granted certiorari, 496 U. S. 935 (1990), to resolve the conflict between the Fourth Circuit’s decision in this case and an earlier decision by the Third Circuit in Donovan v. Metropolitan District Council of Carpenters, 797 F. 2d 140 (1986).

II

Three important propositions are undisputed. First, even though respondent’s campaign literature has been distributed and even though he lost the election by a small margin, the case is not moot. Respondent has run for office before and may well do so again. The likelihood that the Union’s rule would again present an obstacle to a preconvention mailing by respondent makes this controversy sufficiently capable of repetition to preserve our jurisdiction. See, e. g., Moore v. Ogilvie, 394 U. S. 814, 816 (1969) (“The problem is therefore ‘capable of repetition, yet evading review,’ Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U. S. 498, 515 [(1911)]”).

Second, even though respondent’s candidacy had not been certified at a postconvention meeting of the Union impartial ballot committee in accordance with the Union’s formal election procedures, it is clear that respondent was a “bona fide candidate for office” within the meaning of the statute when he made his preconvention request to distribute campaign literature. 29 U. S. C. § 481(c). Section 401(e) of the LMRDA guarantees the right of every union member in good standing to be a candidate subject to the “reasonable qualifications uniformly imposed” by the union. The Union, in accordance with our opinions in Wirtz v. Hotel Employees, 391 U. S. 492 (1968), and Steelworkers v. Usery, 429 U. S. 305 (1977), does not contend that it would be reasonable to refuse to recognize an eligible candidate until after the nominating process is completed. As we explained in Wirtz:

“Congress plainly did not intend that the authorization in § 401(e) of ‘reasonable qualifications uniformly imposed’ should be given a broad reach. The contrary is implicit in the legislative history of the section and in its wording that ‘every member in good standing shall be eligible to be a candidate and to hold office . . . . ’ This conclusion is buttressed by other provisions of the Act which stress freedom of members to nominate candidates for office. Unduly restrictive candidacy qualifications can result in the abuses of entrenched leadership that the LMRDA was expressly enacted to curb. The check of democratic elections as a preventive measure is seriously impaired by candidacy qualifications which substantially deplete the ranks of those who might run in opposition to incumbents.
“It follows therefore that whether the Local 6 bylaw is a ‘reasonable qualification’ within the meaning of § 401(e) must be measured in terms of its consistency with the Act’s command to unions to conduct ‘free and democratic’ union elections.” 391 U. S., at 499 (footnote omitted).

Third, apart from the fact that respondent’s request violated the Union rule against preconvention mailings, there is no basis for contending that the request was not “reasonable” within the meaning of § 401(c). No question is raised about respondent’s responsibility for the cost of the mailing or about any administrative problem in complying with his request. The sole issue is whether the Union rule rendered an otherwise reasonable request unreasonable.

HH HH

The text, structure, and purpose of Title IV of the LMRDA all support the conclusion that our inquiry should focus primarily on the reasonableness of the candidate’s request rather than on the reasonableness of the Union’s rule curtailing the period in which campaign literature may be mailed.

The language of § 401(c) explicitly instructs the Union and its officers “to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate’s expense campaign literature . . . 29 U. S. C. § 481(c) (emphasis added). The language of the statute plainly requires unions to comply with “all reasonable requests,” and just as plainly does not require union members to comply with “all reasonable rules” when making such requests. Unlike the member’s right to run for union office, which is created by § 401(e) and made expressly subject to the “reasonable qualifications uniformly imposed” by the Union, and unlike the member’s speech and voting rights, which are governed by sections of the LMRDA such as §§ 101(a)(1) and 101(a)(2), 29 U. S. C. §§ 411(a)(1) and 411(a) (2), and are made “subject to reasonable rules” in the union constitution, the § 401(c) right is unqualified. Moreover, unlike other rights created by Title IV that are judicially enforceable only in actions brought by the Secretary of Labor, the § 401(c) right is directly enforceable in an action brought by the individual union member. Thus, as the language of the statute suggests, Congress gave this right pertaining to campaign literature a special status that it did not confer upon other rights it granted to union members.

The special purpose of Title IV was to ensure free and democratic union elections. See Wirtz v. Glass Bottle Blowers, 389 U. S. 463, 470 (1968). The statutory guarantees are specifically designed to offset the “inherent advantage over potential rank and file challengers” possessed by incumbent union leadership. Id., at 474. One of the advantages identified by Archibald Cox in his testimony in support of the Act is the incumbents’ control of “the union newspaper which is the chief vehicle for communication with the members.” A broad interpretation of the candidate’s right to distribute literature commenting on the positions advocated in the union press is consistent with the statute’s basic purpose.

The Union advances three related arguments in support of its position that mailing requests should be considered unreasonable if they do not comply with nondiscriminatory rules that have been, adopted through democratic procedures. First, the Union correctly notes that any fair election must be conducted in accordance with predetermined rules, and that the reasonableness of any election-related request must be evaluated in view of those rules. Second, it argues that the rule at issue furthers its duty to avoid discrimination in the conduct of the election. Third, it relies on the congressional policy of avoiding unnecessary intervention in the internal affairs of labor unions.

We find these arguments unpersuasive. Rules must, of course, be adopted to govern the process of nominating candidates, casting ballots, and counting votes. Moreover, in connection with the process of distributing campaign literature to the membership, rules that establish the procedures for making mailing requests, selecting a mailing agent, and paying the cost of the mailing are no doubt desirable. The justifications underlying such rules (uniformity of treatment, reduction of administrative burdens) and the fair notice provided to candidates by the existence and publication of such rules all would be relevant in determining whether a request is reasonable. But these concerns in no way dictate a rule prohibiting mailings before a nominating convention. Here, in particular, a preconvention mailing would not place any burden on the Union because the candidate must assume the cost of the mailing. Moreover, in union elections, as in political elections, it is fair to assume that more, rather than less, freedom in the exchange of views will contribute to the democratic process. Here, respondent, by his request for a preconvention mailing, hoped to provide Union members with “more information” with which to inform their voting decisions. App. 14.

The concern about discrimination among individual candidates is surely satisfied by a rule that allows any candidate access to the membership before the convention as well as by a rule that denies all candidates such access. Indeed, arguably opening the channels of communication to all candidates as soon as possible better serves the interest in leveling the playing field because it offsets the inherent advantage that incumbents and their allies may possess through their control of the union press and the electoral lists during the four years in which they have been in office.

The policy of avoiding unnecessary intervention into internal union affairs is reflected in several provisions of the LMRDA. We have already referred to the fact that the right to hold union office protected by § 401(e) is “subject to . . . reasonable qualifications uniformly imposed.” 29 U. S. C. § 481(e). Similarly, the provision in § 101(a)(1) of the LMRDA, 29 U. S. C. § 411(a)(1), governing the right to nominate candidates, to vote in elections, and to attend union meetings is expressly made subject to the union’s “reasonable rules and regulations.” Moreover, the member’s right to speak freely at union meetings is “subject to the organization’s established and reasonable rules pertaining to the conduct of meetings.” 29 U. S. C. §411(a)(2). These expressions of respect for internal union rules are notably absent in § 401(c).

Section 401(c) simply prescribes a straightforward test: Is the candidate’s distribution request reasonable? Having dispensed with the Union’s argument that a request is per se unreasonable simply because it conflicts with a union rule, we need only note again that in this case the Union does not advance any other reason for suggesting that respondent’s request was unreasonable. The Union does not contend, for example, that respondent’s request caused administrative or financial hardship to the Union or that it discriminated against any other candidate. In the absence of any showing by the Union as to the unreasonableness of the request, we hold, consistent with the lower courts’ findings, that respondent’s request was reasonable and must be granted.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

       In the 1980 and 1984 Union elections, the ballots were mailed on the 30th day. App. 57.

       An affidavit of the international president of the Union describes the procedure:
      “The procedure followed under the IOMM&P Constitution for distribution of campaign literature does not permit access to the mailing list for distribution until after nominations have been made. No candidate, including incumbents, may use the mailing list for this purpose before this time. The International Ballot Committee meets after the close of the convention and reviews the qualifications of candidates to ensure their eligibility. Candidates are required to accept nomination within ten days and to certify that they are not prevented from holding office (Article V, section 5). Once all candidates are certified, the Impartial Balloting Agency notifies all candidates at the same time of the conditions for distribution of literature. The mailing agency is selected by the Impartial Balloting Agency and is not the same mailing agency used for other communications to members.” Id., at 60-61.

       Between conventions, the Union is governed by a general executive board, consisting of the international officers and the vice presidents. Id., at 18-19.

       Section 401(c) of the LMRDA provides:
      “Every national or international labor organization, except a federation of national or international labor organizations, and every local labor organization, and its officers, shall be under a duty, enforceable at the suit of any bona fide candidate for office in such labor organization in the district court of the United States in which such labor organization maintains its principal office, to comply with all reasonable requests of any candidate to distribute by mail or otherwise at the candidate’s expense campaign literature in aid of such person’s candidacy to all members in good standing of such labor organization and to refrain from discrimination in favor of or against any candidate with respect to the use of lists of members, and whenever such labor organizations or its officers authorize the distribution by mail or otherwise to members of campaign literature on behalf of any candidate or of the labor organization itself with reference to such election, similar distribution at the request of any other bona fide candidate shall be made by such labor organization and its officers, with equal treatment as to the expense of such distribution. Every bona fide candidate shall have the right, once within 30 days prior to an election of a labor organization in which he is a candidate, to inspect a list containing the names and last known addresses of all members of the labor organization who are subject to a collective bargaining agreement requiring membership therein as a condition of employment, which list shall be maintained and kept at the principal office of such labor organization by a designated official thereof. Adequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots.” 29 U. S. C. § 481(c) (emphasis added).

       A few days after the lawsuit was filed, a representative of the Department of Labor wrote letters to both parties expressing the view that the Union’s denial of respondent’s request violated § 401(c) and was therefore unlawful. See App. 52-54; see also Brief for United States as Amicus Curiae 4.

       The Court of Appeals explained that “[alt]hough the order of the district judge related to an application for a preliminary injunction, the granting of the motion in effect constituted a decision on the merits,” and thus, it reviewed the case on the merits, and “affirmfed] the decision of the district court as one on the merits.” 857 F. 2d, at 216.

       Although the Secretary of Labor had not participated in any of the earlier stages of this litigation, she filed a brief as amicus curiae in support of respondent and participated in oral argument before the en banc panel.

       Indeed, because of irregularities in the conduct of the 1988 election, the Secretary of Labor has persuaded the District Court to order a new election. Respondent remains a candidate for the office of international president in that election. However, presumably at this time no question concerning preconvention mailings remains open in connection with the 1988 election.

       Section 401(e) provides in relevant part:
      “In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office (subject to section 504 and to reasonable qualifications uniformly imposed) and shall have the right to vote for or otherwise support the candidate or candidates of his choice, without being subject to penalty, discipline, or improper interference or reprisal of any kind by such organization or any member thereof.” 29 U. S. C. § 481(e).

      “‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United States, 464 U. S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F. 2d 720, 722 (CA5 1972)); see General Motors Corp. v. United States, 496 U. S. 530, 537-538, 541 (1990).

       Hearings on S. 505 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 86th Cong., 1st Sess., 134 (1959). Consistent with Archibald Cox’s observations, the Union newspaper here was also “the principal and only regular source of news which members have about union affairs.” App. 13.